Page Range | 19319-19612 | |
FR Document |
Page and Subject | |
---|---|
82 FR 19611 - National Volunteer Week, 2017 | |
82 FR 19395 - Temporary Emergency Committee of the Board of Governors; Sunshine Act Meeting | |
82 FR 19382 - Northern California District Resource Advisory Council; Postponement of Meeting | |
82 FR 19457 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Multiple Internal Revenue Service Information Collection Requests | |
82 FR 19456 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Authorization Agreement for Preauthorized Payment | |
82 FR 19456 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Multiple Alcohol and Tobacco Tax and Trade Bureau Information Collection Requests | |
82 FR 19333 - Approval and Promulgation of Air Quality Implementation Plans; Arizona; Regional Haze State and Federal Implementation Plans | |
82 FR 19351 - Agenda and Notice of Public Meeting of the Virginia Advisory Committee | |
82 FR 19368 - Proposed Data Collection Submitted for Public Comment and Recommendations | |
82 FR 19375 - Proposed Data Collection Submitted for Public Comment and Recommendations | |
82 FR 19383 - Silicon Metal from Australia, Brazil, Kazakhstan, and Norway | |
82 FR 19413 - SEC Advisory Committee on Small and Emerging Companies | |
82 FR 19394 - Information Collection: DOE/NRC Form 740M, Concise Note; DOE/NRC Form 741, Nuclear Material Transaction Report; DOE/NRC Form 742, Material Balance Report; DOE/NRC Form 742C, Physical Inventory Listing | |
82 FR 19432 - Notice of Submission Deadline for Schedule Information for Chicago O'Hare International Airport, John F. Kennedy International Airport, Los Angeles International Airport, Newark Liberty International Airport, and San Francisco International Airport for the Winter 2017 Scheduling Season | |
82 FR 19382 - Early Revision of Agency Information Collection for the Application for Admission to Haskell Indian Nations University and to Southwestern Indian Polytechnic Institute | |
82 FR 19325 - Pipeline Safety: Inflation Adjustment of Maximum Civil Penalties | |
82 FR 19319 - Environmental Policies and Procedures; Corrections | |
82 FR 19379 - Certificate of Alternative Compliance for U.S. Coast Guard National Security Cutters | |
82 FR 19356 - Potassium Permanganate From the People's Republic of China; 2016; Partial Rescission of the Antidumping Duty Administrative Review | |
82 FR 19351 - Carton-Closing Staples From the People's Republic of China: Initiation of Less-Than-Fair-Value Investigation | |
82 FR 19429 - California Disaster #CA-00270 Declaration of Economic Injury | |
82 FR 19429 - California Disaster #CA-00271 Declaration of Economic Injury | |
82 FR 19454 - Proposed Collection; Comment Request for Regulation Project | |
82 FR 19390 - Agency Information Collection Activities: Proposed New Information Collection Activity; Comment Request, Proposed Study Entitled “Tribal Youth Victimization Methods Study” | |
82 FR 19455 - Proposed Collection; Comment Request for Regulation Project | |
82 FR 19455 - Proposed Collection; Comment Request for Mortgage Interest Statement | |
82 FR 19454 - Mutual Savings Association Advisory Committee | |
82 FR 19364 - Agency Information Collection Activities; Comment Request; Loan Discharge Applications (DL/FFEL/Perkins) | |
82 FR 19438 - Qualification of Drivers; Exemption Applications; Diabetes Mellitus | |
82 FR 19446 - Qualification of Drivers; Exemption Applications; Diabetes | |
82 FR 19445 - Qualification of Drivers; Exemption Applications; Vision | |
82 FR 19377 - Submission for OMB Review; Comment Request | |
82 FR 19378 - Submission for OMB Review; Comment Request | |
82 FR 19380 - Agency Information Collection Activities: Electronic Visa Update System | |
82 FR 19321 - Drawbridge Operation Regulation; Reynolds Channel, Long Beach, NY | |
82 FR 19322 - Drawbridge Operation Regulation; York River, Yorktown, VA | |
82 FR 19321 - Drawbridge Operation Regulation; Hood Canal, Port Gamble, WA | |
82 FR 19320 - Special Local Regulation; Regattas and Marine Parades in the COTP Lake Michigan Zone-Chinatown Chamber of Commerce Dragon Boat Race, Chicago, IL | |
82 FR 19435 - Qualification of Drivers; Exemption Applications; Diabetes | |
82 FR 19433 - Qualification of Drivers; Exemption Applications; Diabetes Mellitus | |
82 FR 19350 - Nez Perce-Clearwater National Forests, Palouse Ranger District; Idaho; Moose Creek Project | |
82 FR 19357 - 36(b)(1) Arms Sales Notification | |
82 FR 19363 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Consolidated State Plan Assurances Template | |
82 FR 19370 - Proposed Data Collection Submitted for Public Comment and Recommendations | |
82 FR 19373 - Proposed Data Collection Submitted for Public Comment and Recommendations | |
82 FR 19371 - Proposed Data Collection Submitted for Public Comment and Recommendations | |
82 FR 19376 - Agency Forms Undergoing Paperwork Reduction Act Review | |
82 FR 19447 - FY 2017 Competitive Funding Opportunity: Low or No Emission Grant Program | |
82 FR 19322 - Structure and Practices of the Video Relay Services Program | |
82 FR 19347 - Structure and Practices of the Video Relay Services Program | |
82 FR 19391 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; On the Road to Retirement Surveys | |
82 FR 19331 - Safety Zone; South Branch of the Chicago River and Chicago Sanitary and Ship Canal, Chicago, IL, Tough Cup | |
82 FR 19393 - Request for Recommendations for Membership on Directorate and Office Advisory Committees | |
82 FR 19392 - Advisory Committee for International Science and Engineering; Notice of Meeting | |
82 FR 19392 - Proposal Review Panel for Materials Research; Notice of Meeting | |
82 FR 19396 - Proposed Collection; Comment Request | |
82 FR 19367 - TransCanada Hydro Northeast Inc.; Notice of Application Accepted for Filing and Soliciting Comments, Motions To Intervene, and Protests | |
82 FR 19365 - Navitas TN NG, LLC; Notice of Application | |
82 FR 19366 - Navitas KY NG, LLC; Notice of Application | |
82 FR 19364 - Northwest Pipeline LLC; Notice of Application | |
82 FR 19367 - Combined Notice of Filings #1 | |
82 FR 19380 - National Protection and Programs Directorate, Office of Emergency Communications, SAFECOM Nationwide Survey | |
82 FR 19414 - Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Relating to Rule 5.7 | |
82 FR 19412 - Self-Regulatory Organizations; ICE Clear Credit LLC; Notice of Designation of Longer Period for Commission Action on Proposed Rule Change, Security-Based Swap Submission, or Advance Notice Relating to ICC's End-of-Day Price Discovery Policies and Procedures | |
82 FR 19413 - Self-Regulatory Organizations; Bats BZX Exchange, Inc.; Notice of Designation of a Longer Period for Commission Action on a Proposed Rule Change, as Modified by Amendment Nos. 3 and 4, To List and Trade Shares of the Amplify YieldShares Oil Hedged MLP Fund, a Series of the Amplify ETF Trust, Under BZX Rule 14.11(i), Managed Fund Shares | |
82 FR 19427 - Self-Regulatory Organizations; NASDAQ PHLX, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Rule 1002 of the Exchange's Rules To Establish Certain Exemptions From Exercise Limits | |
82 FR 19426 - Self-Regulatory Organizations; ICE Clear Credit LLC; Notice and Immediate Effectiveness of Proposed Rule Change, Security-Based Swap Submission, or Advance Notice Relating to Clearance of Additional Credit Default Swap Contracts | |
82 FR 19398 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Amendment No. 1, and Order Instituting Proceedings To Determine Whether To Approve or Disapprove a Proposed Rule Change, as Modified by Amendment No. 1, Relating to the Listing and Trading of Shares of the Bitcoin Investment Trust Under NYSE Arca Equities Rule 8.201 | |
82 FR 19397 - Self-Regulatory Organizations; NYSE Arca, Inc.; Order Instituting Proceedings To Determine Whether To Approve or Disapprove a Proposed Rule Change Relating to the Listing and Trading of Shares of the EtherIndex Ether Trust Under NYSE Arca Equities Rule 8.201 | |
82 FR 19416 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing of Amendment No. 1 to a Proposed Rule Change Allowing the Exchange To Trade, Pursuant to Unlisted Trading Privileges, Any NMS Stock Listed on Another National Securities Exchange; Establishing Rules for the Trading Pursuant to UTP of Exchange-Traded Products; and Adopting New Equity Trading Rules Relating to Trading Halts of Securities Traded Pursuant to UTP on the Pillar Platform | |
82 FR 19430 - Bull Run Fossil Plant Landfill | |
82 FR 19378 - Eunice Kennedy Shriver National Institute of Child Health and Human Development; Notice of Closed Meetings | |
82 FR 19379 - Eunice Kennedy Shriver National Institute of Child Health and Human Development; Notice of Meeting | |
82 FR 19378 - National Heart, Lung, and Blood Institute; Notice of Closed Meeting | |
82 FR 19359 - 36(b)(1) Arms Sales Notification | |
82 FR 19453 - Announcement Type: Notice and Request for Public Comment | |
82 FR 19430 - Notice of Determinations; Culturally Significant Objects Imported for Exhibition Determinations: “Edvard Munch: Between the Clock and the Bed” Exhibition | |
82 FR 19385 - David D. Moon, D.O.; Decision and Order | |
82 FR 19432 - Petition for Exemption; Summary of Petition Received | |
82 FR 19383 - Robert Clark Maiocco, M.D.; Decision and Order | |
82 FR 19329 - Proposed Amendment of Class E Airspace; Colorado City, AZ | |
82 FR 19530 - Takes of Marine Mammals Incidental to Specified Activities; U.S. Navy Training Activities in the Gulf of Alaska Temporary Maritime Activities Area | |
82 FR 19361 - Supplemental Notice of Intent To Prepare a Draft Environmental Impact Statement (DEIS) for the Proposed Mid-Barataria Sediment Diversion, in Plaquemines Parish, Louisiana | |
82 FR 19460 - Taking and Importing Marine Mammals: Taking Marine Mammals Incidental to U.S. Navy Operations of Surveillance Towed Array Sensor System Low Frequency Active Sonar | |
82 FR 19330 - General Administration: Designation of Central and Field Organization; Internal Organization |
Farm Service Agency
Forest Service
Rural Business-Cooperative Service
Rural Housing Service
Rural Utilities Service
International Trade Administration
National Oceanic and Atmospheric Administration
Engineers Corps
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Children and Families Administration
National Institutes of Health
Coast Guard
U.S. Customs and Border Protection
Indian Affairs Bureau
Land Management Bureau
Drug Enforcement Administration
National Institute of Justice
Federal Aviation Administration
Federal Motor Carrier Safety Administration
Federal Transit Administration
Pipeline and Hazardous Materials Safety Administration
Community Development Financial Institutions Fund
Comptroller of the Currency
Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
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Rural Business-Cooperative Service, Rural Housing Service, Rural Utilities Service, Farm Service Agency, USDA.
Correcting amendments.
The Rural Business-Cooperative Service, Rural Housing Service, Rural Utilities Service, and Farm Service Agency published a document in the
This rule is effective April 27, 2017.
Kellie M. Kubena, Director, Engineering and Environmental Staff, Rural Utilities Service, Stop 1571, 1400 Independence Ave. SW., Washington, DC 20250-1571; email:
The Rural Business-Cooperative Service, Rural Housing Service, Rural Utilities Service, and Farm Service Agency published a document in the
Administrative practice and procedure, Grant programs—Housing and community development, Home improvement, Loan programs—Housing and community development, Migrant labor, Nonprofit organizations, Reporting requirements, Rural housing.
Government acquired property, Government property management, Sale of government acquired property, Surplus government property.
Agriculture, bankruptcy, drug traffic control, Government property, Loan programs—agriculture, Loan programs—housing and community development, Rural areas.
Accordingly, 7 CFR chapter XVIII is amended by making the following correcting amendments:
5 U.S.C. 301; 42 U.S.C. 1480.
(g) Grantees must contact Rural Development prior to actual usage of funds by the grantees under § 1944.664 (c)(11) of this subpart. Rural Development must complete the appropriate level of environmental review in accordance with part 1970 of this chapter.
5 U.S.C. 301; 7 U.S.C. 1989; 42 U.S.C. 1480.
* * * In addition, prior to acceptance of a voluntary conveyance of farm real property that collateralizes an FP loan, the County Supervisor will remind the borrower-owner of possible deed restrictions and easement that may be placed on the property in the event the property contains wetlands, floodplains, historical sites and/or other federally protected environmental resources as set forth in part 1970 of this chapter and § 1955.137 of this part . * * *
(b) * * * The environmental effects of such actions will be considered pursuant to part 1970 of this chapter.
* * * The requirements of part 1970 of this chapter will be met for all leases.
(a) * * *
(3) * * *
(iv) Property sold on credit sale may not be used for any purpose that will contribute to excessive erosion of highly erodible land or to the conversion of wetlands to produce an agricultural commodity. * * *
(a) Prior to a final decision on some disposal actions, the action must comply with the environmental review requirements in accordance with the agency's environmental policies and procedures found in 7 CFR part 1970.
(a) * * *
(3) * * * (i) Financial assistance is limited to property located in areas where flood insurance is available. Flood insurance must be provided at closing of loans on program-eligible and non-program (NP)-ineligible terms. Appraisals of property in flood or mudslide hazard areas will reflect this condition and any restrictions on use. Financial assistance for substantial improvement or repair of property located in a flood or mudslide hazard area is subject to the limitations outlined in 7 CFR part 1970 for Rural Development programs.
(a) * * *
(3) * * *
(v) * * * Examples of instances where an affirmative responsibility exists to place an easement on a farm property include wetland and floodplain conservation easements required by § 1955.137 of this subpart or easements designed as environmental mitigation measures for the purpose of protecting federally designated important environmental resources. * * *
(a) Individual property subdivided. An individual property, other than Farm Loan Programs property, may be offered for sale as a whole or subdivided into parcels as determined by the State Director. For MFH property, guidance will be requested from the National Office for all properties other than RHS projects. When farm inventory property is larger than a family-size farm, the county official will subdivide the property into one or more tracts to be sold in accordance with § 1955.107. Division of the land or separate sales of portions of the property, such as timber, growing crops, inventory for small business enterprises, buildings, facilities, and similar items may be permitted if a better total price for the property can be obtained in this manner. Environmental review requirements must comply with 7 CFR part 1970. Any applicable State laws will be set forth in a State supplement and will be complied with in connection with the division of land. Subdivision of acquired property will be reported on Form RD 1955-3C, “Acquired Property—Subdivision,” in accordance with the FMI.
5 U.S.C. 301; 7 U.S.C. 1989; 42 U.S.C. 1480.
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce the special local regulation on the South Branch of the Chicago River for the Chinatown Chamber of Commerce Dragon Boat Race in Chicago, Illinois. This regulated area will be enforced from 8 a.m. until 5 p.m. on June 24, 2017. This action is necessary and intended to ensure safety of life and property on navigable waters prior to, during, and immediately after the Dragon Boat Race. During the enforcement period, no vessel may enter, transit through, or anchor within the regulated area without the approval from the Captain of the Port or a designated representative.
The regulation in 33 CFR 100.909 will be enforced from 8 a.m. until 5 p.m. on June 24, 2017.
If you have questions about this notice of enforcement, call or email LT Lindsay Cook, Waterways Management Division, Marine Safety Unit Chicago, at 630-986-2155, email address
The Coast Guard will enforce a special local regulation in 33 CFR 100.909 from 8 a.m. until 5 p.m. on June 24, 2017, for the Chinatown Chamber of Commerce Dragon Boat Race. This action is being taken to provide for the safety of life on a navigable waterway during the regatta. The Chinatown Chamber of Commerce Dragon Boat Race; Chicago, IL, § 100.909, specifies the location of the regulated area as all waters of the South Branch of the Chicago River from the West 18th St. Bridge at position 41°51′28″ N., 087°38′06″ W. to the Amtrak Bridge at position 41°51′20″ N., 087°38′13″ W. (NAD 83). During the enforcement period, no vessel may transit this regulated area without approval from the Captain of the Port Lake Michigan or a designated representative.
Vessels that obtain prior approval to transit the regulated area are required to
This notice of enforcement is issued under authority of 33 CFR 100.909, Chinatown Chamber of Commerce Dragon Boat Race; Chicago, IL and 5 U.S.C. 552(a). The Coast Guard will provide the maritime community with advance notice of the enforcement of this special local regulation via Broadcast Notice to Mariners and Local Notice to Mariners. The Captain of the Port Lake Michigan, or a designated on-scene representative may be contacted via Channel 16, VHF-FM.
Coast Guard, DHS.
Notice of deviation from drawbridge regulation.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the Hood Canal Floating Drawbridge across Hood Canal (Admiralty Inlet), mile 5.0, near Port Gamble, WA. This deviation is necessary to accommodate replacement of the draw span operating equipment. The deviation allows the bridge to open the draw half-way, 300 feet; as opposed to a full opening, which is 600 feet. The deviation also requires the draw to open on signal if at least four hours notice is given.
This deviation is effective from 6 a.m. on May 1, 2017, to 7 p.m. on September 30, 2017.
The docket for this deviation, USCG-2017-0213 is available at
If you have questions on this temporary deviation, call or email Mr. Steven Fischer, Bridge Administrator, Thirteenth Coast Guard District; telephone 206-220-7282, email
The Washington Department of Transportation (WSDOT) has requested a temporary deviation from the operating schedule of the Hood Canal Floating Drawbridge be allowed to only open half of the draw span to facilitate safe and uninterrupted draw span equipment replacement. The Hood Canal Floating Drawbridge crosses Hood Canal, mile 5.0, near Port Gamble, WA. The bridge has two fixed spans (east and west), and one draw span (center). The east span provides 50 feet of vertical clearance, the west span provides 35 feet of vertical clearance and the center span provides zero feet of vertical clearance in the closed-to-navigation position. The center span provides unlimited vertical clearance in the open-to-navigation position. Vertical clearances are referenced to mean high-water elevation. The deviation period allows the center span of the Hood Canal Floating Drawbridge across Hood Canal, mile 5.0, to only open half-way after contact the bridge operator has been at least four hours prior to signaling for an opening from 6 a.m. on May 1, 2017, until 7 p.m. on September 30, 2017.
During the time of the deviation, the drawbridge will not be able to operate according to the normal operating schedule. The normal operating schedule for the bridge is in accordance with 33 CFR 117.1045. The bridge shall operate in accordance to 33 CFR 117.1045 at all other times. Waterway usage on this part of Hood Canal includes commercial tugs and barges, U.S. Navy and U.S. Coast Guard vessels, and small pleasure craft. Coordination has been completed with known waterway users, and no objections to the deviation have been received.
Vessels able to pass through the east and west spans may do so at any time. The center span does not provide passage in the closed-to-navigation position. The bridge will be able to open half the center span for Navy and Coast Guard vessels during emergencies, when at least a one hour notice has been given by the Department of the Navy or U.S. Coast Guard. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessels can arrange their transits to minimize any impact caused by the temporary deviation.
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Coast Guard, DHS.
Notice of deviation from drawbridge regulation.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the Long Beach Bridge across Reynolds Channel, mile 4.7, at Long Beach, New York. This deviation is necessary in order to facilitate an annual fireworks display and allows the bridge to remain in the closed position for one hour.
This deviation is effective from 9:30 p.m. on July 7, 2017 to 10:30 p.m. on July 9, 2017.
The docket for this deviation, USCG-2017-0291 is available at
If you have questions on this temporary deviation, call or email James M. Moore, Bridge Management Specialist, First District Bridge Branch, U.S. Coast Guard; telephone 212-514-4334, email
The City of Long Beach Police Department requested and the bridge owner, Nassau County of Public Works, concurred with a temporary deviation request from the
The Long Beach Bridge, mile 4.7, across Reynolds Channel, has a vertical clearance of 22 feet at mean high water and 24 feet at mean low water in the closed position. The existing drawbridge operating regulations are listed at 33 CFR 117.799(g).
This temporary deviation will allow the Long Beach Bridge to remain closed from 9:30 p.m. through 10:30 p.m. on July 7, 2017 with rain dates of July 8, 2017 and July 9, 2017. The waterway is used primarily by seasonal recreational vessels and occasional tug/barge traffic. Coordination with waterway users has indicated no objections to this short-term closure of the draw.
Vessels that can pass under the bridge without an opening may do so at all times. The bridge will be able to open for emergencies. There is no alternate route for vessels to pass.
The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Coast Guard, DHS.
Notice of deviation from drawbridge regulations.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the Coleman Memorial (US 17) Bridge which carries US 17 across the York River, mile 7.0, at Yorktown, VA. The deviation is necessary to facilitate bridge maintenance. This deviation allows the bridge to remain in the closed-to-navigation position.
The deviation is effective from 5:30 a.m. on Sunday, May 7, 2017, through 8 a.m. on Sunday, May 14, 2017.
The docket for this deviation, [USCG-2017-0245] is available at
If you have questions on this temporary deviation, call or email Mr. Michael Thorogood, Bridge Administration Branch Fifth District, Coast Guard, telephone 757-398-6557, email
The Virginia Department of Transportation, owner and operator of the Coleman Memorial (US 17) Bridge, that carries US 17 across the York River, mile 7.0, at Yorktown, VA, has requested a temporary deviation from the current published schedule to test the manual operating capabilities of each swing span of the drawbridge. The bridge has a vertical clearance of 60 feet above mean high water (MHW) in the closed position and unlimited vertical clearance in the open position. The current operating schedule is set out in 33 CFR 117.1025. Under this temporary deviation, the bridge will be in the closed-to-navigation position from 5:30 a.m. to 8 a.m., on Sunday, May 7, 2017; with an alternative date on Sunday, May 14, 2017.
The York River is used by a variety of vessels including recreational, tug and barge traffic, fishing vessels, and small commercial vessels. The Coast Guard has carefully coordinated the restrictions with waterway users in publishing this temporary deviation.
Vessels able to pass through the bridge in the closed-to-navigation position may do so at any time. The bridge will be able to open for emergencies, if at least 30 minutes notice is given, and there is no immediate alternative route for vessels unable to pass through the bridge in the closed position. The Coast Guard will also inform the users of the waterway through our Local Notice and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Federal Communications Commission.
Final rule.
In this document, the Commission's Consumer and Governmental Affairs Bureau (Bureau or CGB), pursuant to delegated authority, adopts amendments to the Commission's telecommunications relay services (TRS) rules to incorporate technical standards to improve the interoperability and portability of services, equipment, and software used for video relay services (VRS) to enhance functional equivalence and VRS availability for consumers, ease of compliance by providers, and overall efficiency in the operation of VRS.
Bob Aldrich, Consumer and Governmental Affairs Bureau (202) 418-0996, email
This is a summary of
The Office of the Federal Register (OFR) requires that agencies must discuss in the preamble of a final rule ways that the materials the agency is incorporating by reference are reasonably available to interested parties. In addition, the preamble of the final rule must summarize the material. The US VRS Provider Profile TWG-6-1, the US Video Relay Service (VRS) Provider Interoperability Profile, Version 15, (2015) (VRS Provider Interoperability Profile), provides technical specifications for the interface between VRS providers and the interface between a VRS provider and the TRS Numbering Directory. The document is available from the Federal Communications Commission, 445 12th Street SW., Washington, DC 20554, (202) 418-0270,
The Commission will send a copy of document DA 17-76 to Congress and the Government Accountability Office pursuant to the Congressional Review Act,
Document DA 17-76 does not contain any new or modified information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
1. In document DA 17-76, the Bureau pursuant to delegated authority provided by the Commission in the
2. The VRS Provider Interoperability Profile provides technical specifications for the interface between two VRS providers, as well as the interface between a VRS provider and the TRS Numbering Directory. The TRS Numbering Directory is a database that enables the routing of VRS and point-to-point video calls that originate and terminate with different VRS providers. The Bureau concludes that the VRS Provider Interoperability Profile will advance the Commission's goals of ensuring interoperability and portability and will “advance the statutory functional equivalency mandate [and] improve the availability of TRS, in the most efficient manner,” in accordance with the 2013 VRS Reform Order. Specifically, this standard will provide a common framework for provider compliance and specific criteria for assessing such compliance and will thereby increase the certainty that all VRS users can place and receive calls through any VRS provider and make point-to-point calls to all other VRS users, irrespective of the default provider of the parties to the call, and without the caller having to change the VRS access technology used to make such calls. The Bureau therefore adopts the proposal to incorporate the VRS Provider Interoperability Profile by reference.
3. The RUE Profile provides technical specifications that define a standard interface between a relay user's equipment and the services offered by relay service providers. The RUE Profile thus addresses a number of technical issues not governed by the VRS Provider Interoperability Profile. By specifying a basic interface that is usable with any provider, so that a user can freely access any provider and switch to a different default provider, without the need to change equipment or software and without experiencing any inconvenience or disruption of communications functions, the RUE Profile appears to advance the goal of full functional equivalence, potentially allowing VRS consumers the same degree of equipment portability that wireline voice communications users have enjoyed for decades. Although the Consumer Groups support the incorporation by reference of the RUE Profile in the VRS interoperability rule, VRS providers claim that the purpose of the RUE Profile, as developed, is limited to defining an interface between user equipment utilizing the VRS access technology reference platform, now known as the Accessible Communications for Everyone (ACE) Application, or “ACE App,” and VRS providers' networks. They contend that a rule requiring all provider-distributed VRS user hardware and software to comply with the RUE Profile would impose major costs and burdens on VRS providers.
4. In document DA 17-76, the Bureau incorporates the RUE Profile by reference into the interoperability rule, but on a limited basis that preserves providers' flexibility to continue offering user equipment and software that does not conform to the RUE Profile in all respects, pending further determinations in this proceeding. The Bureau recognizes the concerns raised by the providers that immediate application of the RUE Profile as a whole to all user equipment and software may not be feasible without resulting in significant disruption of existing user arrangements. Accordingly, the rule the Bureau adopts requires VRS providers to comply with the RUE Profile only for purposes of ensuring provider interoperability with the ACE App. The Bureau defers to the Further Notice of Proposed Rulemaking the question of to what extent, and on what timetable, the RUE Profile should be more broadly applied to existing and prospective access technology offered by providers.
5. The Commission previously amended its rules to require VRS providers to “ensure that their VRS access technologies and their video communications service platforms are interoperable with the [ACE App].” To ensure that the ACE App interoperability requirement is enforceable, the Bureau adopts a rule that incorporates the RUE Profile by reference into the existing rule requiring interoperability between provider services and the ACE App. As the Bureau expects that the ACE App will be released in the near future in a version suitable for interoperability testing, the Bureau concludes that it is reasonable to allow one year for VRS providers to complete software development, testing, and deployment to ensure that their networks are interoperable with the ACE App.
6. In the 2013 VRS Reform Order, the Commission mandated that standards for the transfer of users' contact and speed dial lists be broadly applicable to all VRS access technologies. The RUE Profile specifies such a standard data interchange format, RFC 6351, the xCard XML Format.
7. Accordingly, the Bureau amends the rules to incorporate into the existing interoperability and portability rules the xCard specification referenced in the RUE Profile.
8. The Bureau adopts the following procedure for incorporating amendments or changes to the VRS Provider Interoperability Profile and the RUE Profile into the Commission's rules in a timely and efficient manner. Under this procedure, CGB will make the updated standard available to the public online and issue a public notice seeking comment on such modifications, followed by an order incorporating into the VRS rules amendments or changes by reference if justified based on the resulting record. When such revised standards are completed and accepted by the Bureau, a second public notice will be issued containing information on how to access the modified standards and establishing an implementation schedule.
9. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Bureau incorporated an Initial Regulatory Flexibility Analysis (IRFA) into Structure and Practices of the Video Relay Service Program; Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities, Further Notice of Proposed Rulemaking, published at 81 FR 57851, August 24, 2016 (August FNPRM). The Commission sought written public comment on the proposals in the August FNPRM, including comment on the IRFA. No comments were received on the IRFA.
10. In document DA 17-76, the TRS rules are amended to incorporate by reference the technical standards for interoperability and portability of VRS services and equipment developed by the SIP Forum's VRS Task Group and a successor group, the RUE Forum.
11. The VRS Provider Interoperability Profile provides technical specifications for the interface between two VRS providers, as well as the interface between a VRS provider and the TRS Numbering Directory. The Bureau concludes that incorporation of the VRS Provider Interoperability Profile will advance the Commission's goals of ensuring interoperability and portability, as required by the
12. The RUE Profile specifies a technical standard for the interface between a provider and user software. Because the Commission mandated that standards for the transfer of users' contact and speed dial lists be broadly applicable to all VRS access technologies, the Bureau amends the interoperability rule to incorporate by reference the xCard specification referenced in the RUE Profile. Further, the Bureau incorporates the complete RUE Profile into the requirement that VRS providers “ensure that their VRS access technologies and their video communications service platforms are interoperable with the [ACE App].”
13. In addition, document DA 17-76 adopts a process that will readily enable revisions to this rule to reflect future amendments or changes in these standards by issuing a public notice seeking comment on such modifications, followed by an order incorporating into the VRS rules amendments or changes by reference if justified based on the resulting record, after which a second public notice will be issued containing information on how to access the modified standards online and establishing an implementation schedule.
14. No comments were filed in response to the IRFA.
15. The rules adopted in document DA 17-76 will affect obligations of providers of VRS. Affected small entities as defined by industry are as follows.
• All Other Telecommunications.
• VRS Providers, which are generally classified within the broad category of “All Other Telecommunications.”
16. The rule changes adopted in the document DA 17-76 modify rules governing compliance obligations. Specifically, VRS providers must modify their networks,
17. Steps Taken To Minimize Significant Impact on Small Entities and Significant Alternatives Considered
18. In general, alternatives to final rules are discussed only when those rules pose a significant adverse economic impact on small entities. In this context, however, the proposed rules generally confer benefits. In particular, technical standards for interoperability benefit the smaller VRS providers because consumers find the services of smaller providers to be more
Pursuant to sections 1, 2, 4(i), 4(j), 225 and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 154(j), 225, 303(r), and the authority delegated by the Commission in
The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of document DA 17-76, including the Final Regulatory Flexibility Analysis to the Chief Counsel for Advocacy of the Small Business Administration.
Incorporation by reference, Individuals with disabilities, Telecommunications relay services, Video relay services.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 part 64 as follows:
47 U.S.C. 154, 225, 254(k); 403(b)(2)(B), (c), 715, Pub. L. 104-104, 110 Stat. 56. Interpret or apply 47 U.S.C. 201, 218, 222, 225, 226, 227, 228, 254(k), 616, 620, and the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. 112-96, unless otherwise noted.
(a) * * *
(3) Beginning no later than April 27, 2018, all VRS providers must ensure that their VRS access technologies and their video communication service platforms are interoperable with the VRS Access Technology Reference Platform, including for point-to-point calls, in accordance with the Interoperability Profile for Relay User Equipment (RUE Profile). No VRS provider shall be compensated for minutes of use involving their VRS access technologies or video communication service platforms that are not interoperable with the VRS Access Technology Reference Platform.
(b)
(2) Beginning no later than October 24, 2017, VRS providers shall provide a standard xCard export interface to enable users to import their lists of contacts in xCard XML format, in accordance with IETF RFC 6351.
(c)
(1) FCC (on behalf of SIP Forum), 445 12th Street SW., Washington, DC 20554, (888) 225-5322 (voice), (844) 432-2275 (videophone), (888) 835-5322 (TTY).
(i) VRS US Providers Profile TWG-6.1, the US VRS Provider Interoperability Profile, September 23, 2015.
(ii) [Reserved]
(2) The following standards are available from the Internet Engineering Task Force (IETF) Secretariat, 5177 Brandin Court, Fremont, CA 94538, 510-492-4080.
(i) The Interoperability Profile for Relay User Equipment, draft-vrs-rue-dispatch-00, July 20, 2016
(ii) Request for Comments (RFC) 6351, xCard: vCard XML Representation (August 2011)
Pipeline and Hazardous Materials Safety Administration (PHMSA), Department of Transportation (DOT).
Final rule.
The Pipeline and Hazardous Materials Safety Administration (PHMSA) is revising references in its regulations to the maximum civil penalties for violations of Federal pipeline safety laws, or any PHMSA regulations or orders issued thereunder. Under the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, which further amended the Federal Civil Penalties Inflation Adjustment Act of 1990, Federal agencies are required to adjust their civil monetary penalties effective January 15, 2017, and annually thereafter, to account for changes in inflation.
PHMSA finds good cause to amend the regulations related to civil penalties without notice or opportunity for public comment. Advance public notice is
The effective date of this final rule is April 27, 2017.
Ahuva Battams, Attorney-Advisor, Pipeline Safety Division, Office of Chief Counsel, the Pipeline and Hazardous Materials Safety Administration, by telephone at 202-366-4400 or email at
On June 30, 2016, PHMSA published an interim final rule, (81 FR 42564) in the
Pursuant to the 2015 Act, and consistent with the process outlined in the OMB memorandum titled “Memorandum for the Heads of Executive Departments and Agencies: Implementation of the 2017 annual adjustment pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015,” M-17-11 (OMB Memorandum M-17-11), PHMSA is again revising references in these regulations to the maximum civil penalties for violations. Based on the cost-of-living adjustment multiplier for 2017, derived from the Consumer Price Index (CPI-U) for the month of October 2016 (not seasonally adjusted), a multiplier of 1.01636 was used to calculate updated maximum civil penalty amounts.
The revised penalties are as follows:
The 2015 Act only applies to prospective penalties and does not retrospectively change any civil penalties previously assessed or enforced. Further, under the 2015 Act, PHMSA is required to publish annual inflation adjustments for each penalty levied under 49 U.S.C. 60101,
The 2015 Act does not alter PHMSA's existing authority to assess penalties levied for violations under 49 U.S.C. 60101,
PHMSA is proceeding directly to a final rule without providing a notice of proposed rulemaking or an opportunity for public comment. This action is permitted, in part, because the 2015 Act directs PHMSA to adjust the civil monetary penalties in accordance with the schedule provided in the 2015 Act, notwithstanding the notice and public comment procedures in the Administrative Procedure Act (APA). However, PHMSA also notes that the APA authorizes agencies to forego providing the opportunity for prior public notice and comment if an agency finds good cause that notice and public procedure are “impracticable, unnecessary, or contrary to the public interest” (5 U.S.C. 553(b)(3)(B)). In this instance, public comment is unnecessary because by making these technical amendments, PHMSA is not exercising discretion in a way that could be informed by public comment. PHMSA is required under the 2015 Act and directed by the OMB Guidance to publish this final rule by January 15, 2017, with the penalty levels stated herein slated to take effect on that date. Further, PHMSA is mandated by the 2015 Act and directed by the OMB Guidance to adjust the penalty levels pursuant to the specific procedures also stated herein. Any public comments received through notice and public procedure would therefore not affect PHMSA's obligation to comply with the 2015 Act, nor would they affect the methods used by PHMSA to adjust the penalty levels.
This final rule is published under the authority of the 2015 Act, as well 49 U.S.C. 60101,
This final rule has been evaluated in accordance with existing DOT policies and procedures and determined to be non-significant under Executive Order 12866, Regulatory Planning and Review, 58 FR 51735 (October 4, 1993), and Executive Order 13563, Improving Regulation and Regulatory Review, 76 FR 3821 (January 21, 2011). Consistent with guidance in OMB Memorandum M-17-11, this final rule is considered to be a non-significant regulatory action under Executive Order 12866. Further, this final rule is not significant under the regulatory policies and procedures of the DOT because it is limited to a ministerial act in which the agency has no discretion and where the economic impact of the final rule is minimal (44 FR 11034). Accordingly, preparation of a regulatory evaluation is not warranted.
This final rule imposes no new costs upon persons conducting operations in compliance with Federal pipeline statutes and regulations. Those operators not in compliance with these statues and regulations may experience an increased cost based on the penalties levied against them for non-compliance; however, this is an avoidable, variable cost and thus is not considered in any evaluation of the significance of this regulatory action. The amendments in this final rule could provide a deterrent effect that could potentially lead to safety benefits; however, PHMSA does not expect such benefits to be significant. Overall, it is anticipated that costs and benefits from this final rule would be minimal in real dollars.
PHMSA has analyzed this final rule according to Executive Order 13132 on Federalism, 64 FR 43255 (August 10, 1999). The final rule does not have a substantial direct effect on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. The final rule neither imposes substantial direct compliance costs on State and local governments nor preempts state law governing intrastate pipelines. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.
This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13175 on consultation and coordination with Indian tribal governments, 65 FR 67249 (November 9, 2000). Because the final rule does not have tribal implications, does not impose substantial direct compliance costs, and is required by statute, the funding and consultation requirements of Executive Order 13175 do not apply.
This final rule is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use, 66 FR 28355 (May 22, 2001). It is not likely to have a significant adverse effect on supply, distribution, or energy use. Further, the Office of Information and Regulatory Affairs (OIRA) within OMB has not designated this final rule as a significant energy action.
The Regulatory Flexibility Act, 5 U.S.C. 601-611, requires each agency to analyze proposed regulations and assess their impact on small businesses and other small entities to determine whether this final rule is expected to have a significant impact on a substantial number of small entities. The provisions of this final rule may apply specifically to all businesses using pipelines to transport hazardous liquids, gas, and liquefied natural gas (LNG) in interstate commerce. Therefore, PHMSA certifies this final rule would not have a significant economic impact on a substantial number of small entities.
This final rule imposes no new requirements for recordkeeping or reporting.
This final rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995, Public Law 104-4. It does not result in costs of $100 million or more (adjusted for inflation) in any year for either State, local, or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objective of the final rule.
The National Environmental Policy Act of 1969 (NEPA), as amended, requires Federal agencies to consider the consequences of major Federal actions and prepare a detailed statement on actions significantly affecting the quality of the human environment (42 U.S.C. 4321-4375). When developing potential regulatory requirements, PHMSA evaluates those requirements to consider the environmental impact of these amendments. Specifically, PHMSA evaluates the risk of release and resulting environmental impact; the risk to human safety, including any risk to first responders; if the proposed regulation would be carried out in a defined geographic area; and the resources, especially in environmentally sensitive areas, that could be impacted by any proposed regulations.
This final rule would be generally applicable to pipeline operators, and would not be carried out in a defined geographic area. The adjusted, increased civil penalties listed in this final rule may act as a deterrent to those violating Federal pipeline safety laws, or any PHMSA regulations or orders issued thereunder. This may result in a positive environmental impact as a result of increased compliance with Federal pipeline safety laws and any PHMSA regulations or orders issued thereunder. Based on the above discussion, PHMSA concludes there are no significant environmental impacts associated with this final rule.
Under Executive Order 13609, Promoting International Regulatory Cooperation, agencies must consider whether the impacts associated with significant variations between domestic and international regulatory approaches are unnecessary or may impair the ability of American business to export and compete internationally, 77 FR 26413 (May 4, 2012). In meeting shared challenges involving health, safety, labor, security, environmental, and other issues, international regulatory cooperation can identify approaches that are at least as protective as those that are or would be adopted in the absence of such cooperation. International regulatory cooperation can also reduce, eliminate, or prevent unnecessary differences in regulatory requirements.
Similarly, 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 any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. For purposes of these requirements, Federal agencies may participate in the establishment of
PHMSA participates in the establishment of international standards in order to protect the safety of the American public, and we have assessed the effects of this final rule to ensure that it does not cause unnecessary obstacles to foreign trade. Accordingly, this final rule is consistent with Executive Order 13609 and PHMSA's obligations.
Anyone is able to search the electronic form of written communications and comments received into our dockets by the name of the individual submitting the document (or signing the document, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement, published on April 11, 2000 (65 FR 19476), in the
A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in the spring and fall of each year. The RIN contained in the heading of this document can be used to cross-reference this action in the Unified Agenda.
Sections 3 and 4 of Executive Order 13609 direct an agency to conduct a regulatory analysis and ensure that a proposed rule does not cause unnecessary obstacles to foreign trade. This requirement applies if a rule constitutes a significant regulatory action, or if a regulatory evaluation must be prepared for the rule. This interim final rule is not a significant regulatory action, but a regulatory action under Section 3(e) of Executive Order 12866. PHMSA is not required under Executive Orders 12866 and 13563 to submit a regulatory analysis.
Administrative practice and procedure, Penalties, Pipeline safety.
Accordingly, the interim rule amending 49 CFR part 190 which was published at 81 FR 42564 on June 30, 2016, is adopted as a final rule with the following changes:
33 U.S.C. 1321(b); 49 U.S.C. 60101
(a) Any person found to have violated a provision of 49 U.S.C. 60101,
(c) Any person found to have violated any standard or order under 49 U.S.C. 60103 is subject to an administrative civil penalty not to exceed $76,352, which may be in addition to other penalties to which such person may be subject under paragraph (a) of this section.
(d) Any person who is determined to have violated any standard or order under 49 U.S.C. 60129 is subject to an administrative civil penalty not to exceed $1,214, which may be in addition to other penalties to which such person may be subject under paragraph (a) of this section.
Federal Aviation Administration (FAA), DOT.
Notice of Proposed Rulemaking (NPRM).
This action proposes to modify Class E airspace extending upward from 700 feet above the surface at Colorado City Municipal Airport, Colorado City, AZ, to support the implementation of new Area Navigation (RNAV) Global Positioning System (GPS) standard instrument approach procedures for instrument flight rules (IFR) operations at the airport. Also, this action would update the geographic coordinates of the airport to match the FAA's current aeronautical database.
Comments must be received on or before June 12, 2017.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12-140, Washington, DC 20590; telephone:1-800-647-5527, or (202) 366-9826. You must identify FAA Docket No. FAA-2017-0258; Airspace Docket No. 16-AWP-15, at the beginning of your comments. You may also submit comments through the Internet at
FAA Order 7400.11A, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
Tom Clark, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA 98057; telephone (425) 203-4511.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend Class E airspace extending upward from 700 feet above the surface at Colorado City Municipal Airport, Colorado City, AZ.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Persons wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2017-0258/Airspace Docket No. 16-AWP-15”. The postcard will be date/time stamped and returned to the commenter.
All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. 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 in the Dockets Office (see the
This document proposes to amend FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the
The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) Part 71 by modifying Class E airspace extending upward from 700
The Class E airspace area extending upward from 1,200 feet would be removed as there is sufficient 1,200 foot airspace provided by St. George Class E airspace extending from 700 feet above the surface and Grand Canyon Class E en route airspace. Also, this action would update the geographic coordinates of the airport to lat. 36°57′36″ N., long. 113°00′50″ W. (from lat. 36°57′08″ N., long. 113°00′59″ W.), to match the FAA's current aeronautical database.
Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11A, dated August 3, 2016, and effective September 15, 2016, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of the Colorado City Municipal Airport, and within 7.8 miles west and 4.2 miles east of a 163° bearing extending from the airport to 16 miles south of the airport, and within 2 miles each side of a 123° bearing from the airport extending to 15.1 miles southeast of the airport.
Railroad Retirement Board.
Proposed rule.
The Railroad Retirement Board (Board) proposes to amend its regulations to update the members of the Executive Committee, update the responsibilities of the Executive Committee members, and update office titles.
Submit comments on or before June 26, 2017.
Address any comments concerning this proposed rule to Secretary to the Board, Railroad Retirement Board, 844 N. Rush Street, Chicago, Illinois 60611-2092.
Kelli D. Johnson, Assistant General Counsel, (312) 751-4937, TTD (312) 751-4701.
The Railroad Retirement Board (Board) proposes to amend its regulations in regard to the Board's policy on internal organization. The regulations to be amended are all contained in § 200.1(b). In § 200.1(b)(1) of the Board's regulations, the Board proposes to remove the language that states “the General Counsel also serves as the Senior Executive Officer,” and increase the number of members of the Executive Committee from six to seven members by adding as a member, the Director of Field Service. A description of the Director of Field Service's responsibilities will be added to § 200.1(b)(2). Finally, under § 200.1(b)(3), the office name of the Washington/Legislative Office will be changed to the Office of Legislative Affairs. Section 200.1(b)(3) of the proposed regulation will also remove the Office of Planning, and rename the Bureau of Quality Assurance to the Program Evaluation and Management Services (PEMS).
The Board, with the concurrence of the Office of Management and Budget, has determined that this is not a significant regulatory action under Executive Order 12866, as amended. Therefore, no regulatory impact analysis is required. There are no changes to the information collections associated with § 200.1(b).
Railroad employees, Railroad retirement, General administration.
For the reasons set out in the preamble, the Railroad Retirement Board proposes to amend title 20, chapter II, subchapter A, part 200 of the Code of Federal Regulations as follows:
45 U.S.C. 231f(b)(5) and 45 U.S.C. 362; § 200.4 also issued under 5 U.S.C.
(2) The Executive Committee is responsible for the day to day operations of the agency. The Senior Executive Officer is responsible for the direction and oversight of the Executive Committee. The General Counsel is responsible for advising the Board Members on major issues, interpreting the Acts and regulations administered by the Board, drafting and analyzing legislation, representing the Board in litigation and administrative forums and planning, directing, and coordinating the work of the Office of General Counsel, the Office of Secretary to the Board, the Bureau of Hearings and Appeals, and the Office of Legislative Affairs through their respective directors. The Director of Programs is responsible for managing, coordinating, and controlling the program operations of the agency which carry out provisions of the Railroad Retirement and Railroad Unemployment Insurance Acts. The Director of Administration is responsible for managing, coordinating and controlling certain administrative operations of the Board including the Division of Acquisition Management, the Bureau of Human Resources, the Office of Public Affairs, and the Division of Real Property Management. The Chief Financial Officer is responsible for the financial management of the agency, and the Chief Information Officer is responsible for coordinating the agency's information resources management program. The Chief Actuary is responsible for the actuarial program of the Board, and for maintaining statistical and financial information. The Director of Field Services is responsible for the oversight of the agency's nationwide field offices.
(3) The Office of Equal Employment Opportunity is responsible for equal employment opportunity and affirmative employment programs.
By Authority of the Board.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish a temporary safety zone on the South Branch of the Chicago River and the Chicago Sanitary and Ship Canal, Chicago, IL. This action is necessary to protect spectators, participants, and vessels from the hazards associated with the Tough Cup, a crew regatta event. This proposed rulemaking would prohibit persons and vessels from being in the safety zone unless authorized by the Captain of the Port Lake Michigan.
Comments and related material must be received by the Coast Guard on or before May 30, 2017.
You may submit comments identified by docket number USCG-2017-0197 using the Federal eRulemaking Portal at
If you have questions about this proposed rulemaking, call or email LT Lindsay Cook, Marine Safety Unit Chicago, U.S. Coast Guard; telephone (630) 986-2155, email
CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Pub. L. Public Law
§ Section
U.S.C. United States Code
On November 16, 2016, the Coast Guard received an Application for Marine Event for the Tough Cup event to be held on the South Branch of the Chicago River and the Chicago Sanitary and Ship Canal between the South Pulaski Road Bridge and the South Halsted Street Bridge. This event involves high performance rowing shells and sculls that range in size from 27 feet to 65 feet in length and oars out to 25 feet in width to race on a course along the South Branch of the Chicago River and the Chicago Sanitary and Ship Canal. The Captain of the Port Lake Michigan has determined that the potential hazards associated with this event would be a safety concern for participants as well as recreational and commercial traffic in or around the course where the event will take place.
This purpose of the rulemaking is to ensure the safety of vessels, persons and the navigable waters immediately before, during, and immediately after the scheduled event. The specific hazards include collisions among event participants, recreational traffic, and commercial traffic that may cause injury or marine casualties. The legal basis for this proposed rule is the Coast Guard's authority to establish safety zones: 33 U.S.C. 1231; 33 CFR 1.05-1, 160.5; Department of Homeland Security Delegation No. 0170.1.
The Captain of the Port Lake Michigan proposes to establish a safety zone on all waters of the South Branch of the Chicago River and the Chicago Sanitary and Ship Canal between the South Pulaski Road Bridge and the South Halsted Street Bridge. This safety zone will be enforced from 7:00 a.m. to 2:00 p.m. on September 30, 2017. The safety zone enforcement times are intended to ensure the safety of persons and vessels immediately before, during and immediately after the event.
The Captain of the Port Lake Michigan has determined that the safety zone in this proposed rule is necessary to ensure the safety of vessels and people during this event. The safety zone in this proposed rule will be enforced for seven hours on September 30, 2017.
The Captain of the Port Lake Michigan will notify the public that the zone in this proposal will be enforced by all appropriate means to the affected segments of the public, including publication in the
All persons and vessels must comply with the instructions of the Coast Guard Captain of the Port Lake Michigan or his or her designated representative. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port or his or her designated representative. The Captain of the Port or his or her designated representative may be contacted via VHF Channel 16.
We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on a number of the statutes and Executive Orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 (“Regulatory Planning and Review”) and 13563 (“Improving Regulation and Regulatory Review”) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Executive Order 13771 (“Reducing Regulation and Controlling Regulatory Costs”), directs agencies to reduce regulation and control regulatory costs and provides that “for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.”
The Office of Management and Budget (OMB) has not designated this rule a significant regulatory action under section 3(f) of Executive Order 12866. Accordingly, the Office of Management and Budget (OMB) has not reviewed it. As this rule is not a significant regulatory action, this rule is exempt from the requirements of Executive Order 13771. See OMB's Memorandum titled “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017 titled `Reducing Regulation and Controlling Regulatory Costs' ” (February 2, 2017). A regulatory analysis (RA) follows.
We conclude that this proposed rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone created by this rule will be relatively small and enforced for a short duration on the one day this rule will be in effect to ensure safety of spectators and participants at this scheduled event. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the safety zone, and the rule would allow vessels to seek permission to enter the zone.
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 Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this proposed rule does not have tribal implications under Executive Order 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
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
Harbors, Marine safety, Navigation (water), Reporting and record keeping requirements, Security measures, 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; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port Lake Michigan or a designated on-scene representative.
(3) The “on-scene representative” of the Captain of the Port Lake Michigan is any Coast Guard commissioned, warrant or petty officer who has been designated by the Captain of the Port Lake Michigan to act on his or her behalf.
(4) Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port Lake Michigan or an on-scene representative to obtain permission to do so. The Captain of the Port Lake Michigan or an on-scene representative may be contacted via VHF Channel 16. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the Captain of the Port Lake Michigan, or an on-scene representative.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve a source-specific revision to the Arizona state implementation plan (SIP) that provides an alternative to Best Available Retrofit Technology (BART) for the Coronado Generating Station (“Coronado”), owned and operated by the Salt River Project Agricultural Improvement and Power District. The EPA proposes to find that the BART alternative for Coronado would provide greater reasonable progress toward natural visibility conditions than BART, in accordance with the requirements of the Clean Air Act and the EPA's Regional Haze Rule. In conjunction with this proposed approval, we propose to withdraw those portions of the federal implementation plan (FIP) that address BART for Coronado. We also propose to codify the removal of those portions of the Arizona SIP that have either been superseded by previously approved revisions to the Arizona SIP or would be superseded by final approval of the SIP revision for Coronado.
Written comments must be submitted on or before June 12, 2017. Requests for public hearing must be received on or before May 12, 2017.
Submit your comments, identified by Docket ID No. EPA-R09-OAR-0092 at
Krishna Viswanathan, EPA, Region IX, Air Division, Air Planning Office, (520) 999-7880 or
Throughout this document, “we,” “us,” and “our” refer to the EPA.
For the purpose of this document, we are giving meaning to certain words or initials as follows:
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The proposed action relies on documents, information, and data that are listed in the index on
If anyone contacts the EPA by May 12, 2017 requesting to speak at a public hearing, the EPA will schedule a public hearing and announce the hearing in the
Congress created a program for protecting visibility in the nation's national parks and wilderness areas in 1977 by adding section 169A to the CAA. This section of the CAA establishes as a national goal the “prevention of any future, and the remedying of any existing, impairment of visibility in mandatory class I Federal areas which impairment results from man-made air pollution.”
In addition to the visibility protection requirements of the CAA and the Regional Haze Rule, SIP revisions concerning regional haze are also subject to the general requirements of CAA section 110. In particular, they are subject to the requirement in CAA section 110(1) that SIP revisions must not “interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in [CAA § 171]), or any other applicable requirement of [the CAA],” as well as the requirement in CAA section 110(a)(2)(A) that SIPs must include enforceable emission limits.
The Arizona Department of Environmental Quality (ADEQ) submitted a Regional Haze SIP (“Arizona Regional Haze SIP”) to the EPA on February 28, 2011. The Arizona Regional Haze SIP included BART determinations for nitrogen oxides (NO
In addition, the FIP included two requirements that applied to all affected sources, including Coronado. First, we promulgated a work practice standard that requires that pollution control equipment be designed and capable of operating properly to minimize emissions during all expected operating conditions. Second, we incorporated by reference into the FIP certain provisions of the Arizona Adminsitrative Code (AAC) that establish an affirmative defense for excess emissions due to malfunctions. Please refer to the final rule published on December 5, 2012, for further information on the BART determinations and related FIP requirements.
The EPA received a petition from SRP on February 4, 2013, requesting partial reconsideration and an administrative stay of the final rule under section 307(d)(7)(B) of the CAA and section 705 of the Administrative Procedure Act.
In response to the petition from SRP, we issued a final FIP revision on April 13, 2016, replacing the plant-wide compliance method with a unit-specific compliance method for determining compliance with the BART emission limits for NO
On December 15, 2016, ADEQ submitted a revision to the Arizona Regional Haze SIP (“Coronado SIP Revision”) that provides an alternative to BART for Coronado (“Coronado BART Alternative”).
The Coronado SIP Revision and BART Alternative consists of an interim operating strategy (“Interim Strategy”), which would be in effect from December 5, 2017 to December 31, 2025, and a final operating strategy (“Final Strategy”), which would take effect on January 1, 2026. The requirements associated with the Interim and Final Strategies are shown in Table 1 and summarized briefly below.
The Final Strategy in the Coronado SIP Revision requires installation of SCR on Unit 1 (“SCR Option”) or the
The Interim Strategy includes three different operating options (designated IS2, IS3, and IS4), each of which requires a period of seasonal curtailment (
ADEQ incorporated the revised emission limits, as well as associated compliance deadlines and monitoring, recordkeeping, and reporting requirements, as a permit revision to Coronado's existing Operating Permit, which was submitted as part of the Coronado SIP Revision (“Coronado Permit Revision”).
The Coronado SIP Revision also includes ADEQ's determination that the Coronado BART Alternative is “better than BART,” based on a demonstration that it fulfills the requirements of 40 CFR 51.308(e)(2) for a BART alternative. More information regarding ADEQ's analysis is set forth below, along with the EPA's evaluation of the analysis.
The Regional Haze Rule requires that a SIP revision establishing a BART alternative include three elements, which are listed below. We have evaluated the Coronado BART Alternative with respect to each of the following elements:
• A demonstration that the emissions trading program or other alternative measure will achieve greater reasonable progress than would have resulted from the installation and operation of BART at all sources subject to BART in the State and covered by the alternative program.
• A requirement that all necessary emissions reductions take place during the period of the first long-term strategy for regional haze.
• A demonstration that the emissions reductions resulting from the alternative measure will be surplus to those reductions resulting from measures
1. Demonstration that the alternative measure will achieve greater reasonable progress.
Pursuant to 40 CFR 51.308(e)(2)(i), ADEQ must demonstrate that the alternative measure will achieve greater reasonable progress than would have resulted from the installation and operation of BART at all sources subject to BART in the State and covered by the alternative program. For a source-specific BART alternative, the critical elements of this demonstration are:
• An analysis of BART and associated emission reductions
• an analysis of projected emissions reductions achievable through the BART alternative
• a determination that the alternative achieves greater reasonable progress than would be achieved through the installation and operation of BART
We summarize ADEQ's submittal with respect to each of these elements and provide our evaluation of the submittal below.
Pursuant to 40 CFR 51.308(e)(2)(i)(C), the SIP must include an analysis of BART and associated emission reductions at Units 1 and 2. As noted above, ADEQ's BART analyses and determinations for Units 1 and 2 were included in the Arizona Regional Haze SIP. We approved ADEQ's BART determinations for PM
In the Coronado SIP Revision, ADEQ compared the BART Alternative both to ADEQ's original BART determinations and to the EPA's BART determinations in the 2016 BART Reconsideration. For purposes of our evaluation, we consider BART for Coronado to consist of a combination of (1) ADEQ's BART determinations for PM
In the Technical Support Document (TSD) included with the Coronado SIP Revision,
We propose to find that ADEQ has met the requirement for an analysis of BART and associated emission reductions achievable at Coronado under 40 CFR 51.308(e)(2)(i)(C). We note that the Regional Haze Rule does not specify what baseline year should be used for calculating emission reductions under 40 CFR 51.308(e)(2)(i)(C).
In the Coronado SIP Revision TSD, ADEQ calculated emissions reductions achievable under the Interim Strategy by comparing estimated annual emissions under the Interim Strategy with 2014 Baseline emissions. In the Addendum to the Coronado SIP Revision, ADEQ also provided a summary of estimated annual emissions under the Final Strategy compared to 2014 Baseline emissions. The resulting emission reductions are shown in Table 4.
We propose to find that ADEQ has met the requirement for an analysis of the projected emissions reductions achievable through the alternative measure under 40 CFR 51.308(e)(2)(i)(D). As explained in the previous section, Arizona appropriately used the 2014 Baseline for calculating emissions reductions achievable with the Coronado BART Strategy and emissions reductions achievable with the Coronado BART Alternative.
Pursuant to 40 CFR 51.308(e)(2)(i)(E), the State must provide a determination under 40 CFR 51.308(e)(3) or otherwise based on the clear weight of evidence that the alternative achieves greater reasonable progress than BART. Two different tests for determining whether the alternative achieves greater reasonable progress than BART are outlined in 40 CFR 51.308(e)(3). If the distribution of emissions is not substantially different than under BART, and the alternative measure results in greater emission reductions, then the alternative measure may be deemed to achieve greater reasonable progress. If the distribution of emissions is significantly different, then the State must conduct dispersion modeling to determine differences in visibility between BART and the trading program for each impacted Class I area for the worst and best 20 percent days. The modeling would demonstrate “greater reasonable progress” if both of the following two criteria are met: (1) Visibility does not decline in any Class I area; and (2) there is an overall improvement in visibility, determined by comparing the average differences between BART and the alternative over all affected Class I areas. This modeling test is sometimes referred to as the “two-prong test.”
In the Coronado SIP Revision, ADEQ separately analyzed the three options under the Interim Strategy and the Final Strategy under 40 CFR 51.308(e)(3).
ADEQ determined that the Interim Strategy will not necessarily achieve greater emissions reductions than the BART Control Strategy because, while each option under the Interim Strategy will result in greater reductions in SO
The Coronado modeling followed a modeling protocol
The CAMx-modeled concentrations for sulfate, nitrate, and other chemical species were tracked for Coronado using the CAMx Particulate Source Apportionment Technology (PSAT) Probing Tool, so that the concentrations and visibility impacts due to Coronado could be separated out from those due to the total of all modeled sources. PSAT provides air quality contributions from the emissions of Coronado in a single step and avoids the extra work needed in the simple subtraction approach, which would require additional modeling runs (with and without Coronado emissions) and a subtraction step to estimate the air quality contributions of Coronado emissions.
Ramboll Environ computed visibility impairment due to Coronado using the Interagency Monitoring of Protected Visual Environments (IMPROVE) equation,
For the first prong of the modeling test, Ramboll Environ computed the difference between the delta deciviews for each Interim Strategy option and the delta deciviews for the 2014 Baseline for each Class I area. Ramboll Environ then averaged these differences over the best 20 percent of days, the worst 20 percent of days, and for the full year. The results are shown in Table 6 and Table 7. Based on these results, ADEQ concluded that that the Interim Strategy will result in improved visibility at all affected Class I areas compared with baseline conditions on the worst and best 20 percent of days and therefore meets the first prong of the modeling test in 40 CFR 51.308(e)(3).
For the second prong of the modeling test, Ramboll Environ computed the difference between the delta deciviews for each Interim Strategy option and the delta deciviews for the Coronado BART Control Strategy. Ramboll Environ then compared the average differences between the Coronado BART Control Strategy and the Interim Strategy over all affected Class I areas to ensure that there is an overall improvement in visibility. Based on these modeling results, as shown in Table 8, ADEQ concluded that the Interim Strategy also meets this prong, as these results indicate that the Interim Strategy would result in improved visibility, on average, across all Class I Areas, compared with the Coronado BART Control Strategy on the worst and best 20 percent of days.
We have reviewed the modeling analysis performed by Ramboll Environ and submitted by ADEQ and find that it supports ADEQ's determination that the Interim Strategy would achieve greater reasonable progress than BART under 40 CFR 51.308(e)(3). In particular, we have evaluated the Coronado modeling to confirm that, even though the numerical differences between the scenarios under the two-prong test are small, the results represent real visibility differences and not just the result of numerical artifacts or “noise” in the model results. As noted above, the modeling used the CAMx PSAT Probing Tool to track concentrations for sulfate, nitrate, and other chemical species in order to separate out visibility impacts due to Coronado from those of other modeled sources. This PSAT-based approach helps to avoids numerical artifacts in the model results, as compared to the simple subtraction approach, and thus provides assurance that the relatively small numerical values in the modeled differences represent real visibility differences.
In response to a request from the EPA, ADEQ submitted an additional analysis performed by Ramboll Environ to demonstrate that the modeled numerical differences represent real visibility improvements and are not just numerical artifacts.
The only plot that shows numerical noise is for a day when an Interim Strategy option and the Coronado BART Control Strategy had the same emissions. For such days, modeled differences would be expected to be zero, except for the effect of numerical noise. This one plot shows some random variation in color in some locations, and also shows that the range of variation is very small, one millionth (10
We also note that the modeling demonstration was done with a higher emission rate for SO
Finally, we note that 40 CFR 51.308(e)(3) does not specify a minimum delta deciview difference between the modeled scenarios that must be achieved in order for a BART alternative to be deemed to achieve greater reasonable progress than BART. Rather, it allows for a straight numerical test, regardless of the magnitude of the computed differences. Accordingly, given that the modeling results submitted by ADEQ show that the Interim Strategy will result in improved visibility at all affected Class I areas compared with 2014 Baseline Emissions (prong 1) and will result in improved visibility, on average, across all Class I areas, compared with the Coronado BART Control Strategy (prong 2), we propose to find that ADEQ has demonstrated that the Interim Strategy will achieve greater reasonable progress than BART under the two-prong modeling test in 40 CFR 51.308(e)(3).
With respect to the Final Strategy, ADEQ did not conduct modeling but did provide a summary of expected emissions under the Final Strategy, as compared with the Coronado BART Control Strategy, as shown in Table 9. ADEQ explained that emissions of NO
The emission reductions associated with the Final Strategy will occur after 2018, which, as explained below, is the deadline for achieving all necessary emissions reduction under a BART alternative. Therefore, the Final Strategy by itself clearly would not meet the requirements for a BART alternative. Nevertheless, in order to ensure that the Coronado BART Alternative as a whole will result in greater reasonable progress than BART, we have considered whether the Final Strategy, once it is implemented, will provide for ongoing visibility improvement, as compared with the BART Control Strategy. In particular, we have evaluated whether the Final Strategy meets both criteria of the greater-emissions-reduction test under 40 CFR 51.308(e)(3),
In summary, we propose to find that ADEQ has demonstrated that the Interim Strategy will achieve greater reasonable progress than the Coronado BART Control Strategy through 2025 and that the Final Strategy will ensure greater reasonable progress after 2025. Therefore, we propose to find that ADEQ properly determined under 40 CFR 51.308(e)(2)(i)(E) that the Coronado BART Alternative will achieve greater reasonable progress than would be achieved through the installation and operation of BART at Coronado.
2. Requirement that all necessary emission reductions take place during period of first long-term strategy.
Pursuant to 40 CFR 51.308(e)(2)(iii), the State must ensure that all necessary emission reductions take place during the period of the first long-term strategy for regional haze,
As noted above, the Coronado SIP Revision incorporates the Coronado Permit Revision, which includes conditions implementing both the Interim and Final Strategies. In addition to the emission limitations for NO
The compliance date for the Interim Strategy in the Coronado Permit Revision is December 5, 2017. Accordingly, the Coronado SIP Revision ensures that all emission reductions associated with the Interim Strategy will occur by December 31, 2018 and, as explained before, those emissions reductions by themselves are sufficient to ensure greater reasonable progress under the two-prong modeling test under 40 CFR 51.308(e)(3). While the compliance dates for the Final Strategy in the Coronado Permit Revision are later than December 31, 2018, the Final Strategy and its associated emission reductions are not necessary to demonstrate that the Coronado BART Alternative will achieve greater reasonable progress than BART during the period of the first long-term strategy. Rather, as stated before, the Final Strategy and its associated emissions reductions will ensure that the Coronado BART Alternative will continue to achieve greater reasonable progress than the BART Control Strategy after 2025. Therefore, we propose to find that the Coronado SIP Revision will ensure that all necessary emission reductions take place during the period of the first long-term strategy and therefore meets the requirements of 40 CFR 51.308(e)(2)(iii).
3. Demonstration that emissions reductions from alternative measure will be surplus.
Pursuant to 40 CFR 51.308(e)(2)(iv), the SIP must demonstrate that the emissions reductions resulting from the alternative measure will be surplus to those reductions resulting from measures adopted to meet requirements of the CAA as of the baseline date of the SIP. The baseline date for regional haze
In sum, we propose to find that the Coronado BART Alternative meets all of the applicable requirements of 40 CFR 51.308(e)(2).
CAA section 110(a)(2)(A) requires SIPs to include enforceable emissions limitations as necessary or appropriate to meet the applicable requirements of the CAA. In order to be considered enforceable, emission limits must include associated monitoring, recordkeeping, and reporting requirements. In addition, the CAA and the EPA's implementing regulations expressly require SIPs to include regulatory requirements related to monitoring, recordkeeping, and reporting for applicable emissions limitations.
The CAA requires that any revision to an implementation plan shall not be approved by the Administrator if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress (RFP) or any other applicable requirement of the CAA.
The Coronado SIP Revision includes a demonstration of “non-interference” under CAA section 110(l).
ADEQ noted that Coronado is located near St. Johns, Arizona in Apache County, which is designated as “in attainment,” “unclassifiable/attainment,” or “unclassifiable” for the following NAAQS: CO, Pb, NO
With repect to the PM
We concur with ADEQ's demonstration of non-interference with the PM
With respect to the SO
We concur with ADEQ's demonstration of non-interference with the SO
With respect to the NO
We concur with ADEQ's demonstration of non-interference with the NO
In summary, because the Coronado SIP Revision will require equivalent or lower emissions of NO
ADEQ explained that the following “other applicable requirements” are potentially relevant to the Coronado SIP Revision:
With respect to PSD, ADEQ referred to the TSD for the Coronado Permit Revision,
With respect to Regional Haze requirements, ADEQ noted that during implementation of both the Interim Strategy and the Final Strategy, the Coronado BART Alternative will result in greater reasonable progress towards natural visibility conditions than the Coronado BART Control Strategy. For the reasons explained above, we agree that ADEQ has demonstrated that the Coronado BART Alternative would result in greater reasonable progress than the Coronado BART Control Strategy. Therefore, we propose to find that the Coronado SIP Revision would not interfere with the visibility protection requirements of the CAA.
Finally, although not expressly addressed by the State in its submittal, we have considered whether the curtailment requirements under the Interim Strategy in the Coronado SIP Revision would interefere with the requirements of CAA section 123 concerning dispersion techniques. Section 123 provides that the degree of emission limitation required by a SIP may not be affected by “any other dispersion technique,” which is defined to include “intermittent or supplemental control of air pollutants varying with atmospheric conditions.”
In summary, we propose to find that that the Coronado SIP Revision would not interfere with any applicable requirements of the CAA.
For the reasons described above, the EPA proposes to approve the Coronado SIP Revision into the Arizona SIP. Because this approval would fill the gap in the Arizona Regional Haze SIP left by the EPA's prior partial disapproval with respect to Coronado, we also propose to withdraw the provisions of the Arizona Regional Haze FIP that apply to Coronado. Finally, we are proposing revisions to 40 CFR part 52 to codify the removal of those portions of the Arizona Regional Haze SIP that have either been superseded by previously approved revisions to the Arizona SIP or would be superseded by final approval of the Coronado SIP Revision.
As explained above, the Coronado SIP Revision will result in reduced emissions of both SO
In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the state permit provisions described in the proposed amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, this document available electronically through
Additional information about these statutes and Executive Orders can be found at
This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review. This rule applies to only a single facility and is therefore not a rule of general applicability.
This action does not impose an information collection burden under the PRA. This rule applies to only a single facility. Therefore, its recordkeeping and reporting provisions do not constitute a “collection of information” as defined under 44 U.S.C. 3502(3) and 5 CFR 1320.3(c).
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. Firms primarily engaged in the generation, transmission, and/or distribution of electric energy for sale are small if, including affiliates, the total electric output for the preceding fiscal year did not exceed 4 million megawatt hours. The owner of facility affected by this rule, SRP, exceeds this threshold.
This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments.
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.
This action does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on any 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. Thus, Executive Order 13175 does not apply to this action.
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.
This action is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866.
This rulemaking does not involve technical standards. The EPA is not revising any technical standards or imposing any new technical standards in this action.
The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations, and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The documentation for this decision is contained in section V above.
Pursuant to CAA section 307(d)(1)(B), the EPA proposes to determine that this action is subject to the provisions of section 307(d). Section 307(d) establishes procedural requirements specific to certain rulemaking actions under the CAA. Pursuant to CAA section 307(d)(1)(B), the withdrawal of the provisions of the Arizona Regional Haze FIP that apply to Coronado is subject to the requirements of CAA section 307(d), as it constitutes a revision to a FIP under CAA section 110(c). Furthermore, CAA section
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide, Visibility.
42 U.S.C. 7401
For the reasons set forth in the preamble, the EPA proposes to amend 40 CFR part 52 as follows:
42 U.S.C. 7401
The additions read as follows:
(d) * * *
(e) * * *
Federal Communications Commission.
Proposed rule.
In this document, the Commission's Consumer and Governmental Affairs Bureau (Bureau or CGB) seeks comment on the scope of application of the technical standard for user equipment and software used with video relay service (VRS) and the extent to which such a rule is necessary and appropriate for functionally equivalent communication.
Comments are due June 12, 2017. Reply Comments are due July 11, 2017.
You may submit comments, identified by CG Docket Nos. 10-51 and 03-123, by any of the following methods:
•
•
For detailed instructions for submitting comments and additional information on the rulemaking process,
Bob Aldrich, Consumer and Governmental Affairs Bureau (202) 418-0996, email
Pursuant to 47 CFR 1.415, 1.419, interested parties may file comments on or before the dates indicated in the
• All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of
• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington, DC 20554.
This is a summary of document DA 17-76,
To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to
Document DA 17-76 does not contain proposed information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
1. The Commission's TRS interoperability and portability rules are intended, among other things, to allow VRS users to make and receive calls through any VRS provider, and to choose a different default provider, without changing the VRS access technology they use to place calls. The Relay User Equipment (RUE) Profile addresses this problem by specifying a basic interface that is intended to enable a user to use the same equipment and software with any default provider without experiencing any inconvenience or disruption of basic communications functions.
2. In document DA 17-76, the Bureau pursuant to authority delegated by the Commission in
3. First, the Bureau seeks additional comment on the user experience with provider-supplied user equipment and software. To what extent can users currently use the features and functions of provider-supplied equipment and software when making and receiving calls through other providers, or after switching to another default provider? To the extent that user equipment and software supplied by one provider performs less effectively with other providers, which functions are most problematic? Do the answers to these questions vary depending on the specific user equipment and software used by a consumer, and if so, how? How feasible is it currently for third parties, including open source and academic institutions, to innovate in providing new relay user equipment or to provide relay user equipment tailored to specific user groups or application scenarios, such as customer service or government call centers or public safety answering points (PSAPs)?
4. Second, the Bureau seeks comment on the appropriate scope of application of the RUE Profile. There are a number of possible approaches. One possible approach could be to require RUE compliance for all user equipment and software, including equipment and software provided prior to the designated compliance deadline. As an alternative, to avoid imposing retrofitting costs on VRS providers, the Commission could require RUE compliance only for new user equipment and for new versions of user software. Under a third, more limited alternative, the Commission could require VRS providers to make RUE-Profile-compliant user equipment or software available to those users affirmatively requesting such equipment or software, as well as to provide information on their Web sites indicating how to obtain such user equipment and software. Which operating system platforms should be supported under this alternative? Under a fourth alternative, the Commission could make no further changes to its VRS interoperability and portability requirements. The Bureau seeks comments on the relative costs and benefits of these alternatives. In this regard, CGB invites commenters to submit additional specific cost information quantifying the costs of the three alternatives outlined above. The Bureau also seeks comment on the providers' claim that “forcing provider endpoints to adhere to the RUE Profile would require that providers
5. As required by the Regulatory Flexibility Act, as amended (RFA), the Bureau has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed document DA 17-76. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments specified in the
6. In document DA 17-76, the Bureau seeks comment on whether the scope of application of the RUE Profile should be expanded beyond the interface between provider networks and user equipment employing ACE software, to apply more generally to the interface between provider networks and provider-supplied user equipment and software. Comment is sought on a variety of alternatives, including the alternative of leaving the rule as is.
7. The proposed action is authorized under sections 1, 2, 4(i), 225, 251, 255, 303, 316, and 716 of the Communications Act of 1934, as amended, section 6 of the Wireless Communications and Public Safety Act of 1999, and section 106 of the CVAA; 47 U.S.C. 151, 152, 154(i), 225, 255, 303, 316, 615a-1, 615c, 617.
8. The proposals in document DA 17-76 will affect obligations of VRS providers, who are classified by the Census Bureau as “all other telecommunications.”
• All Other Telecommunications.
• VRS Providers, which are generally classified within the broad category of “All Other Telecommunications.”
9. Document DA 17-76 does not include new or modified reporting, recordkeeping, and other compliance requirements, except for compliance with a potentially broader application of the RUE Profile technical standard, to apply more generally to the interface between a VRS provider and provider-supplied user equipment and software.
10. Regarding the possible broadening of the application of the RUE Profile, document DA 17-76 seeks comment on a variety of alternative approaches, including alternatives with minimal or no impact on small entities.
11. None.
Pursuant to sections 1, 2, 4(i), 4(j), 225 and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 154(j), 225, 303(r), and the authority delegated by the Commission in
The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of document DA 17-76, including the
Forest Service, USDA.
Notice of intent to prepare an environmental impact statement and initiate scoping process; request for comments.
The Palouse Ranger District of the Nez Perce-Clearwater National Forests (NCF) is gathering information to prepare an environmental impact statement (EIS) to identify and assess potential impacts on the environment as a result of the Moose Creek Project in Latah County, Idaho. The proposed action would use timber harvest and fuels treatment in the West Fork Potlatch River subwatershed in an overarching effort to improve forest health, reduce the risk of potential catastrophic wildfires, and provide for long-term social, ecological, and economic sustainability.
The scoping comment period will be 30 days. To ensure consideration, comments must be received no later than May 30, 2017. The draft environmental impact statement is expected October 2017 and the final environmental impact statement is expected May 2018. Those who wish to establish standing to object under 36 CFR part 218 should submit scoping comments no later than 30 days after publication of this Notice of Intent or during 45-day comment period following distribution of the Draft EIS.
Comments may be submitted at the addresses indicated below.
(a)
(b)
Stephanie Israel, NEPA Planner (North Zone), Nez Perce-Clearwater National Forests, (208) 476-8344 or
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Time, Monday through Friday.
This process is being conducted pursuant to the National Environmental Policy Act (NEPA), the Council on Environmental Quality Regulations for Implementing the NEPA (40 CFR parts 1500-1508), and Forest Service NEPA guidelines. Additionally, pursuant to Section 106 of the National Historic Preservation Act, the public scoping process will allow members of the general public to provide NCF comments on potential impacts to historic and cultural resources for the proposed action. An objection period for the Draft Record of Decision will be provided, consistent with 36 CFR part 218.
The purpose of the Moose Creek project is to treat areas originally analyzed in the late 1990s and early 2000s as part of the West Fork Potlatch EIS. When the previous analysis was performed, silvicultural prescriptions identified certain stands that would require follow-up treatment by 2022 in order to continue efforts of restoring western white pine and other early seral tree species to the landscape. Restoring the landscape to conditions where white pine and early seral tree species are present is desired because these stands are more resilient to disturbance such as fire, harmful insects and disease pathogens. Current stands are primarily composed of grand fir and Douglas-fir which are much less resilient to disturbance. If left untreated, these current conditions would likely lead to a decline in forest health and put future ecological, societal, and economical values at risk.
There is a need to decrease the risk of potential catastrophic wildfire which could threaten private residences within the wildland urban interface near the town of Bovill. The current presence of dead and dying trees combined with the high probability of increased mortality associated with the existing stands is resulting in hazardous fuel loading within the watershed. Treating these affected areas by reducing hazardous ladder fuels would reduce nutrient competition for desired species and decrease the risk of high intensity, high severity, and rapidly moving wildfire.
There is also a need to begin trending toward long-term recovery of existing soil conditions within the watershed. Regional soil standards require actions be designed to keep detrimental soil disturbance (DSD) from exceeding 15%. Current soil conditions already exceed that level in some units, and although the proposed action would cause additional DSD and impaired productivity initially, initiating restoration efforts toward a long-term trend of recovery for overall soil productivity must be identified and implemented. It is estimated that long-term recovery would occur within 30-50 years.
The proposed action would include regeneration timber harvest of approximately 1,600 acres. Hazardous fuels reduction and site-preparation activities (underburning activity, slash and burning of machine piles) would be applied following harvest activities. An additional 300 acres of hand, mechanical, or prescription fire fuels reduction would be conducted in non-harvest areas. Proposed harvest activities would require construction of approximately 10 miles of new system road to be gated after use to restrict public access and construction of approximately 4.4 miles of temporary roads to be decommissioned after use. Approximately 2 miles of existing roads will be reconstructed and reconditioned. Compaction of existing skid trails and/or landings will be implemented to improve soil conditions, at a minimum in units currently exceeding the 15% DSD threshold.
Relocate and decommission a 0.8 mile section of Road 377 and construct 1.1 miles of new road and a 40-foot precast bridge across Feather Creek. The section of road proposed for relocation is in a meadow that floods every spring which poses a threat to fish habitat and creates annual access and maintenance issues. The proposed re-route and bridge
Restore Cougar Meadow area to improve range functions by removing or re-contouring portions of an existing railroad berm in Cougar Meadows. Reconnecting the floodplain and Cougar Creek channel where they are currently separated would improve the meadow's ability to hold water into the summer. Construction of two additional stockponds is proposed to reduce animal pressure from stream channels and help draw cattle away from the riparian meadows.
Alternatives will be developed based on comments received during scoping period. At this time the agency is anticipating a minimum of two alternatives: 1. No-action and 2. Proposed Action
Forest Supervisor, Nez Perce-Clearwater National Forests.
The Responsible Official will determine whether to adopt the proposed action or another alternative, in whole or in part, and what mitigation measurements and management requirements will be implemented.
This notice of intent initiates the scoping process, which guides the development of the environmental impact statement.
It is important that reviewers provide their comments at such times and in such manner that they are useful to the agency's preparation of the environmental impact statement. Therefore, comments should be provided prior to the close of the comment period and should clearly articulate the reviewer's concerns and contentions.
Comments received in response to this solicitation, including names and addresses of those who comment, will be part of the public record for this proposed action. Comments submitted anonymously will be accepted and considered; however, anonymous comments will not provide the Agency with the ability to provide the respondent with subsequent environmental documents.
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 (FACA) that a planning meeting of the Virginia Advisory Committee to the Commission (VA SAC) will convene by conference call at 12:00 p.m. (EDT) on Thursday, May 4, 2017. The purpose of the meeting is to approve the project proposal and to discuss project planning for the committee's hate crimes project.
Thursday, May 4, 2017 at 12:00 p.m. (EDT).
Public call-in information: Conference call-in number: 1-888-601-3861 and conference call ID: 417838#.
Interested members of the public may listen to the discussion by calling the following toll-free conference call-in number: 1-888-601-3861 and conference call ID: 417838#. Please be advised that before placing them into the conference call, the conference call operator will ask callers to provide their names, their organizational affiliations (if any), and email addresses (so that callers may be notified of future meetings). Callers can expect to incur charges for calls they initiate over wireless lines, 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 conference call-in number.
Persons with hearing impairments may also follow the discussion by first calling the Federal Relay Service at 1-800-977-8339 and providing the operator with the toll-free conference call-in number: 1-888-601-3861 and conference call ID: 417838#.
Members of the public are invited to submit written comments; the comments must be received in the regional office approximately 30 days after each scheduled meeting. Written comments may be mailed to the Eastern Regional Office, U.S. Commission on Civil Rights, 1331 Pennsylvania Avenue, Suite 1150, Washington, DC 20425 or emailed to Evelyn Bohor at
Records and documents discussed during the meeting will be available for public viewing as they become available at
Ivy L. Davis, at
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Effective April 20, 2017.
Irene Gorelik at (202) 482-6905, AD/CVD Operations, Office VIII, Enforcement and Compliance, International Trade Administration,
On March 31, 2017, the Department of Commerce (the Department) received an antidumping duty (AD) petition concerning imports of carton-closing staples from the People's Republic of China (PRC), filed in proper form on behalf of North American Steel & Wire, Inc./ISM Enterprises (the petitioner).
On April 4, 2017, the Department requested additional information and clarification of certain areas of the Petition.
In accordance with section 732(b) of the Tariff Act of 1930, as amended (the Act), the petitioner alleges that imports of carton-closing staples from the PRC are being, or are likely to be, sold in the United States at less than fair value within the meaning of section 731 of the Act, and that imports of carton-closing staples from the PRC are materially injuring, or threaten material injury to, the domestic industry producing carton-closing staples in the United States. Also, consistent with section 732(b)(1) of the Act, the Petition is accompanied by information reasonably available to the petitioner supporting its allegations.
The Department finds that the petitioner filed this Petition on behalf of the domestic industry because the petitioner is an interested party as defined in section 771(9)(C) of the Act. The Department also finds that the petitioner demonstrated sufficient industry support with respect to the initiation of the AD investigation that the petitioner is requesting.
Because the Petition was filed on March 31, 2017, pursuant to 19 CFR 351.204(b)(1), the period of investigation (POI) is July 1, 2016 through December 31, 2016.
The products covered by this investigation are carton-closing staples from the PRC. For a full description of the scope of this investigation,
During our review of the Petition, we issued questions to, and received responses from, the petitioner pertaining to the proposed scope to ensure that the scope language in the Petition would be an accurate reflection of the products for which the domestic industry is seeking relief.
As discussed in the preamble to the Department's regulations,
The Department requests that any factual information the parties consider relevant to the scope of the investigation be submitted during this time period. However, if a party subsequently finds that additional factual information pertaining to the scope of the investigation may be relevant, the party may contact the Department and request permission to submit the additional information.
All submissions to the Department must be filed electronically using Enforcement & Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS).
The Department requests comments from interested parties regarding the appropriate physical characteristics of carton-closing staples to be reported in response to the Department's AD questionnaire. This information will be used to identify the key physical characteristics of the subject merchandise in order to report the relevant factors and costs of production accurately as well as to develop appropriate product-comparison criteria.
Interested parties may provide any information or comments that they feel are relevant to the development of an accurate list of physical characteristics. Specifically, they may provide comments as to which characteristics are appropriate to use as: (1) General product characteristics and (2) product-comparison criteria. We note that it is not always appropriate to use all product characteristics as product-comparison criteria. We base product-comparison criteria on meaningful commercial differences among products. In other words, although there may be some physical product characteristics utilized by manufacturers to describe carton-closing staples, it may be that only a select few product characteristics take into account commercially meaningful physical characteristics. In addition, interested parties may comment on the order in which the physical characteristics should be used in matching products. Generally, the Department attempts to list the most
In order to consider the suggestions of interested parties in developing and issuing the AD questionnaire, all comments must be filed by 5:00 p.m. ET on May 10, 2017, which is 20 calendar days from the signature date of this notice. Any rebuttal comments must be filed by 5:00 p.m. ET May 22, 2017. All comments and submissions to the Department must be filed electronically using ACCESS, as explained above, on the record of this less-than-fair-value investigation.
Section 732(b)(1) of the Act requires that a petition be filed on behalf of the domestic industry. Section 732(c)(4)(A) of the Act provides that a petition meets this requirement if the domestic producers or workers who support the petition account for: (i) At least 25 percent of the total production of the domestic like product; and (ii) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition. Moreover, section 732(c)(4)(D) of the Act provides that, if the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, the Department shall: (i) Poll the industry or rely on other information in order to determine if there is support for the petition, as required by subparagraph (A); or (ii) determine industry support using a statistically valid sampling method to poll the “industry.”
Section 771(4)(A) of the Act defines the “industry” as the producers as a whole of a domestic like product. Thus, to determine whether a petition has the requisite industry support, the statute directs the Department to look to producers and workers who produce the domestic like product. The International Trade Commission (ITC), which is responsible for determining whether “the domestic industry” has been injured, must also determine what constitutes a domestic like product in order to define the industry. While both the Department and the ITC must apply the same statutory definition regarding the domestic like product,
Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this title.” Thus, the reference point from which the domestic like product analysis begins is “the article subject to an investigation” (
With regard to the domestic like product, the petitioner does not offer a definition of the domestic like product distinct from the scope of the investigation. Based on our analysis of the information submitted on the record, we have determined that carton-closing staples, as defined in the scope, constitute a single domestic like product, and we have analyzed industry support in terms of that domestic like product.
In determining whether the petitioner has standing under section 732(c)(4)(A) of the Act, we considered the industry support data contained in the Petition with reference to the domestic like product as defined in the “Scope of the Investigation,” in Appendix I of this notice. To establish industry support, the petitioner provided its 2016 production of the domestic like product.
Our review of the data provided in the Petition, the Supplemental Response, and other information readily available to the Department indicates that the petitioner has established U.S. industry support.
The Department finds that the petitioner filed the Petition on behalf of the domestic industry because it is an interested party as defined in section 771(9)(C) of the Act and it has demonstrated sufficient industry support with respect to the AD investigation that it is requesting the Department initiate.
The petitioner alleges that the U.S. industry producing the domestic like product is being materially injured, or is threatened with material injury, by reason of the imports of the subject merchandise sold at less than normal value (NV). In addition, the petitioner alleges that subject imports exceed the negligibility threshold provided for under section 771(24)(A) of the Act.
The following is a description of the allegation of sales at less than fair value upon which the Department based its decision to initiate an investigation of imports of carton-closing staples from the PRC. The sources of data for the deductions and adjustments relating to U.S. price and NV are discussed in greater detail in the initiation checklist.
The petitioner based export prices (EP) on price quotations for the sale of carton-closing staples to U.S. customers, obtained from an on-line marketplace, as well as on a price quote from a PRC producer of carton-closing staples.
The petitioner stated that the Department has identified the PRC as a non-market economy (NME) country as recently as the week before the petitioner filed the petition, and the Department has not since that time published any determination concluding that the PRC is a market economy.
The petitioner claims that Thailand is an appropriate surrogate country because it is a market economy country that is at a level of economic development comparable to that of the PRC, it is a significant producer of comparable merchandise, and public information from Thailand is available to value all material input factors.
The petitioner based the FOPs for materials and energy on its own consumption rates in the production of carton-closing staples in the United States.
The petitioner valued the FOPs for certain raw materials (
The petitioner has not included FOPs for direct or indirect labor in its NV calculations, as noted in Volume I of the Petition,
The petitioner valued electricity, natural gas, and water to calculate the NV of integrated production of carton-closing staples (drawing wire rod into wire).
The petitioner calculated ratios for factory overhead, selling, general and administrative expenses based on the 2015 consolidated financial statements of L.S. Industry Co., Ltd., a Thai producer of steel nails, which the petitioner asserts is merchandise comparable to carton-closing staples because steel nails are also produced from steel wire rod or steel wire.
Based on the data provided by the petitioner, there is reason to believe that imports of carton-closing staples from the PRC are being, or are likely to be, sold in the United States at less than fair value. Based on comparisons of EP to NV, in accordance with section 773(c) of the Act, the estimated dumping margins for carton-closing staples from the PRC range from 13.76 percent to 263.43 percent.
Based upon the examination of the Petition, we find that the Petition meets the requirements of section 732 of the Act. Therefore, we are initiating an AD investigation to determine whether imports of carton-closing staples from the PRC are being, or are likely to be, sold in the United States at less than fair value. In accordance with section 733(b)(1)(A) of the Act and 19 CFR 351.205(b)(1), unless postponed, we intend to make our preliminary determination no later than 140 days after the date of this initiation.
Under the Trade Preferences Extension Act of 2015, numerous amendments to the AD and CVD laws were made.
In accordance with our standard practice for respondent selection in AD cases involving NME countries, we intend to issue quantity and value (Q&V) questionnaires to producers/exporters of merchandise subject to the investigation and, if necessary, base respondent selection on the responses received. For this investigation, the Department will request Q&V information from known exporters and producers identified, with complete contact information, in the Petition. In addition, the Department will post the Q&V questionnaire along with filing instructions on the Enforcement and Compliance Web site at
Producers/exporters of carton-closing staples from the PRC that do not receive Q&V questionnaires by mail may still submit a response to the Q&V questionnaire and can obtain a copy from the Enforcement & Compliance Web site. The Q&V response must be submitted by the relevant PRC exporters/producers no later than 5:00 p.m. ET on May 5, 2017. All Q&V responses must be filed electronically via ACCESS.
In order to obtain separate-rate status in an NME investigation, exporters and producers must submit a separate-rate application.
The Department will calculate combination rates for certain respondents that are eligible for a separate rate in an NME investigation. The Separate Rates and Combination Rates Bulletin states:
{w}hile continuing the practice of assigning separate rates only to exporters, all separate rates that the Department will now assign in its NME Investigation will be specific to those producers that supplied the exporter during the period of investigation. Note, however, that one rate is calculated for the exporter and all of the producers which supplied subject merchandise to it during the period of investigation. This practice applies both to mandatory respondents receiving an individually calculated separate rate as well as the pool of non-investigated firms receiving the weighted-average of the individually calculated rates. This practice is referred to as the application of “combination rates” because such rates apply to specific combinations of exporters and one or more producers. The cash-deposit rate assigned to an exporter will apply only to merchandise both exported by the firm in question
In accordance with section 732(b)(3)(A) of the Act and 19 CFR 351.202(f), a copy of the public version of the Petition has been provided to the government of the PRC via ACCESS. Because of the particularly large number of producers/exporters identified in the Petition, the Department considers the service of the public version of the Petition to the foreign producers/exporters satisfied by delivery of the public version to the government of the PRC, consistent with 19 CFR 351.203(c)(2).
We will notify the ITC of our initiation, as required by section 732(d) of the Act.
The ITC will preliminarily determine, within 45 days after the date on which the Petition was filed, whether there is a reasonable indication that imports of carton-closing staples from the PRC are materially injuring or threatening material injury to a U.S. industry.
Factual information is defined in 19 CFR 351.102(b)(21) as: (i) Evidence submitted in response to questionnaires; (ii) evidence submitted in support of allegations; (iii) publicly available information to value factors under 19 CFR 351.408(c) or to measure the adequacy of remuneration under 19 CFR 351.511(a)(2); (iv) evidence placed on the record by the Department; and (v) evidence other than factual information described in (i)-(iv). Any party, when submitting factual information, must specify under which subsection of 19 CFR 351.102(b)(21) the information is being submitted
Parties may request an extension of time limits before the expiration of a time limit established under 19 CFR 351, or as otherwise specified by the Secretary. In general, an extension request will be considered untimely if it is filed after the expiration of the time limit established under 19 CFR 351. For submissions that are due from multiple parties simultaneously, an extension request will be considered untimely if it is filed after 10:00 a.m. ET on the due date. Under certain circumstances, we may elect to specify a different time limit by which extension requests will be considered untimely for submissions which are due from multiple parties simultaneously. In such a case, we will inform parties in the letter or memorandum setting forth the deadline (including a specified time) by which extension requests must be filed to be considered timely. An extension request must be made in a separate, stand-alone submission; under limited circumstances we will grant untimely-filed requests for the extension of time limits. Review
Any party submitting factual information in an AD or CVD proceeding must certify to the accuracy and completeness of that information.
Interested parties must submit applications for disclosure under administrative protective order (APO) in accordance with 19 CFR 351.305. On January 22, 2008, the Department published
Parties wishing to participate in this investigation should ensure that they meet the requirements of these procedures (
This notice is issued and published pursuant to section 777(i) of the Act and 19 CFR 351.203(c).
The scope of this investigation is carton-closing staples. Carton-closing staples may be manufactured from carbon, alloy, or stainless steel wire, and are included in the scope of the investigation regardless of whether they are uncoated or coated, regardless of the type of coating.
Carton-closing staples are generally made to American Society for Testing and Materials (ASTM) specification ASTM D1974/D1974M-16, but can also be made to other specifications. Regardless of specification, however, all carton-closing staples meeting the scope description are included in the scope. Carton-closing staples include stick staple products, often referred to as staple strips, and roll staple products, often referred to as coils. Stick staples are lightly cemented or lacquered together to facilitate handling and loading into stapling machines. Roll staples are taped together along their crowns. Carton-closing staples are covered regardless of whether they are imported in stick form or roll form.
Carton-closing staples vary by the size of the wire, the width of the crown, and the length of the leg. The nominal leg length ranges from 0.4095 inch to 1.375 inches and the nominal crown width ranges from 1.125 inches to 1.375 inches. The size of the wire used in the production of carton-closing staples varies from 0.029 to 0.064 inch (nominal thickness) by 0.064 to 0.100 inch (nominal width).
Carton-closing staples subject to this investigation are currently classifiable under subheadings 8305.20.00.00 and 7317.00.65.60 of the Harmonized Tariff Schedule of the United States (“HTSUS”). While the HTSUS subheadings and ASTM specification are provided for convenience and for customs purposes, the written description of the subject merchandise is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On March 15, 2017, the Department of Commerce (the Department) published a notice of initiation of an administrative review of the antidumping duty order on potassium permanganate from the People's Republic of China (PRC). Based on Chongqing Changyuan Group Limited's (Changyuan) timely withdrawal of its request for review, we are now rescinding this administrative review with respect to Changyuan.
Effective April 27, 2017.
Kabir Archuletta, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone (202) 482-2593.
On January 10, 2017, the Department published a notice of “Opportunity to Request Administrative Review” of the antidumping duty order on potassium permanganate from the PRC.
Pursuant to 19 CFR 351.213(d)(1), the Secretary will rescind an administrative review, in whole or in part, if a party who requested the review withdraws the request within 90 days of the date of publication of notice of initiation of the requested review. Changyuan timely withdrew its review request and no other party requested a review of Changyuan. Accordingly, we are rescinding this review, in part, with respect to Changyuan, in accordance with 19 CFR 351.213(d)(1). This review will continue with respect to PAL.
The Department will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries. For the company for which this review is rescinded, antidumping duties shall be assessed at rates equal to the cash deposit of estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(1)(i). The Department intends to issue appropriate assessment instructions directly to CBP 15 days after publication of this notice in the
This notice serves as the only reminder to importers for whom this review is being rescinded, as of the publication date of this notice, of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the presumption that reimbursement of the antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice also serves as a 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, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
This notice is issued and published in accordance with sections 751 and 777(i)(l) of the and 19 CFR 351.213(d)(4).
Defense Security Cooperation Agency, Department of Defense.
Notice.
The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104-164 dated July 21, 1996.
Kathy Valadez, (703) 697-9217 or Pamela Young, (703) 697-9107; DSCA/DSA-RAN.
The following is a copy of a letter to the Speaker of the House of Representatives, Transmittal 17-18 with attached Policy Justification.
(i)
(ii)
(iii)
Non-MDE items and services under consideration for sale are follow-on support for five (5) CC177 aircraft (Canada's designator for the C-17), including contractor logistics support (CLS) provided through the Globemaster III Integrated Sustainment Program (GISP), in-country field services support, alternate mission equipment,
(iv)
(v)
(vi)
(vii)
(viii)
* as defined in Section 47(6) of the Arms Export Control Act.
The Government of Canada has requested a possible sale of follow-on support for five (5) CC177 aircraft (Canada's designator for the C-17), including contractor logistics support (CLS) provided through the Globemaster III Integrated Sustainment Program (GISP), in-country field services support, aircraft maintenance and technical support, support equipment, alternate mission equipment, software support, spares, personnel training and training equipment, U.S. Government and contractor engineering and logistics support services, publications and technical documentation, and major modification and retrofit kits support. The total estimated program cost is $195 million.
This proposed sale will contribute to the foreign policy and national security objectives of the United States by sustaining the military capabilities of Canada, a NATO ally that has been, and continues to be, an important force for ensuring political stability and economic progress in the world, including through its involvement in military, peacekeeping, and humanitarian operations. The sustainment of Canada's C-17s will ensure the country's continued capability to rapidly deploy its forces, as well as the continued interoperability between the U.S. and Canadian Air Forces' C-17s.
The proposed sale of defense articles and services is required to maintain the operational readiness of the Royal Canadian Air Force C-17 aircraft. Canada's current contract supporting its five (5) C-17s will expire on 20 September 2017. The Royal Canadian Air Force will have no difficulty absorbing this support.
The proposed sale of this equipment and support will not alter the basic military balance in the region.
Sources of supply will award contracts when necessary to provide the defense articles ordered if items ordered are not available from U.S. stock or are considered lead-time away.
The prime contractor will involve the following contractors:
There are no known offsets. Any offset agreements will be defined in negotiations between the purchaser and the contractor.
Implementation of this proposed sale will not require the assignment of any additional U.S. Government or contractor representatives to Canada. There is an on-going foreign military sales case providing C-17 sustainment services. There are currently 13 contractors from Boeing in-country providing contractor technical services support on a continuing basis.
There will be no adverse impact to U.S. defense readiness as a result of this proposed sale.
Defense Security Cooperation Agency, Department of Defense.
Notice.
The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104-164 dated July 21, 1996.
Kathy Valadez, (703) 697-9217 or Pamela Young, (703) 697-9107; DSCA/DSA-RAN.
The following is a copy of a letter to the Speaker of the House of Representatives, Transmittal 17-10 with attached Policy Justification.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
* As defined in Section 47(6) of the Arms Export Control Act.
The Government of Iraq has requested a possible sale of the equipment necessary to fully outfit two full Peshmerga Regional Brigades of light infantry, as well as the equipment necessary to outfit two artillery battalions that will ultimately provide support to those regional brigades. These artillery battalions and infantry brigades will operate under the Kurdistan Regional Governments Ministry of Peshmerga (KRG MOP) with the concurrence of the central government. Requested equipment includes the following: (4,400) M16A4 rifles; (46) M2 50 caliber machine guns; (186) M240B machine guns; (36) M1151 HMMWVs; (77) M1151 up-armored HMMWVs; (12) 3 Kilowatt Tactical Quiet Generator sets; body armor, helmets, and other Organization Clothing and Individual Equipment (OCIE); small arms and associated accessories including tripods, cleaning kits, magazines, and mounts; mortar systems and associated equipment; Chemical, Biological, Radiological, Nuclear, and Explosive (CBRNE) detection and protective equipment; dismounted and mounted radio systems; commercial navigation equipment including compasses, binoculars, and Geospatial Position System (GPS) limited to the Standard Positioning System (SPS); M1142 HMMWVs; medical equipment; Mine Resistant Ambush Protected Vehicles (MRAP); cargo and transportation equipment, including light tactical vehicles, medium tactical vehicles, water trucks, fuel trucks, and ambulances; (36) refurbished M119A2 105mm howitzers; spare parts, training and associated equipment related to the mentioned vehicles and artillery systems.
This proposed sale will contribute to the foreign policy and national security objectives of the United States, by supporting Iraq's capacity to degrade and defeat the Islamic State of Iraq and the Levant (ISIL). Iraq will have no difficulty absorbing this equipment into its armed forces.
The proposed sale of this equipment and support will not alter the basic military balance in the region.
There are a number of contractors involved in this effort, including but not limited to AM General, Oshkosh Defense, Navistar Defense, Harris Radio, and Colt Corporation. There are no known offset agreements proposed in connection with this potential sale.
Implementation of this proposed sale will not require the deployment of any additional U.S. Government or contractor personnel to Iraq.
There will be no adverse impact on U.S. defense readiness as a result of this proposed sale.
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice of intent.
The Coastal Protection and Restoration Authority of Louisiana (CPRA) has requested approval from the U.S. Army Corps of Engineers, New Orleans District (USACE-MVN) to construct, maintain, and operate a sediment diversion structure off the right descending bank of the Mississippi River, at approximately 60.7 miles above “Head of Passes” in Plaquemines Parish, Louisiana. The proposed project, referred to as the Mid-Barataria Sediment Diversion (MBSD), would be designed to deliver sediment, freshwater, and nutrients from the Mississippi River into Barataria Basin. USACE-MVN intends to serve as the lead federal agency in preparing an Environmental Impact Statement (EIS) in accordance with the National Environmental Policy Act (NEPA). At this time, Cooperating Agencies on the EIS includes the: Environmental Protection Agency (EPA), Department of the Interior (DOI), National Oceanic and Atmospheric Administration (NOAA), National Marine Fisheries Service (NMFS), U.S. Fish and Wildlife Service (USFWS), and U.S. Department of Agriculture (USDA). The EIS for CPRA's proposed MBSD project will inform a permit decision for a Department of Army (DA) permit pursuant to Section 404 of the Clean Water Act (Section 404) and Section 10 of the Rivers and Harbors Act of 1899 (Section 10), and permissions under Section 14 of the Rivers and Harbors Act of 1899 (Section 408). In addition to informing USACE-MVN's decisions, the EIS will inform decisions made by the
Questions concerning the DA permit process should be directed to Mr. Brad LaBorde at U.S. Army Corps of Engineers, New Orleans District, Attn: CEMVN-OD-SE, 7400 Leake Avenue, New Orleans, LA 70118, by phone (504) 862-2225, or by email at
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2.
3.
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Questions regarding consultation or compliance requirements described herein, will be directed to the appropriate jurisdictional agency.
6. The USACE-MVN will consult with the Louisiana State Historic Preservation Officer (SHPO) and the appropriate Tribal Historic Preservation Officers (THPO), per the National Historic Preservation Act.
7.
8.
Office of Elementary and Secondary Education (OESE), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995, ED is proposing a non-substantive change to an existing collection.
Interested persons are invited to submit comments on or before May 5, 2017.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Melissa Siry, (202)260-0926.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology.
OESE requests public comment on a non-substantive change to an existing collection approved under 1810-0576 currently running a separate comment period under ED-2017-ICCD-0021. OESE is seeking OMB approval to use these non-substantive changes to the assurances data collection instrument by May 17, 2017. You may provide comments to the assurances template under 1810-0576 ED-2017-ICCD-0054 by May 5, 2017. Please note that written comments received in response to this notice will be considered public records.
Department of Education (ED), Federal Student Aid (FSA).
Notice.
In accordance with the Paperwork Reduction Act of 1995, ED is proposing an extension of an existing information collection.
Interested persons are invited to submit comments on or before June 26, 2017.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Beth Grebeldinger, 202-377-4018.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
This information collection includes the following five loan discharge applications that are used to obtain the information needed to determine whether a borrower qualifies for a closed school discharge, false certification—ATB, false certification—disqualifying status, false certification—unauthorized signature/unauthorized payment or unpaid refund loan discharges.
Take notice that on April 6, 2017, Northwest Pipeline LLC (Northwest), having its principal place of business at 295 Chipeta Way, Salt Lake City, Utah 84108 filed in the above referenced docket an application pursuant to section 7(b) and 7(c) of the Natural Gas Act (NGA), and Part 157 of the Commission's regulations requesting authorization to Northwest proposes to (1) remove and replace 1,700 feet of 30-inch pipeline and (2) remove 1,550 feet of previously abandoned-in-place 26-inch pipeline located in Whatcom County, Washington referred to as Nooksack Line Lowering Project (Project), all as more fully set forth in the application which is on file with the Commission and open to public inspection. The Project is designed to reduce the exposure to the pipeline caused by river channel migration and improve reliability for the benefit of existing customers. The total cost of the Project is approximately $16,585,331. The filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site web at
Any questions concerning this application may be directed to Richard N. Stapler Jr., Business Development, 295 Chipeta Way, Salt Lake City, Utah 84108, by phone at (801) 584-6883, by fax (801) 584-6496 or by emailing
Pursuant to section 157.9 of the Commission's rules (18 CFR 157.9), within 90 days of this Notice, the
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit seven copies of filings made in the proceeding with the Commission and must mail a copy to the applicant and to every other party. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commentors will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commentors will not be required to serve copies of filed documents on all other parties. However, the non-party commentors will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
Take notice that on April 13, 2017, Navitas TN NG, LLC (Navitas), 3186D Airway Avenue, Costa Mesa, California 92626, filed an application, pursuant to section 7(f) of the Natural Gas Act (NGA),
Specifically, Navitas, a Tennessee local distribution company providing natural gas service to customers in north-central Tennessee and regulated by the Tennessee Regulatory Authority, request a service area determination to operate across the Tennessee/Kentucky border in order to service a small number of Kentucky customers.
Any questions regarding this application should be directed to Thomas Hartline, Navitas Utility Corporation, 3186D Airway Avenue, Costa Mesa, CA 92626, or call (714) 242-4064, or by email
Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: Complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commentors will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commentors will not be required to serve copies of filed documents on all other parties. However, the non-party commentors will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
Take notice that on April 13, 2017, Navitas KY NG, LLC (Navitas), 3186D Airway Avenue, Costa Mesa, California 92626, filed an application, pursuant to section 7(f) of the Natural Gas Act (NGA),
Specifically, Navitas, a Kentucky local distribution company regulated by the Kentucky Public Service Commission and providing natural gas service to approximately 125 customers in Albany, Clinton County Kentucky in the southern portion of the state adjacent to the Tennessee border, request a service area determination to operate across the Tennessee border into Pickett County Tennessee near Byrdstown in order to access a natural gas supply interconnection, the B&W Pipeline, to service its Kentucky customers. Navitas' application is related to B&W Pipeline, Inc.'s application for a limited jurisdiction blanket certificate of public convenience and necessity filed in Docket No. CP17-78-000 on March 17, 2017.
Any questions regarding this application should be directed to Thomas Hartline, Navitas Utility Corporation, 3186D Airway Avenue, Costa Mesa, CA 92626, or call (714) 242-4064, or by email
Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 7 copies of filings made in the proceeding with the Commission and must mail a copy to the applicant and to every other party. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commentors will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commentors will not be required to serve copies of filed documents on all other parties. However, the non-party commentors will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
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h.
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The Commission strongly encourages electronic filing. Please file motions to intervene, protests, comments, or recommendations using the Commission's eFiling system at
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m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
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Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing efforts to reduce public burden and maximize the utility of government information, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. This notice invites comment on a new information collection project titled “A Novel Framework for Structuring Industry-Tuned Public-Private Partnerships and Economic Incentives for U.S. Health Emergency Preparedness and Response”. This data collection will conduct interviews with industry leaders and survey private sector organization managers to systematically evaluate and explore the partnership preferences of private sector organizations, specifically when they are interacting or considering an interaction with government agencies.
Written comments must be received on or before June 26, 2017.
You may submit comments, identified by Docket No. CDC-2017-0011 by any of the following methods:
•
•
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact Leroy A. Richardson, of the Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE., MS-D74, Atlanta, Georgia 30329; phone: 404-639-7570; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires Federal agencies to provide a 60-day notice in the
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed 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 of information 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. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; to develop, acquire, install and utilize technology and systems for the purpose of collecting, validating and verifying information, processing and maintaining information, and disclosing and providing information; to train personnel and to be able to respond to a collection of information, to search data sources, to complete and review the collection of information; and to transmit or otherwise disclose the information.
A Novel Framework for Structuring Industry-Tuned Public-Private Partnerships and Economic Incentives for U.S. Health Emergency Preparedness and Response—New—Office of Public Health Preparedness and Response, Centers for Disease Control and Prevention (CDC).
Despite the important role of public-private partnerships in supporting the U.S.'s public health preparedness and response mission, many partnership efforts are not successful due to poorly aligned incentives or lack of awareness of external market factors. There is little research or information on private sector incentive structures and partnership opportunities and barriers specific to public health preparedness and response. This study will evaluate the effectiveness of public-private partnership incentives from the perspective of private sector industries within the public health preparedness and response space.
CDC proposes to collect information from the private industry leaders in the public health preparedness and response space to accomplish this goal. Study activities will include (1) identifying public-private partnership incentives and target industries for public health preparedness and response; (2) conducting interviews with industry leaders in person or via telephone to identify related public health emergency preparedness activities and partnership opportunities and barriers; and (3) surveying private sector organization managers using on-line technology (Qualtrics) on key issues and attractiveness of partnership opportunities and incentives; and develop a framework to identify partnership target organizations, opportunities, and incentives to promote public health emergency preparedness capabilities.
The information collection request is composed of two parts: (1) Interviews and (2) an on-line general survey distributed. The targeted interviews will seek respondents in the following eight sectors: Pharmaceutical/life sciences (n = 8), health IT/mobile (n = 8), retailers/distributors (n = 6), academia/research organization (n = 6), hospital/healthcare provider (n = 5), health insurance (n = 4), logistics/transportation (n = 4), and charitable organization/foundation (n = 4). The interview questions and the information collected will vary significantly across the different sectors.
The survey portion of the information collection will be a larger survey that will be sent to 200 individuals to reach a total sample population of 100 (assuming a 50% response rate). The interviews and survey will only be administered one time to each individual respondent. CDC plans to conduct interviews and surveys within six months after OMB approval.
Members of the research team will conduct the interviews. Surveys will be conducted using the secure online software Qualtrics, and respondents will receive an email with a unique link that will direct them to the Qualtrics survey platform. All data will then be transferred to CDC's preferred Secure File Transfer Protocol (SFTP) client, where it will be stored and later accessed securely by members of the research team. After this transfer, all copies of the data that reside outside of the SFTP will be destroyed. Only the research team will have access to the interview transcripts and survey responses that will link responses to personally identifiable information. Any printed or hand-written documents containing PII will be stored securely in locked file cabinets when not in use, and will be destroyed once the information has been scanned or otherwise transferred into electronic files (which will also be transferred to the SFTP client). Access to the SFTP will require the user to enter a host address, username, password and port number, all of which will only be provided to the research team.
CDC will make the collected data available only to research team members for analysis and will maintain the data for the duration of the study. Identifiable information may be filed by the name of respondent on the SFTP, but it will not be removed from the SFTP in that format. Any information removed from the SFTP client to be shared with outside parties will be presented in aggregated and de-identified form, unless otherwise
OPHPR is requesting an approval period of one year to collect this information. There are no cost burdens to respondents or record keepers for this data collection. The total time burden to respondents is 70 hours. See a summary of the annualized burden hours in the below table.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing efforts to reduce public burden and maximize the utility of government information, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. This notice invites comment on a proposed data collection project titled “Emergency Zika Package: Zika Reproductive Health Call-Back Survey ZRHCS), 2017.”
Written comments must be received on or before June 26, 2017.
You may submit comments, identified by Docket No. CDC-2017-0037 by any of the following methods:
•
•
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact Leroy A. Richardson, Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE., MS-D74, Atlanta, Georgia 30329; phone: 404-639-7570; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires Federal agencies to provide a 60-day notice in the
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed 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 of information 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. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; to develop, acquire, install and utilize technology and systems for the purpose of collecting, validating and verifying information, processing and maintaining information, and disclosing and providing information; to train personnel and to be able to respond to a collection of information, to search data sources, to complete and review the collection of information; and to transmit or otherwise disclose the information.
Zika Reproductive Health Call-Back Survey (ZRHCS), 2017—New—National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP), Centers for Disease Control and Prevention (CDC).
In May 2015, the World Health Organization reported the first local mosquito born transmission of Zika virus in the Western Hemisphere, with autochthonous cases identified in Brazil. In response to the Zika virus outbreak, and evidence that Zika virus infection during pregnancy is a cause
Given the adverse pregnancy and birth outcomes associated with Zika virus infection during pregnancy, increasing access to effective contraception is a key countermeasure for preventing unintended pregnancies that might otherwise be affected by Zika. In addition, even in the absence of disease outbreaks that can lead to negative pregnancy and birth outcomes, access to contraception is needed to help prevent the 45% of pregnancies in the United States that are unintended. Given that the proportion of pregnancies that are unintended varies widely across states, it is important to identify populations with high unmet need for contraception to implement targeted strategies for increasing access to and availability of effective contraception. Additionally, it is important for women who are at risk of becoming pregnant unintentionally, or who are planning a pregnancy, to be knowledgeable of behaviors for preventing mosquito born and sexual transmission of Zika and recommendations for waiting to get pregnant after they or their partner have returned from an area with Zika.
The objective of this assessment is to collect scientifically valid, current information on various aspects of Zika knowledge and prevention behaviors from a representative sample of adult women of reproductive age (aged 18-49 years) in 14 states/territories, including information: (1) The use of contraception among women wishing to avoid or delay pregnancies that might otherwise be affected by Zika; (2) barriers to access and use of contraception; (3) knowledge of and adherence to mosquito prevention strategies and use of condoms to minimize the risk of sexual transmission; and (4) frequency of travel to Zika areas and knowledge of and adherence to travel recommendations. The 14 jurisdictions included have had widespread local transmission, are at high risk for local transmission, and/or have a disproportionately high number of travel-related cases.
The information collected will be provided to state and territory health departments to provide a basis on which to develop emergency response plans for potential outbreaks and make decisions regarding the distribution of finite resources to prevent Zika virus infection during pregnancy. Given the potential for new outbreaks and increases in cases in areas with Zika as the summer travel and mosquito season approaches, an interim data set and report would be made available to states no later than June, 2017. Additionally, in the event that a jurisdiction has an increase in Zika cases or newly reported local transmission, interim data will be analyzed and provided within 10 business days to aid in emergency response planning.
Participation is voluntary and there are no costs to respondents other than their time.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing effort to reduce public burden and maximize the utility of government information, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. This notice invites comment on the information collection project titled “Information Collections to Advance State, Tribal, Local and Territorial (STLT) Governmental Agency and System Performance, Capacity, and Program Delivery.” Information, collected across a range of public health topics using standard modes of administration (
Written comments must be received on or before June 26, 2017.
You may submit comments, identified by Docket No. CDC-2017-0044 by any of the following methods:
•
•
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact Leroy A. Richardson, Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE., MS-D74, Atlanta, Georgia 30329; phone: 404-639-7570; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires Federal agencies to provide a 60-day notice in the
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed 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 of information 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. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; to develop, acquire, install and utilize technology and systems for the purpose of collecting, validating and verifying information, processing and maintaining information, and disclosing and providing information; to train personnel and to be able to respond to a collection of information, to search data sources, to complete and review the collection of information; and to transmit or otherwise disclose the information.
Information Collections to Advance State, Tribal, Local and Territorial (STLT) Governmental Agency and System Performance, Capacity, and Program Delivery (OMB Control No. 0920-0879, Expiration date, 3/31/2018)—Extension—Office for State, Tribal Local and Territorial Support (OSTLTS), Centers for Disease Control and Prevention (CDC).
The mission of the Department of Health and Human Services is to help provide the building blocks that Americans need to live healthy, successful lives. As part of HHS, CDC's mission is to create the expertise, information, and tools that people and communities need to protect their health—through health promotion, prevention of disease, injury and disability, and preparedness for new health threats. CDC and HHS seek to accomplish its mission by collaborating with partners throughout the nation and the world to: Monitor health, detect and investigate health problems, conduct research to enhance prevention, develop and advocate sound public health policies, implement prevention strategies, promote healthy behaviors, foster safe and healthful environments, and provide leadership and training.
CDC is requesting a three-year approval for a generic clearance to collect information related to domestic public health issues and services that affect and/or involve state, tribal, local and territorial (STLT) government entities.
The respondent universe is comprised of STLT governmental staff or delegates acting on behalf of a STLT agency involved in the provision of essential public health services in the United States. Delegate is defined as a governmental or non-governmental agent (agency, function, office or individual) acting for a principal or submitted by another to represent or act on their behalf. The STLT agency is represented by a STLT entity or delegate with a task to protect and/or improve the public's health.
Information will be used to assess situational awareness of current public health emergencies; make decisions that affect planning, response and recovery activities of subsequent emergencies; fill CDC and HHS gaps in knowledge of programs and/or STLT governments that will strengthen surveillance, epidemiology, and laboratory science; improve CDC's support and technical assistance to states and communities. CDC and HHS will conduct brief data collections, across a range of public health topics related to essential public health services.
CDC estimates up to 30 data collections with STLT governmental staff or delegates, and 10 data collections with local/county/city governmental staff or delegates will be conducted on an annual basis. Ninety-five percent of these data collections will be web-based and five percent telephone, in-person, and focus groups. The total annualized burden of 54,000 hours is based on the following estimates.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing efforts to reduce public burden and maximize the utility of government information, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. This notice invites comment on a proposed revision to the information collection project titled “Information Collection on Cause-Specific Absenteeism in Schools.” Changes include a revised title. The proposed title is “Information Collection on Cause-Specific Absenteeism in Schools and Evaluation of Influenza Transmission within Student Households.” The project will continue to address the original aim of improving our understanding of the role of influenza-like illness (ILI)—specific absenteeism in schools in predicting community-wide influenza transmission.
Written comments must be received on or before June 26, 2017.
You may submit comments, identified by Docket No. CDC-2017-0040 by any of the following methods:
•
•
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact Leroy A. Richardson, Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE., MS-D74, Atlanta, Georgia 30329; phone: 404-639-7570; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires Federal agencies to provide a 60-day notice in the
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed 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 of information 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. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; to develop, acquire, install and utilize technology and systems for the purpose of collecting, validating and verifying information, processing and maintaining information, and disclosing and providing information; to train personnel and to be able to respond to a collection of information, to search data sources, to complete and review the collection of information; and to transmit or otherwise disclose the information.
Information Collection on Cause-Specific Absenteeism in Schools and Evaluation of Influenza Transmission within Student Households (OMB Control Number 0920-1039; expires 12/31/2017)—Revision—National Center for Emerging and Zoonotic Infectious Diseases (NCEZID), Centers for Disease Control and Prevention (CDC).
The CDC's Division of Global Migration and Quarantine (DGMQ), requests approval of an information collection project that will allow for improved understanding of the role of influenza-like illness (ILI)-specific absenteeism in schools in predicting community-wide influenza transmission. The collection will also allow for within-household influenza transmission where students have been absent from school due to ILI. CDC is seeking three-year clearance to collect this data.
Since receiving Office of Management and Budget (OMB) approval in December 2014, CDC enrolled 651 students in the study. Of them, 58% were positive for at least one respiratory pathogen included in the Polymerase chain reaction (PCR) panel that tests for presence of 17 common respiratory viruses, and 27% of the students were found to be positive for influenza. It was demonstrated that absenteeism due to ILI in school children was highly correlated with PCR-confirmed influenza in enrolled school children and with medically-attended influenza in the surrounding community suggesting that ILI-specific school absenteeism can be considered a useful tool for predicting influenza outbreaks in the surrounding community. However, more observations during influenza seasons caused by other influenza strains are needed to make these findings more robust.
The information collection for which approval is sought is in accordance with CDC's and DGMQ's missions to reduce morbidity and mortality in mobile populations, and to prevent the introduction, transmission, or spread of communicable diseases within the United States. Insights gained from this information collection will assist in the planning and implementation of CDC Pre-Pandemic Guidance on the use of school related measures, including school closures, to slow transmission during an influenza pandemic.
School closures were considered an important measure during the earliest stage of the 2009 H1N1 pandemic, because a pandemic vaccine was not available until October (6 months later), and sufficient stocks to immunize all school-age children were not available until December. However, retrospective review of the U.S. government response to the pandemic identified a limited evidence-base regarding the effectiveness, acceptability, and feasibility of various school related measures during mild or moderately severe pandemics. Guidance updates will require an evidence-based rationale for determining the appropriate triggers, timing, and duration of school related measures, including school closures, during a pandemic.
CDC staff proposes that the revised information collection for this package will target adult and child populations in a school district in Wisconsin. CDC will continue collecting reports from students absent from school due to ILI including information on individual student symptoms, vaccination status, recent travel, recent exposure to people with influenza symptoms, and duration of illness. The proposed revision will include collecting data from household members of students absent from school due to ILI. Household members will provide information on household composition, individual influenza vaccination status, presence of ILI symptoms, severity of illness, related healthcare visits, diagnosis and treatment, and missed work or school. This will be accomplished through telephone and in-person interviews.
Findings obtained from this information collection will be used to inform and update CDC's Pre-pandemic Guidance on the implementation of school related measures to prevent the spread of influenza, especially school closures. The Guidance is used as an important planning and reference tool for both State and local health departments in the United States.
There is no cost to respondents other than their time. The estimated annualized number of burden hours are 365.
Authorizing legislation includes Section 361 of the Public Health Service Act (42 U.S.C. 264) and Section 301 of the Public Health Service Act (42 U.S.C. 241).
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing efforts to reduce public burden and maximize the utility of government information, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. This notice invites comment on the proposed information collection project titled “Awardee Lead Profile Assessment (ALPA).” The information collection project includes a questionnaire to collect information to identify jurisdictional legal frameworks governing funded childhood lead poisoning prevention programs in the United States, and strategies for implementing childhood lead poisoning prevention activities in the United States.
Written comments must be received on or before June 26, 2017.
You may submit comments, identified by Docket No. CDC-2017-0045 by any of the following methods:
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To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact Leroy A. Richardson, of Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE., MS-D74, Atlanta, Georgia 30329; phone: 404-639-7570; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires Federal agencies to provide a 60-day notice in the
Awardee Lead Profile Assessment (ALPA)—NEW—National Center for Environmental Health (NCEH), Centers for Disease Control and Prevention (CDC).
The Centers for Disease Control and Prevention (CDC) is requesting a three-year clearance for a new information collection project titled “Awardee Lead Profile Assessment (ALPA).” The goal of this project is to build on an existing childhood lead poisoning prevention program. CDC will obtain program management information from participating state and local governments that are awardees under the CDC Healthy Homes and Lead Poisoning Prevention Program (HHLPPP) FY17 Funding Opportunity Announcement (FOA No. CDC-RFA-EH17-1701PPHF17). This annual information collection will be used: (1) To identify common characteristics of funded childhood lead poisoning prevention programs; and (2) inform guidance and resource development in support of the ultimate program goal, which is blood lead elimination in children.
The dissemination of these ALPA results will ensure that both funded and non-funded jurisdictions are able to: (1) Identify policies and other factors that support or hinder childhood lead poisoning prevention efforts; (2) understand what strategies are being used by funded public health agencies to implement childhood lead poisoning prevention activities; and (3) use this knowledge to develop and apply similar strategies to support the national agenda to eliminate childhood lead poisoning.
This program management information will be collected annually from 45 awardees, using two data collection modes. We anticipate that the majority, 40 respondents, will choose the Web survey due to the ease of use, and that 5 respondents will choose the MSWord format mode.
We estimate the time burden to be the same, 7 minutes per response, regardless of data collection mode (Web survey or Word format). This estimate is based on a 2015 survey among 35 former awardees titled “Baseline Profile of State and Local Healthy Homes and Lead Poisoning Prevention Programs (PROF-LEAD),” approved under the generic clearance for “Information Collections to Advance State, Tribal, Local, and Territorial (STLT) Governmental Health” (OMB Control No. 0920-0879; expiration date 03/31/2018). Due to its success, the PROF-
There is no cost to the respondents other than their time. The total annual time burden requested is six hours.
The Centers for Disease Control and Prevention (CDC) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The notice for the proposed information collection is published to obtain comments from the public and affected agencies.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address any of the following: (a) 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; (b) 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; (c) Enhance the quality, utility, and clarity of the information to be collected; (d) 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 request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639-7570 or send an email to
Colorectal Cancer Control Program (CRCCP) Monitoring Activities (OMB Control Number 0920-1074, expires 06/30/2019)—Revision—National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP), Centers for Disease Control and Prevention (CDC).
CDC is requesting a revision to the approved information collection under OMB Control Number 0920-1074. CDC proposes use of a revised grantee survey instrument, as well as a revised clinic-level data collection template. The number of respondents will also decrease from 31 to 30 grantees, and the total estimated annualized burden will decrease.
Colorectal cancer (CRC) is the second leading cause of death from cancer in the United States among cancers that affect both men and women. CRC screening has been shown to reduce incidence of and death from the disease. Screening for CRC can detect disease early when treatment is more effective and prevent cancer by finding and removing precancerous polyps. Of individuals diagnosed with early stage CRC, more than 90% live five or more years. To reduce CRC morbidity, mortality, and associated costs, use of CRC screening tests must be increased among age-eligible adults with the lowest CRC screening rates.
The purpose of the Colorectal Cancer Control Program (CRCCP): Organized Approaches to Increase Colorectal Cancer Screening (CDC-RFA-DP15-1502), is to increase CRC screening rates among an applicant defined target population of persons 50-75 years of age within a partner health system serving a defined geographical area or disparate population. The CRCCP includes 30 grantees that are state governments or bona-fide agents, universities, and tribal organizations.
The CRCCP was significantly redesigned in 2015 and has two components. Under Component 1, all grantees receive funding to support partnerships with health systems to implement up to four priority evidence-based interventions (EBIs) described in the Guide to Community Preventive Services, as well as other supporting activities (SAs). Grantees must implement at least two EBIs in each partnering health system. Under Component 2, six of the 30 grantees provide direct screening and follow-up clinical services for a limited number of individuals aged 50-64 in the program's priority population who are asymptomatic, at average risk for CRC, have inadequate or no health insurance for CRC screening, and are low income.
Two forms of data collection have been implemented to assess program processes and outcomes. In Program Year 1, the annual grantee survey monitored grantee program implementation, including (1) program management, (2) implementation of the EBIs and SAs, (3) health information technology (IT), (4) partnerships, (5) data use, (6) training and technical assistance (TA), and (7) clinical service delivery (for programs receiving
Based on feedback from grantees and internal subject matter experts, CDC proposes use of updated data collection instruments. Specifically, CDC plans to implement a revised CRCCP grantee survey that eliminates questions related to EBI and SA implementation as these data are more accurately reported at the clinic level. Conversely, CDC will implement a revised CRCCP clinic-level data collection template with additional data variables related to EBI and SA implementation, as well as monitoring and evaluation activities, at the clinic level.
Redesigned data elements will enable CDC to better gauge progress in meeting CRCCP program goals and monitor implementation activities, evaluate outcomes, and identify grantee technical assistance needs. In addition, data collected will inform program improvement and help identify successful activities that need to be maintained, replicated, or expanded.
OMB approval is requested for three years. The total estimated annualized burden hours have decreased from 210 to 204 hours. There are no costs to respondents other than their time.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the Board of Scientific Counselors, NICHD.
The meeting will be open to the public as indicated below, with the attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public as indicated below in accordance with the provisions set forth in section 552b(c)(6), Title 5 U.S.C., as amended for the review, discussion, and evaluation of individual intramural programs and projects conducted by the EUNICE KENNEDY SHRIVER NATIONAL INSTITUTE OF CHILD HEALTH AND HUMAN DEVELOPMENT, including consideration of personnel qualifications and performance, and the competence of individual investigators, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Open: 8:00 a.m. to 11:30 a.m.
Information is also available on the Institute's/Center's home page:
Coast Guard, DHS.
Notice.
The Coast Guard announces that a Certificate of Alternate Compliance was issued for the U.S. Coast Guard's National Security Cutters (WMSL Class). We are issuing this notice because its publication is required by statute. Due to their unique purpose, these vessels cannot fully comply with the masthead light provisions of the International Regulations for Preventing Collisions at Sea, 1972 (72 COLREGS) without interfering with their special function.
For information about this notice, please call or email LCDR Matthew Walter, Commandant (CG-NAV-2), U.S. Coast Guard, 2703 Martin Luther King Jr. Avenue SE., Stop 7418, Washington, DC 20593, telephone 202-372-1565 or email
The United States is signatory to the International Maritime Organization's International Regulations for Preventing Collisions at Sea, 1972 (72 COLREGS), as amended. The special construction or purpose of some vessels makes them unable to comply with the light, shape, and sound signal provisions of the 72 COLREGS. Pursuant to 33 U.S.C. 1605(a), Navy and Coast Guard vessels of special construction or purpose may be issued a Certificate of Alternative Compliance (COAC) authorizing alternative requirements to the 72 COLREGS. For Coast Guard vessels, the Commandant of the U.S. Coast Guard determines whether the vessel for which the COAC is sought complies as closely as possible with 72 COLREGS, and decides whether to issue the COAC. By law, notice of COACs must be published in the
Pursuant to 33 U.S.C. 1605(d), a COAC may be issued for a class of vessels. The Commandant, U.S. Coast Guard, hereby finds and certifies that the U.S. Coast Guard's class of WMSL-750 vessels (also known as National Security Cutters) are a class of vessels of special construction or purpose, and that with respect to the horizontal position of the Forward and Aft Masthead navigational lights, it is not possible to comply fully with the requirements of the provisions enumerated in the 72 COLREGS Annex I, section 3(a), without interfering with the special function of these vessels. The Commandant, U.S. Coast Guard, further finds and certifies that the masthead lights of the National Security Cutters are in the closet possible compliance with the applicable
This notice is issued in accordance with 33 U.S.C. 1605(c).
U.S. Customs and Border Protection (CBP), Department of Homeland Security.
30-Day notice and request for comments; revision of an existing collection of information.
The Department of Homeland Security, U.S. Customs and Border Protection will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The information collection is published in the
Interested persons are invited to submit written comments on this proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the OMB Desk Officer for Customs and Border Protection, Department of Homeland Security, and sent via electronic mail to
Requests for additional information should be directed to the CBP Paperwork Reduction Act Officer, U.S. Customs and Border Protection, Office of Trade, Regulations and Rulings, Economic Impact Analysis Branch, 90 K Street NE., 10th Floor, Washington, DC 20229-1177, or via email
CBP invites the general public and other Federal agencies to comment on the proposed and/or continuing information collections pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
EVUS provides for greater efficiencies in the screening of international travelers by allowing DHS to identify nonimmigrant aliens who may be inadmissible before they depart for the United States, thereby increasing security and reducing traveler delays upon arrival at U.S. ports of entry. EVUS aids DHS in facilitating legitimate travel while also enhancing public safety and national security.
DHS proposes to add the following question to EVUS: “Please enter information associated with your online presence—Provider/Platform—Social media identifier.” It will be an optional data field to request social media identifiers to be used for vetting purposes, as well as applicant contact information.
National Protection and Programs Directorate, DHS.
60-Day notice and request for comments; New Information Collection Request: 1670-NEW.
The Department of Homeland Security (DHS), National Protection and Programs Directorate (NPPD), Office of Cybersecurity and Communications (CS&C), Office of Emergency Communications (OEC), will submit the following Information Collection Request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted until June 26, 2017. This process is conducted in accordance with 5 CFR 1320.1.
Written comments and questions about this Information Collection Request should be forwarded to DHS/NPPD/CS&C/OEC, 245 Murray Lane SW., Mail Stop 0640, Arlington, VA 20598-0640. Emailed requests should go to
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In 2006, Congress passed Public Law 109-295, which created the Office of Emergency Communications (OEC) headed by a Director of Emergency Communications. Responsibilities of the Director include assisting the Secretary in developing and implementing a program to support and promote the ability of emergency response providers and relevant government officials to continue to communicate in the event of natural disasters, acts of terrorism, and other man-made disasters; and ensure, accelerate, and attain interoperable emergency communications nationwide.
Title 6 U.S.C. 571(c)(4) requires the DHS Secretary through the OEC Director to conduct extensive, nationwide outreach to support and promote the ability of emergency response providers and relevant government officials to continue to communicate in the event of natural disasters, acts of terrorism, and other man-made disasters. In order to perform this statutory regulation it is important to understand the variety of technology being used today. Additionally, 6 U.S.C. 573 requires the DHS Secretary to conduct a baseline assessment of the first responder emergency communications capabilities at least every five years.
These authorities in addition to DHS's responsibilities through E.O. 13618 in the area of national security/emergency providers' communications require a renewed examination of baseline emergency communications capabilities.
The Office of Emergency Communication's SAFECOM Nationwide Survey (SNS) purpose is to gather information to assess available capabilities, identify gaps and needs for emergency response providers to effectively communicate during all types of natural or man-made hazards. In order to ascertain this information the SNS will deploy four distinctive surveys across the nation addressing emergency response entities at each level of government: Federal, State and Territorial, Tribal, and Local. The SNS is built on a foundation of core elements identified by OEC and its stakeholders as “must haves” in order to achieve open and secure communications operability, interoperability and continuity. These elements are interdependent critical success factors that must be addressed to plan for and implement public safety communications capability. As such, these elements are
OMB is particularly interested in comments that:
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 estimate 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; and
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,
Bureau of Indian Affairs, Interior.
Notice of request for comments.
In compliance with the Paperwork Reduction Act of 1995, the Bureau of Indian Education (BIE) is seeking comments on the early renewal of Office of Management and Budget (OMB) approval for the collection of information for the Application for Admission to Haskell Indian Nations University (Haskell) and to Southwestern Indian Polytechnic Institute (SIPI), authorized by OMB Control Number 1076-0114. This information collection expires August 31, 2017.
Submit comments on or before June 26, 2017.
You may submit comments on the information collection to: Ms. Jacquelyn Cheek, Special Assistant to the Director, Bureau of Indian Education, 1849 C Street NW., Mailstop 3609-MIB, Washington, DC 20240; facsimile: (202) 208-3312; or email to:
Ms. Jacquelyn Cheek, phone: (202) 208-6983.
The BIE is requesting early renewal of OMB approval for the admission forms for Haskell and SIPI. These admission forms are used in determining program eligibility of American Indian and Alaska Native students for educational services. These forms are utilized pursuant to the Blood Quantum Act, Public Law 99-228; the Snyder Act, Chapter 115, Public Law 67-85; and, the Indian Appropriations of the 48th Congress, Chapter 180, page 91, For Support of Schools, July 4, 1884. The application was revised following input from students on the form. Haskell reduced the length of the application form to a page and a half. SIPI's application did not change.
The BIE requests your comments on this collection concerning: (a) The necessity of this information collection for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) The accuracy of the agency's estimate of the burden (hours and cost) of the collection of information, including the validity of the methodology and assumptions used; (c) Ways we could enhance the quality, utility, and clarity of the information to be collected; and (d) Ways we could minimize the burden of the collection of the information on the respondents.
Please note that an agency may not conduct or sponsor, and an individual need not respond to, a collection of information unless it displays a valid OMB Control Number.
It is our policy to make all comments available to the public for review at the location listed in the
These forms are utilized pursuant to the Blood Quantum Act, Public Law 99-228; the Snyder Act, Chapter 115, Public Law 67-85; and, the Indian Appropriations of the 48th Congress, Chapter 180, page 91, For Support of Schools, July 4, 1884. The authority for this action is the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
Bureau of Land Management, Interior.
Notice.
The April 2017 Northern California District Resource Advisory Council meeting has been postponed.
The meeting was scheduled for April 26, 2017, in Redding, California, and will be rescheduled at a later date. We will publish a future notice with new meeting date and location.
BLM Northern California District Manager, Alan Bittner, (530) 224-2160; or by email at
The 15-member council advises the Secretary of the Interior, through the BLM, on a variety of planning and management issues associated with public land management on BLM-administered lands in northern California and northwest Nevada.
Additional information is available in the meeting notice published on April 18, 2017 (82 FR 18308).
5 U.S.C. Appendix 2.
On the basis of the record
Pursuant to section 207.18 of the Commission's rules, the Commission also gives notice of the commencement of the final phase of its investigations. The Commission will issue a final phase notice of scheduling, which will be published in the
On March 8, 2017, Globe Specialty Metals, Inc., Beverly, Ohio filed a petition with the Commission and Commerce, alleging that an industry in the United States is materially injured or threatened with material injury by reason of subsidized imports of silicon metal from Australia, Brazil, and Kazakhstan, and LTFV imports of silicon metal from Australia, Brazil, and Norway. Accordingly, effective March 8, 2017, the Commission, pursuant to sections 703(a) and 733(a) of the Act (19 U.S.C. 1671b(a) and 1673b(a)), instituted countervailing duty investigation Nos. 701-TA-567-569 and antidumping duty investigation Nos. 731-TA-1343-1345 (Preliminary).
Notice of the institution of the Commission's investigations and of a public conference to be held in connection therewith was given by posting copies of the notice in the Office of the Secretary, U.S. International Trade Commission, Washington, DC, and by publishing the notice in the
The Commission made these determinations pursuant to sections 703(a) and 733(a) of the Act (19 U.S.C. 1671b(a) and 1673b(a)). It completed and filed its determinations in these investigations on April 24, 2017. The views of the Commission are contained in USITC Publication 4685 (May 2017), entitled
By order of the Commission.
On September 22, 2016, the Assistant Administrator, Diversion Control Division, Drug Enforcement Administration, issued an Order to Show Cause to Robert Clark Maiocco, M.D. (Respondent), of Denver, Colorado. The Show Cause Order proposed the revocation of Respondent's DEA Certificate of Registration No. AM2281688, and the denial of any applications to renew or modify his registration, as well as the denial of “any applications for any other DEA registrations,” on the ground that he has “no state authority to handle controlled substances.” Show Cause Order, at 1 (citing 21 U.S.C. 824(a)(3) and 823(a)(3)).
While the Government also proposes the denial of “any applications for any other DEA registrations,” because this proceeding is based solely on Respondent's lack of state authority in Colorado, the Agency's authority to deny an application is limited to an application for a registration in Colorado.
As to the Agency's jurisdiction, the Show Cause Order alleged that Respondent is registered “as a practitioner in Schedules II through V” under the above registration, at the location of “Colorado Lipidology Associates, 633 17th Street, Ste. 100, Denver, Co.”
As to the substantive ground for the proceeding, the Show Cause Order alleged that “[o]n July 19, 2016, the Colorado Medical Board suspended [Respondent's] medical license.”
Following service of the Show Cause Order, Respondent requested a hearing. The matter was placed on the docket of the Office of Administrative Law Judges and assigned to ALJ Charles Wm. Dorman who issued an order directing the Government to file evidence supporting the allegation and “any motion for summary disposition” by 2 p.m. on November 7, 2016. Briefing Schedule For Lack Of State Authority Allegations (Briefing Schedule), at 1. In
On November 3, 2016, Respondent moved for a continuance of all proceedings in the matter until and including January 3, 2017. Resp.'s Mot. for Continuance, at 1. As grounds for the continuance, Respondent argued that the suspension of his state license was not a final agency action, that the state administrative case was currently being litigated, that the parties were engaged in active negotiations to resolve the matter “via a stipulated disposition that would allow [him] to return to the active practice of medicine,” and that “such a negotiated disposition may be reached within the next 45 to 60 days.”
On November 10, 2016, the Government filed a pleading which combined its Opposition to Respondent's Motion for Continuance and its Motion for Summary Disposition. Gov.'s Opp. to Resp.'s Mot. to Stay Proceedings and Gov.'s Mot. for Summ. Disp. (hereinafter, Mot. for Summ. Disp.), at 1. With respect to Respondent's stay motion, the Government suggested that Respondent's statements regarding the timing of a negotiated resolution of the state matter was speculative.
As for the Government's Motion for Summary Disposition, it argued that based on the Order of Suspension issued to Respondent by the Colorado Medical Board, he does not have “authority to prescribe, administer, or dispense controlled substances in the State of Colorado.” Mot. for Summ. Disp., at 3. The Government argued that there is no dispute as to this material fact,
On November 14, 2016, the ALJ denied Respondent's Motion for Continuance. Order Denying the Respondent's Motion for Continuance, at 1. The ALJ's explained that “[i]t is settled DEA precedent `that the existence of other proceedings in which Respondent is involved is not a basis upon which to justify a stay of DEA administrative enforcement proceedings.”
On November 30, 2016, Respondent submitted a pleading captioned: “Respondent's Motion For Extension Of Time In Which To Submit His Response To The Government's Motion for Summary Disposition And, In The Alternative, His Response To The Government's Motion For Summary Disposition” (hereinafter, Extension Mot.). Therein, Respondent represented that he had “submitted a proposed Stipulation and Final Agency Order to” the Colorado Board, “which, if agreed to by the [Board], would result in the lifting of the suspension and the restoration of” his controlled substance dispensing authority in Colorado. Extension Mot., at 1-2. Respondent further represented that the proposed Stipulation was to be considered by the Board at its December 15, 2016 meeting and expressed his optimism that the Board would accept the Stipulation.
Citing “the interest of administrative/judicial economy,” the ALJ granted Respondent's motion and ordered Respondent to file his evidence of reinstatement and his Response to the Motion for Summary Disposition by December 20, 2016. Order Granting Respondent's Motion for Extension in Which to Submit His Response to the Government's Mot. for Summary Disposition, at 2. On December 20, 2016, Respondent filed his Response and a Status Report. Response to Gov. Mot. for Summ. Disp. and Status Rep., at 1. Therein, Respondent advised that “the parties in [the Board's proceeding] were unable to reach a resolution and [that] the matter will proceed to a hearing” scheduled for June 26 through June 30, 2017.
The same day, the ALJ granted the Government's Motion. The ALJ noted that “[t]o maintain a DEA registration, a practitioner must be currently authorized to handle controlled substances in the jurisdiction in which the practitioner is registered.” R.D. at 3 (citing 21 U.S.C. 802(21), 823(f)). Finding that there was no dispute over the material fact that “Respondent lacks state authorization to handle controlled substances in Colorado,” the State in which he is registered with DEA, the ALJ granted the Government's Motion and recommended that Respondent's registration be revoked.
Neither party filed exceptions to the Recommended Decision. Thereafter, the ALJ forwarded the record to my Office for final agency action. Having considered the record, I adopt the ALJ's factual finding, legal conclusions and recommended order. I make the following factual findings.
Pursuant to 5 U.S.C. 556(e), I take official notice of Respondent's registration record with the Agency. According to the record, Respondent is the holder of Certificate of Registration No. AM2281688, pursuant to which he is authorized to dispense controlled substances in schedules II through V as practitioner, at the registered address of Colorado Lipidology Associates, 633 17th Street, Suite 100, Denver, Colorado. Respondent's registration does not expire until January 31, 2019.
Respondent is also the holder of license number DR-36651, pursuant to which he is authorized to practice medicine as a physician by the Medical Board of Colorado. Mot. for Summ. Disp., Ex. 1, at 1. However, effective on July 19, 2016, the Board suspended Respondent's medical license “pending proceedings for suspension or revocation.”
Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized to suspend or revoke a registration issued under section 823 of the Controlled Substances Act (CSA), “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 long 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 “the controlling question” in a proceeding brought under 21 U.S.C. 824(a)(3) is whether the holder of a DEA registration “is currently authorized to handle controlled substances in the [S]tate,”
Here, there is no dispute over the material fact that Respondent is no longer currently authorized to dispense controlled substances in Colorado, the State in which he is registered. Accordingly, I adopt the ALJ's recommendation that Respondent's registration be revoked.
Pursuant to the authority vested in me by 21 U.S.C. 824(a), as well as 28 CFR 0.100(b), I order that DEA Certificate of Registration AM2281688, issued to Robert Clark Maiocco, M.D., be, and it hereby is, revoked. Pursuant to the authority vested in me by 21 U.S.C. 823(f), I further order that any pending application of Robert C. Maiocco, M.D., to renew or modify his registration, be, and it hereby is, denied. This Order is effective immediately.
On December 8, 2015, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration (hereinafter, DEA or Government), issued an Order to Show Cause to David D. Moon, D.O. (hereinafter, Registrant), the holder of Certificates of Registration Nos. M9879024, in Tulsa, Oklahoma, and BM2782692, in Las Vegas, Nevada, authorizing him to prescribe controlled substances in Schedules II through V.
As the jurisdictional basis for the proceeding, the Show Cause Order alleged that both of Registrant's registrations expire on January 31, 2018.
As the substantive grounds for the proceeding, the Show Cause Order alleged that on June 18, 2015, the Oklahoma State Board of Osteopathic Examiners revoked his Oklahoma osteopathic license, and that on August 11, 2015, the Nevada State Board of Osteopathic Medicine revoked his Nevada osteopathic license, which resulted in the status of his Nevada State Board of Pharmacy license becoming “inactive.”
The Show Cause Order alleged that on April 17, 2013, Registrant was arrested at McCarran International Airport while proceeding through a Transportation Security Administration checkpoint.
Based on a subsequent Government investigation and the execution of an Administrative Inspection Warrant (hereinafter, AIW), the Show Cause Order alleged that Registrant accepted controlled substances from non-DEA registered sources (patients) and redistributed those illicitly obtained controlled substances to other patients in violation of 21 U.S.C. 844(a) and 21 U.S.C. 841(a)(1), respectively.
Based on another Government investigation, the Show Cause Order alleged that Registrant issued at least 55 controlled substance prescriptions in Nevada under a registration which listed his registered address in Oklahoma in violation of 21 U.S.C. 822(e) and 21 CFR 1301.12(a) and (b)(3).
The Show Cause Order also notified Registrant of his right to request a hearing on the allegations or to submit a written statement while waiving his right to a hearing, the procedure for electing each option, and the consequence for failing to elect either option.
According to the “Affidavit of Service of Order to Show Cause” submitted by a Diversion Investigator (hereinafter, DI) assigned to the DEA Tulsa Resident Office, on January 7, 2016, ten separate copies of the Show Cause Order were sent to Registrant by certified mail, first-class mail, and electronic mail to his registered addresses, as well as his last-known home and electronic mail addresses. GX 5. Specifically, the DI stated that the Government served the Show Cause Order on Registrant (1) by certified mail, return receipt requested addressed to Registrant's registered address at 11445 East 20th Street, Tulsa, Oklahoma 74128; (2) by regular first-class U.S. mail addressed to Registrant's registered address at 11445 East 20th Street, Tulsa, Oklahoma 74128; (3) by certified mail, return receipt requested addressed to Registrant's registered address at 241 N. Buffalo Drive, Bldg. 1, Las Vegas, Nevada 89145; (4) by regular first-class U.S. mail addressed to Registrant's registered address at 241 N. Buffalo Drive, Bldg. 1, Las Vegas, Nevada 89145; (5) by certified mail, return receipt requested addressed to Registrant's last known home address in Oklahoma at 2136 East 25th Street, Tulsa 74114; (6) by regular first-class U.S. mail addressed to Registrant's last known home address in Oklahoma at 2136 East 25th Street, Tulsa 74114; (7) by certified mail, return receipt requested addressed to Registrant's last known home address in Nevada at 2814 Soft Horizon Way, Las Vegas 89135; (8) by regular first-class U.S. mail addressed to Registrant's last known home address in Nevada at 2814 Soft Horizon Way, Las Vegas 89135; (9) by electronic mail at the email address that appears in DEA's registration database for Registrant's Tulsa registered location; and (10) by electronic mail at the email address that appears in DEA's registration database for Registrant's Las Vegas registered location.
According to the “Supplemental Affidavit of Service of Order to Show Cause” (hereinafter, Supplemental Affidavit) submitted by the Tulsa Resident Office DI, the certified mail, return receipt and regular first-class mailings addressed to Registrant's registered address in Tulsa, Oklahoma were returned with the notation “return to sender, vacant.” GX 6, at 1. The Supplemental Affidavit stated that the mailings addressed to Registrant's registered address in Las Vegas and his last known home address in Oklahoma were not returned and the Government did not receive the certified return receipt green cards for those mailings sent certified mail, return receipt.
I find that the Government's service of the Show Cause Order on Registrant was legally sufficient. According to the Supreme Court, “due process does not require actual notice.”
Here, the Government mailed the Show Cause Order by certified mail and by regular first-class mail to Registrant's addresses of record and last-known home addresses. The Government also emailed the Order to Show Cause to the email addresses which Registrant had provided to the Government. I find therefore that the Government's efforts were reasonably calculated under all the circumstances to apprise Registrant of the Order to Show Cause and to afford him an opportunity to present his objections.
On November 4, 2016, the Government submitted a Request for Final Agency Action (hereinafter,
Based on the Government's representations and my review of the record, I find that more than 30 days have now passed since the date on which Registrant was served with the Show Cause Order and neither Registrant, nor anyone purporting to represent him, has requested a hearing or submitted a written statement while waiving his right to a hearing. Accordingly, I find that Registrant has waived his right to a hearing and his right to submit a written statement. 21 CFR 1301.43(d). I therefore issue this Decision and Order based on the record submitted by the Government. 21 CFR 1301.43(e).
Registrant currently holds DEA practitioner registrations BM9879024 and BM2782692, pursuant to which he is authorized to dispense controlled substances in Schedules II through V. GX 13 and 14. These registrations do not expire until January 31, 2018.
DEA practitioner registration BM9879024 is assigned to Registrant at 11445 East 20th Street, Tulsa, OK 74128. GX 14, at 1. DEA practitioner registration BM2782692 is assigned to Registrant at “Accelerated Rehab & Pain Ctr, 241 N. Buffalo Drive, Bldg. 1, Las Vegas, NV 89145.” GX 13, at 1. However, from August 11, 2014 until December 15, 2014, the address associated with Registrant's BM2782692 registration was 11445 East 20th Street, Tulsa, OK 74128.
By Order dated June 18, 2015, the Oklahoma State Board of Osteopathic Examiners revoked Registrant's license number 2965 to practice osteopathic medicine in the State of Oklahoma. GX 7.
Effective August 11, 2015, the Nevada State Board of Osteopathic Medicine revoked Registrant's license number 705 to practice osteopathic medicine in the State of Nevada. GX 8, at 4. Also, the status of Registrant's Nevada State Board of Pharmacy license number CS07559 is “revoked by other agency.” GX 9.
On April 17, 2013, Registrant was arrested as he attempted to pass through a McCarran International Airport Transportation Security Administration checkpoint with an unregistered firearm. GX 10, at 2-3. Law enforcement officers found a large quantity of pills in Registrant's carry-on bag along with the firearm.
According to the Arrest Report, Registrant possessed controlled substances with the intent to redistribute them to individuals for whom they were not originally dispensed.
Further, while the Arrest Report recounted Registrant “simply” stating that “some of his folks that he had previously treated were simply trying to destroy their medication, and . . . [Registrant] was willing to take possession of those medications again later to distribute to those that are indigent and in need,” the Arrest Report never stated that Registrant admitted possessing controlled substances not prescribed to himself or intended to redistribute controlled substances to individuals for whom they were not originally dispensed.
Similarly, the record contains scant evidence regarding “the unreadableness/illegibility of some labels on the prescription bottles and the absence of any label on other prescription bottles.” GX 4, at 4. However, as stated above, the Arrest Report did not provide a basis for the officers' conclusions that the seized pills were controlled substances. Further, nothing else in the record established that the seized pills were controlled substances. Since the statutory sections cited in the Show Cause Order regarding these allegations only apply to controlled substances, and the record does not contain substantial evidence that the pills seized from Registrant at McCarran International Airport were, in fact, controlled substances, I cannot place any weight on the evidence in the record to support these alleged violations.”
After Registrant's arrest, the Government undertook a multi-faceted investigation of Registrant.
According to the affidavit of a DI assigned to DEA's Tulsa Resident Office, on May 2, 2013, she and other Investigators executed an Administrative Inspection Warrant at Registrant's Oklahoma registered address. GX 12, at 1. At that time, she
According to the Tulsa DI's affidavit, she issued administrative subpoenas to five entities for a complete sales history of all of Registrant's controlled substances purchases for the previous two years.
While the Government submitted evidence concerning other portions of its AIW investigation of Registrant, GX 11 and 12, the evidence lacked a sufficient foundation. The evidence consisted of a copy of the AIW, a portion of the affidavit of a DI who participated in the execution of the AIW, and “a complete and accurate copy of the DEA Computation Chart” prepared as part of the DI's accountability audit.
Further, no portion of these materials addressed the allegations in the AIW portion of the Show Cause Order that Registrant accepted controlled substances from non-DEA registered sources and redistributed those illicitly obtained controlled substances to other patients. GX 4, at 4. I examined the entire record for evidence concerning these two allegations. The Arrest Report stated that Registrant possessed a “large quantity” of “what appeared to be prescription medication” that “belonged to various family members and former patients.” GX 10, at 3. As I stated above, however, the Arrest Report did not contain factual support that the seized pills were controlled substances. Thus, I cannot place any weight on that evidence in the Arrest Report. For the same reason, the Arrest Report evidence cannot support the AIW-related allegations that Registrant accepted controlled substances from non-DEA registered sources and redistributed those illicitly obtained controlled substances to other patients. I found no other evidence in the record that supports these two AIW-related allegations.
According to the affidavit of a Diversion Group Supervisor assigned to the DEA Las Vegas District Office, on October 30, 2014, she and other Investigators conducted a Scheduled Investigation at a SAV-ON Pharmacy in Las Vegas, Nevada. GX 15, at 1. At that time, the Investigators reviewed six randomly selected bundles of prescriptions and noticed prescriptions written by Registrant during a period when he did not have a DEA registration in the State of Nevada.
I examined each of prescriptions the Government obtained from the Las Vegas SAV-ON Pharmacy. Based on my review of this evidence, from August 11, 2014 through October 29, 2014, Registrant issued at least 55 controlled substance prescriptions for drugs including oxycodone (23), morphine (17), adderall (six), tapentadol (six), methadone (two), and hydrocodone (one) on prescriptions showing Registrant's name as well as “Accelerated Rehabilitation & Pain Center” and its Las Vegas, Nevada contact information, Registrant's Nevada license number, and DEA registration number BM2782692.
Under Section 304 of the Controlled Substances Act (hereinafter, CSA), “[a] registration . . . to . . . dispense a controlled substance . . . may be . . . revoked by the Attorney General upon a finding that the registrant . . . has had his State license or registration . . . revoked . . . by competent State authority and is no longer authorized by State law to engage in the . . . dispensing of controlled substances . . . .” 21 U.S.C. 824(a)(3). Section 304 also provides that a registration may be revoked “upon a finding that the registrant . . . has committed such acts as would render his registration under section 823 of this title inconsistent with the public interest as determined under such section.”
In making the public interest determination, the CSA requires the consideration of the following factors:
(1) The recommendation of the appropriate State licensing board or professional disciplinary authority.
(2) The applicant's experience in dispensing, or conducting research with respect to controlled substances.
(3) The applicant's conviction record under Federal or State laws relating to the manufacture, distribution, or dispensing of controlled substances.
(4) Compliance with applicable State, Federal, or local laws relating to controlled substances.
(5) Such other conduct which may threaten the public health and safety.
“[T]hese factors are . . . considered in the disjunctive.”
Under DEA's regulation, “[a]t any hearing for the revocation or suspension of a registration, the Administration shall have the burden of proving that the requirements for such revocation or suspension pursuant to . . . 21 U.S.C. [§ ] 824(a) . . . are satisfied.” 21 CFR 1301.44(e). The Government retains the burden of providing substantial evidence to support the proposed action even when the registrant does not request a hearing.
In this case, I conclude that the record supports two independent grounds for revoking Registrant's registrations. First, Registrant does not possess authority to dispense controlled substances under the laws of Oklahoma or Nevada, the States in which he is registered. 21 U.S.C. 824(a)(3). Second, Registrant violated multiple controlled substances-related regulatory requirements incumbent on registrants, thereby rendering his registrations “inconsistent with the public interest.”
DEA has long 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
As DEA has repeatedly held, this rule derives from multiple provisions of the CSA. First, in section 802(21), 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, Congress directed that the Attorney General “shall register practitioners . . . if the applicant is authorized to dispense . . . controlled substances under the laws of the State in which he practices.”
Here, the Government has provided substantial evidence establishing that Registrant no longer possesses authorization to dispense controlled substances in Oklahoma and Nevada, the States in which he is registered. As found above, on June 18, 2015, the Oklahoma State Board of Osteopathic Examiners revoked Registrant's osteopathic license, GX 7, and effective August 11, 2015, the Nevada State Board of Osteopathic Medicine revoked his osteopathic license. GX 8.
Pursuant to section 304(a)(4), the Attorney General is also authorized to revoke a registration “upon a finding that the registrant . . . has committed such acts as would render his registration under section 823 of this title inconsistent with the public interest as determined under such section.” 21 U.S.C. 824(a)(4).
In this matter, while I have considered all of the factors, I find the Government's evidence as to factors two and four dispositive.
As to factor three, although the record contains evidence concerning Registrant's arrest at McCarran International Airport, I acknowledge that there is no evidence that Registrant has been convicted of an offense under Federal, Oklahoma, or Nevada law “relating to the manufacture, distribution or dispensing of controlled substances.” 21 U.S.C. 823(f)(3). However, there could be any number of reasons why a person who has engaged in criminal misconduct may never have been convicted of an offense under this factor, let alone have been prosecuted for one.
The Government did not allege in the Show Cause Order any misconduct exclusively with respect to factor five.
The CSA requires a “separate registration . . . at each principal place of business or professional practice where the applicant . . . distributes . . . or dispenses controlled substances . . . .” 21 U.S.C. 822(e)(1).
Based on my review of the evidence submitted by the Government, the Registrant issued, from August 11, 2014 through October 29, 2014, at least 55 controlled substance prescriptions on prescriptions showing Registrant's name as well as “Accelerated Rehabilitation & Pain Center” and its Las Vegas, Nevada contact information, Registrant's Nevada license number, and DEA registration number BM2782692.
The Order to Show Cause alleged that, by issuing these 55 prescriptions “in one state under a DEA registration issued for another state,” Registrant violated 21 U.S.C. 822(e) and 21 CFR 1301.12(a) and (b)(3). GX 4, at 5. These legal provisions, however, do not concern issuing a prescription “in one state under a DEA registration issued for another state.”
Under 21 CFR 1306.05(a), controlled substance prescriptions are to “bear . . . the name, address and registration number of the practitioner,” among other things. Registrant's address on the 55 prescriptions the Government submitted is in Nevada. Thus, I conclude that Registrant maintained a principal place of business or professional practice in Nevada from August 11, 2014 through October 29, 2014 from which he issued at least 55 prescriptions for controlled substances. During this period, however, Registrant was not registered with the DEA in Nevada.
The CSA requires “every registrant . . . as soon . . . as such registrant first engages in the . . . dispensing of controlled substances, and every second year thereafter, [to] make a complete and accurate record of all stocks thereof on hand . . . .” 21 U.S.C. 827(a)(1).
The CSA also requires registrants to maintain, on a current basis, complete and accurate records of each controlled substance received or dispensed.
Pursuant to the authority vested in me by 21 U.S.C. 824(a) and 21 U.S.C. 823(f), as well as 28 CFR 0.100(b), I order that DEA Certificates of Registration BM9879024 and BM2782692 issued to David D. Moon, D.O., be, and they hereby are, revoked. I further order that any pending application of David D. Moon, D.O., to renew or modify these registrations, as well as any other pending application, be, and it hereby is, denied. This order is effective May 30, 2017.
National Institute of Justice, U.S. Department of Justice.
60-day notice.
The Department of Justice (DOJ), Office of Justice Programs, National Institute of Justice, will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted for 60 days until June 26, 2017.
If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Christine Crossland, National Institute of Justice, Office of Research & Evaluation, 810 Seventh Street NW., Washington, DC 20531 (overnight 20001) or via email at
This process is conducted in accordance with 5 CFR 1320.10. Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
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The sample includes tribal youth 12 to 20 years of age. Cognitive testing will be conducted in four tribal settings with between 12-15 youth at each site. The pilot test involves the use of at least two but no more than three different modes of administration modes [
Among the key outcomes that will be examined are the response and refusal rates, missing data, interview length, willingness to disclose sensitive information, respondent comfort, cost, ability to provide assistance to respondents, and the ease and adequacy of the human subjects' protocol.
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If additional information is required contact: Melody Braswell, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., 3E.405A, Washington, DC 20530.
Notice.
The Department of Labor (DOL) is submitting the Employee Benefits Security Administration (EBSA) sponsored information collection request (ICR) proposal titled, “On the Road to Retirement Surveys,” to the Office of Management and Budget (OMB) for review and approval for use in accordance with the Paperwork Reduction Act (PRA) of 1995. Public comments on the ICR are invited.
The OMB will consider all written comments that agency receives on or before May 30, 2017.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the
Submit comments about this request by mail to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-EBSA, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503; by Fax: 202-395-5806 (this is not a toll-free number); or by email:
Contact Michel Smyth by telephone at 202-693-4129 (this is not a toll-free number) or by email at
This ICR seeks PRA authority for the “On the Road to Retirement Surveys” information collection. More specifically, the EBSA seeks to undertake a long-term research study that will track U.S. households over several years in order to collect data and answer important research questions on how retirement planning strategies and decisions evolve over time. This collection will gather data about how people make planning and financial decisions before and during retirement, especially with regard to the information that they receive and how they respond to it. The data collection effort is designed to overcome the limitations seen in existing data collection activities. Gaining insight into Americans' decision-making processes and experiences will provide policy-makers and the research community with valuable information that can be used to guide future policy and research. This ICR seeks approval for pre-test surveys, a screening survey, an initial participant survey, an advice interaction survey, and an annual participant survey. Household reports on behavior and outcomes will be combined with survey responses on planning methods, strategies and financial information received to perform a cross-sectional analysis, conditional on other respondent attributes. The EBSA intends to use data drawn from multiple waves of various surveys to analyze how behavior evolves over time. Employee Retirement Income Security Act section 513(a) authorizes this information collection.
This proposed information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information if the collection of information does not display a valid Control Number.
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
44 U.S.C. 3507(a)(1)(D).
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation (NSF) announces the following meeting:
In accordance with Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation (NSF) announces the following meeting:
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation (NSF) announces the following meeting:
Notice.
The National Science Foundation (NSF) requests recommendations for membership on its scientific and technical Federal advisory committees. Recommendations should consist of the name of the submitting individual, the organization or the affiliation providing the member nomination, the name of the recommended individual, the recommended individual's curriculum vita, an expression of the individual's interest in serving, and the following recommended individual's contact information: employment address, telephone number, FAX number, and email address. Self-recommendations are accepted. If you would like to make a membership recommendation for any of the NSF scientific and technical Federal advisory committees, please send your recommendation to the appropriate committee contact person listed in the chart below.
The mailing address for the National Science Foundation is 4201 Wilson Boulevard, Arlington, VA 22230.
Web links to individual committee information may be found on the NSF Web site: NSF Advisory Committees.
Each Directorate and Office has an external advisory committee that typically meets twice a year to review and provide advice on program management; discuss current issues; and review and provide advice on the impact of policies, programs, and activities in the disciplines and fields encompassed by the Directorate or Office. In addition to Directorate and Office advisory committees, NSF has several committees that provide advice and recommendations on specific topics including: astronomy and astrophysics; environmental research and education; equal opportunities in science and engineering; cyberinfrastructure; international science and engineering; and business and operations.
A primary consideration when formulating committee membership is recognized knowledge, expertise, or demonstrated ability.
The chart below is a listing of the committees seeking recommendations for membership. Recommendations should be sent to the contact person identified below. The chart contains web addresses where additional information about individual committees is available.
Nuclear Regulatory Commission.
Notice of submission to the Office of Management and Budget (OMB); request for comment.
The U.S. Nuclear Regulatory Commission (NRC) has recently submitted a request for renewal of an existing collection to OMB for review. The information collections are entitled, “DOE/NRC Form 740M, Concise Note; DOE/NRC Form 741, Nuclear Material Transaction Report; DOE/NRC Form 742, Material Balance Report; and DOE/NRC Form 742C, Physical Inventory Listing.”
Submit comments May 30, 2017.
Submit comments directly to the OMB reviewer at: Aaron Szabo, Desk Officer, Office of Information and Regulatory Affairs (3150-0057, 3150-0003, 3150-0004, 3150-0058), NEOB-10202, Office of Management and Budget, Washington, DC 20503; telephone: 202-395-3621, email:
David Cullison, NRC Clearance Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-2084; email:
Please refer to Docket ID NRC-2016-0174 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
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The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. All comment submissions are posted at
If you are requesting or aggregating comments from other persons for submission to the OMB, 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 comment submissions are not routinely edited to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the NRC recently submitted a revision of a collection of information to OMB for review entitled, “DOE/NRC Form 740M, Concise Note; DOE/NRC Form 741, Nuclear Material Transaction Report; DOE/NRC Form 742, Material Balance Report; DOE/NRC Form 742C, Physical Inventory Listing.” The NRC hereby informs potential respondents that an agency may not conduct or sponsor, and that a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
The NRC published a
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DOE/NRC Form 740M: 3150-0057.
DOE/NRC Form 741: 3150-0003.
DOE/NRC Form 742: 3150-0004.
DOE/NRC Form 742C: 3150-0058.
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Any licensee who ships, receives, or otherwise undergoes an inventory change of nuclear material is required to submit a DOE/NRC Form 741 to document the change. Additional information regarding these transactions shall be submitted through Form 740M, with Safeguards Information identified and handled in accordance with 10 CFR 73.21, “Requirements for the Protection of Safeguards Information.”
Any licensee who had possessed in the previous reporting period, at any one time and location, nuclear material in a quantity totaling one gram or more shall complete DOE/NRC Form 742. In addition, each licensee, Federal or State, who is authorized to possess, at any one time or location, one kilogram of foreign obligated source material, is required to file with the NRC an annual statement of source material inventory which is foreign obligated.
Any licensee, who had possessed in the previous reporting period, at any one time and location, special nuclear material in a quantity totaling one gram or more shall complete DOE/NRC Form 742C.
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DOE/NRC Form 740M: 175.
DOE/NRC Form 741: 10,000.
DOE/NRC Form 742: 385.
DOE/NRC Form 742C: 385.
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DOE/NRC Form 740M: 40.
DOE/NRC Form 741: 350.
DOE/NRC Form 742: 385.
DOE/NRC Form 742C: 385.
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DOE/NRC Form 740M: 131.
DOE/NRC Form 741: 12,500.
DOE/NRC Form 742: 1,310.
DOE/NRC Form 742C: 1,490.
10.
For the Nuclear Regulatory Commission.
Tuesday, May 9, 2017, at 9:00 a.m.; and Wednesday, May 10, at 8:00 a.m.
Washington, DC, at U.S. Postal Service Headquarters, 475 L'Enfant Plaza SW., in the Benjamin Franklin Room.
Tuesday, May 9, 2017, at 9:00 a.m.—Closed; Wednesday, May 10, at 8:00 a.m.—Open.
1. Financial Matters.
2. Strategic Issues.
3. Governors' Executive Session—Discussion of prior agenda items and Board governance.
1. Remarks of the Postmaster General and CEO and Chairman of the Temporary Emergency Committee of the Board.
2. Approval of Minutes of Previous Meetings.
3. Committee Reports.
4. Quarterly Report on Financial Performance.
5. Quarterly Service Performance Report.
6. Tentative Agenda for the June 20 Meeting.
Julie S. Moore, Secretary of the Board, U.S. Postal Service, 475 L'Enfant Plaza SW., Washington, DC 20260-1000. Telephone: (202) 268-4800.
Form G-99a,
In response to the RRB's Office of Inspector General's recommendation to strengthen the controls of the agency's representative payee monitoring program, the RRB proposes new Form G-106,
Completion of the forms in this collection is required to retain benefits.
On December 30, 2016, NYSE Arca, Inc. (“NYSE Arca” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
This order institutes proceedings under Section 19(b)(2)(B) of the Act
The Exchange proposes to list and trade the Shares under NYSE Arca Equities Rule 8.201, which governs the listing and trading of Commodity-Based Trust Shares on the Exchange.
The investment objective of the Trust would be for the Shares to track the price of ether as measured by the price of ether in U.S. dollars reported by the Global Digital Asset Exchange (“GDAX”) as of 4:00 p.m., Eastern Time (“GDAX Price”). The NAV of the Trust would be calculated each business day based on the GDAX Price. The Trust's Web site would provide an intra-day indicative value (“IIV”) per Share updated every 15 seconds, as calculated by the Exchange or a third-party financial data provider during the Exchange's Core Trading Session (
The Commission is instituting proceedings pursuant to Section 19(b)(2)(B) of the Act
Pursuant to Section 19(b)(2)(B) of the Act,
The Commission requests that interested persons provide written submissions of their views, data, and arguments with respect to the issues identified above, as well as any other concerns they may have with the proposal. In particular, the Commission invites the written views of interested persons concerning whether the proposal is consistent with Section 6(b)(5) or any other provision of the Act, or the rules and regulations thereunder. Although there do not appear to be any issues relevant to approval or disapproval that would be facilitated by an oral presentation of views, data, and arguments, the Commission will consider, pursuant to Rule 19b-4, any request for an opportunity to make an oral presentation.
Interested persons are invited to submit written data, views, and arguments regarding whether the proposal should be approved or disapproved by May 18, 2017. Any person who wishes to file a rebuttal to any other person's submission must file that rebuttal by June 1, 2017. The Commission asks that commenters address the sufficiency of the Exchange's statements in support of the proposal, which are set forth in the Notice.
Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On January 25, 2017, NYSE Arca, Inc. (“NYSE Arca” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
On March 22, 2017, pursuant to Section 19(b)(2) of the Act,
The Commission is publishing this notice to solicit comment on the proposed rule change, as modified by Amendment No. 1,
The Exchange proposes to list and trade shares of the following under NYSE Arca Equities Rule 8.201: Bitcoin Investment Trust (“Trust”). 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.
Under NYSE Arca Equities Rule 8.201, the Exchange may propose to list and/or trade pursuant to unlisted trading privileges (“UTP”) “Commodity-Based Trust Shares.”
The sponsor of the Trust is Grayscale Investments, LLC (“Sponsor”), a Delaware limited liability company. The Sponsor is a wholly-owned subsidiary of Digital Currency Group, Inc. (“Digital Currency Group”). The trustee for the Trust is Delaware Trust Company (“Trustee”). The Bank of New York Mellon will be the Trust's transfer agent (in such capacity, “Transfer Agent”) and the administrator of the Trust (in such capacity, “Administrator”). Xapo Inc. is the custodian for the Trust (“Custodian”).
The Trust is a Delaware statutory trust, organized on September 13, 2013, that operates pursuant to a trust agreement between the Sponsor and the Trustee. The Trust has no fixed termination date.
According to the Registration Statement, each Share will represent a proportional interest, based on the total number of Shares outstanding, in the bitcoins held by the Trust, less the Trust's liabilities, which include accrued but unpaid fees and expenses. The Trust's assets will consist solely of bitcoins held on the Trust's behalf by the Custodian. The Trust has not had a cash balance at any time since inception. When selling bitcoins to pay expenses, the Sponsor will endeavor to sell the exact number of bitcoins needed to pay expenses in order to minimize the Trust's holdings of assets other than bitcoin. As a consequence, the Trust expects that it will not record any cash flow from its operations and that its cash balance will be zero at the end of each reporting period.
The activities of the Trust will be limited to (i) issuing “Baskets” (as defined below) in exchange for bitcoins deposited by the “Authorized Participants” (as defined below) or “Liquidity Providers” (as defined below), as applicable, with the Custodian as consideration, (ii) transferring actual bitcoins as necessary to cover the Sponsor's management fee and selling bitcoins as necessary to pay certain other fees that are not contractually assumed by the Sponsor, (iii) transferring actual bitcoins in exchange for Baskets surrendered for redemption by the Authorized Participants, (iv) causing the Sponsor to sell bitcoins on the termination of the Trust and (v) engaging in all administrative and custodial procedures necessary to accomplish such activities in accordance with the provisions of applicable agreements. The Trust is not actively managed. It will not engage in any activities designed to obtain a profit from, or to ameliorate losses caused by, changes in the market price of bitcoins.
According to the Registration Statement, the Trust is neither an investment company registered under the Investment Company Act of 1940, as amended, (“1940 Act”)
According to the Registration Statement, and as further described below, the investment objective of the Trust will be for the Shares to reflect the performance of the value of a bitcoin as represented by the TradeBlock XBX
The Shares are designed to provide investors with a cost-effective and convenient way to invest in bitcoin. A substantial direct investment in bitcoins may require expensive and sometimes complicated arrangements in connection with the acquisition, security and safekeeping of the bitcoins and may involve the payment of substantial fees to acquire such bitcoins from third-party facilitators through cash payments of U.S. dollars. Although the Shares will not be the exact equivalent of a direct investment in bitcoins, they will provide investors with an alternative that constitutes a relatively cost-effective way to participate in bitcoin markets through the securities market.
The following is a brief introduction to the bitcoin industry and the bitcoin market based on information provided in the Registration Statement.
A bitcoin is a decentralized digital currency that is issued by, and transmitted through, an open-source digital protocol platform using cryptographic security that is known as the “Bitcoin Network.” The Bitcoin Network is an online, peer-to-peer user network that hosts a public transaction ledger, known as the “Blockchain,” and the source code that comprises the basis for the cryptography and digital protocols governing the Bitcoin Network. No single entity owns or operates the Bitcoin Network, the infrastructure of which is collectively maintained by a decentralized user base. Bitcoins can be used to pay for goods and services or can be converted to fiat currencies, such as the U.S. dollar, at rates determined on electronic marketplaces where exchange participants may first use fiat currency to trade, buy and sell bitcoins based on bid-ask trading (“Bitcoin Exchanges”) or in individual end-user-to-end-user transactions under a barter system.
The Blockchain is comprised of a digital file, downloaded and stored, in whole or in part, on all bitcoin users' software programs. The file includes all “blocks” that have been solved by miners and is updated to include new blocks as they are solved. As each newly solved block refers back to and “connects” with the immediately prior solved block, the addition of a new block adds to the Blockchain in a manner similar to a new link being added to a chain. Because each new block records outstanding bitcoin transactions, and outstanding transactions are settled and validated through such recording, the Blockchain represents a complete, transparent and unbroken history of all transactions on the Bitcoin Network.
Bitcoins are “stored” or reflected on the Blockchain. The Blockchain records the transaction history of all bitcoins in existence and, through the transparent reporting of transactions, allows the Bitcoin Network to verify the association of each bitcoin with the digital wallet that owns them. The Bitcoin Network and bitcoin software programs can interpret the Blockchain to determine the exact bitcoin balance of any digital wallet listed in the Blockchain as having taken part in a transaction on the Bitcoin Network.
In order to own, transfer or use bitcoins, a person generally must have internet access to connect to the Bitcoin Network. Bitcoin transactions between parties occur rapidly (typically between a few seconds and a few minutes) and may be made directly between end-users without the need for a third-party intermediary, although there are entities that provide third-party intermediary services. To prevent the possibility of double-spending a single bitcoin, each transaction is recorded, time stamped and publicly displayed in a block in the publicly available Blockchain. Thus, the Bitcoin Network provides confirmation against double-spending by memorializing every transaction in the Blockchain, which is publicly accessible and downloaded in part or in whole by all users' Bitcoin Network software programs as described above.
The Bitcoin Network is decentralized and does not rely on either governmental authorities or financial institutions to create, transmit or determine the value of bitcoins. Rather, bitcoins are created and allocated by the Bitcoin Network protocol through a “mining” process subject to a strict, well-known issuance schedule. The value of bitcoins is determined by the supply of and demand for bitcoins in the bitcoin exchange market (and in private end-user-to-end-user transactions), as well as the number of merchants that accept them. As bitcoin transactions can be broadcast to the Bitcoin Network by any user's bitcoin software and bitcoins can be transferred without the involvement of intermediaries or third parties, there are little or no transaction costs in direct peer-to-peer transactions on the Bitcoin Network. Third-party service providers such as Bitcoin Exchanges and bitcoin third-party payment processing services may charge significant fees for processing transactions and for converting, or facilitating the conversion of, bitcoins to or from fiat currency.
“Off-Blockchain transactions” involve the transfer of control over, or ownership of, a specific digital wallet holding bitcoins, or of the reallocation of ownership of certain bitcoins in a pooled-ownership digital wallet, such as a digital wallet owned by a Bitcoin Exchange. Off-Blockchain transactions are not truly bitcoin transactions in that they do not involve the transfer of transaction data on the Bitcoin Network and do not reflect a movement of bitcoins between addresses recorded in the Blockchain. Information and data regarding Off-Blockchain transactions are generally not publicly available in contrast to “true” bitcoin transactions, which are publicly recorded on the Blockchain. Off-Blockchain transactions are subject to risks as any such transfer of bitcoin ownership is not protected by the protocol behind the Bitcoin Network or recorded in and validated through the Blockchain mechanism.
Prior to engaging in bitcoin transactions, a user must first obtain a digital bitcoin “wallet” (analogous to a bitcoin account) in which to store bitcoins. A wallet can be obtained, among other ways, through an open-source software program that generates bitcoin addresses and enables users to engage in the transfer of bitcoins with other users. A user may install a bitcoin software program on a computer or mobile device that will generate a bitcoin wallet or, alternatively, a user may retain a third party to create a digital wallet to be used for the same purpose. There is no limit on the number of digital wallets a user can have, and each such wallet includes one or more unique addresses and a verification system for each address consisting of a “public key” and a “private key,” which are mathematically related.
In a typical bitcoin transaction, the bitcoin recipient must provide the spending party with the recipient's digital wallet address, an identifying series of 27 to 34 alphanumeric characters that represents the wallet's routing number on the Bitcoin Network and allows the Blockchain to record the
After the provision of the receiving wallet's digital address, the spending party must enter the address into its bitcoin software program along with the number of bitcoins to be sent. The number of bitcoins to be sent will typically be agreed upon between the two parties based on a set number of bitcoins or an agreed upon conversion of the value of fiat currency to bitcoins. Most bitcoin software programs also allow, and often suggest, the payment of a transaction fee (also known as a miner's fee). Transaction fees are not required to be included by many bitcoin software programs, but, when they are included, they are paid by the spending party on top of the specified amount of bitcoins being sent in the transaction. Transaction fees, if any, are typically a fractional number of bitcoins (for example, 0.005 or 0.0005 bitcoins) and are automatically transferred by the Bitcoin Network to the bitcoin miner that solves and adds the block recording the spending transaction on the Blockchain.
After the entry of the receiving wallet's address, the number of bitcoins to be sent and the transaction fees, if any, to be paid, the spending party will transmit the spending transaction. The transmission of the spending transaction results in the creation of a data packet by the spending party's bitcoin software program. The data packet includes data showing (i) the receiving wallet's address, (ii) the number of bitcoins being sent, (iii) the transaction fees, if any, and (iv) the spending party's digital signature, verifying the authenticity of the transaction. The data packet also includes references called “inputs” and “outputs,” which are used by the Blockchain to identify the source of the bitcoins being spent and record the flow of bitcoins from one transaction to the next transaction in which the bitcoins are spent. The digital signature exposes the spending party's digital wallet address and public key to the Bitcoin Network, though, for the receiving party, only its digital wallet address is revealed. The spending party's bitcoin software will transmit the data packet onto the decentralized Bitcoin Network, resulting in the propagation of the information among the software programs of bitcoin users across the Bitcoin Network for eventual inclusion in the Blockchain. Typically, the data will spread to a vast majority of bitcoin miners within the course of less than one minute.
Bitcoin miners record transactions when they solve for and add blocks of information to the Blockchain. When a miner solves for a block, it creates that block, which includes data relating to (i) the solution to the block, (ii) a reference to the prior block in the Blockchain to which the new block is being added and (iii) all transactions that have occurred but have not yet been added to the Blockchain. The miner becomes aware of outstanding, unrecorded transactions through the data packet transmission and propagation discussed above. Typically, bitcoin transactions will be recorded in the next chronological block if the spending party has an internet connection and at least one minute has passed between the transaction's data packet transmission and the solution of the next block. If a transaction is not recorded in the next chronological block, it is usually recorded in the next block thereafter.
Bitcoin transactions that are micropayments (typically, less than 0.01 bitcoins) and that do not include transaction fees to miners are currently deprioritized for recording, meaning that, depending on bitcoin miner policies, these transactions may take longer to record than typical transactions if the transactions do not include a transaction fee. Additionally, transactions initiated by spending wallets with poor connections to the Bitcoin Network (
To the extent that a transaction has not yet been recorded, there is a greater chance that the spending wallet can double-spend the bitcoins sent in the original transaction. If the next block solved is by an honest miner not involved in the attempt to double-spend bitcoin and if the transaction data for both the original and double-spend transactions have been propagated onto the Bitcoin Network, the transaction that is received with the earlier time stamp will be recorded by the solving miner, regardless of whether the double-spending transaction includes a larger transaction fee. If the double-spend transaction propagates to the solving miner and the original transaction has not, then the double-spending has a greater chance of success. As a result of the high difficulty in successfully initiating a double-spend without the assistance of a coordinated attack, the probability of success for a double-spend transaction attempt is limited.
Upon the addition of a block included in the Blockchain, the bitcoin software program of both the spending party and the receiving party will show confirmation of the transaction on the Blockchain and reflect an adjustment to the bitcoin balance in each party's digital wallet, completing the bitcoin transaction. Typically, bitcoin software programs will automatically check for and display additional confirmations of six or more blocks in the Blockchain.
To ensure the integrity of bitcoin transactions from the recipient's side (
A transaction in bitcoins between two parties is recorded in the Blockchain in a block only if that block is accepted as valid by a majority of the nodes on the Bitcoin Network. Validation of a block is achieved by confirming the cryptographic “hash value” included in the block's solution and by the block's addition to the longest confirmed Blockchain on the Bitcoin Network. For a transaction, inclusion in a block on the Blockchain constitutes a “confirmation” of the bitcoin transaction. As each block contains a reference to the immediately preceding block, additional blocks appended to and incorporated into the Blockchain constitute additional confirmations of the transactions in such prior blocks, and a transaction included in a block for the first time is confirmed once against double-spending. The layered confirmation process makes changing
According to the Registration Statement, at this point in the evolution of the Bitcoin Network, bitcoin transactions are considered irreversible. Once a transaction appears in the Blockchain, no one has the authority to reverse it. If someone were to attempt to undo a past transaction in a block recorded on the Blockchain, such individual would have to exert tremendous processing power in a series of complicated transactions that may not be achieved at this point in the Bitcoin Network's development.
According to the Registration Statement, all transactions on the Bitcoin Network are secured using public-key cryptography, a technique which underpins many online transactions. Public-key cryptography works by generating two mathematically related keys (one a public key and the other a private key). One of these, the private key, is retained in the individual's digital wallet and the other key is made public and serves as the address to which bitcoin(s) can be transferred and from which money can be transferred by the owner of the bitcoin wallet. In the case of bitcoin transactions, the public key is an address (a string of letters and numbers) that is used to encode payments, which can then only be retrieved with its associated private key, which is used to authorize the transaction. In other words, the payor uses his private key to approve any transfers to a recipient's account. Users on the Bitcoin Network can confirm that the user signed the transaction with the appropriate private key, but cannot reverse engineer the private key from the signature.
According to the Registration Statement, the Custodian is responsible for keeping the private key or keys that provide access to the Trust's digital wallets and vaults secure. Pursuant to a request from the Sponsor or the Trust, the Custodian will establish and maintain an account with one or more wallets (“Wallet Account”) and one or more cold-storage vault accounts (“Vault Account” and, together with the Wallet Account and any subaccounts associated therewith, the “Bitcoin Account”) in the name of the Sponsor and the Trust. The Custodian deposits and withdraws bitcoins to and from the Bitcoin Account at the instruction of the Sponsor. The Custodian is responsible for administering the Bitcoin Account.
The Bitcoin Account is maintained by the Custodian and cold storage mechanisms are used for the Vault Account by the Custodian. Each digital wallet of the Trust may be accessed using its corresponding private key. The Custodian's custodial operations maintain custody of the private keys that have been deposited in cold storage at its various vaulting premises which are located in geographically dispersed locations across the world, including but not limited to the United States, Europe (including Switzerland) and South America. According to the Registration Statement, the locations of the vaulting premises change regularly and are kept confidential by the Custodian for security purposes.
The term “cold storage” refers to a safeguarding method by which the private keys corresponding to bitcoins stored on a digital wallet are removed from any computers actively connected to the internet. Cold storage of private keys may involve keeping such wallet on a non-networked computer or electronic device or storing the public key and private keys relating to the digital wallet on a storage device (for example, a USB thumb drive) or printed medium (for example, papyrus or paper) and deleting the digital wallet from all computers. According to the Registration Statement, most of the private keys in the Wallet Account and all of the private keys in the Vault Account are kept in cold storage. A digital wallet may receive deposits of bitcoins but may not send bitcoins without use of the bitcoins' corresponding private keys. In order to send bitcoin from a digital wallet in which the private keys are kept in cold storage, either the private keys must be retrieved from cold storage and entered into a bitcoin software program to sign the transaction, or the unsigned transaction must be sent to the “cold” server in which the private keys are held for signature by the private keys. At that point, the user of the digital wallet can transfer its bitcoins.
According to the Registration Statement, the Custodian is the custodian of the Trust's private keys and will utilize certain security procedures such as algorithms, codes, passwords, encryption or telephone call-backs in the administration and operation of the Trust and the safekeeping of its bitcoins and private keys. The Custodian has created a Vault Account for the Trust assets in which private keys are placed in cold storage. According to the Registration Statement, the Custodian segregates the private keys stored with it from any other assets it holds or holds for others.
According to the Registration Statement, multiple distinct private keys must sign any transaction in order to transfer the Trust's bitcoins from a multi-signature address to any other address on the Bitcoin blockchain. Distinct private keys required for multi-signature address transfers reside in geographically dispersed vault locations. The Custodian refers to these vault locations, where transactions are signed by private keys, as “signing vaults.” In addition to multiple signing vaults, the Custodian maintains multiple “back-up vaults” in which backup private keys are stored. According to the Registration Statement, in the event that one or more of the “signing vaults” were to be compromised, back-up vaults can be activated and used as signing vaults to complete a transaction within 72 hours.
Therefore, according to the Registration Statement, if any one signing vault were to be compromised, it would have no impact on the ability of the Trust to access its bitcoins, other than a possible delay in operations of 72 hours, while one or more of the back-up vaults was transitioned to a signing vault. According to the Registration Statement, these security procedures ensure that there is no single point of failure in the protection of the Trust's assets.
The Custodian is authorized to accept, on behalf of the Trust, deposits of bitcoins from “Authorized Participant Self-Administered Accounts” (as defined below) or “Liquidity Provider Accounts” (as defined below), as applicable, held with the Custodian and transfer such bitcoins into the Bitcoin Account. Deposits of bitcoins will be immediately available to the Trust to the extent such bitcoins have not already been transferred to the Vault Account. Bitcoins transferred to the Bitcoin Account will be directly deposited into digital wallets for which the keys are already in cold storage.
According to the Registration Statement, if bitcoins need to be withdrawn from the Trust in connection with a redemption, the Custodian will ensure that the private keys to those bitcoins sign the withdrawal transaction.
According to the Registration Statement, the process by which bitcoins are created and bitcoin transactions are verified is called mining.
In order to add blocks to the Blockchain, a miner must map an input data set (
A miner's proposed block is added to the Blockchain once a majority of the nodes on the Bitcoin Network confirms the miner's work. Miners that are successful in adding a block to the Blockchain are automatically awarded bitcoins for their effort plus any transaction fees paid by transferors whose transactions are recorded in the block. This reward system is the method by which new bitcoins enter into circulation to the public.
The supply of new bitcoins is mathematically controlled in a manner so that the number of bitcoins grows at a limited rate pursuant to a pre-set schedule. The number of bitcoins awarded for solving a new block is automatically halved after every 210,000 blocks are added to the Blockchain. Recently, in July 2016, the fixed reward for solving a new block decreased from 25 bitcoins to 12.5 bitcoins per block and this is expected to decrease by half to become 6.25 bitcoins after the next 210,000 blocks have entered the Bitcoin Network, which is expected to be July 2020. This deliberately controlled rate of bitcoin creation means that the number of bitcoins in existence will increase at a controlled rate until the number of bitcoins in existence reaches the pre-determined 21 million bitcoins. According to the Registration Statement, as of March 15, 2017, approximately 16.22 million bitcoins have been mined, and estimates of when the 21 million bitcoin limitation will be reached range up to the year 2140.
According to the Registration Statement, due to the peer-to-peer framework of the Bitcoin Network and the protocols thereunder, transferors and recipients of bitcoins are able to determine the value of the bitcoins transferred by mutual agreement or barter with respect to their transactions. As a result, the most common means of determining the value of a bitcoin is by surveying one or more Bitcoin Exchanges where bitcoins are bought, sold and traded. On each Bitcoin Exchange, bitcoins are traded with publicly disclosed valuations for each transaction, measured by one or more fiat currencies such as the U.S. dollar or the Chinese yuan.
According to the Registration Statement, historically, a large percentage of the global trading volume occurred on self-reported, unregulated exchanges located in China. In January 2017, some of the largest China-based Bitcoin Exchanges implemented certain adjustments to their terms, including the introduction of a 0.2% fixed-rate transaction fee for all bitcoin buy and sell orders. In February 2017, certain smaller China-based Bitcoin Exchanges also imposed or increased trading fees on their respective exchanges. In the subsequent weeks, some of the largest China-based Bitcoin Exchanges halted bitcoin withdrawals. According to the Registration Statement, these events have substantially reduced the volume traded on Chinese exchanges and changed the global liquidity profile for bitcoins.
For example, according to the Registration Statement, from May 10, 2015 to January 24, 2017, the three primary China-based Bitcoin Exchanges, BTCC, Huobi and OKCoin, reported a total trade volume of approximately 1.35 billion bitcoins and an average daily trade volume of 2.16 million bitcoins, comprising more than 95% of the global exchange-traded volume based on data from the Index Provider. According to the Registration Statement, during this period, the exchanges that comprised the Index, reported a total trade volume of 33.03 million bitcoins and an average daily trade volume of approximately 53,000 bitcoins, accounting for approximately 2.3% of the global exchange-traded volume and 78.5% of the U.S. dollar-denominated trade volume.
However, according to the Registration Statement, from January 25, 2017 to March 15, 2017, following the introduction of fixed-rate transaction fees in response, the three primary China-based Bitcoin Exchanges, BTCC, Huobi and OKCoin, reported a total trade volume of approximately 1.35 million bitcoins and an average daily trade volume of approximately 27,000 bitcoins, comprising only 25.2% of the global exchange-traded volume based on data from the Index Provider. During this period, the exchanges that comprised the Index, reported a total trade volume of approximately 1.89 million bitcoins and an average daily trade volume of nearly 39,000 bitcoins, accounting for 35.2% of the global exchange-traded volume and 73.6% of the U.S. dollar-denominated trade volume.
According to the Registration Statement, similar to other currency pairs, such as euro to bitcoin, movements in pricing on the Chinese exchanges are generally in line with U.S. dollar-denominated exchanges. For example, according to the Registration Statement, based on data from the Index Provider, from May 10, 2015 to March 15, 2017, the 4:00 p.m., Eastern Time (“E.T.”), spot price on the three primary Chinese yuan-denominated exchanges (BTC China, Huobi and OKCoin) differed from the “Bitcoin Index Price” (as defined below) by only 1.6% on average.
According to the Registration Statement, bitcoin price indexes have also been developed by a number of service providers in the bitcoin space. For example, Coindesk, a digital currency content provider and wholly-owned subsidiary of Digital Currency Group, launched a proprietary bitcoin price index in September 2013, and
Currently, there are numerous Bitcoin Exchanges operating worldwide in a number of currency pairs including, among others, bitcoin to U.S. dollar, bitcoin to euro, bitcoin to Chinese yuan and bitcoin to Indian rupee. According to the Registration Statement, most of the data with respect to prevailing valuations of bitcoin come from such Bitcoin Exchanges. These exchanges include established exchanges such as Bitstamp, GDAX and Bitfinex, which provide a number of options for buying and selling bitcoins. Among the Bitcoin Exchanges eligible for inclusion in the Index, domicile, regulation and legal compliance varies.
The table below sets forth (1) the aggregate number of bitcoin trades made on the eight largest U.S. dollar-denominated Bitcoin Exchanges by trade volume from May 10, 2015 to March 15, 2017 and (2) the market share of trade volume of each such Bitcoin Exchange.
Information
According to the Registration Statement, in addition to open online Bitcoin Exchanges, there are “dark pools,” which are bitcoin trading platforms that do not publicly report bitcoin trade data. Market participants have the ability to execute large block trades on a dark pool without revealing those trades and the related price data to the public bitcoin exchange market, although any withdrawal from or deposit to a dark pool platform may be recorded on the Blockchain.
Bitcoin may also be traded over-the-counter (“OTC”). OTC trades are not required to be reported through any facilities. However, according to the Sponsor, based on publicly available information, OTC trading may not represent a material volume of overall bitcoin trading. The OTC markets operate in a similar manner to dark pools. However, typically, OTC trades are institutional size block transactions (though on a much lower scale relative to the size of block transactions for other commodities or industries) or transactions made on behalf of high-net worth individuals.
According to the Sponsor, some OTC intermediaries that facilitate OTC trading, such as Genesis and itBit, provide summary statistics on an ad hoc basis. For instance, in April 2016, itBit reported that it had traded approximately 25,500 bitcoins, valued at approximately $10.3 million U.S. dollars, which would account for roughly 1.94% of the bitcoin trading volume across the eight highest volume U.S. dollar-denominated exchanges. For the fourth quarter of 2016, Genesis reported trading approximately 70,326 bitcoins, valued at approximately $51.4 million U.S. dollars. According to the Sponsor, the reported Genesis volume would comprise roughly 2.33% of the trading volume across the eight highest volume U.S. dollar-denominated exchanges during that time period.
According to the Sponsor, volatility in bitcoin was pronounced in its earliest days through late 2013. According to the Sponsor, during that time period, almost all bitcoin trading activity centered on two exchanges, which centralized the global order book and led to large price movements. Since then, the bitcoin trading environment has matured with the development of dozens of exchanges around the world, resulting in more transparency with respect to bitcoin pricing, in increased trading volume and in greater liquidity. Additionally, the globalization of bitcoin exchanges, ranging from those domiciled in the United States to other areas of the globe, such as China, has led to development of many bitcoin currency pairs, garnering more market participants. Today, the largest trading pairs are bitcoin to Chinese yuan, bitcoin to U.S. dollars and bitcoin to euro.
Bitcoin price volatility has declined since the inception of bitcoin. According to the Sponsor and as detailed in Exhibit 3, recent figures, such as the three, six and twelve-month volatility charts, show that the volatility of bitcoin is now at levels comparable to those seen for other commodities such as natural gas and continues to trend downward.
According to the Sponsor, while bitcoin price volatility has declined and its volatility approximately corresponds to that of certain commodities, the volatility of bitcoin is not correlated with the volatility of other commodities over shorter- (
According to the Sponsor, demand for bitcoins is based on several factors. Demand may be based on speculation regarding the future appreciation of the value of bitcoins. Continuing development of various applications utilizing the Bitcoin Network for uses such as remittance, payment for goods and services, recording transfer of ownership of certain assets and settlement of both financial and non-financial assets have led many investors to speculate that the price of bitcoins will appreciate as use of these applications increases. As additional applications are developed, demand may increase. Additionally, some investors have developed analogs between bitcoin and other scarce assets such as gold. Bitcoin shares many of the same characteristics as gold,
The “Bitcoin Index Price” is the U.S. dollar value of a bitcoin as represented by the Index, calculated at 4:00 p.m., E.T., on each business day. If the Index becomes unavailable, or if the Sponsor determines in good faith that the Index does not reflect an accurate bitcoin value, then the Sponsor will, on a best efforts basis, contact the Index Provider in order to obtain the Bitcoin Index Price. If after such contact the Index remains unavailable or the Sponsor continues to believe in good faith that the Index does not reflect an accurate bitcoin value, then the Administrator will utilize the following cascading set of rules to calculate the Bitcoin Index Price. For the avoidance of doubt, the Sponsor will employ the below rules sequentially and in the order presented below, should one or more specific rule(s) fail:
(i) Bitcoin Index Price = The price set by the Index as of 4:00 p.m., E.T., on the valuation date. According to the Registration Statement, the Index is a U.S. dollar-denominated composite reference rate for the price of bitcoin based on the volume-weighted price at trading venues selected by the Index Provider. Trading venues used to calculate the Index may include Bitcoin Exchanges, OTC markets or derivative platforms. According to the Registration Statement, to ensure that the Index Provider's trading venue selection process is impartial, the Index Provider considers depth of liquidity, compliance with applicable legal and regulatory requirements, data availability, U.S. domicile and acceptance of U.S. dollar deposits. The Index Provider conducts a quarterly review of these criteria. According to the Registration Statement, as of the date of the Registration Statement, the eligible Bitcoin Exchanges selected by the Index Provider include Bitfinex, Bitstamp, GDAX (formerly known as Coinbase Exchange) and itBit.
According to the Registration Statement, the Index Provider does not currently include data from OTC markets or derivative platforms. OTC data is not currently included because of the potential for trades to include a significant premium or discount paid for larger liquidity, which creates an uneven comparison relative to more active markets. There is also a higher potential for OTC transactions to not be arms-length and thus not be representative of a true market price. Bitcoin derivative markets are also not currently included as the markets remain relatively thin. According to the Registration Statement, the Index Provider will consider International Organization of Securities Commissions (“IOSCO”) principles for financial benchmarks and the management of trading venues of bitcoin derivatives when considering inclusion of OTC or derivative platform data in the future.
According to the Registration Statement, to calculate the Bitcoin Index Price, the weighting algorithm is applied to the price and volume of all inputs for the immediately preceding 24-hour period as of 4:00 p.m., E.T., on the valuation date. According to the Registration Statement, to measure volume data and trading halts, the Index Provider monitors trading activity and regards as eligible those Bitcoin Exchanges that it determines represent a substantial portion of U.S. dollar-denominated trading over a sustained
The description of the Index is based on information publicly available at the Index Provider's Web site at
If the Index becomes unavailable, or if the Sponsor determines in good faith that the Index does not reflect an accurate bitcoin value, then the Sponsor will, on a best efforts basis, contact the Index Provider to obtain the Bitcoin Index Price directly from the Index Provider. If after such contact, the Index remains unavailable or the Sponsor continues to believe in good faith that the Index does not reflect an accurate bitcoin value, then the Sponsor will employ the next rule to determine the Bitcoin Index Price.
(ii) Bitcoin Index Price = The volume-weighted average bitcoin price for the immediately preceding 24-hour period as of 4:00 p.m., E.T., on the valuation date as calculated based upon the volume-weighted average bitcoin prices of the Major Bitcoin Exchanges as published by an alternative third party's public data feed that the Sponsor believes is accurately and reliably providing market data (
(iii) Bitcoin Index Price = The volume-weighted average bitcoin price as calculated by dividing (a) the U.S. dollar value of the bitcoin transactions on the Major Bitcoin Exchanges by (b) the total number of bitcoins traded on the Major Bitcoin Exchanges, in each case for the 24-hour period from 4:00 p.m., E.T. (or as soon as practicable thereafter), on the business day prior to the valuation date to 4:00 p.m., E.T. (or as soon as practicable thereafter), on the valuation date as published by a third party's public data feed that the Sponsor believes is accurately and reliably providing market data (
(iv) Bitcoin Index Price = The volume-weighted average bitcoin price as calculated by dividing (a) the U.S. dollar value of the bitcoin transactions on the Bitcoin Benchmark Exchanges by (b) the total number of bitcoins traded on the Bitcoin Benchmark Exchanges, in each case for the 24-hour period from 4:00 p.m., E.T. (or as soon as practicable thereafter), on the business day prior to the valuation date to 4:00 p.m., E.T. (or as soon as practicable thereafter), on the valuation date. A “Bitcoin Benchmark Exchange” is a Bitcoin Exchange that represents at least 25% of the aggregate U.S. dollar-denominated trading volume of the bitcoin market during the last 30 consecutive calendar days and that to the knowledge of the Sponsor is in substantial compliance with the laws, rules and regulations, including any anti-money laundering (“AML”) and know-your-customer (“KYC”) procedures, of such Bitcoin Exchange's applicable jurisdiction; provided that if there are fewer than three such Bitcoin Exchanges, then the Bitcoin Benchmark Exchanges will include such Bitcoin Exchange or Bitcoin Exchanges that meet the above-described requirements as well as one or more additional Bitcoin Exchanges, selected by the Sponsor, that have had monthly trading volume of at least 50,000 bitcoins during the last 30 consecutive calendar days and that to the knowledge of the Sponsor is in substantial compliance with the laws, rules and regulations, including any AML and KYC procedures, of such Bitcoin Exchange's applicable jurisdiction.
The Sponsor will review the composition of the exchanges that comprise the Bitcoin Benchmark Exchanges at the beginning of each month, or more frequently if necessary, in order to ensure the accuracy of its composition. Subject to the next sentence, if one or more of the Bitcoin Benchmark Exchanges become unavailable (for example, data sources from the Bitcoin Benchmark Exchanges of bitcoin prices become unavailable, unwieldy or otherwise impractical for use), or if the Sponsor determines in good faith that the Bitcoin Benchmark Exchange does not reflect an accurate bitcoin value, then the Sponsor will, on a best efforts basis, contact the Bitcoin Benchmark Exchange that is experiencing the service outages in an attempt to obtain the relevant data. If after such contact one or more of the Bitcoin Benchmark Exchanges remain unavailable or the Sponsor continues to believe in good faith that the Bitcoin Benchmark Exchange does not reflect an accurate bitcoin price, then the Sponsor will employ the next rule to determine the Bitcoin Index Price.
(v) Bitcoin Index Price = The Sponsor will use its best judgment to determine a good faith estimate of the Bitcoin Index Price.
Data used for the above calculation of the Bitcoin Index Price is gathered by the Administrator or its delegate who calculates the Bitcoin Index Price each business day as of 4:00 p.m., E.T., or as soon thereafter as practicable. The Administrator will disseminate the Bitcoin Index Price each business day.
The Index Provider may change the trading venues that are used to calculate the Index, or otherwise change the way in which the Index is calculated at any time. The Index Provider does not have any obligation to consider the interests of the Sponsor, the Administrator, the Trust, the shareholders or anyone else in connection with such changes. The Index Provider is not required to publicize or explain the changes, or to alert the Sponsor or the Administrator to such changes. The Index Provider will consider IOSCO principles for financial benchmarks and the management of trading venues of bitcoin derivatives when considering inclusion of OTC or derivative platform data in the future.
According to the Registration Statement, the Trust's assets will consist
To calculate the Bitcoin Holdings, the Administrator will determine the Bitcoin Index Price and multiply the Bitcoin Index Price by the aggregate number of bitcoins owned by the Trust as of 4:00 p.m., E.T., on the immediately preceding day. The Administrator will add the U.S. dollar value of any bitcoins, as calculated using the Bitcoin Index Price, receivable under pending creation orders, if any, determined by multiplying the number of creation Baskets represented by such creation orders by the Basket Bitcoin Amount and then multiplying such product by the Bitcoin Index Price. The Administrator will subtract (i) the U.S. dollar value of the bitcoins, as calculated using the Bitcoin Price Index, constituting any accrued but unpaid fees, (ii) the U.S. dollar value of the bitcoins to be distributed under pending redemption orders, determined by multiplying the number of redemption Baskets represented by such redemption orders by the Basket Bitcoin Amount and then multiplying such product by the Bitcoin Index Price and (iii) certain expenses of the Trust.
The Sponsor will publish the Bitcoin Index Price, the Bitcoin Holdings and the Bitcoin Holdings per Share on the Trust's Web site as soon as practicable after its determination. If the Bitcoin Holdings and Bitcoin Holdings per Share have been calculated using a price per bitcoin other than the Bitcoin Index Price, the publication on the Trust's Web site will note the valuation methodology used and the price per bitcoin resulting from such calculation.
While the Trust's investment objective is for the Shares to reflect the performance of the value of a bitcoin as represented by the Index, less the Trust's liabilities and expenses, the Shares may trade in the secondary market at prices that are lower or higher than the Bitcoin Holdings per Share. The amount of the discount or premium in the trading price relative to the Bitcoin Holdings per Share may be influenced by non-concurrent trading hours and liquidity between the secondary market and larger Bitcoin Exchanges in the bitcoin exchange market. While the Shares will be listed and trade on the Exchange from 9:30 a.m. until 4:00 p.m., E.T., liquidity in the global bitcoin markets may fluctuate depending upon the volume and availability of larger Bitcoin Exchanges. As a result, during periods in which bitcoin exchange market liquidity is limited or a major Bitcoin Exchange is off-line, trading spreads, and the resulting premium or discount, on the Shares may widen.
Because of the potential for arbitrage inherent in the structure of the Trust, the Sponsor believes that the Shares will not trade at a material discount or premium to the underlying bitcoin held by the Trust. The arbitrage process, which in general provides investors the opportunity to profit from differences in prices of assets, increases the efficiency of the markets, serves to prevent potentially manipulative efforts, and can be expected to operate efficiently in the case of the Shares and bitcoin. If the price of the Shares deviates enough from the price of bitcoin to create a material discount or premium, an arbitrage opportunity is created. If the Shares are inexpensive compared to the bitcoin that underlies them, an arbitrageur may buy the Shares at a discount, immediately redeem them in exchange for bitcoin, and sell the bitcoin in the cash market at a profit. If the Shares are expensive compared to the bitcoin that underlies them, an arbitrageur may sell the Shares short, buy enough bitcoin to acquire the number of Shares sold short, acquire the Shares through the creation process, and deliver the Shares to close out the short position.
According to the Registration Statement, the Trust will issue and redeem “Baskets,” each equal to a block of 100 Shares, only to Authorized Participants. The size of a Basket is subject to change. The creation and redemption of a Basket require the delivery to the Trust, or the distribution by the Trust, of the number of whole and fractional bitcoins represented by each Basket being created or redeemed, the number of which is determined by dividing the number of bitcoins owned by the Trust at 4:00 p.m., E.T., on the trade date of a creation or redemption order, by the number of Shares outstanding at such time (calculated to one one-hundred-millionth of one bitcoin), as adjusted for the number of whole and fractional bitcoins constituting accrued but unpaid fees and expenses of the Trust and multiplying the quotient obtained by 100 (“Basket Bitcoin Amount”). The Basket Bitcoin Amount multiplied by the number of Baskets being created or redeemed is the “Total Basket Bitcoin Amount.” The Basket Bitcoin Amount will gradually decrease over time as the Trust's bitcoins are used to pay the Trust's expenses. According to the Registration Statement, as of the date of the Registration Statement, each Share currently represents approximately 0.093 of a bitcoin.
Authorized Participants are the only persons that may place orders to create and redeem Baskets. Each Authorized Participant must (i) be a registered broker-dealer, (ii) enter into a participant agreement with the Sponsor, the Administrator, the Marketing Agent and the Liquidity Providers (“Participant Agreement”) and (iii) in the case of the creation or redemption of Baskets that do not use the “Conversion Procedures” (as defined below), own a bitcoin wallet address that is recognized by the Custodian as belonging to the Authorized Participant (“Authorized Participant Self-Administered Account”). Authorized Participants may act for their own accounts or as agents for broker-dealers, custodians and other securities market participants that wish to create or redeem Baskets. Shareholders who are not Authorized Participants will only be able to redeem their Shares through an Authorized Participant.
Although the Trust will create Baskets only upon the receipt of bitcoins, and will redeem Baskets only by distributing bitcoins, an Authorized Participant may deposit cash with the Administrator, which will facilitate the purchase or sale of bitcoins through a Liquidity
The Conversion Procedures will be facilitated by a single Liquidity Provider. On an order-by-order basis, the Sponsor will select the Liquidity Provider that it believes will provide the best execution of the Conversion Procedures, and will base its decision on factors such as the Liquidity Provider's creditworthiness, financial stability, ability to obtain the best price, the timing and speed of execution, liquidity and the likelihood of, and capabilities in, execution, clearance and settlement. In the event that an order cannot be filled in its entirety by a single Liquidity Provider, additional Liquidity Provider(s) will be selected by the Sponsor to fill the remaining amount based on the criteria above.
The trade date on which the Basket Bitcoin Amount is determined is different for in-kind and in-cash orders. For in-kind orders, the trade date is the day on which an order is placed, whereas the trade date for in-cash orders is the day after which an order is placed. This could result in a different execution price for in-kind and in-cash orders.
For example, if an Authorized Participant submits an in-kind order at 2:00 p.m., E.T., on a Monday, the Basket Bitcoin Amount required to purchase a Basket of Shares will be determined at 4:00 p.m., E.T., or as soon as practicable thereafter, on that same day. Alternatively, for in-cash orders, if an Authorized Participant submits an order at 2:00 p.m., E.T., on a Monday and pays the requisite Cash Collateral Amount (as defined below) at 3:00 p.m., E.T., on that same date, the Total Basket Bitcoin Amount will nevertheless be determined at 4:00 p.m., E.T., or as soon as practicable thereafter, on Tuesday. Pursuant to the Conversion Procedures, the Authorized Participant is obligated to pay the Cash Exchange Rate (as defined below) which is calculated on Monday, times the Total Basket Bitcoin Amount, which is calculated on Tuesday. The Liquidity Provider is required to deposit the Total Basket Bitcoin Amount as calculated on Tuesday, even if there were a chance [sic] in the price of bitcoin since Monday.
To create Baskets in-kind, Authorized Participants will send the Administrator a creation order on the trade date. In-kind creation orders must be placed no later than 3:59:59 p.m., E.T., on each business day. The Marketing Agent will accept or reject the creation order, and this determination will be communicated to the Authorized Participant by the Administrator on that same date. The Total Basket Bitcoin Amount will be determined as soon as practicable after 4:00 p.m., E.T., on that date. On the business day following the trade date, the Authorized Participant will transfer the Total Basket Bitcoin Amount to the Custodian. Once the Total Basket Bitcoin Amount is received by the Custodian, the Administrator will instruct the Transfer Agent to deliver the creation Baskets to the Authorized Participant.
To create Baskets using the Conversion Procedures, Authorized Participants will send the Administrator a creation order on the business day preceding the trade date. In-cash creation orders must be placed no later than 4:59:59 p.m., E.T., on each business day. The Marketing Agent will accept or reject the creation order, and this determination will be communicated to the Authorized Participants by the Administrator on that same date. Upon receiving instruction from the Administrator that a creation order has been accepted by the Marketing Agent, the Authorized Participant will send 110% of the U.S. dollar value of the Total Basket Bitcoin Amount (“Cash Collateral Amount”). The Total Basket Bitcoin Amount will be determined as soon as practicable after 4:00 p.m., E.T., the following day. Once the Cash Collateral Amount is received by the Administrator, the Sponsor will notify the Liquidity Provider of the creation order. The Liquidity Provider will then provide a firm quote to the Authorized Participant for the Total Basket Bitcoin Amount, determined by using the “Cash Exchange Rate,” which, in the case of a creation order, is the Index spot price at the time at which the Cash Collateral Amount is received by the Administrator, plus applicable fees. If the Liquidity Provider's quote is greater than the Cash Collateral Amount received, the Authorized Participant will be required to pay the difference. Provided that payment for the Total Basket Bitcoin Amount is received by the Administrator, the Liquidity Provider will deliver the bitcoins to the Custodian on the settlement date on behalf of the Authorized Participant. The Liquidity Provider may realize any arbitrage opportunity between the firm quote that it provides to the Authorized Participant and the price at which it sources the requisite bitcoin for the Total Basket Bitcoin Amount. After the Custodian receives the Total Basket Bitcoin Amount, the Administrator will instruct the Transfer Agent to deliver the Creation Baskets to the Authorized Participant. The Administrator will then send the Liquidity Provider the cash equal to the Cash Exchange Rate times the Total Basket Bitcoin Amount, plus applicable fees. The Administrator will return any remaining amount of the Cash Collateral Amount to the Authorized Participant.
To redeem Baskets in-kind, Authorized Participants will send the Administrator a redemption order on the trade date. In-kind redemption orders must be placed no later than 3:59:59 p.m., E.T., on each business day. The Marketing Agent will accept or reject the redemption order and the Total Basket Bitcoin Amount will be determined as soon as practicable after 4:00 p.m., E.T., on that same date. On the second business day following the trade date, the Authorized Participant will deliver to the Transfer Agent redemption Baskets from its account. Once the redemption Baskets are received by the Transfer Agent, the Custodian will transfer the Total Basket Bitcoin Amount to the Authorized Participant and the Transfer Agent will cancel the Shares.
To redeem Baskets using the Conversion Procedures, Authorized Participants will send the Administrator a redemption order. In-cash redemption orders must be placed no later than 4:59:59 p.m., E.T., on each business day. The Marketing Agent will accept or reject the redemption order on that same date. A Liquidity Provider will then provide a firm quote to an Authorized Participant for the Total Basket Bitcoin Amount, determined by using the “Cash Exchange Rate,” which, in the case of a redemption order, is the Index spot price minus applicable fees at the time at which the Administrator notifies the Authorized Participant that an order has been accepted.
The Liquidity Provider will send the Administrator the cash proceeds equal to the Cash Exchange Rate times the Total Basket Bitcoin Amount, minus applicable fees. The Liquidity Provider may realize any arbitrage opportunity between the firm quote that it provides to the Authorized Participant and the price at which it sells the requisite bitcoin for the Total Basket Bitcoin Amount. Once the Authorized Participant delivers the redemption Baskets to the Transfer Agent, the Administrator will send the cash proceeds to the Authorized Participant
The Sponsor represents that Liquidity Providers will only transact with exchanges and OTC trading partners that have met AML and KYC regulatory requirements. Authorized Participants that create and redeem Baskets using the Conversion Procedures will be responsible for reimbursing the relevant Liquidity Provider for any expenses incurred in connection with the Conversion Procedures. The Authorized Participants will also pay a variable fee to the Administrator for its facilitation of the Conversion Procedures. There are no other fees related to the Conversion Procedures that will be charged by the Sponsor or the Custodian.
The creation or redemption of Shares may be suspended generally, or refused with respect to particular requested creations or redemptions, during any period when the transfer books of the Transfer Agent are closed or if circumstances outside the control of the Sponsor or its delegates make it for all practical purposes not feasible to process creation orders or redemption orders. The Administrator may reject an order if such order is not presented in proper form as described in the Participant Agreement or if the fulfillment of the order, in the opinion of counsel, might be unlawful.
The Trust's Web site (
The Trust's Web site will provide an intra-day indicative value (“IIV”) per Share updated every 15 seconds, as calculated by the Exchange or a third party financial data provider during the Exchange's Core Trading Session (9:30 a.m. to 4:00 p.m., E.T.)
The IIV disseminated during the NYSE Arca Core Trading Session should not be viewed as an actual real time update of the Bitcoin Holdings, which will be calculated only once at the end of each trading day. The IIV will be widely disseminated on a per Share basis every 15 seconds during the NYSE Arca Core Trading Session by one or more major market data vendors. In addition, the IIV will be available through on-line information services.
The Bitcoin Holdings for the Trust will be calculated by the Administrator once a day and will be disseminated daily to all market participants at the same time. To the extent that the Administrator has utilized the cascading set of rules described in “Bitcoin Index Price” above, the Trust's Web site will note the valuation methodology used and the price per bitcoin resulting from such calculation. Quotation and last-sale information regarding the Shares will be disseminated through the facilities of the Consolidated Tape Association (“CTA”).
Quotation and last sale information for bitcoin will be widely disseminated through a variety of major market data vendors, including Bloomberg and Reuters. In addition, the complete real-time price (and volume) data for bitcoin is available by subscription from Reuters and Bloomberg. The spot price of bitcoin is available on a 24-hour basis from major market data vendors, including Bloomberg and Reuters. Information relating to trading, including price and volume information, in bitcoin will be available from major market data vendors and from the exchanges on which bitcoin are traded. The normal trading hours for bitcoin exchanges are 24-hours per day, 365-days per year.
The Trust will provide Web site disclosure of its Bitcoin Holdings daily. The Web site disclosure of the Trust's Bitcoin Holdings will occur at the same time as the disclosure by the Sponsor of the Bitcoin Holdings to Authorized Participants so that all market participants are provided such portfolio information at the same time. Therefore, the same portfolio information will be provided on the public Web site as well as in electronic files provided to Authorized Participants. Accordingly, each investor will have access to the current Bitcoin Holdings of the Trust through the Trust's Web site.
Additional information regarding the Index may be found at
The Trust will be subject to the criteria in NYSE Arca Equities Rule 8.201, including 8.201(e), for initial and continued listing of the Shares. A minimum of 100,000 Shares will be required to be outstanding at the start of trading. With respect to application of Rule 10A-3 under the Act, the Trust will rely on the exception contained in Rule 10A-3(c)(7). The Exchange believes that the anticipated minimum number of Shares outstanding at the start of trading is sufficient to provide adequate market liquidity.
The Exchange deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. Trading in the Shares on the Exchange will occur in accordance with NYSE Arca Equities Rule 7.34(a).
Further, NYSE Arca Equities Rule 8.201 sets forth certain restrictions on Equity Trading Permit Holders (“ETP Holders”) acting as registered Market Makers in the Shares to facilitate surveillance. Pursuant to NYSE Arca Equities Rule 8.201(g), an ETP Holder acting as a registered Market Maker in
As a general matter, the Exchange has regulatory jurisdiction over its ETP Holders and their associated persons, which include any person or entity controlling an ETP Holder. A subsidiary or affiliate of an ETP Holder that does business only in commodities or futures contracts would not be subject to Exchange jurisdiction, but the Exchange could obtain information regarding the activities of such subsidiary or affiliate through surveillance sharing agreements with regulatory organizations of which such subsidiary or affiliate is a member.
With respect to trading halts, the Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in the Shares. Trading on the Exchange in the Shares may be halted because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable. These may include: (1) The extent to which conditions in the underlying bitcoin markets have caused disruptions and/or lack of trading or (2) whether other unusual conditions or circumstances detrimental to the maintenance of a fair and orderly market are present. In addition, trading in Shares will be subject to trading halts caused by extraordinary market volatility pursuant to the Exchange's “circuit breaker” rule.
The Exchange will halt trading in the Shares if the Bitcoin Holdings of the Trust is not calculated or disseminated daily. The Exchange may halt trading during the day in which an interruption occurs to the dissemination of the IIV or the Index spot price, as discussed above. If the interruption to the dissemination of the IIV or the Index spot price persists past the trading day in which it occurs, the Exchange will halt trading no later than the beginning of the trading day following the interruption.
The Exchange represents that trading in the Shares will be subject to the existing trading surveillances administered by the Exchange, as well as cross-market surveillances administered by the Financial Industry Regulatory Authority (“FINRA”) on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws.
The surveillances referred to above generally focus on detecting securities trading outside their normal patterns, which could be indicative of manipulative or other violative activity. When such situations are detected, surveillance analysis follows and investigations are opened, where appropriate, to review the behavior of all relevant parties for all relevant trading violations.
The Exchange or FINRA, on behalf of the Exchange, or both, will communicate as needed regarding trading in the Shares with other markets and other entities that are members of the Intermarket Surveillance Group (“ISG”), and the Exchange or FINRA, on behalf of the Exchange, or both, may obtain trading information regarding trading in the Shares from such markets and other entities. In addition, the Exchange may obtain information regarding trading in the Shares from markets and other entities that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement (“CSSA”).
Also, pursuant to NYSE Arca Equities Rule 8.201(g), the Exchange is able to obtain information regarding trading in the Shares and the underlying bitcoin or any bitcoin derivative through ETP Holders acting as registered Market Makers, in connection with such ETP Holders' proprietary or customer trades through ETP Holders which they effect on any relevant market.
The Exchange also has a general policy prohibiting the distribution of material, non-public information by its employees.
All statements and representations made in this filing regarding (i) the description of the portfolio, (ii) limitations on portfolio holdings or reference assets or (iii) the applicability of Exchange rules and surveillance procedures shall constitute continued listing requirements for listing the Shares on the Exchange.
The issuer has represented to the Exchange that it will advise the Exchange of any failure by the Trust to comply with the continued listing requirements, and, pursuant to its obligations under Section 19(g)(1) of the Act, the Exchange will monitor for compliance with the continued listing requirements. If the Trust is not in compliance with the applicable listing requirements, the Exchange will commence delisting procedures under NYSE Arca Equities Rule 5.5(m).
Prior to the commencement of trading, the Exchange will inform its ETP Holders in an “Information Bulletin” of the special characteristics and risks associated with trading the Shares. Specifically, the Information Bulletin will discuss the following: (1) The procedures for purchases and redemptions of Shares in Baskets (including noting that the Shares are not individually redeemable); (2) NYSE Arca Equities Rule 9.2(a), which imposes a duty of due diligence on its ETP Holders to learn the essential facts relating to every customer prior to trading the Shares; (3) how information regarding how the Index and the IIV are disseminated; (4) the requirement that ETP Holders deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; (5) the possibility that trading spreads and the resulting premium or discount on the Shares may widen during the Opening and Late Trading Sessions, when an updated IIV will not be calculated or publicly disseminated; and (6) trading information. For example, the Information Bulletin will advise ETP Holders, prior to the commencement of
In addition, the Information Bulletin will reference that the Trust is subject to various fees and expenses as described in the Registration Statement. The Information Bulletin will disclose that information about the Shares of the Trust is publicly available on the Trust's Web site.
The Information Bulletin will also discuss any relief, if granted, by the Commission or the staff from any rules under the Act.
The basis under the Act for this proposed rule change is the requirement under Section 6(b)(5)
The Exchange believes that the proposed rule change is designed to prevent fraudulent and manipulative acts and practices in that the Shares will be listed and traded on the Exchange pursuant to the initial and continued listing criteria in NYSE Arca Equities Rule 8.201. The Exchange has in place surveillance procedures that are adequate to properly monitor trading in the Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable federal securities laws. The Exchange or FINRA, on behalf of the Exchange, or both, will communicate as needed regarding trading in the Shares with other markets that are members of the ISG, and the Exchange or FINRA, on behalf of the Exchange, or both, may obtain trading information regarding trading in the Shares from such markets. In addition, the Exchange may obtain information regarding trading in the Shares from markets that are members of ISG or with which the Exchange has in place a CSSA. Also, pursuant to NYSE Arca Equities Rule 8.201(g), the Exchange is able to obtain information regarding trading in the Shares and the underlying bitcoin or any bitcoin derivative through ETP Holders acting as registered Market Makers, in connection with such ETP Holders' proprietary or customer trades through ETP Holders which they effect on any relevant market.
The proposed rule change is designed to promote just and equitable principles of trade and to protect investors and the public interest in that there is a considerable amount of bitcoin price and bitcoin market information available on public Web sites and through professional and subscription services. Investors may obtain on a 24-hour basis bitcoin pricing information based on the spot price for bitcoin from various financial information service providers. The closing price and settlement prices of bitcoin are readily available from the bitcoin exchanges and other publicly available Web sites. In addition, such prices are published in public sources, or on-line information services such as Bloomberg and Reuters. The Trust will provide Web site disclosure of its bitcoin holdings daily. Quotation and last-sale information regarding the Shares will be disseminated through the facilities of the CTA. The IIV will be widely disseminated on a per Share basis every 15 seconds during the NYSE Arca Core Trading Session (normally 9:30 a.m., E.T., to 4:00 p.m., E.T.) by one or more major market data vendors. In addition, the IIV will be available through on-line information services. The Exchange represents that the Exchange may halt trading during the day in which an interruption to the dissemination of the IIV or the Index spot price occurs. If the interruption to the dissemination of the IIV or the Index spot price persists past the trading day in which it occurred, the Exchange will halt trading no later than the beginning of the trading day following the interruption. In addition, if the Exchange becomes aware that the Bitcoin Holdings with respect to the Shares is not disseminated to all market participants at the same time, it will halt trading in the Shares until such time as the Bitcoin Holdings is available to all market participants. The Bitcoin Holdings per Share will be calculated daily and made available to all market participants at the same time. One or more major market data vendors will disseminate for the Trust on a daily basis information with respect to the most recent Bitcoin Holdings per Share and Shares outstanding.
The proposed rule change is designed to perfect the mechanism of a free and open market and, in general, to protect investors and the public interest in that it will facilitate the listing and trading of an additional type of exchange-traded product that will enhance competition among market participants, to the benefit of investors and the marketplace. As noted above, the Exchange has in place surveillance procedures relating to trading in the Shares and may obtain information via ISG from other exchanges that are members of ISG or with which the Exchange has entered into a CSSA. In addition, as noted above, investors will have ready access to information regarding the Trust's bitcoin holdings, IIV and quotation and last sale information for the Shares.
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 notes that the proposed rule change will facilitate the listing and trading of an additional type of exchange-traded product, and the first such product based on bitcoin, which will enhance competition among market participants, to the benefit of investors and the marketplace.
No written comments were solicited or received with respect to the proposed rule change.
The Commission is instituting proceedings pursuant to Section 19(b)(2)(B) of the Act
Pursuant to Section 19(b)(2)(B) of the Act,
The Commission requests that interested persons provide written submissions of their views, data, and arguments with respect to the issues identified above, as well as any other concerns they may have with the proposal, as modified by Amendment No. 1. In particular, the Commission invites the written views of interested persons concerning whether the proposal is consistent with Section 6(b)(5) or any other provision of the Act, or the rules and regulations thereunder. Although there do not appear to be any issues relevant to approval or disapproval which would be facilitated by an oral presentation of views, data, and arguments, the Commission will consider, pursuant to Rule 19b-4, any request for an opportunity to make an oral presentation.
Interested persons are invited to submit written data, views, and arguments regarding whether the proposal, as modified by Amendment No. 1, should be approved or disapproved by May 18, 2017. Any person who wishes to file a rebuttal to any other person's submission must file that rebuttal by June 1, 2017. The Commission asks that commenters address the sufficiency of the Exchange's statements in support of the proposal and statements of commenters.
Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On February 16, 2017, ICE Clear Credit LLC (“ICC”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act provides that within 45 days of the publication of the notice of the filing or a proposed rule change, or within such longer period up to 90 days as the Commission may designate if it finds such longer period to be appropriate and publishes its reasons for so finding, or as to which the self-regulatory organization consents, the Commission shall either approve the proposed rule change, disapprove the proposed rule change, or institute proceedings to determine whether the proposed rule change should be disapproved.
The Commission is extending the 45-day time period for Commission action on the proposed rule change. ICC proposes to revise its End of Day Price Discovery Policies and Procedures to implement a new Clearing Participant price submission process to remove the intermediary agent through which Clearing Participants currently submit required prices, and replace it with a process through which Clearing Participants submit prices directly to ICC. The Commission finds that it is appropriate to designate a longer period
Accordingly, the Commission, pursuant to Section 19(b)(2) of the Act, extends the period by which the Commission shall either approve or disapprove, or institute proceedings to determine whether to disapprove, the proposed rule change (File No. SR-ICC-2017-003) to no later than June 7, 2017.
For the Commission by the Division of Trading and Markets, pursuant to delegated authority.
On February 17, 2017, Bats BZX Exchange, Inc. (“BZX”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission finds it appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider this proposed rule change, as modified by Amendment Nos. 3 and 4. Accordingly, the Commission, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Securities and Exchange Commission.
Notice of meeting.
The Securities and Exchange Commission Advisory Committee on Small and Emerging Companies is providing notice that it will hold a public meeting on Wednesday, May 10, 2017, in Multi-Purpose Room LL-006 at the Commission's headquarters, 100 F Street NE., Washington, DC. The meeting will begin at 9:30 a.m. (EST) and will be open to the public. The meeting will be webcast on the Commission's Web site at
The public meeting will be held on Wednesday, May 10, 2017. Written statements should be received on or before May 8, 2017.
The meeting will be held at the Commission's headquarters, 100 F Street NE., Washington, DC. Written statements may be submitted by any of the following methods:
• Use the Commission's Internet submission form (
• Send an email message to
• Send paper statements to Brent J. Fields, Federal Advisory Committee Management Officer, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
Statements also will be available for Web site viewing and printing in the Commission's Public Reference Room, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. All statements received will be posted without change; we do not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly.
Julie Z. Davis, Senior Special Counsel, at (202) 551-3460, Office of Small Business Policy, Division of Corporation Finance, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-3628.
In accordance with Section 10(a) of the Federal Advisory Committee Act, 5 U.S.C.-App. 1, and the regulations thereunder, Elizabeth M. Murphy, responsible as Designated Federal Officer of the Committee, has ordered publication of this notice.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to amend Rule 5.7. The text of the proposed rule change is provided below.
Options contracts are subject to adjustments in accordance with the Rules of the Options Clearing Corporation. [When adjustments have been made, announcement of that fact will be made by the Exchange, and the adjusted unit of trading and the adjusted exercise price will be posted at the post at which the series is traded and will be effective at the time specified in the announcement for all subsequent transactions in that series.]
The text of the proposed rule change is also available on the Exchange's Web site (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend Rule 5.7. Currently, Rule 5.7 states options contracts are subject to adjustments in accordance with the Rules of the Options Clearing Corporation (“OCC”). When adjustments have been made, announcement of that fact will be made by the Exchange, and the adjusted unit of trading and the adjusted exercise price will be posted at the post at which the series is traded and will be effective at the time specified in the announcement for all subsequent transactions in that series.
OCC lists and clears all options that trade on national securities exchanges. As stated in Rule 5.7, OCC rules govern options contract adjustments. OCC has sole discretion for adjustment decisions to ensure those decisions are consistent, efficient and free from undue influence. Because OCC's rules govern and provide OCC with sole discretion regarding options contract adjustments, including how and when these adjustments are made,
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In particular, the proposed rule change is consistent with the rules of OCC, the lister and clearer of all listed options, with respect to contract adjustments. OCC will continue to make contract adjustments in accordance with its rules (as set forth in Rule 5.7), and all investors will continue to have access to information regarding contract adjustments directly from OCC. The proposed rule change has no impact on the manner in which contract adjustments are made, as OCC has sole discretion to make those determinations. The proposed rule change merely deletes CBOE's duplicative obligation to announce and post this information, which benefits investors.
CBOE 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. OCC will continue to make contract adjustments in accordance with its rules, and all investors will continue to have access to information regarding contract adjustments directly from OCC. The proposed rule change has no impact on the manner in which contract adjustments are made, as OCC has sole discretion to make those determinations. The proposed rule change merely deletes CBOE's duplicative obligation to announce and post this information, and thus has no impact on competition.
The Exchange neither solicited nor received comments on the proposed rule change.
Because the foregoing proposed rule change does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
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 will institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On June 30, 2016, NYSE MKT LLC (“Exchange” or “NYSE MKT”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
On January 4, 2017, pursuant to Section 19(b)(2) of the Act,
On March 28, 2017, the Exchange filed Amendment No. 1 to the proposed rule change, as described in Items I and II below, which Items have been prepared by the Exchange.
The Exchange proposes to (1) allow the Exchange to trade pursuant to unlisted trading privileges (“UTP”) for any NMS Stock listed on another national securities exchange; (2) establish rules for the trading pursuant to UTP of exchange traded products (“ETPs”); and (3) adopt new equity trading rules relating to trading halts of securities traded pursuant to UTP on the Pillar platform. This Amendment No. 1 supersedes the original filing in its entirety. This Amendment No. 1 also amends the proposed rules to conform to the rules of NYSE Arca, Inc. (“NYSE Arca”), as they may have been amended since the date of the original filing. 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 is proposing new rules to trade all Tape A and Tape C symbols, on a UTP basis, on its new trading platform, Pillar.
In addition, the Exchange is proposing rules for the trading on Pillar pursuant to UTP of the following types of Exchange Traded Products:
• Equity Linked Notes (“ELNs”);
• Investment Company Units;
• Index-Linked Exchangeable Notes;
• Equity Gold Shares;
• Equity Index-Linked Securities;
• Commodity-Linked Securities;
• Currency-Linked Securities;
• Fixed-Income Index-Linked Securities;
• Futures-Linked Securities;
• Multifactor-Index-Linked Securities;
• Trust Certificates;
• Currency and Index Warrants;
• Portfolio Depositary Receipts;
• Trust Issued Receipts;
• Commodity-Based Trust Shares;
• Currency Trust Shares;
• Commodity Index Trust Shares;
• Commodity Futures Trust Shares;
• Partnership Units;
• Paired Trust Shares;
• Trust Units;
• Managed Fund Shares; and
• Managed Trust Securities.
The Exchange's proposed rules for these products are substantially identical (other than with respects to certain non-substantive and technical amendments described below) as the rules of NYSE Arca Equities for the qualification, listing and trading of such products.
The Exchange's approach in this filing is the same as the approach of (1) BATS BYX Exchange, Inc. f/k/a BATS Y-Exchange, Inc. (“BYX”), which filed a
The Exchange's only trading pursuant to UTP will be on the Pillar platform; it will not trade securities pursuant to UTP on its current platform. Further, at this time, the Exchange does not intend to list ETPs on its Pillar platform and will only trade ETPs on the Pillar platform pursuant to UTP.
In accordance with the rule numbering framework adopted by the Exchange in the Pillar Framework Filing,
Finally, in the Pillar Framework Filing, the Exchange adopted rules grouped under proposed Rule 7E relating to equities trading.
The Exchange is proposing new Rule 5.1E(a) to establish rules regarding the extension of UTP securities to the Pillar platform, which are listed on other national securities exchanges. As proposed, the first sentence of new Rule 5.1E(a) would allow the Exchange to trade securities eligible for UTP under Section 12(f) of the Exchange Act.
Proposed Rule 5.1E(a) would adopt rules reflecting requirements for trading products on the Exchange pursuant to UTP that have been established in various new product proposals previously approved by the Commission.
Finally, proposed Rule 5.1E(a)(1) would make clear that the Exchange would not list any ETPs, unless it filed a proposed rule change under Section 19(b)(2)
The Exchange proposes Rule 5.1E(a)(2) to specifically govern trading of ETPs pursuant to UTP. Specifically, the requirements in subparagraphs (A)-(F) of proposed Rule 5.1E(a)(2) would apply to ETPs traded pursuant to UTP on the Exchange.
Under proposed Rule 5.1E(a)(2)(A), the Exchange would file a Form 19b-4(e) with the Commission with respect to each ETP
In addition, proposed Rule 5.1E(a)(2)(B) would provide that the Exchange will distribute an information circular prior to the commencement of trading in such an ETP that generally would include the same information as the information circular provided by the listing exchange, including (a) the special risks of trading the ETP, (b) the Exchange's rules that will apply to the ETP, including Rules 2090-Equities and 2111-Equities,
Under proposed Rule 5.1E(a)(2)(D), the Exchange would halt trading in a UTP Exchange Traded Product in certain circumstances. Specifically, if a temporary interruption occurs in the calculation or wide dissemination of the intraday indicative value (or similar value) or the value of the underlying index or instrument and the listing market halts trading in the product, the Exchange, upon notification by the listing market of such halt due to such temporary interruption, also would immediately halt trading in that product on the Exchange. If the intraday indicative value (or similar value) or the value of the underlying index or instrument continues not to be calculated or widely available as of the commencement of trading on the Exchange on the next business day, the Exchange would not commence trading of the product that day. If an interruption in the calculation or wide dissemination of the intraday indicative value (or similar value) or the value of the underlying index or instrument continues, the Exchange could resume trading in the product only if calculation and wide dissemination of the intraday indicative value (or similar value) or the value of the underlying index or instrument resumes or trading in such series resumes in the listing market. The Exchange also would halt trading in a UTP Exchange Traded Product listed on the Exchange for which a net asset value (and in the case of managed fund shares or actively managed exchange-traded funds, a “disclosed portfolio”) is disseminated if the Exchange became aware that the net asset value or, if applicable, the disclosed portfolio was not being disseminated to all market participants at the same time. The Exchange would maintain the trading halt until such time as the Exchange became aware that the net asset value and, if applicable, the disclosed portfolio was available to all market participants.
Finally, the Exchange represents that its surveillance procedures for ETPs traded on the Exchange pursuant to UTP would be similar to the procedures used for equity securities traded on the Exchange and would incorporate and rely upon existing Exchange surveillance systems.
Proposed Rules 5.1E(a)(2)(C) and (E) would establish the following requirements for ETP Holders that have customers that trade UTP Exchange Traded Products:
•
•
•
The Exchange proposes to define the term “exchange traded product” in Rule 1.1E(bbb). Proposed Rule 1.1E(bbb) would define the term “Exchange Traded Product” to mean a security that meets the definition of “derivative securities product” in Rule 19b-4(e) under the Securities Exchange Act of 1934 and a “UTP Exchange Traded Product” to mean an Exchange Traded Product that trades on the Exchange pursuant to unlisted trading privileges.
Next, the Exchange proposes to add the definitions contained in NYSE Arca Equities Rule 5.1(b) that are relevant to the rules for the trading pursuant to UTP of the ETPs that the Exchange proposes in this filing, which are described below. To maintain consistency in rule references between the Exchange's proposed rules and NYSE Arca Equities' rules, the Exchange proposes to Reserve subparagraphs to
Finally, the Exchange proposes to make the following substitutions in its proposed rules for terms used in the NYSE Arca Equities ETP listing and trading rules (collectively, the “General Definitional Term Changes”):
• Because the Exchange uses the term “Supplementary Material” to refer to commentaries to its Rules, the Exchange proposes to substitute this term where “Commentary” is used in the rules of NYSE Arca Equities;
• Because the Exchange tends to use the term “will” to impose obligations or duties on its members and ETP Holders, the Exchange proposes to substitute this term where “shall” is used in the rules of NYSE Arca Equities;
• The Exchange proposes to use the term “ETP Holder”
• The Exchange proposes to use the term “Exchange”
• Because the Exchange's hours for business are described in Rule 51-Equities and the Exchange's rules do not use a defined term to refer to such hours, the Exchange is proposing to refer to its core trading hours as the “Exchange's normal trading hours,” and substitute this phrase for “Core Trading Session” and “Core Trading Hours,” as defined in the rules of NYSE Arca Equities;
• Because the Exchange's rules pertaining to trading halts due to extraordinary market volatility on the Pillar platform are described in Rule 7.12E, the Exchange is proposing to refer to Rule 7.12E in its proposed rules wherever NYSE Arca Equities Rule 7.12
• Because the Exchange's rules pertaining to the mechanics of the limit-up-limit down plan as it relates to trading pauses in individual securities due to extraordinary market volatility are described in Rule 80C-Equities, the Exchange is proposing to refer to Rule 80C-Equities in its proposed rules wherever NYSE Arca Equities Rule 7.11
• Because NYSE Arca Equities Rule 7.18
• Because the Exchange's rules regarding the production of books and records are described in Rule 440-Equities, the Exchange is proposing to refer to Rule 440-Equities in its proposed rules wherever NYSE Arca Equities Rule 4.4
The Exchange would have to file a Form 19b-4(e) with the Commission to trade these ETPs pursuant to UTP. The Exchange is proposing substantially identical rules to those of NYSE Arca Equities for the qualification, listing and delisting of companies on the Exchange applicable to the ETPs.
Furthermore, the Exchange proposes to include additional continued listing standards in the proposed rules for the trading pursuant to UTP, as well as clarify the procedures it will undertake when an ETP is noncompliant with applicable rules. These proposed rules are being made in concert with discussions with the SEC. Staff (“Staff”) of the SEC's Division of Trading and Markets (“T&M”) requested that the Exchange adopt certain additional continued listing standards for trading ETPs pursuant to UTP.
As a result, the proposed rules for the trading pursuant to UTP reflect the guidance provided by T&M Staff to clarify that most initial listing standards, as well as certain representations included in Exchange rule filings under SEC Rule 19b-4 to trade ETPs pursuant to UTP (“Exchange Rule Filings”), are also considered continued listing standards. The Exchange Rule Filing representations that will also be required to be maintained on a continuous basis include (a) the description of the fund and (b) the fund's investment restrictions.
The proposed rules require that ETPs traded pursuant to UTP on the Exchange without an Exchange Rule Filing must maintain the initial index or reference asset criteria on a continued basis. For example, in the case of a domestic equity index, these criteria generally include: (a) Stocks with 90% of the weight of the index must have a minimum market value of at least $75 million; (b) stocks with 70% of the weight of the index must have a minimum monthly trading volume of at least 250,000 shares; (c) the most heavily weighted component cannot exceed 30% of the weight of the index, and the five most heavily weighted stocks cannot exceed 65%; (d) there must be at least 13 stocks in the index; and (e) all securities in the index must be listed in the U.S. There are similar criteria for international indexes, fixed-income indexes and indexes with a combination of components.
If an Exchange Rule Filing is made to trade a specific ETP pursuant to UTP, the proposed rules require that the issuer of the security comply on a continuing basis with any statements or representations contained in the applicable rule proposal, including (a) the description of the portfolio and (b) limitations on portfolio holdings or
The Exchange proposes to add introductory language under the main heading of proposed Rule 5E, which states that the provisions of proposed Rule 5E would apply only to the trading pursuant to UTP of ETPs, and would not apply to the listing of ETPs on the Exchange. The Exchange is proposing this language to clarify that the rules incorporated in proposed Rule 5E should not be interpreted to be listing requirements of the Exchange, but rather, requirements that pertain solely to the trading of ETPs pursuant to UTP on the Pillar platform.
The Exchange proposes to add Rules 5.2E(j)(2)-(j)(7), which would be substantially identical to NYSE Arca Equities Rules 5.2(j)(2)-(j)(7). These proposed rules would permit the Exchange to trade pursuant to UTP the following:
• Equity Linked Notes that meet the rules for the trading pursuant to UTP that are contained in proposed Rule 5.2E(j)(2);
• Investment Company Units that meet the rules for the trading pursuant to UTP that are contained in proposed Rule 5.2E(j)(3);
• Index-Linked Exchangeable Notes that meet the rules for the trading pursuant to UTP that are contained in proposed Rule 5.2E(j)(4);
• Equity Gold Shares that meet the rules for the trading pursuant to UTP that are contained in proposed Rule 5.2E(j)(5);
• Equity Index Linked Securities, Commodity-Linked Securities, Currency-Linked Securities, Fixed Income Index-Linked Securities, Futures-Linked Securities, and Multifactor Index-Linked Securities that meet the rules for the trading pursuant to UTP that are contained in proposed Rule 5.2E(j)(6); and
• Trust Certificates that meet the rules for the trading pursuant to UTP that are contained in proposed Rule 5.2E(j)(7).
The text of these proposed rules is identical to NYSE Arca Equities Rules 5.2(j)(2)-5.2(j)(7), other than certain non-substantive and technical differences explained below.
The Exchange proposes to Reserve paragraphs 5.2E(a)-(i)
The Exchange is proposing Rule 5.2E(j)(2) to provide rules for the trading pursuant to UTP of ELNs, so that they may be traded on the Exchange pursuant to UTP.
Other than with respect to the General Definitional Term Changes described above, there are no differences between this proposed rule and NYSE Arca Equities Rule 5.2(j)(2).
The Exchange is proposing Rule 5.2E(j)(3) to provide rules for the trading pursuant to UTP of investment company units, so that they may be traded on the Exchange pursuant to UTP.
Other than with respect to the General Definitional Term Changes described above, there are no differences between this proposed rule and NYSE Arca Equities Rule 5.2(j)(3).
The Exchange is proposing Rule 5.2E(j)(4) to provide rules for the trading pursuant to UTP of index-linked exchangeable notes, so that they may be traded on the Exchange pursuant to UTP.
In addition to the General Definitional Term Changes described above, the Exchange is proposing the following non-substantive changes between this proposed rule and NYSE Arca Equities Rule 5.2(j)(4):
• To qualify for listing and trading under NYSE Arca Equities Rule 5.2(j)(4), an index-linked exchangeable note and its issuer must meet the criteria in NYSE Arca Equities Rule 5.2(j)(1) (Other Securities), except that the minimum public distribution will be 150,000 notes with a minimum of 400 public note-holders, except, if traded in thousand dollar denominations then there is no minimum public distribution and number of holders.
Because the Exchange does not have and is not proposing a rule for “Other Securities” comparable to NYSE Arca Rule 5.2(j)(1), the Exchange proposes to reference NYSE Arca Equities Rule 5.1(j)(1) in subparagraphs (a) and (c) of proposed Rule 5.2E(j)(4) in establishing the criteria that an issuer and issue must satisfy.
• To qualify for listing and trading under NYSE Arca Equities Rule 5.2(j)(4), an index to which an exchangeable note is linked and its underlying securities must meet (i) the procedures in NYSE Arca Options Rules 5.13(b)-(c); or (ii) the criteria set forth in subsections (C) and (D) of NYSE Arca Equities Rule 5.2(j)(2), the index concentration limits set forth in NYSE Arca Options Rule 5.13(b)(6), and Rule 5.13(b)(12) insofar as it relates to Rule 5.13(b)(6). Because the Exchange's rules for listing of index option contracts are described in Rule 901C, the Exchange is proposing to refer to Rule 901C wherever NYSE Arca Options Rule 5.13
• Correction of a typographical error in NYSE Arca Equities Rule 5.2(j)(4)(f)((iii), so that proposed Rule 5.2E(j)(4)(f)((iii) reads “further dealings on the Exchange,” rather than “further dealings of the Exchange,” as is currently drafted in NYSE Arca Equities Rule 5.2(j)(4)(f)(iii).
The Exchange is proposing Rule 5.2E(j)(5) to provide rules for the trading pursuant to UTP of equity gold shares, so that they may be traded on the Exchange pursuant to UTP.
Other than with respect to the General Definitional Term Changes described above, there are no differences between this proposed rule and NYSE Arca Equities Rule 5.2(j)(5).
The Exchange is proposing Rule 5.2E(j)(6) to provide rules for the trading pursuant to UTP of equity index-linked securities, so that they may be traded on the Exchange pursuant to UTP.
In addition to the General Definitional Term Changes described above, the Exchange is proposing the following non-substantive changes between this proposed rule and NYSE Arca Equities Rule 5.2(j)(6):
• To qualify for listing and trading under NYSE Arca Equities Rule 5.2(j)(6), both the issue and issuer of an index-linked security must meet the criteria in NYSE Arca Equities Rule 5.2(j)(1) (Other Securities), with certain specified exceptions. Because the Exchange does not have and is not proposing a rule for “Other Securities” comparable to NYSE Arca Rule 5.1(j)(1), the Exchange proposes to reference NYSE Arca Equities Rule 5.1(j)(1) in proposed Rule 5.2E(j)(6)(A)(a) establishing the criteria that an issue and issuer must satisfy.
• The listing standards for Equity Index-Linked Securities in NYSE Arca Equities Rule 5.2(j)(6) reference NYSE Arca Options Rule 5.3 in describing the criteria for securities that compose 90% of an index's numerical value and at least 80% of the total number of components. Because the Exchange's rules for establishing the criteria for underlying securities of put and call options contracts is described in Rule 915, the Exchange proposes to reference to Rule 915
The Exchange is proposing Rule 5.2E(j)(7) to provide rules for the trading pursuant to UTP of trust certificates, so that they may be traded on the Exchange pursuant to UTP.
In addition to the General Definitional Term Changes described above, the Exchange is proposing the following non-substantive change between this proposed rule and NYSE Arca Equities Rule 5.2(j)(7):
• Commentary .08 to NYSE Arca Equities Rule 5.2(j)(7) contains a cross-reference to NYSE Arca Rule 9.2.
The Exchange proposes to add introductory language under the main heading of proposed Rule 8E, which states that the provisions of proposed Rule 8E would apply only to the trading pursuant to UTP of ETPs, and would not apply to the listing of ETPs on the Exchange. The Exchange is proposing this language to clarify that the rules incorporated in proposed Rule 8E should not be interpreted to be listing requirements of the Exchange, but rather, requirements that pertain solely to the trading of ETPs pursuant to UTP on the Pillar platform.
The Exchange proposes to add Rule 8E, which would be substantially identical to Sections 1 and 2 of NYSE Arca Equities Rule 8. These proposed rules would permit the Exchange to trade pursuant to UTP the following: Currency and Index Warrants, Portfolio Depositary Receipts, Trust Issued Receipts, Commodity-Based Trust Shares, Currency Trust Shares, Commodity Index Trust Shares, Commodity Futures Trust Shares, Partnership Units, Paired Trust Shares, Trust Units, Managed Fund Shares, and Managed Trust Securities.
The Exchange proposes to Reserve Rule 8.100E(g), to maintain the same rule numbers as the NYSE Arca rules with which it conforms.
The text of proposed Rule 8E is identical to Sections 1 and 2 of NYSE Arca Equities Rule 8, other than certain non-substantive and technical differences explained below. The Exchange also proposes that all of the General Definitional Term Changes described under proposed Rule 5E above would also apply to proposed Rule 8E.
The Exchange is proposing Rules 8.1E-8.13E to provide rules for the trading pursuant to UTP (including sales-practice rules such as those relating to suitability and supervision of accounts) of currency and index warrants, so that they may be traded on the Exchange pursuant to UTP.
In addition to the General Definitional Term Changes described above under proposed Rule 5E, the Exchange is
• Other than with respect to the General Definitional Term Changes described above, there are no differences between this proposed rule and NYSE Arca Equities Rule 8.1.
• Other than with respect to the General Definitional Term Changes described above, there are no differences between this proposed rule and NYSE Arca Equities Rule 8.2.
• NYSE Arca Equities Rule 8.3 references NYSE Arca Equities Rule 5.2(c) to establish the earnings requirements that a warrant issuer is required to substantially exceed. Because the Exchange does not currently have and is not proposing a rule similar to NYSE Arca Equities Rule 5.2(c), the Exchange proposes to include the earnings requirements set forth in NYSE Arca Equities Rule 5.2(c) in subparagraph (a) of proposed Rule 8.3E.
• The account approval rules of NYSE Arca Equities Rule 8.4 reference NYSE Arca Equities Rule 9.18(b) in describing the criteria that must be met for opening up a customer account for options trading. Because the Exchange's account approval rules are described in Rule 921,
• The account suitability rules of NYSE Arca Equities Rule 8.5 reference NYSE Arca Equities Rule 9.18(c) in describing rules that apply to recommendations made in stock index, currency index and currency warrants. Because the Exchange's account suitability rules are described in Rule 923,
• The rules of NYSE Arca Equities Rule 8.6 reference the fact that NYSE Arca Equities Rule 9.6(a) will not apply to customer accounts insofar as they may relate to discretion to trade in stock index, currency index and currency warrants, and that NYSE Arca Equities Rule 9.18(e) will apply to such discretionary accounts instead. Because the Exchange's discretionary account rules for equity trading are described in Rule 408-Equities,
• The account supervision rules of NYSE Arca Equities Rule 8.7 reference NYSE Arca Equities Rule 9.18(d) in describing rules that apply to the supervision of customer accounts in which transactions in stock index, currency index or currency warrants are effected. Because the Exchange's rules that apply to the supervision of customer accounts of such nature are described in Rule 922,
• The customer complaint rules of NYSE Arca Equities Rule 8.8 reference NYSE Arca Equities Rule 9.18(l) in describing rules that apply to customer complaints received regarding stock index, currency index or currency warrants. Because the Exchange's rules that govern doing a public business in options are described in Rule 932,
• The rules pertaining to communications to customers regarding stock index, currency index and currency warrants described in NYSE Arca Equities Rule 8.9 reference NYSE Arca Equities Rule 9.28. Because the Exchange's rules that govern advertisements, market letters and sales literature relating to options are described in Rule 991,
• Other than with respect to the General Definitional Term Changes described above, there are no differences between this proposed rule and NYSE Arca Equities Rule 8.10.
• Other than with respect to the General Definitional Term Changes described above, there are no differences between this proposed rule and NYSE Arca Equities Rule 8.11.
• Other than with respect to the General Definitional Term Changes described above, there are no differences between this proposed rule and NYSE Arca Equities Rule 8.12.
• The Exchange proposes to correct a typographical error in NYSE Arca Equities Rule 8.13. Proposed Rule 8.13E would read “whenever a report shall be required to be filed with respect to an account pursuant to this Rule, the ETP Holder filing the report shall file with the Exchange such additional periodic reports with respect to such account as the Exchange may from time to time prescribe,” rather than “whenever a report shall be required to be filed with respect to an account pursuant to this Rule, the ETP Holder filing the same file with the Exchange such additional periodic reports with respect to such account as the Exchange may from time
The Exchange is proposing Rule 8.100E to provide rules for the trading pursuant to UTP of portfolio depositary receipts, so that they may be traded on the Exchange pursuant to UTP.
Other than with respect to the General Definitional Term Changes described above under proposed Rule 5E, there are no differences between this proposed rule and NYSE Arca Equities Rule 8.100.
The Exchange is proposing Rule 8.200E to provide rules for the trading pursuant to UTP of trust issued receipts, so that they may be traded on the Exchange pursuant to UTP.
Other than with respect to the General Definitional Term Changes described above under proposed Rule 5E, there are no differences between this proposed rule and NYSE Arca Equities Rule 8.200.
The Exchange is proposing Rule 8.201E to provide rules for the trading pursuant to UTP of commodity-based trust shares, so that they may be traded on the Exchange pursuant to UTP.
Other than with respect to the General Definitional Term Changes described above under proposed Rule 5E, there are no differences between this proposed rule and NYSE Arca Equities Rule 8.201.
The Exchange is proposing Rule 8.202E to provide rules for the trading pursuant to UTP of currency trust shares, so that they may be traded on the Exchange pursuant to UTP.
Other than with respect to the General Definitional Term Changes described above under proposed Rule 5E, there are no differences between this proposed rule and NYSE Arca Equities Rule 8.202.
The Exchange is proposing Rule 8.203E to provide rules for the trading pursuant to UTP of commodity index trust shares, so that they may be traded on the Exchange pursuant to UTP.
In addition to the General Definitional Term Changes described above, the Exchange is proposing the following non-substantive change between this proposed rule and NYSE Arca Equities Rule 8.203:
• Correction of a typographical error in NYSE Arca Equities Rule 8.203(d), so that proposed Rule 8.203E(d) reads “one or more” in the first sentence, rather than “one more more,” as is currently drafted in NYSE Arca Equities Rule 8.203(d).
The Exchange is proposing Rule 8.204E to provide rules for the trading pursuant to UTP of commodity futures trust shares, so that they may be traded on the Exchange pursuant to UTP.
Other than with respect to the General Definitional Term Changes described above under proposed Rule 5E, there are no differences between this proposed rule and NYSE Arca Equities Rule 8.204.
The Exchange is proposing Rule 8.300E to provide rules for the trading pursuant to UTP of partnership units, so that they may be traded on the Exchange pursuant to UTP.
Other than with respect to the General Definitional Term Changes described above under proposed Rule 5E, there are no differences between this proposed rule and NYSE Arca Equities Rule 8.300.
The Exchange is proposing Rule 8.400E to provide rules for the trading pursuant to UTP of paired trust shares, so that they may be traded on the Exchange pursuant to UTP.
In addition to the General Definitional Term Changes described above, the Exchange is proposing the following non-substantive change between this proposed rule and NYSE Arca Equities Rule 8.400:
• To be consistent with the Exchange's definitions proposed in Rule 5.1E(b), the Exchange proposes to substitute the terms “security” and “equity securities” (as such terms are defined in proposed Rule 5.1E(b)
The Exchange is proposing Rule 8.500E to provide rules for the trading pursuant to UTP of trust units, so that they may be traded on the Exchange pursuant to UTP.
In addition to the General Definitional Term Changes described above, the Exchange is proposing the following non-substantive change between this proposed rule and NYSE Arca Equities Rule 8.500:
• To be consistent with the Exchange's definitions proposed in Rule 5.1E(b), the Exchange proposes to substitute the terms “security” and “equity securities” (as such terms are defined in proposed Rule 5.1E(b)
The Exchange is proposing Rule 8.600E to provide rules for the trading pursuant to UTP of managed fund shares, so that they may be traded on the Exchange pursuant to UTP.
Other than with respect to the General Definitional Term Changes described above under proposed Rule 5E, there are no differences between this proposed rule and NYSE Arca Equities Rule 8.600.
The Exchange is proposing Rule 8.700E to provide rules for the trading pursuant to UTP of managed trust securities, so that they may be traded on the Exchange pursuant to UTP.
Other than with respect to the General Definitional Term Changes described above under proposed Rule 5E, there are no differences between this proposed rule and NYSE Arca Equities Rule 8.700.
In conjunction with the implementation of the Pillar trading platform for trading of securities pursuant to UTP, the Exchange proposes new Rule 7.18E, under Rule 7E, which would govern trading halts in symbols trading on the Pillar platform.
Other than with respect to the proposed General Definitional Term Changes described above, there are no differences between proposed Rules 7.18E(a)-(d)(1) and NYSE Arca Equities Rules 7.18(a)-(d)(1). The Exchange does not propose rules based on NYSE Arca Equities Rule 7.18(d)(2) because the Exchange would not be a listing venue under Rules 5E and 8E.
Finally, proposed Rules 7.18E would use the terms and definitions that were added in the Pillar Framework Filing and proposed as new Rules 1.1E(aaa) and (bbb), described above. The Exchange also proposes to define the term “UTP regulatory halt” in Rule 1.1E(kk).
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange believes the proposed rule change also supports the principals of Section 11A(a)(1)
The Exchange believes that the proposed rule change is consistent with these principles. By providing for the trading of securities on the Exchange on a UTP basis, the Exchange believes its proposal will lead to the addition of liquidity to the broader market for these securities and to increased competition among the existing group of liquidity providers. The Exchange also believes that, by so doing, the proposed rule change would encourage the additional utilization of, and interaction with, the exchange market, and provide market participants with improved price discovery, increased liquidity, more competitive quotes and greater price improvement for securities traded pursuant to UTP.
The Exchange further believes that enhancing liquidity by trading securities on a UTP basis would help raise investors' confidence in the fairness of the market, generally, and their transactions in particular. As such, the general UTP trading rule would foster cooperation and coordination with persons engaged in facilitating securities transactions, enhance the mechanism of a free and open market, and promote fair and orderly markets in securities on the Exchange.
In addition, the trading criteria set forth in proposed Rule 5.1E(a) is intended to protect investors and the public interest. The requirements for trading securities pursuant to UTP, as proposed herein in a single, consolidated Rule 5.1E(a), are at least as stringent as those of any other national securities exchange and, specifically, are based on the consolidated rules for trading UTP securities established by other national securities exchanges.
The proposed rule changes accomplish these objectives by enhancing Exchange rules by clarifying that most initial listing standards, as well as certain representations included in Exchange Rule Filings to list an ETP, are considered continued listing standards. Additionally, the ETP rules will also require that issuers of securities listed under proposed Rules 5E and 8E must notify the Exchange regarding instances of non-compliance and to clarify that deficiencies will be subject to the delisting process in proposed Rule 5.5E(m). The Exchange believes that these proposed rules will enhance the Exchange's rules, thereby serving to improve the national market system and protect investors and the public interest.
The proposal is also designed to promote just and equitable principles of trade by way of initial and continued listing standards which, if not maintained, will result in the discontinuation of trading in the affected products. These requirements, together with the applicable Exchange trading rules (which apply to the proposed products), ensure that no investor would have an unfair advantage over another respecting the trading of the subject products. On the contrary, all investors will have the same access to, and use of, information concerning the specific products and trading in the specific products, all to the benefit of public customers and the marketplace as a whole.
The proposal is intended to ensure that investors receive up-to-date information on the value of certain underlying securities and indices in the products in which they invest, and protect investors and the public interest, enabling investors to: (i) Respond quickly to market changes through intra-day trading opportunities; (ii) engage in hedging strategies; and (iii) reduce transaction costs for trading a group or index of securities.
Furthermore, the proposal is designed to remove impediments to and perfect the mechanism of a free and open market and a national market system by adopting rules that will lead ultimately to the trading pursuant to UTP of the proposed new products on the Exchange, just as they are currently traded on other exchanges. The proposed changes do nothing more than match Exchange rules with what is currently available on other exchanges. The Exchange believes that by conforming its rules and allowing trading opportunities on the Exchange that are already allowed by rule on another market, the proposal would offer another venue for trading Exchange Traded Products and thereby promote broader competition among exchanges. The Exchange believes that individuals and entities permitted to make markets on the Exchange in the proposed new products should enhance competition within the mechanism of a free and open market and a national market system, and customers and other investors in the national market system should benefit from more depth and liquidity in the market for the proposed new products.
The proposed change is not designed to address any competitive issue, but rather to adopt new rules that are word-for-word identical to the rules of NYSE Arca (other than with respect to certain non-substantive and technical amendments described above), to support the Exchange's new Pillar trading platform. As discussed in detail above, with this rule filing, the Exchange is not proposing to change its core functionality, but rather to adopt a rule numbering framework and rules based on the rules of NYSE Arca. The Exchange believes that the proposed rule change would promote consistent use of terminology to support the Pillar trading platform on both the Exchange and its affiliate, NYSE Arca, thus making the Exchange's rules easier to navigate.
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. To the contrary, the current variances between the Exchange's rules for the trading pursuant to UTP and the rules of other exchanges limit competition in that there are certain products that the Exchange cannot trade pursuant to UTP, while other exchanges can trade such products. Thus, approval of the proposed rule change will promote competition because it will allow the Exchange to compete with other national securities exchanges for the trading of securities pursuant to UTP.
The Exchange believes that proposed Rules 5E and 8E and the related notification requirements will have no impact on competition. Furthermore, since T&M Staff has provided the same guidance regarding ETP continued listing requirements to all exchanges, the Exchange believes that there will be no effect on competition.
No written comments were solicited or received with respect to the proposed rule change.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change, as amended, is consistent with the Section 6(b)(5) of the Act, the other provisions of the Act, and the rules and regulations thereunder. In particular, the Commission invites the written views of interested persons concerning the sufficiency of the Exchange's statements in support of Amendment No. 1 to the proposed rule change, which are set forth above, and the specific requests for comment set forth in the Order Instituting Proceedings.
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934,
The principal purpose of the proposed change is for ICC to provide for the clearance of clearing participant (“CP”) single name credit default swap contracts (“CDS”) referencing ICC clearing participants (“CP CDS Contracts”).
In its filing with the Commission, ICC included statements concerning the purpose of and basis for the proposed rule change, security-based swap submission, or advance notice and discussed any comments it received on the proposed rule change, security-based swap submission, or advance notice. The text of these statements may be examined at the places specified in Item IV below. ICC has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of these statements.
ICC plans to expand its product offering to include CP CDS Contracts. ICC believes the addition of these contracts will benefit the market for credit default swaps by providing market participants the benefits of clearing, including reduction in counterparty risk and safeguarding of margin assets pursuant to clearing house rules. Clearing of the CP CDS Contracts will not require any changes to the ICC Clearing Rules, ICC's Risk Management Framework, ICC's Risk Management Model Description Document, or other policies and procedures constituting rules within the meaning of the Securities Exchange Act of 1934 (“Act”).
The CP CDS Contracts will be cleared pursuant to Subchapters 26B (Standard North American Corporate (“SNAC”) Single Name) and 26H (Standard European Financial Corporate (“STEFC”) Single Name) of the ICC Clearing Rules. Furthermore, the General Wrong Way Risk (“GWWR”) approach, set forth in the ICC Risk Management Model Description Document,
Section 17A(b)(3)(F) of the Act
Clearing of the CP CDS Contracts will also satisfy the requirements of Rule 17Ad-22.
The CP CDS Contracts will be available to all ICC participants for clearing. The clearing of these CP CDS Contracts by ICC does not preclude the offering of the CP CDS Contracts for clearing by other market participants. Accordingly, ICC does not believe that clearance of the CP CDS Contracts will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
Written comments relating to the proposed rule change have not been solicited or received. ICC will notify the Commission of any written comments received by ICC.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act and paragraph (f)(1) of Rule 19b-4 thereunder. At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change, security-based swap submission, or advance notice 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.
All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-ICC-2017-004 and should be submitted on or before May 18, 2017.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Rule 1002 of the Exchange's Rules, as described in further detail below.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to amend Rule 1002 of the Exchange's rules (the “Rules”), which pertains to exercise limits, so that it is more consistent with the rules of PHLX's sister exchange, Nasdaq ISE, LLC (“ISE”).
Although Rule 1001 of the Exchange's Rules provides for numerous exemptions to the position limits that the Exchange imposes, Rule 1002(c) provides that “[t]he Exchange will not approve exercises exceeding the [exercise] limits established pursuant to this Rule except in highly unusual circumstances.” Rule 1002(c) further provides that an exemption request must be made in writing and set forth the facts justifying the exemption, and that such a request is subject to the approval of an Options Exchange Official.
In contrast to PHLX, the rules of ISE do not impose such onerous requirements for approving exemptions from exercise limits. ISE Rule 414(c) states that “[f]or a Member that has been granted an exemption to position limits pursuant to Rule 413(a), the number of contracts which can be exercised over a five (5) business day period shall equal the Member's exempted position.” Rule 413(a) provides for equity hedge and delta-based equity hedge position limit exemptions.
The Exchange proposes to harmonize Rule 1002 with ISE Rule 414(c) by authorizing exercise limit exemptions as a matter of course, and without requiring members and member organizations to submit written requests and obtain specific approvals for these exemptions, to the extent that such members or member organizations are exempt from position limits as set forth in Rule 1001. Specifically, the Exchange proposes to replace the existing language of Rule 1002(c) with the language of ISE Rule 414(c), except that the Exchange proposes to specify that exercise exemption limits are available to members and member organizations to the extent that they are exempt from position limits pursuant to Rule 1001(l) (exempting equity option hedges) or Rule 1001(n) (exempting delta-based equity hedges).
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange believes that its proposal promotes just and equitable principles of trade and a free and open market by granting exercise limit exemptions to a similar extent and under similar circumstances as do other options exchanges, while eliminating the onerous requirement that the Exchange's members and member organizations must obtain approval for such exemptions in each instance and pursuant to written requests. Additionally, broadening the availability of exercise limit exemptions would facilitate risk management practices of members and member organizations.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received.
Because the proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative prior to 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 and Rule 19b-4(f)(6)(iii) thereunder.
A proposed rule change filed under Rule 19b-4(f)(6)
The Commission believes that waiver of the 30-day operative delay is consistent with the protection of investors and the public interest. The Commission notes that the Exchange's proposal to adopt exemptions from exercise limits tracks the exemptions from such limits already in place in the rules of ISE. Accordingly, the Commission hereby waives the 30-day operative delay and designates the proposed rule change as operative upon filing.
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings
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.
U.S. Small Business Administration.
Notice.
This is a notice of an Economic Injury Disaster Loan (EIDL) declaration for the State of California, dated 04/19/2017.
Effective Date: 04/19/2017.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416, (202) 205-6734.
Notice is hereby given that as a result of the Administrator's EIDL declaration, applications for economic injury disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for economic injury is 151140.
The States which received an EIDL Declaration # are California, Nevada.
U.S. Small Business Administration.
Notice.
This is a notice of an Economic Injury Disaster Loan (EIDL) declaration for the State of California, dated 04/19/2017.
Effective Date: 04/19/2017.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416, (202) 205-6734.
Notice is hereby given that as a result of the Administrator's EIDL declaration, applications for economic injury disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for economic injury is 151130.
The State which received an EIDL Declaration # is California.
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:
Tennessee Valley Authority.
Record of Decision.
This notice is provided in accordance with the Council on Environmental Quality's regulations and Tennessee Valley Authority's (TVA) procedures for implementing the National Environmental Policy Act (NEPA). TVA has decided to adopt the Preferred Alternative identified in the Bull Run Fossil Plant Landfill Final Environmental Impact Statement (EIS). The notice of availability (NOA) of the
Anita E. Masters, Project Environmental Planning, NEPA Project Manager, Tennessee Valley Authority, 1101 Market Street, BR 4A, Chattanooga, Tennessee 37402; telephone (423) 751-8697, or by email
TVA is a federal agency and instrumentality of the United States created by and existing pursuant to the TVA Act of 1933. Its broad mission is to foster the social and economic welfare of the people of the Tennessee Valley region and to promote the proper use and conservation of the region's natural resources. One component of this mission is the generation, transmission, and sale of reliable and affordable electric energy.
TVA operates the nation's largest public power system, producing approximately four percent of all of the electricity in the nation. TVA provides electricity to most of Tennessee and parts of Virginia, North Carolina, Georgia, Alabama, Mississippi, and Kentucky. Currently, it serves more than nine million people in 80,000 square miles (mi) in this seven-state region. The TVA Act requires the TVA power system to be self-supporting and operated on a nonprofit basis and directs TVA to sell electricity at rates as low as are feasible. TVA receives no taxpayer funding, deriving virtually all of its revenues from sales of electricity. TVA receives no taxpayer funding, deriving virtually all of its revenues from sales of electricity. In addition to operating and investing its revenues in its power system, the TVA Act provides for flood control, navigation and land management for the Tennessee River watershed and assists local power companies and state and local governments with economic development and job creation.
The Bull Run Fossil Plant generates over six billion kilowatt-hours of electric power in a typical year, which is enough electrical energy to meet the needs of approximately 430,000 homes. Historically, TVA has managed storage of CCR materials at the plant in ash impoundments or dry landfills. To modernize the facility and comply with TVA's commitment to manage CCRs on a dry basis, TVA completed the construction of a mechanical dewatering facility in 2014, which removes free water from the CCR—both bottom ash and gypsum. The CCR is then dry-stacked in an on-site landfill located east of the plant. TVA had already been handling and storing fly ash on a dry basis, so there were no changes to that process as a result of the change to dry storage of CCR.
The Bull Run Fossil Plant has state-of-the-art air pollution controls and is one of the coal plants that TVA plans to continue operating in the future. TVA needs 20 years of disposal capacity to meet this operational timeline. Based on current estimates of energy production and consumption rates, on-site storage capacity will be expended within 10 years.
The purpose of this action is to support the need for additional capacity for the long-term management of CCR at Bull Run Fossil Plant. Additional storage capacity would also enable TVA to continue operations at Bull Run Fossil Plant as planned and would be consistent with TVA's voluntary commitment to convert wet CCR management systems to dry systems.
TVA considered three alternatives in the Draft EIS and Final EIS. These alternatives are:
The EIS includes baseline information for understanding the potential environmental and socioeconomic impacts associated with the alternatives considered by TVA. TVA considered twenty-one resource areas related to the human and natural environments and the impacts on these resources associated with each alternative.
Alternative A—No Action would result in the lowest level of environmental impacts as the construction-related impacts resulting from Alternative B and impacts related to transportation of CCR under Alternative C would be avoided. However, Alternative A—No Action, does not meet the purpose and need for the project. Implementation of Alternative B would result in minimal unmitigated impacts to the environment, most of which would be related to construction activities that would be temporary in nature and minimized with implementation of best management practices. Long-term minor impacts to wetlands, a stream on the site and losses of potentially suitable summer roost trees for the Indiana bat and northern long-eared bat would be mitigated as described below. The landfill would change the viewshed of some members of the surrounding community. However, as the landfill is located within Bull Run Fossil Plant property in an area that has been modified to support plan operations, there would be a minimal change to the overall scenic value. Alternative C, which utilizes an existing, permitted landfill, would result in few impacts to the natural environment. Impacts associated with this alternative are related to transportation of CCR from Bull Run Fossil Plant to the Chestnut Ridge Landfill.
On May 21, 2015, TVA published a Notice of Intent (NOI) in the
The Draft EIS was released to the public on May 20, 2016, and a notice of availability including a request for comments on the Draft EIS, was published in the
TVA received 12 comment submissions, which included letters, emails and submissions through the project Web site. The comment submissions were carefully reviewed and synthesized into comment statements. The most frequently mentioned topics from the public comments were related to the impact from noise and dust from landfill operations as well as the visual impact and change in land use of the site on the surrounding community. TVA provided responses to these comments, made appropriate minor revisions to the Draft EIS and issued the Final EIS.
The NOA for the Final EIS was published in the
TVA has decided to implement the preferred alternative identified in the Final EIS, Alternative B—Construct and Operate a Landfill for Storage of CCR on TVA Property Adjacent to Bull Run Fossil Plant (Site J). This alternative was selected over Alternative C—Off-Site Transport of CCR to an Existing Permitted Landfill (Chestnut Ridge) as it would achieve the purpose and need of the project with minimal unmitigated environmental impact, avoid the off-site transport of CCR along public roads, as well as the air emissions, noise, increased traffic and associated long-term safety risks, and disruptions to the
TVA would use appropriate best management practices during all phases of construction and operation of the landfill. Mitigation measures, actions taken to reduce adverse impacts associated with proposed action, include:
• Due to the loss of potentially suitable foraging and roosting habitat for endangered bat species, Section 7 consultation with U.S. Fish and Wildlife will be required. Given the occurrence of potentially suitable roosting habitat for some endangered bat species, all tree clearing would be limited to those times of the year when bats are not expected to be roosting in the area (October 1 through March 31). Impact to bat habitat would be mitigated in accordance with U.S. Fish and Wildlife requirements.
• TVA has coordinated with State of Tennessee Department of Environment and Conservation (TDEC) and the U.S. Army Corps of Engineers, and has proposed mitigation for areas impacted by relocation and/or encroachment of Worthington Branch through payment to an appropriate stream bank and/or restoration on-site.
• Actions involving wetlands and/or stream crossings and stream alterations would be subject to requirements outlined in the federal Clean Water Act Section 404 permit and the TDEC Aquatic Resources Alteration Permit. TVA would adhere to all conditions stipulated in these permits.
• TVA will maintain the plantings along the portion of Site J adjacent to Old Edgemoor Road to continue to provide a vegetative screen.
• TVA will develop a fugitive dust plan which identifies adequate dust control measures for this site. As per CCR rule requirements TVA has developed a fugitive dust hotline where concerns regarding fugitive dust can be recorded. Every year TVA will prepare a report detailing the dust controls used, any citizen complaints received, and a summary of any corrective actions taken.
• TVA will implement a groundwater monitoring plan that adheres to the requirements established in the CCR Rule and those established by TDEC.
Federal Aviation Administration (FAA), DOT.
Notice of petition for exemption received.
This notice contains a summary of a petition seeking relief from specified requirements of title 14, Code of Federal Regulations (14 CFR). The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of the FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number involved and must be received on or before May 17, 2017.
You may send comments identified by docket number FAA-2017-0117 using any of the following methods:
•
•
•
•
Lynette Mitterer, ANM-113, Federal Aviation Administration, 1601 Lind Avenue SW., Renton, WA 98057-3356, email
This notice is published pursuant to 14 CFR 11.85.
Federal Aviation Administration (FAA), Department of Transportation.
Notice of submission deadline.
Under this notice, the FAA announces the submission deadline of May 11, 2017, for winter 2017 flight schedules at Chicago O'Hare International Airport (ORD), John F. Kennedy International Airport (JFK), Los Angeles International Airport (LAX), Newark Liberty International Airport (EWR), and San Francisco International Airport (SFO), in accordance with the International Air Transport Association (IATA) Worldwide Slot Guidelines (WSG). The deadline coincides with the schedule submission deadline for the IATA Slot Conference for the winter 2017 scheduling season.
Schedules must be submitted no later than May 11, 2017.
Schedules may be submitted by email to:
Susan Pfingstler, System Operations Services, Air Traffic Organization, Federal Aviation Administration, 600 Independence Avenue SW., Washington, DC 20591; telephone number: 202-267-6462; email:
The FAA has designated EWR, LAX, ORD, and SFO as IATA Level 2 airports and JFK as an IATA Level 3 airport. The FAA currently limits scheduled operations at JFK by Order.
The FAA is primarily concerned about scheduled and other regularly conducted commercial operations during peak hours, but carriers may submit schedule plans for the entire day. At ORD, the peak hours are 0700 to 2100 Central Time (1300 to 0300 UTC), at LAX and SFO from 0600 to 2300 Pacific Time (1400 to 0700 UTC), and at EWR and JFK from 0600 to 2300 Eastern Time (1100 to 0400 UTC). Carriers should submit schedule information in sufficient detail, including, at minimum, the operating carrier, flight number, scheduled time of operation, frequency, and effective dates. IATA standard schedule information format and data elements (Standard Schedules Information Manual or SSIM, Chapter 6) may be used. The WSG provides additional information on schedule submissions and updates at Level 2 and Level 3 airports.
The U.S. winter scheduling season for these airports is from October 29, 2017, through March 24, 2018, in recognition of the IATA northern winter period. The FAA understands there may be differences in schedule times due to U.S. daylight saving time dates and will accommodate these differences to the extent possible.
JFK will have construction in 2018 on Runway 13L/31R for rehabilitation of pavement and other airfield improvements. The Port Authority of New York and New Jersey (PANYNJ), the airport operator, is currently developing the construction phasing plans in consultation with FAA, airlines, and other stakeholders. The FAA and the PANYNJ will work together to minimize operational disruptions to the extent possible, similar to prior runway construction projects. As construction plans are developed, the FAA will review alternative runway configurations and operating procedures and model potential capacity and delay impacts. We expect the PANYNJ will conduct regular meetings with the FAA, airlines, and other stakeholders. Those meetings and other information provided by the PANYNJ will likely be the best source of project updates and potential operational impacts.
LAX will continue rehabilitation on Runway 7L/25R and taxiways during parts of the winter 2017 season. Los Angeles World Airports (LAWA), the airport operator, plans construction that will shorten the runway length through December. The runway will be limited to departing flights. Other airfield construction is not currently estimated to have significant operational impacts. LAWA conducts monthly meetings on construction updates with FAA local air traffic control, airline representatives, and other interested stakeholders. The LAWA meetings may be the best source of project updates and potential operational impacts.
The FAA will use hourly runway capacity throughput for the Level 2 airports in its schedule reviews, considering any differences associated with runway construction or other operational factors. The FAA regularly reviews operational performance metrics and trends to determine if demand, including arrival and departure distribution, during certain time periods may create operational issues and assess whether schedule adjustments or changes to scheduling limits are warranted during those periods.
There are a few cases where the FAA anticipates potential issues for winter 2017. Carriers are encouraged to take these potential issues into consideration before submitting schedules for winter 2017 and should be prepared to adjust schedules to meet available capacity in order to minimize potential congestion and delay. At EWR, the 0700 to 0859 and 1400-2059 Eastern Time (1200 to 1359 and 1900 to 0159 UTC) hours are expected to be the highest demand periods and not all requests for new flights are likely to be accommodated during those times. At LAX and SFO, the 0700 to 1359 Pacific Time (1500 to 2159 UTC) hours are expected to be the highest demand hours. At ORD, the FAA will continue to review cumulative demand and peaking of scheduled operations to identify potential congested periods. As in previous seasons, at JFK, there is limited availability for new operations outside the mid-morning and late evening periods. Anticipated late winter runway construction could also increase delays above levels normally experienced in that period.
Each Level 2 airport has a separate process adopted by the airport operator for securing terminal/gate availability for certain types of flights. These are primarily for international passenger flights or for flights operating at particular terminals or gates. The processes with the individual airports will continue separately from, and in addition to, the FAA review of schedules based on runway capacity. IATA maintains the schedule facilitator contact information for carriers planning operations at EWR, LAX, ORD, and SFO. There are multiple terminals at JFK and airlines are similarly responsible for securing terminal approval if needed. The FAA may consider the need to harmonize terminal and runway availability. However, this may not always be possible within the various airport and airline constraints.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
FMCSA announces its decision to exempt 44 individuals from its rule prohibiting persons with insulin-treated diabetes mellitus (ITDM) from operating commercial motor vehicles (CMVs) in interstate commerce. The exemptions enable these individuals to operate CMVs in interstate commerce.
The exemptions were effective on April 7, 2017. The exemptions expire on April 7, 2019.
Ms. Christine A. Hydock, Chief, Medical Programs Division, (202) 366-4001,
You may see all the comments online through the Federal Document Management System (FDMS) at:
On March 7, 2017, FMCSA published a notice of receipt of Federal diabetes exemption applications from 44 individuals and requested comments from the public (82 FR 12891). The public comment period closed on April 6, 2017, and one comment was received.
FMCSA has evaluated the eligibility of the 44 applicants and determined that granting the exemptions to these individuals would achieve a level of safety equivalent to or greater than the level that would be achieved by complying with the current regulation 49 CFR 391.41(b)(3).
The Agency established the current requirement for diabetes in 1970 because several risk studies indicated that drivers with diabetes had a higher rate of crash involvement than the general population. The diabetes rule provides that “A person is physically qualified to drive a commercial motor vehicle if that person has no established medical history or clinical diagnosis of diabetes mellitus currently requiring insulin for control” (49 CFR 391.41(b)(3)).
FMCSA established its diabetes exemption program, based on the Agency's July 2000 study entitled “A Report to Congress on the Feasibility of a Program to Qualify Individuals with Insulin-Treated Diabetes Mellitus to Operate in Interstate Commerce as Directed by the Transportation Act for the 21st Century.” The report concluded that a safe and practicable protocol to allow some drivers with ITDM to operate CMVs is feasible. The September 3, 2003 (68 FR 52441),
These 44 applicants have had ITDM over a range of 1 to 25 years. These applicants report no severe hypoglycemic reactions resulting in loss of consciousness or seizure, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning symptoms, in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the past 5 years. In each case, an endocrinologist verified that the driver has demonstrated a willingness to properly monitor and manage his/her diabetes mellitus, received education related to diabetes management, and is on a stable insulin regimen. These drivers report no other disqualifying conditions, including diabetes-related complications. Each meets the vision requirement at 49 CFR 391.41(b)(10).
The qualifications and medical condition of each applicant were stated and discussed in detail in the March 7, 2017,
FMCSA received one comment in this proceeding. Wesley Collier stated that he believes he “would refrain from passing a general rule” allowing drivers with ITDM to operate CMVs in interstate commerce, but allow exceptions for drivers who fit certain medical criteria. FMCSA has reviewed the medical histories of all drivers in this document and has determined that granting the exemptions will create a level of safety equal to or greater than what would be achieved without granting the exemptions.
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the diabetes requirement in 49 CFR 391.41(b)(3) if the exemption is likely to achieve an equivalent or greater level of safety than would be achieved without the exemption. The exemption allows the applicants to operate CMVs in interstate commerce.
To evaluate the effect of these exemptions on safety, FMCSA considered medical reports about the applicants' ITDM and vision, and reviewed the treating endocrinologists' medical opinion related to the ability of the driver to safely operate a CMV while using insulin.
Consequently, FMCSA finds that in each case exempting these applicants from the diabetes requirement in 49 CFR 391.41(b)(3) is likely to achieve a level of safety equal to that existing without the exemption.
The terms and conditions of the exemption will be provided to the applicants in the exemption document and they include the following: (1) That each individual submit a quarterly monitoring checklist completed by the treating endocrinologist as well as an annual checklist with a comprehensive medical evaluation; (2) that each individual reports within 2 business days of occurrence, all episodes of severe hypoglycemia, significant complications, or inability to manage diabetes; also, any involvement in an accident or any other adverse event in a CMV or personal vehicle, whether or not it is related to an episode of hypoglycemia; (3) that each individual provide a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and (4) that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file, or keep a copy in his/her driver's qualification file if he/she is self-employed. The driver must also have a copy of the certification when driving, for presentation to a duly authorized Federal, State, or local enforcement official.
Based upon its evaluation of the 44 exemption applications, FMCSA exempts the following drivers from the diabetes requirement in 49 CFR 391.41(b)(3):
In accordance with 49 U.S.C. 31136(e) and 31315 each exemption is valid for two years unless revoked earlier by FMCSA. The exemption will be revoked if the following occurs: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315. If the exemption is still effective at the end of the 2-year period, the person may apply to FMCSA for a renewal under procedures in effect at that time.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of renewal of exemptions; request for comments.
FMCSA announces its decision to renew the exemptions of 135 individuals from its rule prohibiting persons with insulin-treated diabetes mellitus (ITDM) from operating commercial motor vehicles (CMVs) in interstate commerce. FMCSA has statutory authority to exempt individuals from this rule if the exemptions granted will not compromise safety. The Agency has concluded that granting these exemption renewals will provide a level of safety that is equivalent to or greater than the level of safety maintained without the exemptions for these CMV drivers.
Each group of renewed exemptions are effective from the dates stated in the discussions below. Comments must be received on or before May 30, 2017.
You may submit comments bearing the Federal Docket Management System (FDMS) numbers: Docket No. FMCSA-2005-22177; FMCSA-2005-22905; FMCSA-2006-26600; FMCSA-2008-0009; FMCSA-2008-0399; FMCSA-2009-0055; FMCSA-2011-0011; FMCSA-2011-0025; FMCSA-2013-0011; FMCSA-2013-0013; FMCSA-2014-0314 using any of the following methods:
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Ms. Christine A. Hydock, Chief, Medical Programs Division, 202-366-4001,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may renew an exemption from the Federal Motor Carrier Safety Regulations 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The statute also allows the Agency to renew exemptions at the end of the 2-year period. The 135 individuals listed in this notice have recently become eligible for a renewed exemption from the diabetes prohibition in 49 CFR 391.41(b)(3), which applies to drivers of CMVs in interstate commerce. The drivers remain in good standing with the Agency, have maintained their required medical monitoring and have not exhibited any medical issues that would compromise their ability to safely operate a CMV during the previous 2-year exemption period.
This notice addresses 135 individuals who have requested renewal of their exemptions in accordance with FMCSA procedures. These 135 drivers remain in good standing with the Agency, have maintained their required medical monitoring and have not exhibited any medical issues that would compromise
The exemptions are renewed subject to the following conditions: (1) That each individual submit a quarterly monitoring checklist completed by the treating endocrinologist as well as an annual checklist with a comprehensive medical evaluation; (2) that each individual reports within 2 business days of occurrence, all episodes of severe hypoglycemia, significant complications, or inability to manage diabetes; also, any involvement in an accident or any other adverse event in a CMV or personal vehicle, whether or not it is related to an episode of hypoglycemia; (3) that each individual submit an annual ophthalmologist's or optometrist's report; and (4) that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file, or keep a copy in his/her driver's qualification file if he/she is self-employed. The driver must also have a copy of the certification when driving, for presentation to a duly authorized Federal, State, or local enforcement official.
Under 49 U.S.C. 31315(b)(1), an exemption may be granted for no longer than two years from its approval date and may be renewed upon application for additional two year periods. The following groups of drivers received renewed exemptions in the month of April and are discussed below.
As of April 2, 2017, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 9 individuals have satisfied the renewal conditions for obtaining an exemption from the rule prohibiting drivers with ITDM from driving CMVs in interstate commerce (78 FR 7852; 79 FR 19798):
The drivers were included in Docket No. FMCSA-2013-0011. Their exemptions are effective as of April 2, 2017, and will expire on April 2, 2019.
As of April 5, 2017, and in accordance with 49 U.S.C. 31136(e) and 31315, James R. Moretz, Jr. (PA) has satisfied the renewal conditions for obtaining an exemption from the rule prohibiting drivers with ITDM from driving CMVs in interstate commerce (70 FR 60875; 71 FR 17159).
This driver was included in docket No. FMCSA-2005-22177. The exemption is effective as of April 5, 2017, and will expire on April 5, 2019.
As of April 6, 2017, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 11 individuals have satisfied the renewal conditions for obtaining an exemption from the rule prohibiting drivers with ITDM from driving CMVs in interstate commerce (74 FR 7093; 74 FR 15577):
The drivers were included in docket No. FMCSA-2008-0399. Their exemptions are effective as of April 6, 2017, and will expire on April 6, 2019.
As of April 7, 2017, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 3 individuals have satisfied the renewal conditions for obtaining an exemption from the rule prohibiting drivers with ITDM from driving CMVs in interstate commerce (70 FR 75236; 71 FR 17943):
The drivers were included in docket No. FMCSA-2005-22905. Their exemptions are effective as of April 7, 2017, and will expire on April 7, 2019.
As of April 18, 2017, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 27 individuals have satisfied the renewal conditions for obtaining an exemption from the rule prohibiting drivers with ITDM from driving CMVs in interstate commerce (80 FR 14232; 80 FR 26986):
The drivers were included in docket No. FMCSA-2014-0314. Their exemptions are effective as of April 18, 2017, and will expire on April 18, 2019.
As of April 22, 2017, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 10 individuals have satisfied the renewal conditions for obtaining an exemption from the rule prohibiting drivers with ITDM from driving CMVs in interstate commerce (74 FR 9467; 74 FR 18436):
The drivers were included in docket No. FMCSA-2009-0055. Their exemptions are effective as of April 22, 2017, and will expire on April 22, 2019.
As of April 24, 2017, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 19 individuals have satisfied the renewal conditions for obtaining an exemption from the rule prohibiting drivers with ITDM from driving CMVs in interstate commerce (78 FR 14406; 78 FR 24303):
The drivers were included in docket No. FMCSA-2013-0013. Their exemptions are effective as of April 24, 2017, and will expire on April 24, 2019.
As of April 25, 2017, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 36 individuals have satisfied the renewal conditions for obtaining an exemption from the rule prohibiting drivers with ITDM from driving CMVs in interstate commerce (73 FR 11982; 73 FR 22456; 76 FR 9854; 76 FR 9862; 76 FR 22940; 76 FR 22941):
The drivers were included in one of the following docket Nos: FMCSA-2008-0009; FMCSA-2011-0011; FMCSA-2011-0025. Their exemptions are effective as of April 25, 2017, and will expire on April 25, 2019.
As of April 28, 2017, and in accordance with 49 U.S.C. 31136(e) and 31315, Spencer J. Olson (ID) has satisfied the renewal conditions for obtaining an exemption from the rule prohibiting drivers with ITDM from driving CMVs in interstate commerce (80 FR 14232; 80 FR 26986).
This driver was included in docket No. FMCSA-2014-0314. The exemption is effective as of April 28, 2017, and will expire on April 28, 2019.
As of April 30, 2017, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 18 individuals have satisfied the renewal conditions for obtaining an exemption from the rule prohibiting drivers with ITDM from driving CMVs in interstate commerce (72 FR 9399; 72 FR 21316):
The drivers were included in docket No. FMCSA-2006-26600. Their exemptions are effective as of April 30, 2017, and will expire on April 30, 2019.
Each of the 135 drivers in the aforementioned groups qualifies for a renewal of the exemption. They have maintained their required medical monitoring and have not exhibited any medical issues that would compromise their ability to safely operate a CMV during the previous 2-year exemption period.
These factors provide an adequate basis for predicting each driver's ability to continue to drive safely in interstate commerce. Therefore, FMCSA concludes that extending the exemption for each of the 135 drivers for a period of two years is likely to achieve a level of safety equal to that existing without the exemption. The drivers were included in docket numbers FMCSA-2005-22177; FMCSA-2005-22905; FMCSA-2006-26600; FMCSA-2008-0009; FMCSA-2008-0399; FMCSA-2009-0055; FMCSA-2011-0011; FMCSA-2011-0025; FMCSA-2013-0011; FMCSA-2013-0013; FMCSA-2014-0314.
FMCSA will review comments received at any time concerning a particular driver's safety record and determine if the continuation of the exemption is consistent with the requirements at 49 U.S.C. 31136(e) and 31315. However, FMCSA requests that interested parties with specific data concerning the safety records of these drivers submit comments by May 30, 2017.
FMCSA believes that the requirements for a renewal of an exemption under 49 U.S.C. 31136(e) and 31315 can be satisfied by initially granting the renewal and then requesting and evaluating, if needed, subsequent comments submitted by interested parties. As indicated above, the Agency previously published notices of final disposition announcing its decision to exempt these 135 individuals from rule prohibiting persons with ITDM from operating CMVs in interstate commerce in 49 CFR 391.41(b)(3). The final decision to grant an exemption to each of these individuals was made on the merits of each case and made only after careful consideration of the comments received to its notices of applications. The notices of applications stated in detail the medical condition of each applicant for an exemption from rule prohibiting persons with ITDM from operating CMVs in interstate commerce. That information is available by consulting the above cited
Interested parties or organizations possessing information that would otherwise show that any, or all, of these drivers are not currently achieving the statutory level of safety should immediately notify FMCSA. The Agency will evaluate any adverse evidence submitted and, if safety is being compromised or if continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315, FMCSA will take immediate steps to revoke the exemption of a driver.
You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission.
To submit your comment online, go to
We will consider all comments and material received during the comment period. FMCSA may issue a final determination at any time after the close of the comment period.
To view comments, as well as any documents mentioned in this preamble, go to
Federal Motor Carrier Safety Administration (FMCSA), Department of Transportation.
Notice of applications for exemptions; request for comments.
FMCSA announces receipt of applications from 50 individuals for exemption from the prohibition against persons with insulin-treated diabetes mellitus (ITDM) operating commercial motor vehicles (CMVs) in interstate commerce. If granted, the exemptions would enable these individuals with ITDM to operate CMVs in interstate commerce.
Comments must be received on or before May 30, 2017.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket No. FMCSA-2017-0031 using any of the following methods:
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Ms. Christine A. Hydock, Chief, Medical Programs Division, (202) 366-4001,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the Federal Motor Carrier Safety Regulations for a 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The statute also allows the Agency to renew exemptions at the end of the 2-year period. The 50 individuals listed in this notice have recently requested such an exemption from the diabetes prohibition in 49 CFR 391.41(b) (3), which applies to drivers of CMVs in interstate commerce. Accordingly, the Agency will evaluate the qualifications of each applicant to determine whether granting the exemption will achieve the required level of safety mandated by statute.
Mr. Blacklock, 65, has had ITDM since 2016. His endocrinologist examined him in 2017 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Blacklock understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Blacklock meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Pennsylvania.
Mr. Boe, 67, has had ITDM since 2016. His endocrinologist examined him in 2017 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Boe understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Boe meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he has stable nonproliferative diabetic
Mr. Branigan, 62, has had ITDM since 2012. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Branigan understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Branigan meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class A CDL from Pennsylvania.
Mr. Cashion, 61, has had ITDM since 1995. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Cashion understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Cashion meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds an operator's license from Tennessee.
Mr. Claeys, 57, has had ITDM since 2006. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Claeys understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Claeys meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Oregon.
Mr. Dalle, 54, has had ITDM since 2013. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Dalle understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Dalle meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from New York.
Mr. Dellisola, 79, has had ITDM since 2015. His endocrinologist examined him in 2017 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Dellisola understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Dellisola meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds a Class C CDL from New York.
Mr. Driggers, 35, has had ITDM since 1994. His endocrinologist examined him in 2017 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Driggers understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Driggers meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he has stable proliferative diabetic retinopathy. He holds an operator's license from Georgia.
Mr. Fernberg, 24, has had ITDM since 2004. His endocrinologist examined him in 2017 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Fernberg understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Fernberg meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds an operator's license from Wisconsin.
Mr. Grover, 59, has had ITDM since 2015. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Grover understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Grover meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds an operator's license from Colorado.
Mr. Hawthorne, 59, has had ITDM since 2014. His endocrinologist examined him in 2017 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies
Mr. Huebner, 40, has had ITDM since 2016. His endocrinologist examined him in 2017 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Huebner understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Huebner meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds an operator's license from Illinois.
Mr. Hylton, 41, has had ITDM since 2008. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Hylton understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Hylton meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from Virginia.
Mr. Jacobson, 56, has had ITDM since 2016. His endocrinologist examined him in 2017 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Jacobson understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Jacobson meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2017 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class A CDL from Iowa.
Mr. Jossi, 66, has had ITDM since 2009. His endocrinologist examined him in 2017 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Jossi understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Jossi meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds an operator's license from Idaho.
Mr. Kean, 55, has had ITDM since 2016. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Kean understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Kean meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds an operator's license from Kentucky.
Mr. Klauck, 61, has had ITDM since 2016. His endocrinologist examined him in 2017 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Klauck understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Klauck meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from Missouri.
Mr. Knapp, 60, has had ITDM since 2015. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Knapp understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Knapp meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Washington.
Mr. Knox, 44, has had ITDM since 2011. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Knox understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Knox meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Oregon.
Mr. Lormeus, 56, has had ITDM since 2016. His endocrinologist examined him in 2017 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the
Mr. Maiorana, 51, has had ITDM since 1989. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Maiorana understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Maiorana meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2017 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class A CDL from New York.
Mr. Malloy, 55, has had ITDM since 2016. His endocrinologist examined him in 2017 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Malloy understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Malloy meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2017 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class A CDL from Oklahoma.
Mr. Mann, 58, has had ITDM since 2008. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Mann understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Mann meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class C CDL from North Carolina.
Mr. Mathews, 21, has had ITDM since 2010. His endocrinologist examined him in 2017 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Mathews understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Mathews meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds an operator's license from Texas.
Mr. McCracken, 51, has had ITDM since 2010. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. McCracken understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. McCracken meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he has stable nonproliferative diabetic retinopathy. He holds an operator's license from North Carolina.
Mr. Nafus, 58, has had ITDM since 2012. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Nafus understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Nafus meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class A CDL from Pennsylvania.
Mr. Patton, 24, has had ITDM since 2011. His endocrinologist examined him in 2017 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Patton understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Patton meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds an operator's license from Arkansas.
Mr. Peard, 31, has had ITDM since 2002. His endocrinologist examined him in 2017 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Peard understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Peard meets the
Mr. Pennyman, 49, has had ITDM since 2016. His endocrinologist examined him in 2017 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Pennyman understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Pennyman meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Georgia.
Mr. Phillips, 38, has had ITDM since 1992. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Phillips understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Phillips meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds an operator's license from Indiana.
Mr. Pruitt, 57, has had ITDM since 2013. His endocrinologist examined him in 2017 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Pruitt understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Pruitt meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds an operator's license from North Carolina.
Mr. Ramos, 51, has had ITDM since 2007. His endocrinologist examined him in 2017 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Ramos understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Ramos meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from New Mexico.
Mr. Russell, 51, has had ITDM since 2009. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Russell understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Russell meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from New Hampshire.
Mr. Salas, 68, has had ITDM since 1999. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Salas understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Salas meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he has stable nonproliferative diabetic retinopathy. He holds an operator's license from California.
Mr. Senff, 54, has had ITDM since 2010. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Senff understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Senff meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Wyoming.
Mr. Seswick, 64, has had ITDM since 2011. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Seswick understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Seswick meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds an operator's license from Ohio.
Mr. Smith, 59, has had ITDM since 2014. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the
Mr. Stone, 48, has had ITDM since 2016. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Stone understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Stone meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds an operator's license from Indiana.
Mr. Suozzo, 62, has had ITDM since 2016. His endocrinologist examined him in 2017 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Suozzo understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Suozzo meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2017 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class B CDL from Pennsylvania.
Mr. Sweeney, 36, has had ITDM since 2006. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Sweeney understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Sweeney meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2017 and certified that he has stable nonproliferative diabetic retinopathy. He holds an operator's license from New Jersey.
Mr. Szaloy, 57, has had ITDM since 2015. His endocrinologist examined him in 2017 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Szaloy understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Szaloy meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds an operator's license from New Mexico.
Mr. Tagtgren, 46, has had ITDM since 2016. His endocrinologist examined him in 2017 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Tagtgren understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Tagtgren meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Minnesota.
Mr. Thompson, 49, has had ITDM since 2015. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Thompson understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Thompson meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class A CDL from Washington.
Mr. Wargo, 32, has had ITDM since 1992. His endocrinologist examined him in 2017 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Wargo understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Wargo meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from West Virginia.
Mr. Weideman, 65, has had ITDM since 2010. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Weideman understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Weideman meets the
Mr. Weigum, 36, has had ITDM since 2016. His endocrinologist examined him in 2017 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Weigum understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Weigum meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds an operator's license from North Dakota.
Mr. Weihert, 24, has had ITDM since 2006. His endocrinologist examined him in 2017 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Weihert understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Weihert meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds an operator's license from Wisconsin.
Mr. Wenzel, 60, has had ITDM since 2016. His endocrinologist examined him in 2017 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Wenzel understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Wenzel meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Minnesota.
Mr. Wilcox, 61, has had ITDM since 2016. His endocrinologist examined him in 2017 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Wilcox understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Wilcox meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from California.
Mr. Winston, 60, has had ITDM since 2014. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Winston understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Winston meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Virginia.
In accordance with 49 U.S.C. 31136(e) and 31315, FMCSA requests public comment from all interested persons on the exemption petitions described in this notice. We will consider all comments received before the close of business on the closing date indicated in the date section of the notice.
FMCSA notes that section 4129 of the Safe, Accountable, Flexible and Efficient Transportation Equity Act: A Legacy for Users requires the Secretary to revise its diabetes exemption program established on September 3, 2003 (68 FR 52441).
Section 4129 requires: (1) Elimination of the requirement for 3 years of experience operating CMVs while being treated with insulin; and (2) establishment of a specified minimum period of insulin use to demonstrate stable control of diabetes before being allowed to operate a CMV.
In response to section 4129, FMCSA made immediate revisions to the diabetes exemption program established by the September 3, 2003 notice. FMCSA discontinued use of the 3-year driving experience and fulfilled the requirements of section 4129 while continuing to ensure that operation of CMVs by drivers with ITDM will achieve the requisite level of safety required of all exemptions granted under 49 U.S.C. 31136 (e).
Section 4129(d) also directed FMCSA to ensure that drivers of CMVs with ITDM are not held to a higher standard than other drivers, with the exception of limited operating, monitoring and medical requirements that are deemed medically necessary.
The FMCSA concluded that all of the operating, monitoring and medical requirements set out in the September 3, 2003 notice, except as modified, were in compliance with section 4129(d). Therefore, all of the requirements set out in the September 3, 2003 notice, except as modified by the notice in the
You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission.
To submit your comment online, go to
We will consider all comments and material received during the comment period. FMCSA may issue a final determination at any time after the close of the comment period.
To view comments, as well as any documents mentioned in this preamble, go to
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
FMCSA announces its decision to renew exemptions for 62 individuals from the vision requirement in the Federal Motor Carrier Safety Regulations (FMCSRs) for interstate commercial motor vehicle (CMV) drivers. The exemptions enable these individuals to continue to operate CMVs in interstate commerce without meeting the vision requirement in one eye.
Each group of renewed exemptions was effective on the dates stated in the discussions below and will expire on the dates stated in the discussions below.
Ms. Christine A. Hydock, Chief, Medical Programs Division, 202-366-4001,
You may see all the comments online through the Federal Document Management System (FDMS) at:
On March 8, 2017, FMCSA published a notice announcing its decision to renew exemptions for 62 individuals from the vision requirement in 49 CFR 391.41(b)(10) to operate a CMV in interstate commerce and requested comments from the public (82 FR 13043). The public comment period ended on April 7, 2017, and no comments were received.
As stated in the previous notice, FMCSA has evaluated the eligibility of these applicants and determined that renewing these exemptions would achieve a level of safety equivalent to or greater than the level that would be achieved by complying with the current regulation 49 CFR 391.41(b)(10).
The physical qualification standard for drivers regarding vision found in 49 CFR 391.41(b)(10) states that a person is physically qualified to driver a CMV if that person:
Has distant visual acuity of at least 20/40 (Snellen) in each eye without corrective lenses or visual acuity separately corrected to 20/40 (Snellen) or better with corrective lenses, distant binocular acuity of a least20/40 (Snellen) in both eyes with or without corrective lenses, field of vision of at least 70° in the horizontal meridian in each eye, and the ability to recognize the colors of traffic signals and devices showing red, green, and amber.
FMCSA received no comments in this preceding.
As of March 1, 2017, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 16 individuals have satisfied the conditions for obtaining a renewed exemption from the vision requirements (69 FR 33997; 69 FR 61292; 71 FR 32183; 71 FR 41310; 71 FR 55820; 71 FR 63379; 71 FR 63380; 72 FR 180; 72 FR 1050; 72 FR 9397; 73 FR 36955; 73 FR 61922; 73 FR 61925; 73 FR 74563; 73 FR 75803; 73 FR 78422; 74 FR 6209; 74 FR 6211; 75 FR 36778; 75 FR 54958; 75 FR 59327; 75 FR 70078; 75 FR 77949; 75 FR 79083; 76 FR 4413; 76 FR 9865; 77 FR 48590; 77 FR 68199; 77 FR 68200; 77 FR 70534; 77 FR 74273; 77 FR 74731; 78 FR 797; 78 FR 9772; 78 FR 11731; 78 FR 12811; 78 FR 12813; 78 FR 12817; 79 FR 58856; 79 FR 59357; 79 FR 65760; 79 FR 72754; 79 FR 73397; 79 FR 73687; 80 FR 3305; 80 FR 3308; 80 FR 3723; 80 FR 8751; 80 FR 9304):
The drivers were included in one of the following docket Nos: FMCSA-2004-17984; FMCSA-2006-24783; FMCSA-2006-25246; FMCSA-2006-26066; FMCSA-2008-0292; FMCSA-2008-0340; FMCSA-2010-0201; FMCSA-2012-0337; FMCSA-2012-0338; FMCSA-2012-0339; FMCSA-2014-0296; FMCSA-2014-0299. Their exemptions are effective as of March 1, 2017, and will expire on March 1, 2019.
As of March 4, 2017, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 8 individuals have satisfied the conditions for obtaining a renewed exemption from the vision requirements (65 FR 45817; 65 FR 77066; 67 FR 71610; 67 FR 76439; 68 FR 10298; 70 FR 7545; 72 FR 7812; 74 FR 6689; 76 FR 9859; 78 FR 8689; 80 FR 7678):
The drivers were included in one of the following docket Nos: FMCSA-2000-7363; FMCSA-2002-13411. Their exemptions are effective as of March 4, 2017, and will expire on March 4, 2019.
As of March 7, 2017, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 23 individuals have satisfied the conditions for obtaining a renewed exemption from the vision requirements (65 FR 66286; 66 FR 13825; 68 FR 10300; 70 FR 7546; 72 FR 180; 72 FR 7111; 72 FR 9397; 74 FR 6211; 74 FR 6212; 75 FR 77942; 76 FR 5425; 76 FR 9861; 78 FR 10250; 80 FR 6162; 80 FR 7679; 80 FR 20562):
The drivers were included in one of the following docket Nos: FMCSA-2000-7918; FMCSA-2006-25246; FMCSA-2010-0385; FMCSA-2014-0301. Their exemptions are effective as of March 7, 2017, and will expire on March 7, 2019.
As of March 23, 2017, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 15 individuals have satisfied the conditions for obtaining a renewed exemption from the vision requirements (65 FR 66286; 65 FR 78256; 66 FR 13825; 66 FR 16311; 67 FR 76439; 68 FR 10298; 68 FR 13360; 70 FR 7545; 70 FR 12265; 71 FR 14566; 71 FR 30227; 72 FR 180; 72 FR 7812; 72 FR 9397; 72 FR 11426; 73 FR 27014; 73 FR 51689; 73 FR 63047; 73 FR 75803; 74 FR 6209; 74 FR 6689; 74 FR 8302; 75 FR 77942; 75 FR 77949; 76 FR 4413; 76 FR 5425; 76 FR 9859; 76 FR 9861; 76 FR 11215; 78 FR 8689; 78 FR 12822; 78 FR 14410; 80 FR 15859):
The drivers were included in one of the following docket Nos: FMCSA-2000-7918; FMCSA-2000-8398; FMCSA-2002-13411; FMCSA-2006-24015; FMCSA-2006-25246; FMCSA-2008-0266; FMCSA-2008-0340; FMCSA-2010-0385. Their exemptions are effective as of March 23, 2017, and will expire on March 23, 2019.
In accordance with 49 U.S.C. 31315, each exemption will be valid for two years from the effective date unless revoked earlier by FMCSA. The exemption will be revoked if the following occurs: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained prior to being granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136 and 31315.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
FMCSA announces its decision to renew exemptions of 71 individuals from its prohibition in the Federal Motor Carrier Safety Regulations (FMCSRs) against persons with insulin-treated diabetes mellitus (ITDM) from operating commercial motor vehicles (CMVs) in interstate commerce. The exemptions enable these individuals with ITDM to continue to operate CMVs in interstate commerce.
Each group of renewed exemptions was effective on the dates stated in the discussions below and will expire on the dates stated in the discussions below.
Ms. Christine A. Hydock, Chief, Medical Programs Division, 202-366-4001,
You may see all the comments online through the Federal Document Management System (FDMS) at:
On March 9, 2017, FMCSA published a notice announcing its decision to renew exemptions for 71 individuals from the insulin-treated diabetes mellitus prohibition in 49 CFR 391.41(b)(3) to operate a CMV in interstate commerce and requested comments from the public (82 FR 13180). The public comment period ended on April 10, 2017, and no comments were received.
As stated in the previous notice, FMCSA has evaluated the eligibility of these applicants and determined that renewing these exemptions would achieve a level of safety equivalent to or greater than the level that would be achieved by complying with the current regulation 49 CFR 391.41(b)(3).
The physical qualification standard for drivers regarding diabetes found in 49 CFR 391.41(b)(3) states that a person is physically qualified to drive a CMV if that person has no established medical history or clinical diagnosis of diabetes mellitus currently requiring insulin for control.
FMCSA received no comments in this preceding.
Based upon its evaluation of the 71 renewal exemption applications and that no comments were received, FMCSA confirms its' decision to exempt the following drivers from the rule prohibiting drivers with ITDM from driving CMVs in interstate commerce in 49 CFR 391.41(b)(3).
As of March 12, 2017, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 16 individuals have satisfied the renewal conditions for obtaining an exemption from the rule prohibiting drivers with ITDM from driving CMVs in interstate commerce (73 FR 6248; 73 FR 13274):
The drivers were included in docket No. FMCSA-2007-0070. Their exemptions are effective as of March 12, 2017, and will expire on March 12, 2019.
As of March 24, 2017, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 55 individuals have satisfied the renewal conditions for obtaining an exemption from the rule prohibiting drivers with ITDM from driving CMVs in interstate commerce (80 FR 8929; 80 FR 24313):
The drivers were included in docket No. FMCSA-2014-0313. Their exemptions are effective as of March 24, 2017, and will expire on March 24, 2019.
In accordance with 49 U.S.C. 31315, each exemption will be valid for two years from the effective date unless revoked earlier by FMCSA. The exemption will be revoked if the following occurs: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained prior to being granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136 and 31315.
Federal Transit Administration (FTA), DOT.
Notice of funding opportunity (NOFO).
The Federal Transit Administration (FTA) announces the opportunity to apply for $55 million in FY 2017 funds for the Low or No Emission Bus Discretionary Grant Program (Low-No Program; Catalog of Federal Domestic Assistance (CFDA) number: 20.526), subject to funding availability. Only $31.5 million is available under the Continuing Resolution that expires on April 28, 2017. As required by Federal transit law (49 U.S.C. 5339(c)) and subject to funding availability, funds will be awarded competitively for the purchase or lease of low or no emission vehicles that use advanced technologies for transit revenue operations, including related equipment or facilities. Projects may include costs incidental to the acquisition of buses or to the construction of facilities, such as the costs of related workforce development and training activities, and project administration expenses. FTA may award additional funding that is made available to the program prior to the announcement of project selections.
Complete proposals must be submitted electronically through the GRANTS.GOV “APPLY” function by June 26, 2017. Prospective applicants should initiate the process by registering on the GRANTS.GOV Web site promptly to ensure completion of the application process before the submission deadline. Instructions for applying can be found on FTA's Web site at
Tara Clark, FTA Office of Program Management, 202-366-2623, or
Section 5339(c) of Title 49, United States Code, as amended by the Fixing America's Surface Transportation (FAST) Act, (Pub. L. 114-94, Dec. 4, 2015), authorizes FTA to award grants for low or no emission buses through a competitive process, as described in this notice. The Low or No Emission Bus Program (Low-No Program) provides funding to State and local governmental authorities for the purchase or lease of zero-emission and low-emission transit buses, including acquisition, construction, and leasing of required supporting facilities such as recharging, refueling, and maintenance facilities. FTA recognizes that a significant transformation is occurring in the transit bus industry, with the increasing availability of low and zero emission bus vehicles for transit revenue operations.
Federal transit law authorizes $55 million in FY 2017 for grants under the Low-No Program. In FY 2016, the program received applications for 101 projects requesting a total of $446 million. Twenty projects were funded at a total of $55 million.
FTA will grant pre-award authority starting on the date of project announcement for the FY 2017 awards. Funds are available for obligation until September 30, 2020. Funds are only available for projects that have not incurred costs.
Eligible applicants include designated recipients, States, local governmental authorities, and Indian Tribes. Except for projects proposed by Indian Tribes, proposals for funding projects in rural (non-urbanized) areas must be submitted as part of a consolidated State proposal. To be considered eligible, applicants must be able to demonstrate the requisite legal, financial and technical capabilities to receive and administer Federal funds under this program. States and other eligible applicants also may submit consolidated proposals for projects in urbanized areas. Proposals may contain projects to be implemented by the recipient or its eligible subrecipients. Eligible subrecipients are entities that are otherwise eligible recipients under this program.
An eligible recipient may submit an application in partnership with other entities that intend to participate in the implementation of the project, including, but not limited to, specific vehicle manufacturers, equipment vendors, owners or operators of related facilities, or project consultants. If an application that involves such a partnership is selected for funding, the competitive selection process will be deemed to satisfy the requirement for a competitive procurement under 49 U.S.C. 5325(a) for the named entities. Applicants are advised that any changes to the proposed partnership will require advance FTA written approval, must be consistent with the scope of the approved project, and may necessitate a competitive procurement.
All eligible expenses under the Low-No Program are attributable to compliance with the Clean Air Act. Therefore, under the provisions of 49 U.S.C. 5323(i), the maximum Federal participation in the costs of leasing or acquiring a transit bus financed under the Low-No Program is 85 percent of the total transit bus cost. The proposer may request a lower Federal contribution. Further, the maximum Federal participation in the cost of leasing or acquiring low or no emission bus-related equipment and facilities under the Low-No Program, such as recharging or refueling facilities, is 90 percent of the net project cost of the equipment or facilities that are attributable to compliance with the Clean Air Act.
Eligible sources of local match include the following: cash from non-Government sources other than revenues from providing public transportation services; revenues derived from the sale of advertising and concessions; amounts received under a service agreement with a State or local social service agency or private social service organization; revenues generated from value capture financing mechanisms; funds from an undistributed cash surplus; replacement or depreciation cash fund or reserve; new capital; or in-kind contributions. In addition, transportation development credits or documentation of in-kind match may substitute for local match if identified in the application.
Under 49 U.S.C. 5339 (c)(B), eligible projects include projects or programs of projects in an eligible area for: (1) Purchasing or leasing low or no emission buses; (2) acquiring low or no emission buses with a leased power source; (3) constructing or leasing facilities and related equipment for low or no emission buses; (4) constructing new public transportation facilities to accommodate low or no emission buses; (5) or rehabilitating or improving existing public transportation facilities to accommodate low or no emission buses. As specified under 49 U.S.C. 5339(c)(5)(A), FTA will only consider eligible projects relating to the acquisition or leasing of low or no emission buses or bus facilities that make greater reductions in energy consumption and harmful emissions than comparable standard buses or other low or no emission buses. As specified under 49 U.S.C. 5339(c)(5)(B), all proposed projects must be part of the intended recipient's long-term integrated fleet management plan.
If a single project proposal involves multiple public transportation providers, such as when an agency acquires vehicles that will be operated by another agency, the proposal must include a detailed statement regarding the role of each public transportation provider in the implementation of the project.
Under 49 U.S.C. 5339(c)(1)(E), a low or no-emission bus is defined as “a passenger vehicle used to provide public transportation that significantly reduces energy consumption or harmful emissions, including direct carbon emissions, when compared to a standard vehicle.” The statutory definition includes zero-emission transit buses, which are defined as buses that
Recipients are permitted to use up to 0.5 percent of their requested grant award for workforce development activities eligible under 49 U.S.C 5314(b) and an additional 0.5 percent for costs associated with training at the National Transit Institute. Applicants must identify the proposed use of funds for these activities in the project proposal and identify them separately in the project budget.
Applications must be submitted electronically through
A complete proposal submission consists of
An applicant may submit multiple project proposals in a single submission, but must include all project proposals on a single supplemental form. To add additional projects, select the “add project” button and complete a separate “project detail” section for each project. FTA will only accept one supplemental form per submission.
The supplemental form must be submitted as an attachment to the SF424 Mandatory Form. All project proposals will be evaluated separately, regardless of whether they are submitted as a single submission.
An applicant may submit additional supporting documentation for each project proposal as attachments. Any supporting documentation must be described and referenced by file name in the appropriate response section of the supplemental form, or it may not be reviewed.
Information such as proposer name, Federal amount requested, local match amount, description of areas served, etc. may be requested in varying degrees of detail on both the SF424 form and Supplemental Form. Proposers must fill in all fields unless stated otherwise on the forms. If information is copied into the supplemental form from another source, applicants should verify that pasted text is fully captured on the supplemental form and has not been truncated by the character limits built into the form. Proposers should use both the “Check Package for Errors” and the “Validate Form” validation buttons on both forms to check all required fields on the forms, and ensure that the federal and local amounts specified are consistent.
The SF424 Mandatory Form and the Supplemental Form will prompt applicants for the required information, including:
Each applicant is required to: (1) Be registered in SAM before submitting an application; (2) provide a valid unique entity identifier in its application; and (3) continue to maintain an active SAM registration with current information at all times during which the applicant has an active Federal award or an application or plan under consideration by FTA. These requirements do not apply if the applicant: (1) Is an individual; (2) is excepted from the requirements under 2 CFR 25.110(b) or (c); or (3) has an exception approved by FTA under 2 CFR 25.110(d). FTA may not make an Award until the applicant has complied with all applicable unique entity identifier and SAM requirements. If an applicant has not fully complied with the requirements by the time FTA is ready to make an Award, FTA may determine that the applicant is not qualified to receive an Award and use that determination as a basis for making a Federal award to another applicant. All applicants must provide a unique entity identifier provided by SAM. Registration in SAM may take as little as 3-5 business days, but since there could be unexpected steps or delays (for example, if you need to obtain an Employer Identification Number), FTA recommends allowing ample time, up to several weeks, for completion of all steps. For additional information on obtaining a unique entity identifier, please visit
Project proposals must be submitted electronically through
Within 48 hours after submitting an electronic application, the applicant
FTA urges proposers to submit applications at least 72 hours prior to the due date to allow time to receive the validation messages and to correct any problems that may have caused a rejection notification.
Proposers are encouraged to begin the process of registration on the
Funds under this NOFO cannot be used to reimburse applicants for otherwise eligible expenses incurred prior to FTA award of a Grant Agreement until FTA has issued pre-award authority for selected projects through a notification in the
Applicants are encouraged to identify scaled funding options in case insufficient funding is available to fund a project at the full requested amount. If an applicant indicates that a project is scalable, the applicant must provide an appropriate minimum funding amount that will fund an eligible project that achieves the objectives of the program and meets all relevant program requirements. The applicant must provide a clear explanation of how the project budget would be affected by a reduced award. FTA may award a lesser amount whether or not a scalable option is provided.
Projects will be evaluated primarily on the responses provided in the supplemental form. Additional information may be provided to support the responses; however, any additional documentation must be directly referenced on the supplemental form, including the file name where the additional information can be found. FTA will evaluate project proposals for the Low-No Program based on the criteria described in this notice.
Since the purpose of this program is to fund vehicles and facilities, applications will be evaluated based on the quality and extent to which they demonstrate how the proposed project will address an unmet need for capital investment in vehicles and/or supporting facilities. For example, an applicant may demonstrate that it requires additional or improved charging or maintenance facilities for low or no emission vehicles, that it intends to replace existing vehicles that have exceeded their minimum useful life, or that it requires additional vehicles to meet current ridership demands.
FTA will consider an applicant's responses to the following criteria when assessing need for capital investment underlying the proposed project:
Applicants must demonstrate how the proposed project will support statutory requirements of 49 U.S.C. 5339(c)(5)(A). In particular, FTA will consider the quality and extent to which applications demonstrate how the proposed project will: (1) Reduce Energy Consumption; (2) Reduce Harmful Emissions; and (3) Reduce Direct Carbon Emissions.
Applicants must demonstrate how the proposed project is consistent with local and regional long range planning documents and local government priorities. FTA will evaluate applications based on the quality and extent to which they assess whether the project is consistent with the transit priorities identified in the long range plan; and/or contingency/illustrative projects included in that plan; or the locally-developed human services public transportation coordinated plan. Applicants are not required to submit copies of such plans, but FTA will consider how the project will support regional goals and may submit support letters from local and regional planning organizations attesting to the consistency of the proposed project with these plans.
Evidence of additional local or regional prioritization may include letters of support for the project from local government officials, public agencies, and non-profit or private sector partners.
Applicants must identify the source of the local cost share and describe whether such funds are currently available for the project or will need to be secured if the project is selected for funding. FTA will consider the availability of the local cost share as evidence of local financial commitment to the project. Applicants should submit evidence of the availability of funds for the project, for example by including a board resolution, letter of support from the State, or other documentation of the source of local funds such as a budget document highlighting the line item or section committing funds to the proposed project. In addition, an applicant may propose a local cost share that is greater than the minimum requirement or provide documentation of previous local investments in the project, which cannot be used to satisfy local matching requirements, as evidence of local financial commitment. FTA will also note if an applicant proposes to use grant funds only for the incremental cost of new technologies over the cost of replacing vehicles with standard propulsion technologies.
FTA will rate projects higher if grant funds can be obligated within 12 months of selection and the project can be implemented within a reasonable time frame. In assessing when funds can be obligated FTA will consider whether the project qualifies for a Categorical Exclusion (CE), or whether the required environmental work has been initiated or completed for projects that require an Environmental Assessment (EA) or Environmental Impact Statement (EIS) under the National Environmental Policy Act of 1969 (NEPA), as amended. The proposal must state when if grant funds can be obligated and indicate the timeframe under which the Metropolitan Transportation Improvement Program (TIP) and/or Statewide Transportation Improvement Program (STIP) can be amended to include the proposed project.
In assessing whether the proposed implementation plans are reasonable and complete, FTA will review the proposed project implementation plan, including all necessary project milestones and the overall project timeline. For projects that will require formal coordination, approvals or permits from other agencies or project partners, the applicant must demonstrate coordination with these organizations and their support for the project, such as through letters of support.
For project proposals that involve a partnership with a manufacturer, vendor, consultant, or other third party, applicants must identify by name any project partners, including but not limited to other transit agencies, bus manufacturers, owners or operators of related facilities, or any expert consultants. FTA will evaluate the experience and capacity of the named project partners to successfully implement the proposed project based on the partners' experience and qualifications. Applicants are advised to submit information on the partners' qualification and experience as a part of the application. Entities involved in the project that are not named in the application will be required to be selected through a competitive procurement.
For project proposals that will require a competitive procurement, applicants must demonstrate familiarity with the current market availability of the proposed advanced vehicle propulsion technology.
Applicants must demonstrate that they have the technical, legal and financial capacity to undertake the project. FTA will review relevant oversight assessments and records to determine whether there are any outstanding legal, technical, or financial issues with the applicant that would affect the outcome of the proposed project.
In addition to other FTA staff that may review the proposals, a technical evaluation committee will evaluate proposals based on the published evaluation criteria. Members of the technical evaluation committee and other FTA staff may request additional information from applicants, if necessary. Based on the findings of the technical evaluation committee, the FTA Administrator will determine the final selection of projects for program funding. FTA may consider geographic diversity, diversity in the size of the transit systems receiving funding, and/or the applicant's receipt of other competitive awards in determining the allocation of program funds. FTA may consider capping the amount a single applicant may receive.
Subsequent to an announcement by the FTA Administrator of the final project selections, which will be posted on the FTA Web site, FTA will publish a list of the selected projects, Federal award amounts, and recipients in the
At the time the project selections are announced, FTA will extend pre-award authority for the selected projects. There is no blanket pre-award authority for these projects before announcement.
Funds under the Low-No Program are available to States, designated recipients, local governmental authorities and Indian Tribes. There is no minimum or maximum grant award amount; however, FTA intends to fund as many meritorious projects as possible. Only proposals from eligible recipients for eligible activities will be considered for funding. Due to funding limitations, proposers that are selected for funding may receive less than the amount originally requested. In those cases, applicants must be able to demonstrate that the proposed projects are still viable and can be completed with the amount awarded.
FTA will issue specific guidance to recipients regarding pre-award authority at the time of selection. FTA does not provide pre-award authority for
If selected, awardees will apply for a grant through FTA's Transit Award Management System (TrAMS). All Low-No Emission recipients are subject to the grant requirements of Section 5307 Urbanized Area Formula Grant program, including those of FTA Circular 9030.1E. All recipients must follow the Grants Management Requirements of FTA Circular 5010.1D or its latest version, and the labor protections of 49 U.S.C. 5333(b). All discretionary grants, regardless of award amount, will be subject to the congressional notification and release process. Technical assistance regarding these requirements is available from each FTA regional office.
FTA requires that all capital procurements meet FTA's Buy America requirements, which require that all iron, steel, or manufactured products be produced in the U.S. These requirements help create and protect manufacturing jobs in the U.S. The Low-No Program will have a significant economic impact on meeting the objectives of the Buy America law. The FAST Act amended the Buy America requirements to provide for a phased increase in the domestic content for rolling stock. For FY17, the cost of components and subcomponents produced in the United States must be more than 60 percent of the cost of all components. For FY18 and FY19, the cost of components and subcomponents produced in the United States must be more than 65 percent of the cost of all components. For FY20 and beyond, the cost of components and subcomponents produced in the United States must be more than 70 percent of the cost of all components. There is no change to the requirement that final assembly of rolling stock must occur in the United States. FTA issued guidance on the implementation of the phased increase in domestic content on September 1, 2016. A copy of the policy guidance may be found in 81 FR 60278 (September 1, 2016). Applicants should read the policy guidance carefully to determine the applicable domestic content requirement for their project. Any proposal that will require a waiver must identify the items for which a waiver will be sought in the application. Applicants should not proceed with the expectation that waivers will be granted, nor should applicants assume that selection of a project under the Low-No Program that includes a partnership with a manufacturer, vendor, consultant, or other third party constitutes a waiver of the Buy America requirements for rolling stock applicable at the time the project is undertaken.
FTA requires that its recipients receiving planning, capital and/or operating assistance that will award prime contracts exceeding $250,000 in FTA funds in a Federal fiscal year comply with the Disadvantaged Business Enterprise (DBE) program regulations at 49 CFR part 26. Applicants should expect to include any funds awarded, excluding those to be used for vehicle procurements, in setting their overall DBE goal. Note, however, that projects including vehicle procurements remain subject to the DBE program regulations. The rule requires that, prior to bidding on any FTA-assisted vehicle procurement, entities that manufacture vehicles, perform post-production alterations or retrofitting must submit a DBE Program plan and goal methodology to FTA. Further, to the extent that a vehicle remanufacturer is responding to a solicitation for new or remanufactured vehicles with a vehicle to which the remanufacturer has provided post-production alterations or retro-fitting (
The FTA will then issue a transit vehicle manufacturer (TVM) concurrence/certification letter. Grant recipients must verify each entity's compliance with these requirements before accepting its bid. A list of compliant, certified TVMs is posted on FTA's Web page at
FTA encourages proposers to notify the appropriate State Departments of Transportation and MPOs in areas likely to be served by the project funds made available under these initiatives and programs. Selected projects must be incorporated into the long-range plans and transportation improvement programs of States and metropolitan areas before they are eligible for FTA funding.
The applicant assures that it will comply with all applicable Federal statutes, regulations, executive orders, directives, FTA circulars, and other Federal administrative requirements in carrying out any project supported by the FTA grant. The applicant acknowledges that it is under a continuing obligation to comply with the terms and conditions of the grant agreement issued for its project with FTA. The applicant understands that Federal laws, regulations, policies, and administrative practices might be modified from time to time and may affect the implementation of the project. The applicant agrees that the most recent Federal requirements will apply to the project, unless FTA issues a written determination otherwise. The applicant must submit the Certifications and Assurances before receiving a grant if it does not have current certifications on file.
Post-award reporting requirements include the electronic submission of Federal Financial Reports and Milestone Reports in FTA's electronic grants management system.
This program is not subject to Executive Order 12372, “Intergovernmental Review of Federal Programs.” FTA will consider applications for funding only from eligible recipients for eligible projects listed in Section C. Complete applications must be submitted through
For further information concerning this notice, please contact the Low-No Program manager Tara Clark by phone
Community Development Financial Institutions Fund, Treasury.
Notice.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. Currently, the Community Development Financial Institutions Fund (CDFI Fund), U.S. Department of the Treasury, is soliciting comments concerning the Community Development Financial Institutions CDFI Program (CDFI Program) and New Markets Tax Credit Program (NMTC Program) Annual Report including the Community Investment Impact System (CIIS).
Written comments must be received on or before June 26, 2017 to be assured of consideration.
Submit your comments via email to Greg Bischak, Program Manager for Financial Strategies and Research, CDFI Fund, at
Greg Bischak, Program Manager for Financial Strategies and Research, Community Development Financial Institutions Fund, U.S. Department of the Treasury, 1500 Pennsylvania Ave. NW., Washington, DC 20220. Other information regarding the CDFI Fund and its programs may be obtained through the CDFI Fund's Web site at
A CDFI Program or Native American CDFI Assistance Program (NACA Program) recipient must submit an Annual Report that comprises of several sections that depend on the program and the type of award. The specific components that comprise a recipient's Annual Report are set forth in the assistance agreement that the recipient enters into with the CDFI Fund in order to receive a CDFI Program or a NACA Program award. These reporting requirements can be found in the assistance agreement templates located on the CDFI Fund Web site at
Please note that this request for public comment is necessary in order to renew the CIIS data collection under the Paperwork Reduction Act. Next year the CDFI Fund plans to integrate the CIIS data collection into the CDFI Fund's Awards Management Information System (AMIS). It is anticipated that the transition to AMIS will result in streamlining of the CIIS data collections and a reduction of reporting burden. The CDFI Fund will publish a request for public comment at that time to solicit feedback on the proposed revisions and potential effects on reporting burdens.
12 U.S.C. 4707
Office of the Comptroller of the Currency (OCC), Department of the Treasury.
Notice of Federal Advisory Committee meeting.
The OCC announces a meeting of the Mutual Savings Association Advisory Committee (MSAAC).
A public meeting of the MSAAC will be held on Tuesday, May 9, 2017, beginning at 8:30 a.m. Eastern Daylight Time (EDT).
The OCC will hold the May 9, 2017 meeting of the MSAAC at the OCC's offices at 400 7th Street SW., Washington, DC 20219.
Michael R. Brickman, Deputy Comptroller for Thrift Supervision, (202) 649-5420, Office of the Comptroller of the Currency, Washington, DC 20219.
By this notice, the OCC is announcing that the MSAAC will convene a meeting on Tuesday, May 9, 2017, at the OCC's offices at 400 7th Street SW., Washington, DC 20219. The meeting is open to the public and will begin at 8:30 a.m. EDT. The purpose of the meeting is for the MSAAC to advise the OCC on regulatory changes or other steps the OCC may be able to take to ensure the continued health and viability of mutual savings associations and other issues of concern to existing mutual savings associations. The agenda includes a discussion of current topics of interest to the industry.
Members of the public may submit written statements to the MSAAC. The OCC must receive written statements no later than 5:00 p.m. EDT on Tuesday, May 2, 2017. Members of the public may submit written statements to
Members of the public who plan to attend the meeting should contact the OCC by 5:00 p.m. EDT on Tuesday, May 2, 2017, to inform the OCC of their desire to attend the meeting and to provide information that will be required to facilitate entry into the meeting. Members of the public may contact the OCC via email at
Attendees should provide their full name, email address, and organization, if any. For security reasons, attendees will be subject to security screening procedures and must present a valid government-issued identification to enter the building.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. Currently, the IRS is soliciting comments concerning affordable care act notice of patient protection.
Written comments should be received on or before June 26, 2017 to be assured of consideration.
Direct all written comments to Laurie Brimmer, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW., Washington, DC 20224. Requests for additional information or copies of the regulations should be directed to Sara Covington, at Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW., Washington, DC 20224, or through the internet, at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law.
Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. Currently, the IRS is soliciting comments concerning Mortgage Interest Statement.
Written comments should be received on or before June 26, 2017 to be assured of consideration.
Direct all written comments to Laurie E. Brimmer, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW., Washington, DC 20224. Requests for additional information or copies of the form and instructions should be directed to Martha R. Brinson, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet at
Current Actions.
Box 2 was added to report “Outstanding mortgage principal”.
Box 3 was added to report “Mortgage origination date”.
We added new text in box 7 reflecting that if the box is checked, this is the same address as the property securing the mortgage and that this is the same address as the Payer/Borrower.
Box 8 was added to report the “Address of property securing mortgage”.
Box 9 was added for “reporting the description of a property” without a street address. Reporting requirement will be addressed in the separate Instructions for Form 1098,
Box 10 was added to report the “Number of mortgaged properties”, if more than 1 address on this form and box 11 for “Other”.
This form is also being submitted for renewal purposes only.
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. Currently, the IRS is soliciting comments concerning consolidated and controlled groups, intercompany transactions and related rules.
Written comments should be received on or before June 26, 2017 to be assured of consideration.
Direct all written comments to Laurie Brimmer, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW., Washington, DC 20224.
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Departmental Offices, U.S. Department of the Treasury
Notice.
The Department of the Treasury will submit the following information collection request(s) to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. The public is invited to submit comments on the collection(s) listed below.
Comments should be received on or before May 30, 2017 to be assured of consideration.
Send comments regarding the burden estimate, or any other aspect of the information collection, including suggestions for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submissions may be obtained by emailing
44 U.S.C. 3501
Departmental Offices, U.S. Department of the Treasury.
Notice.
The Department of the Treasury will submit the following information collection request(s) to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. The public is invited to submit comments on the collection(s) listed below.
Comments should be received on or before May 30, 2017 to be assured of consideration.
Send comments regarding the burden estimate, or any other aspect of the information collection, including suggestions for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submissions may be obtained by emailing
44 U.S.C. 3501 et seq.
Departmental Offices, U.S. Department of the Treasury.
Notice.
The Department of the Treasury will submit the following information collection request(s) to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. The public is invited to submit comments on the collection(s) listed below.
Comments should be received on or before May 30, 2017 to be assured of consideration.
Send comments regarding the burden estimate, or any other aspect of the information collection, including suggestions for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submissions may be obtained by emailing
44 U.S.C. 3501
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS has received a request from the U.S. Navy (Navy) for authorization to take marine mammals, by harassment, incidental to conducting operations of Surveillance Towed Array Sensor System (SURTASS) Low Frequency Active (LFA) sonar in areas of the world's oceans (with the exception of Arctic and Antarctic waters and certain geographic restrictions), from August 15, 2017, through August 14, 2022. The Navy's activities are considered military readiness activities pursuant to the Marine Mammal Protection Act (MMPA), as amended by the National Defense Authorization Act for Fiscal Year 2004 (FY 2004 NDAA). Pursuant to the MMPA, NMFS is requesting comments on its proposal to issue regulations to govern the incidental take of marine mammals by Level B harassment during the specified activity.
Comments and information must be received no later than May 30, 2017.
You may submit comments on this document, identified by NOAA-HQ-2017-0037, by either of the following methods:
Dale Youngkin, Office of Protected Resources, NMFS, (301) 427-8401. Electronic copies of the application and supporting documents, as well as a list of the references cited in this document, may be obtained by visiting the Internet at:
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361
The incidental taking of marine mammals shall be allowed if NMFS (through authority delegated by the Secretary) finds that the total taking by the specified activity during the specified time period will (1) have a negligible impact on the species or stock(s) and (2) not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant). Further, the permissible methods of taking and other means of effecting the least practicable adverse impact on the species or stock and its habitat (
The allowance of incidental taking under section 101(a)(5)(A) requires promulgation of activity specific regulations. Subsequently, a Letter (or Letters) of Authorization (LOA) may be issued as governed by the regulations, provided that the level of taking will be consistent with the findings made for the total taking allowable under the specific regulations. The promulgation of regulations (with their associated prescribed mitigation, monitoring, and reporting) requires notice and opportunity for public comment.
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.
The National Defense Authorization Act for Fiscal Year 2004 (FY 2004 NDAA) (Pub. L. 108-136) removed the “small numbers” and “specified geographical region” limitations indicated above and amended the definition of “harassment” as it applies to a “military readiness activity” to read as follows (Section 3(18)(B) of the MMPA): “(i) any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild” (Level A Harassment); “or (ii) any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including but not limited to migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered” (Level B Harassment). In addition, the FY 2004 NDAA amended the MMPA as it relates to military readiness activities and the Incidental Take Authorization (ITA) process such that “least practicable adverse impact” shall include consideration of personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
On August 26, 2016, NMFS received an application from the Navy requesting authorization for the take of individuals of 104 currently classified species or stocks of marine mammals (15 species of mysticete (baleen) whales, 60 species of odontocete (toothed) whales, and 29 species of pinnipeds (seals and sea lions)), by harassment, incidental to the use of SURTASS LFA sonar on a maximum of four U.S. Naval ships for routine training, testing, and military operations, hereafter called activities, in various areas of the Pacific, Atlantic, and Indian Oceans and the Mediterranean Sea from August 15,
This is NMFS' fourth rulemaking for SURTASS LFA sonar activities under the MMPA. NMFS' current five-year regulations governing incidental takings incidental to SURTASS LFA sonar activities and the related Letters of Authorizations (LOA) expire on August 15, 2017. NMFS published the first SURTASS LFA sonar rule on July 16, 2002 (67 FR 46712), effective from August 2002 through August 2007. The second rule was published on August 21, 2007 (72 FR 46846), effective from August 16, 2007, through August 15, 2012. The third rule was published on August 20, 2012 (77 FR 50290), and is effective through August 14, 2017. For this proposed rulemaking, the Navy proposes to conduct the same types of sonar activities as they have conducted over the past 14 years with the following exception: The Navy proposes to transmit a maximum number of 255 hours of LFA sonar per vessel per year, as opposed to the previously authorized 432 hours of LFA sonar per vessel per year. Based on historical operating parameters, the average duty cycle (
The proposed action is Navy's continued employment of up to four SURTASS LFA sonar systems in the world's non-polar oceans, which is classified as a military readiness activity, from August 2017 to August 2022. Potential activities could occur in the Pacific, Atlantic, and Indian Oceans, and the Mediterranean Sea. The Navy will not operate SURTASS LFA sonar in Arctic and Antarctic waters. Additional geographic restrictions include maintaining SURTASS LFA sonar received levels below 180 dB re 1 µPa (root-mean-square (rms)) within 12 nautical miles (nmi) (22 kilometers (km)) of any land, and within the boundaries of designated Offshore Biologically Important Areas (OBIAs) during their effective periods (see below for more OBIA details).
The Navy's primary mission is to maintain, train, equip, and operate combat-ready naval forces capable of accomplishing American strategic objectives, deterring maritime aggression, and assuring freedom of navigation in ocean areas. This mission is mandated by Federal law in Section 5062 of Title 10 of the United States Code, which directs the Secretary of the Navy and Chief of Naval Operations (CNO) to ensure the readiness of the U.S. naval forces.
The Secretary of the Navy and the CNO have established that anti-submarine warfare (ASW) is a critical capability for achieving the Navy's mission, and it requires unfettered access to both the high seas and littoral environments to be prepared for all potential threats by maintaining ASW core competency. The Navy is challenged by the increased difficulty in locating undersea threats solely by using passive acoustic technologies due to the advancement and use of quieting technologies in diesel-electric and nuclear submarines. At the same time as the distance at which submarine threats can be detected decreases due to quieting technologies, improvements in torpedo and missile design have extended the effective range of these weapons.
One of the ways the Navy has addressed the changing requirements for ASW readiness was by developing SURTASS LFA sonar, which is able to reliably detect quieter and harder-to-find submarines at long range before these vessels can get within their effective weapons range to launch against their targets. SURTASS LFA sonar systems have a passive component (SURTASS), which is a towed line array of hydrophones used to detect sound emitted or reflected from submerged targets, and an active component (LFA), which is comprised of a set of acoustic transmitting elements. The active component detects objects by creating a sound pulse, or “ping” that is transmitted through the water and reflects off the target, returning in the form of an echo similar to echolocation used by some marine mammals to locate prey and navigate. SURTASS LFA sonar systems are long-range sensors that operate in the low-frequency (LF) band (
Due to uncertainties in the world's political climate, a detailed account of future operating locations and conditions for SURTASS LFA sonar use over the next five years cannot be predicted. However, for analytical purposes, a nominal annual deployment schedule and operational concept were developed based on actual SURTASS LFA sonar activities conducted since January 2003 and projected Fleet requirements (See Table 1).
Annually, each vessel is expected to spend approximately 54 days in transit and 294 days at sea conducting military readiness activities, which includes 240 days of active operations (amounting to 255 transmission hours based on a 7.5% duty cycle). Between missions, an estimated total of 71 days per year will be spent in port for upkeep and repair to maintain both the material condition of the vessel and its systems. The actual number and length of the individual missions within the 240 days are difficult to predict, but the maximum number of actual transmission hours per vessel per year will not exceed 255 hours.
As noted above, this would be the fourth continuous such authorization for the Navy's SURTASS LFA sonar activities. The Navy's current rule and LOA expire after August 14, 2017. Therefore, the Navy has requested MMPA rulemaking and will request annual LOAs for its SURTASS LFA sonar activities effective from August 15, 2017 through August 14, 2022, to take marine mammals incidental to the activities of up to four SURTASS LFA sonar systems. Subsequent LOA applications would be submitted annually throughout the remaining years of the new rule.
Figure 1 depicts the potential areas of activities for SURTASS LFA sonar. In areas within 12 nmi from any shorelines (coastal exclusion areas) and in areas identified as OBIAs, SURTASS LFA sonar would be operated such that received levels of LFA sonar are below 180 dB re 1 μPa rms sound pressure level (SPL). This restriction would be observed year-round for coastal exclusion areas and during periods of biological importance for OBIAs, but these areas are not depicted in Figure 1 as these areas are not visible at the map scale. Based on the Navy's current operational requirements, potential activities for SURTASS LFA sonar vessels from August 2017 through August 2022 would include areas located in the Pacific, Atlantic, and Indian Oceans as well as the Mediterranean Sea.
The Navy will not operate SURTASS LFA sonar pursuant to this rule in polar regions (
The Navy must anticipate, or predict, where they have to operate in the next five years for the MMPA rulemaking. Naval forces are presently operating in several areas strategic to U.S. national and international interests. National security needs may dictate that many of these operational areas will be close to ports and choke points, such as entrances to straits, channels, and canals. It is anticipated that many future naval conflicts are likely to occur within littoral or coastal areas. However, it is infeasible for the Navy to analyze all potential global mission areas for all species and stocks for all seasons. Instead, the Navy projects where it intends to use SURTASS LFA sonar for the next five-year authorization period based on today's political climate and provides NMFS with take estimates for marine mammal stocks in the proposed areas of activity. NMFS believes that this provides sufficient coverage for worldwide SURTASS LFA sonar activities, as specific take numbers are requested on an annual basis in applications for LOAs, subject to an annual cap of 12 percent per stock.
For this fourth rulemaking, the Navy modeled and analyzed 26 representative mission areas in the Pacific, Atlantic, and Indian Oceans and the Mediterranean Sea to represent the acoustic regimes and marine mammal species/stocks that may be encountered during worldwide SURTASS LFA sonar activities (see Table 2). They are comprised of the following modeled areas: East of Japan; north Philippine Sea; west Philippine Sea; offshore Guam; Sea of Japan; East China Sea; South China Sea; Offshore Japan (two locations: 25° to 40° N and 10° to 25° N); Hawaii North; Hawaii South; Offshore Southern California; western north Atlantic; eastern North Atlantic; Mediterranean Sea; Arabian Sea; Andaman Sea; Panama Canal; northeast Australia; northwest Australia; northeast of Japan; southern Gulf of Alaska; southern Norwegian Basin (between Iceland and Norway); western North Atlantic (off of Virginia/Maryland); Labrador Sea; and Sea of Okhotsk. Since the Navy cannot forecast the location of its operations, annual requests will be submitted to NMFS that will include specific mission areas and modeling locations for each year's activities. For more details of the impact analysis, see Appendix B in the DSEIS/SOEIS.
The use of the SURTASS LFA sonar system during at-sea activities would result in acoustic stimuli from the generation of sound or pressure waves in the water at or above levels that NMFS has determined would result in take of marine mammals under the MMPA. This is the principal means of marine mammal taking associated with these military readiness activities and the Navy has requested authorization to take marine mammals by Level B harassment. At no point are there expected to be more than four systems in use, and thus this proposed rule analyzes the impacts on marine mammals due to the deployment of up to four SURTASS LFA sonar systems for a five-year period between August 2017 and August 2022.
In addition to the use of active acoustic sources, the Navy's activities include the operation and movement of vessels. This document also analyzes the effects of this aspect of the activities. However, NMFS does not anticipate takes of marine mammals to result from ship strikes from any of the four SURTASS LFA vessels because each vessel moves at a relatively slow speed, especially when towing the SURTASS and LFA sonar systems, and for a relatively short period of time. Combined with the use of mitigation measures as noted below, it is likely that any marine mammal would be able to avoid the surveillance vessels.
SONAR is an acronym for Sound Navigation and Ranging, and its definition includes any system (biological or mechanical) that uses underwater sound, or acoustics, for detection, monitoring, and/or communications. Active sonar is the transmission of sound energy for the purpose of sensing the environment by interpreting features of received signals. Active sonar detects objects by creating a sound pulse, or “ping” that is transmitted through the water and reflects off the target, returning in the form of an echo. Passive sonar detects
As mentioned previously, the SURTASS LFA sonar system is a long-range, all-weather LF sonar (operating between 100 and 500 Hertz (Hz)) system that has both active and passive components. LFA, the active system component (which allows for the detection of an object that is not generating noise), is comprised of source elements (called projectors) suspended vertically on a cable beneath the surveillance vessel. The projectors produce an active sound pulse by converting electrical energy to mechanical energy by setting up vibrations or pressure disturbances within the water to produce a ping. The Navy uses LFA as an augmentation to the passive SURTASS operations when passive system performance is inadequate. SURTASS, the passive part of the system, uses hydrophones (
The active component of the SURTASS LFA sonar system consists of up to 18 projectors suspended beneath the surveillance vessel in a vertical line array. The SURTASS LFA sonar projectors transmit in the low-frequency band (between 100 and 500 Hz). The source level of an individual projector in the SURTASS LFA sonar array is approximately 215 dB re: 1 μPa at 1 m or less (Sound pressure is the sound force per unit area and is usually measured in micropascals (μPa), where one Pascal (Pa) is the pressure resulting from a force of one newton exerted over an area of one square meter. The commonly used reference pressure level in underwater acoustics is 1 μPa at 1 m, and the units for source level are decibels (dB) re: 1 μPa at 1 m). Because of the physics involved in acoustic beamforming (
The SURTASS LFA sonar acoustic transmission is an omnidirectional beam (a full 360 degrees (°)) in the horizontal plane. The LFA sonar system also has a narrow vertical beam that the vessel's crew can steer above or below the horizontal plane. The typical SURTASS LFA sonar signal is not a constant tone, but rather a transmission of various signal types that vary in frequency and duration (including continuous wave (CW) and frequency-modulated (FM) signals). A complete sequence of sound transmissions, also referred to by the Navy as a “ping” or a wavetrain, can be as short as six seconds (sec) or last as long as 100 sec, with an average length of 60 sec. Within each ping, the duration of any continuous frequency sound transmission is no longer than 10 sec and the time between pings is typically from six to 15 minutes (min). Based on the Navy's historical operating parameters, the average duty cycle (
In addition to the LFA sonar system deployed on the USNS IMPECCABLE, the Navy developed a compact LFA (CLFA) sonar system now deployed on its three smaller surveillance vessels (
For the analysis in this rulemaking, NMFS will use the term LFA to refer to both the LFA sonar system and/or the CLFA sonar system, unless otherwise specified.
The passive component of the SURTASS LFA sonar system consists of a SURTASS Twin-line (TL-29A) horizontal line array mounted with hydrophones. The Y-shaped array is 1,000 ft (305 m) in length and has an operational depth of 500 to 1,500 ft (152.4 to 457.2 m). The SURTASS LFA sonar vessel typically maintains a speed of at least 3.4 mph (5.6 km/hr; 3 knots (kts)) to tow the array astern of the vessel in the correct horizontal configuration.
Although technically not part of the SURTASS LFA sonar system, the Navy also proposes to use a high-frequency sonar system, called the High Frequency Marine Mammal Monitoring sonar (HF/M3 sonar), to detect and locate marine mammals within the SURTASS LFA sonar activity areas and mitigation and buffer zones, as described later in this proposed rule. This enhanced commercial fish-finding sonar, mounted at the top of the SURTASS LFA sonar vertical line array, has a source level of 220 dB re: 1 μPa at 1 m with a frequency range from 30 to 40 kilohertz (kHz). The duty cycle is variable, but is normally below three to four percent and the maximum pulse duration is 40 milliseconds. The HF/M3 sonar has four transducers with 8° horizontal and 10° vertical beamwidths, which sweep a full 360° in the horizontal plane every 45 to 60 sec with a maximum range of approximately 1.2 mi (2 km).
The Navy proposes to deploy the SURTASS LFA sonar system on a maximum of four U.S. Naval ships: the USNS ABLE (T-AGOS 20), the USNS EFFECTIVE (T-AGOS 21), the USNS IMPECCABLE (T-AGOS 23) and the USNS VICTORIOUS (T-AGOS 19).
The USNS ABLE, EFFECTIVE, and VICTORIOUS, are twin-hulled ocean surveillance ships. Each vessel has a length of 235 feet (ft) (71.6 meters (m)); a beam of 93.6 ft (28.5 m); a maximum draft of 25 ft (7.6 m); and a full load displacement of 3,396 tons (3,451 metric tons). A twin-shaft diesel electric engine provides 3,200 horsepower (hp), which drives two propellers.
The USNS IMPECCABLE, also a twin-hulled ocean surveillance ship, has a length of 281.5 ft (85.8 m); a beam of 95.8 ft (29.2 m); a maximum draft of 26 ft (7.9 m); and a full load displacement of 5,368 tons (5,454 metric tons). A twin-shaft diesel electric engine provides 5,000 hp, which drives two propellers.
The operational speed of each vessel during sonar activities will be approximately 3.4 miles per hour (mph) (5.6 km per hour (km/hr); 3 knots (kt)) and each vessel's cruising speed outside
Each vessel also has an observation area on the bridge from where lookouts will monitor for marine mammals before and during LFA sonar activities. When stationed on the bridge of the USNS ABLE, EFFECTIVE, or VICTORIOUS, the lookout's eye level will be approximately 32 ft (9.7 m) above sea level providing an unobstructed view around the entire vessel. For the USNS IMPECCABLE, the lookout's eye level will be approximately 45 ft (13.7 m) above sea level.
On October 21, 2016, NMFS published a notice of receipt (NOR) of an application for rulemaking in the
The Navy addressed impacts to endangered and threatened species and critical habitat in their application, and the Navy and NMFS' Office of Protected Resources Permits and Conservation Division are currently in consultation with NMFS' Office of Protected Resources ESA Interagency Consultation Division. Consistent with the 1989 preamble for NMFS' implementing regulations (54 FR 40338, September 29, 1989), the impacts from past and ongoing anthropogenic activities are reflected in the environmental baseline (
The Marine Mammal Commission (MMC) did not submit comments in response to the NOR, but had previously submitted comments to the Navy and NMFS in response to the Navy's DSEIS/OEIS, and stated that these comments would also suffice as their comments on the Navy's application. The MMC made recommendations to use the best available science plus some measure of uncertainty (
Regarding the NMSDD, all data sources that go into the database are cited so they can be obtained. Some of the data sources are proprietary, so the Navy is unable to provide the NMSDD in GIS shapefile format because they only have a license for the Navy. NMFS notes that the single ping equivalent (SPE) has been used in each of the previous rulemakings and NMFS continues to believe the use of this metric is appropriate for assessing behavioral responses for SURTASS LFA sonar because it is a conservative estimate that accounts for the increased potential for behavioral responses due to repeated exposures by adding 5 x log10 (number of pings) to each 1-dB received level (RL) increment, and sums these across all dB levels to determine the dB SPE for each modeled animal (
One hundred and four (104) currently classified marine mammal species or stocks have confirmed or possible occurrence within potential SURTASS LFA activity areas in certain areas of the Pacific, Atlantic, and Indian Oceans and the Mediterranean Sea. Fifteen (15) species of baleen whales (mysticetes), 60 species of toothed whales, dolphins, or porpoises (odontocetes), and 29 species of seals or sea lions (pinnipeds) could be affected by SURTASS LFA sonar activities. Multiple stocks of some species are affected, and independent assessments are conducted to make the necessary findings and determinations for each of these.
There are 20 marine mammal species under NMFS' jurisdiction that are listed as endangered or threatened under the Endangered Species Act (ESA; 16 U.S.C. 1531
Three of the 104 species or stocks with potential occurrences within possible SURTASS LFA activity areas are considered depleted under the MMPA but are not ESA-listed. They are: The Eastern (Loughlin's) Steller sea lion (
Chinese river dolphins (
The U.S. Fish and Wildlife Service (USFWS) is responsible for managing the following marine mammal species: Southern sea otter (
Tables 3 through 28 (below) summarize the abundance, status under the ESA, and density estimates of the marine mammal species and stocks that have confirmed or possible occurrence within 26 SURTASS LFA sonar operating areas in the Pacific, Indian, and Atlantic Oceans and Mediterranean Sea. To accurately assess the potential effects of worldwide SURTASS LFA sonar activities, the Navy modeled 26 representative sites based on the Navy's current assessment of current and future requirements or threats.
Information on how the density and stock/abundance estimates were derived for the selected mission sites is in the Navy's application. These data are derived from the best available, published source documentation, and provide general area information for each mission area with species-specific information on the animals that could occur in that area, including estimates for their stock abundance and density. The Navy developed the abundance and density estimates by first using estimates from line-transect surveys that occurred in or near each of the 26 model sites (
The Navy provides detailed descriptions of the distribution, abundance, diving behavior, life history, and hearing vocalization information for each affected marine mammal species with confirmed or possible occurrence within SURTASS LFA sonar operational areas in section 4 (pages 4-1 through 4-71) of the application, which is available online at
Although not repeated in this document, NMFS has reviewed these data, determined them to be the best available scientific information for the proposed rulemaking, and considers this information part of the administrative record for this action. Additional information is available in NMFS' Marine Mammal Stock Assessment Reports, which may be viewed at
An understanding of the basic properties of underwater sound is necessary to comprehend many of the concepts and analyses presented in this document. Sound is a wave of pressure variations propagating through a medium (for the sonar considered in this proposed rulemaking, the medium is seawater). Pressure variations are created by compressing and relaxing the medium. Sound measurements can be expressed in two forms: Intensity and pressure. Acoustic intensity is the average rate of energy transmitted through a unit area in a specified direction and is expressed in watts per square meter (W/m
Acousticians have adopted a logarithmic scale for sound intensities, which is denoted in dB. The logarithmic nature of the scale means that each 10 dB increase is a ten-fold increase in power (
Sound frequency is measured in cycles per second, referred to as Hertz (Hz), and is analogous to musical pitch; high-pitched sounds contain high frequencies and low-pitched sounds contain low frequencies. Natural sounds in the ocean span a large range of frequencies: From earthquake noise at five Hz to harbor porpoise clicks at 150,000 Hz (150 kilohertz (kHz)). These sounds are so low or so high in pitch that humans cannot even hear them; acousticians call these infrasonic (typically below 20 Hz, which is considered the low frequency bound of human hearing) and ultrasonic (typically above 20,000 Hz, which is considered the upper bound of human hearing) sounds, respectively. A single sound may be made up of multiple frequencies. Sounds made up of only a small range of frequencies are called narrowband, and sounds with a broad range of frequencies are called broadband. Explosives are an example of a broadband sound source and tactical military sonars are an example of a narrowband sound source.
This section includes a brief explanation of the sound measurements frequently used in the discussions of acoustic effects in this document.
Sound pressure level (SPL) is expressed as the ratio of a measured sound pressure and a reference level. The commonly used reference pressure level in underwater acoustics is 1 μPa, and the units for SPLs are decibels (dB) re: 1 μPa. SPL (in dB) = 20 log (pressure/reference pressure). SPL is an instantaneous measurement and can be expressed as the peak, the peak-peak (p-p), or the root mean square (rms). SPL does not directly take the duration of exposure to a sound into account, though it should be noted that the duration over which the root mean square pressure is averaged since it influences the result. Root mean square pressure, which is the square root of the arithmetic average of the squared instantaneous pressure values (Urick, 1983), is typically used in discussions of behavioral effects of sounds on vertebrates in part because behavioral effects, which often result from auditory cues, may be better expressed through averaged units than by peak pressures. All references to SPL in this document refer to the root mean square unless otherwise noted.
Sound exposure level (SEL; represented as dB re 1 μPa
To model potential behavioral impacts to marine animals from exposure to SURTASS LFA sonar sound, the Navy has developed a methodology to estimate the total exposure of modeled animals exposed to multiple pings over an extended period of time. The Navy's acoustic model analyzes the following components: (1) The LFA sonar source modeled as a point source, with an effective source level (SL) in dB re: 1 μPa at 1 m (SPL); (2) a 60-sec duration signal; and (3) a beam pattern that is correct for the number and spacing of the individual projectors (source elements). This source model, when combined with the three-dimensional transmission loss (TL) field generated by the Parabolic Equation (PE) acoustic propagation model, defines the received level (RL) (in SPL) sound field surrounding the source for a 60-sec LFA sonar signal (
Figure 2 shows the Navy calculation that converts SPL values to SPE values in order to estimate impacts to marine mammals from SURTASS LFA sonar transmissions. For a more detailed explanation of the SPE calculations, NMFS refers the public to Appendix B of the Navy's 2016 DSEIS/SOEIS.
Cetaceans have an auditory anatomy that follows the basic mammalian pattern, with some changes to adapt to the demands of hearing in the sea. The typical mammalian ear is divided into an outer ear, middle ear, and inner ear. The outer ear is separated from the inner ear by a tympanic membrane, or eardrum. In terrestrial mammals, the outer ear, eardrum, and middle ear transmit airborne sound to the inner ear, where the sound waves are propagated through the cochlear fluid. Since the impedance of water (
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 derived using auditory evoked potential (AEP) techniques, anatomical modeling, and other data, Southall
• Low frequency (LF) cetaceans (13 species of mysticetes): Southall
• Mid-frequency (MF) cetaceans (32 species of dolphins, six species of larger toothed whales, and 19 species of beaked and bottlenose whales): Southall
• High frequency (HF) cetaceans (eight species of true porpoises, six species of river dolphins,
• Pinnipeds in Water: Southall
In August 2016 NMFS released its Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (NMFS 2016 Acoustic Technical Guidance), which modified the hearing groups proposed in Southall
• Division of pinnipeds into phocids in water (PW) and otariids in water (OW) hearing groups; and
• Re-Categorization of two species of dolphins (hourglass [
Therefore, under the new NMFS 2016 Acoustic Technical Guidance, there are five marine mammal hearing group categories, with associated generalized hearing ranges as shown in Table 30 (note that animals are less sensitive to sounds at the outer edge of their generalized hearing range and most sensitive to sounds of frequencies within a smaller range somewhere in the middle of their functional hearing range).
Baleen (mysticete) whales (members of the LF hearing group) have inner ears that appear to be specialized for low-frequency hearing. Conversely, most odontocetes (
Marine mammal vocalizations often extend both above and below the range of human hearing (higher than 20 kHz and lower than 20 Hz; Research Council, 2003). Measured data on the hearing abilities of cetaceans are sparse, particularly for the larger cetaceans such as the baleen whales. The auditory thresholds of some of the smaller odontocetes have been determined in captivity. It is generally believed that cetaceans should at least be sensitive to the frequencies of their own vocalizations. Comparisons of the anatomy of cetacean inner ears and models of the structural properties and the response to vibrations of the ear's components in different species provide an indication of likely sensitivity to various sound frequencies. Thus, the ears of small toothed whales are optimized for receiving high-frequency sound, while baleen whale inner ears are best suited for low frequencies, including to infrasonic frequencies (Ketten, 1992; 1997; 1998).
Baleen whale (
Toothed whales (
This section includes a summary and discussion of the ways that components of the specified activities may impact marine mammals and their habitat. The Estimated Take of Marine Mammals section later in this document will include a quantitative analysis of the maximum percentage of the affected stocks that are expected to be taken by the SURTASS LFA activities, but enumeration of takes of individuals is completed annually when the Navy submits their application for LOAs for that year's mission areas. The Negligible Impact Analysis and Determination section will consider the content of this section, the Estimated Take of Marine Mammals section, and the Proposed Mitigation section to draw conclusions regarding the likely impacts of these activities on the reproductive success or survivorship of individuals and how those impacts on individuals are likely to impact marine mammal species or stocks.
The Navy has requested authorization for the incidental take of marine mammals that may result from upcoming use of SURTASS LFA sonar by a maximum of four U.S. Naval ships in certain areas of the Pacific, Atlantic, and Indian Oceans and the Mediterranean Sea. In addition to the use of LFA and HF/M3 sonar, the Navy has analyzed the potential impact of ship strike to marine mammals from SURTASS LFA sonar activities, and, in consultation with NMFS as a cooperating agency for the SURTASS LFA sonar 2016 DSEIS/SOEIS, has determined that take of marine mammals incidental to this non-acoustic component of the Navy's operations is not reasonably likely to occur. Therefore, the Navy has not requested authorization for take of marine mammals that might occur incidental to vessel ship strike. In this document, NMFS analyzes the potential effects on marine mammals from exposure to LFA and HF/M3 sonar, but also includes some additional analysis of the potential impacts from vessel operations.
NMFS' analysis of potential impacts from SURTASS LFA activities is outlined in the next section. NMFS will focus qualitatively on the different ways that SURTASS LFA sonar activities may affect marine mammals (some of which may not be classifiedas takes). Then, in the Estimated Take of Marine Mammals section, NMFS will relate the potential effects to marine mammals from SURTASS LFA sonar activities to the MMPA definitions of take, including Level A and Level B Harassment.
The potential effects to marine mammals described in the following sections do not take into consideration the proposed mitigation and related monitoring measures described later in this document (see the Proposed Mitigation section) which, as noted, are designed to effect the least practicable adverse impact on affected marine mammals species and stocks.
The potential effects of sound from the proposed activities associated with SURTASS LFA sonar might include one or more of the following: Behavioral changes, masking, non-auditory injury (
The effects of underwater noise on marine mammals are highly variable, and one can categorize the effects as follows (Richardson
(1) The noise may be too weak to be heard at the location of the animal (
(2) The noise may be audible but not strong enough to elicit any overt behavioral response;
(3) The noise may elicit behavioral reactions of variable conspicuousness and variable relevance to the well-being of the animal. These can range from temporary alert responses to active avoidance reactions such as vacating an area at least until the noise event ceases, but potentially for longer periods of time;
(4) Upon repeated exposure, a marine mammal may exhibit diminishing responsiveness (habituation), disturbance effects may persist, or disturbance effects could increase (sensitization, or becoming more sensitive to exposure). Persistent disturbance and sensitization are more likely with sounds that are highly variable in characteristics, infrequent, and unpredictable in occurrence, and associated with situations that the animal perceives as a threat (animals are not likely to be exposed enough to SURTASS LFA sonar to exhibit habituation or increased sensitization, due to the fact that SURTASS LFA sonar is a mobile source operating in open water, and animals are likely to move away and/or would not be receiving pings in the way that small resident populations would receive with a stationary source);
(5) Any anthropogenic (human-made) noise that is strong enough to be heard has the potential to reduce the ability of a marine mammal to hear natural sounds at similar frequencies (masking), including calls from conspecifics (
(6) If mammals remain in an area because it is important for feeding, breeding, or some other biologically important purpose even though there is a chronic exposure to noise, it is possible that there could be noise-induced physiological stress. This might in turn have negative effects on the well-being or reproduction of the animals involved; and
(7) Very strong sounds have the potential to cause temporary or permanent reduction in hearing sensitivity, also known as threshold shift. In terrestrial mammals and presumably marine mammals, received sound levels must far exceed the animal's hearing threshold for there to be any temporary threshold shift (TTS) in its hearing ability. For transient sounds, the sound level necessary to cause TTS is inversely related to the duration of the sound. Received sound levels must be even higher for there to be the possibility of permanent hearing impairment. In addition, intense acoustic or explosive events (not relevant for this proposed activity) may cause trauma to tissues associated with organs vital for hearing, sound production, respiration and other functions. This trauma may include minor to severe hemorrhage.
When animals exhibit reduced hearing sensitivity within their auditory range (
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
PTS is considered auditory injury (Southall
Although the published body of scientific literature contains numerous theoretical studies and discussion papers on hearing impairments that can occur with exposure to a loud sound, only a few studies provide empirical information on the levels at which noise-induced loss in hearing sensitivity occurs in nonhuman animals. The NMFS 2016 Acoustic Technical Guidance, which was used in the assessment of effects for this action, compiled, interpreted, and synthesized the best available scientific information for noise-induced hearing effects for marine mammals to derive updated thresholds for assessing the impacts of noise on marine mammal hearing, as noted above. For cetaceans, published data on the onset of TTS are limited to the captive bottlenose dolphin, beluga, harbor porpoise, and Yangtze finless porpoise (summarized in Finneran, 2015). TTS studies involving exposure to SURTASS LFA or other low-frequency sonar (below 1 kHz) have never been conducted due to logistical difficulties of conducting experiments with low frequency sound sources. However, there are TTS measurements for exposures to other LF sources, such as seismic airguns. Finneran
Marine mammal hearing plays a critical role in communication with conspecifics and in interpretation of environmental cues for purposes such as predator avoidance and prey capture. Depending on the degree (elevation of threshold in dB), duration (
Depending on the degree and frequency range, the effects of PTS on an animal could also range in severity, although it is considered generally more serious than TTS because it is a
As stated in the Navy's DSEIS/SOEIS (section 4.2.3), results show that all hearing groups except LF cetaceans would need to be within 22 ft (7 m) for an entire LFA transmission (60 seconds) to potentially experience PTS. A LF cetacean would need to be within 135 ft (41 m) for an entire LFA transmission to potentially experience PTS. Based on the mitigation procedures used during SURTASS LFA sonar activities, and the fact that animals can be expected to move away from any disturbance, the chances of this occurring are negligible.
One theoretical cause of injury to marine mammals is rectified diffusion (Crum and Mao, 1996), the process of increasing the size of a bubble by exposing it to a sound field. This process could be facilitated if the environment in which the ensonified bubbles exist is supersaturated with gas. Repetitive diving by marine mammals can cause the blood and some tissues to accumulate gas to a greater degree than is supported by the surrounding environmental pressure (Ridgway and Howard, 1979). The deeper and longer dives of some marine mammals (
It is unlikely that the short duration of the SURTASS LFA sonar pings would be long enough to drive bubble growth to any substantial size, if such a phenomenon occurs. However, an alternative but related hypothesis has also been suggested; stable bubbles could be destabilized by high-level sound exposures such that bubble growth then occurs through static diffusion of gas out of the tissues. In such a scenario the marine mammal would need to be in a gas-supersaturated state for a long enough period of time for bubbles to become a problematic size. Research with
Yet another hypothesis (decompression sickness) speculates that rapid ascent to the surface following exposure to a startling sound might produce tissue gas saturation sufficient for the evolution of nitrogen bubbles (Jepson
Although theoretical predictions suggest the possibility for acoustically mediated bubble growth, there is considerable disagreement among scientists as to its likelihood (Piantadosi and Thalmann, 2004; Evans and Miller, 2003; Cox
In 2009, Hooker
In their study, they compared results for previously published time depth recorder data (Hooker and Baird, 1999; Baird
Bernaldo de Quiros
To summarize, there are few data related to the potential for strong, anthropogenic underwater sounds to cause non-auditory physical effects in marine mammals. Such effects, if they occur at all, would presumably be limited situations where marine mammals were exposed to high powered sounds at close range over a prolonged period of time. The available data do not allow identification of a specific exposure level above which non-auditory effects can be expected (Southall
Marine mammals use acoustic signals for a variety of purposes, which differ among species, but include communication between individuals, navigation, foraging, reproduction, and learning about their environment (Erbe and Farmer, 2000; Tyack, 2000). Masking, or auditory interference, generally occurs when other sounds in the environment are of a similar frequency and are louder than auditory signals an animal is trying to receive. Masking is a phenomenon that affects animals trying to receive acoustic information about their environment, including sounds from other members of their species, predators, prey, and sounds that allow them to orient in their environment. Masking these acoustic signals can disrupt the behavior of individual animals, groups of animals, or entire populations.
The extent of the masking interference depends on the spectral, temporal, and spatial relationships between the signals an animal is trying to receive and the masking noise, in addition to other factors. In humans, significant masking of tonal signals occurs as a result of exposure to noise in a narrow band of similar frequencies. As the sound level increases, the detection of frequencies above those of the masking stimulus decreases. This principle is expected to apply to marine mammals as well because of common biomechanical cochlear properties across taxa.
Richardson
The echolocation calls of toothed whales are subject to masking by high-frequency sound. Human data indicate that low-frequency sounds can mask high-frequency sounds (
Parks
Risch
Redundancy and context can also facilitate detection of weak signals. These phenomena may help marine mammals detect weak sounds in the presence of natural or manmade noise. Most masking studies in marine mammals present the test signal and the masking noise from the same direction. The sound localization abilities of marine mammals suggest that, if signal and noise come from different directions, masking would not be as severe as some masking studies might suggest (Richardson
As mentioned previously, the hearing ranges of mysticetes overlap with the frequencies of the SURTASS LFA sonar sources. The closer the characteristics of the masking signal to the signal of interest, the more likely masking is to occur. The Navy provided an analysis of marine mammal hearing and masking in Subchapter 4.2.2.1.4 of the DSEIS/SOEIS, and the masking effects of the SURTASS LFA sonar signal are expected to be limited for a number of reasons. First, the frequency range (bandwidth) of the system is limited to approximately 30 Hz, and the instantaneous bandwidth at any given time of the signal is small, on the order of 10 Hz. Second, the average duty cycle is always less than 20 percent and, based on past SURTASS LFA sonar operational parameters (2003 to 2016), is normally 7.5 to 10 percent. Third, given the average maximum pulse length (60 sec), and the fact that the signals vary and do not remain at a single frequency for more than 10 sec, SURTASS LFA sonar is not likely to cause significant masking. In other words, the LFA sonar transmissions are coherent, narrow bandwidth signals of six to 100 sec in length followed by a quiet period of six to 15 minutes. Therefore, the effect of masking will be limited because animals that use this frequency range typically use broader bandwidth signals. As a result, the chances of an LFA sonar sound actually overlapping whale calls at levels that would interfere with their detection and recognition will be extremely low.
In addition to making it more difficult for animals to perceive acoustic cues in their environment, anthropogenic sound presents separate challenges for animals that are vocalizing. When they vocalize, animals are aware of environmental conditions that affect the “active space” of their vocalizations, which is the maximum area within which their vocalizations can be detected before they drop to the level of ambient noise (Brenowitz, 2004; Brumm
Many animals will combine several of these strategies to compensate for high levels of background noise. Anthropogenic sounds which reduce the signal-to-noise ratio of animal vocalizations, increase the masked auditory thresholds of animals listening for such vocalizations, or reduce the active space of an animal's vocalizations impair communications between animals. Most animals that vocalize have evolved strategies to compensate for the effects of short-term or temporary increases in background or ambient noise on their songs or calls. Although the fitness consequences of these vocal adjustments are not directly known in all instances, like most other trade-offs animals must make, some of these strategies probably come at a cost (Patricelli
Classic stress responses begin when an animal's central nervous system perceives a potential threat to its homeostasis. That perception triggers stress responses regardless of whether a stimulus actually threatens the animal; the mere perception of a threat is sometimes sufficient to trigger a stress response (Moberg, 2000; Sapolsky
According to Moberg (2000), in the case of many stressors, an animal's first and most economical (in terms of biotic costs) response is behavioral avoidance of the potential stressor or avoidance of continued exposure to a stressor. An animal's second line of defense to stressors involves the sympathetic part of the autonomic nervous system and the classical “fight or flight” response which includes the cardiovascular system, the gastrointestinal system, the exocrine glands, and the adrenal medulla to produce changes in heart rate, blood pressure, and gastrointestinal activity that humans commonly associate with “stress.” These responses have a relatively short duration and may or may not have significant long-term effect on an animal's welfare.
An animal's third line of defense to stressors involves its neuroendocrine or sympathetic nervous systems; the system that has received the most study has been the hypothalmus-pituitary-adrenal system (also known as the HPA
The primary distinction between stress, which is adaptive and does not normally place an animal at risk, and distress is the biotic cost of the response. During a stress response, an animal uses glycogen stores that can be quickly replenished once the stress is alleviated. In such circumstances, the cost of the stress response would not pose a risk to the animal's welfare. However, when an animal does not have sufficient energy reserves to satisfy the energetic costs of a stress response, energy resources must be diverted from other biotic functions, which impair those functions. For example, when a stress response diverts energy away from growth in young animals, those animals may experience stunted growth. When a stress response diverts energy from a fetus, an animal's reproductive success and fitness will suffer. In these cases, the animals will have entered a pre-pathological or pathological state which is called distress (sensu Seyle, 1950) or allostatic loading (sensu McEwen and Wingfield, 2003). This pathological state will last until the animal replenishes its biotic reserves sufficient to restore normal function. Note that these examples involve a long-term (days or weeks) stress response exposure to stimuli.
Relationships between these physiological mechanisms, animal behavior, and the costs of stress responses have also been documented fairly well through controlled experiments; because this physiology exists in every vertebrate that has been studied, it is not surprising that stress responses and their costs have been documented in both laboratory and free-living animals (for examples see, Holberton
There is limited information on the physiological responses of marine mammals to anthropogenic sound exposure, as most observations have been limited to short-term behavioral responses, which included cessation of feeding, resting, or social interactions. Information has been collected on the physiological responses of marine mammals to anthropogenic sounds (Fair and Becker, 2000; Romano
Despite the lack of robust information on stress responses for marine mammals exposed to anthropogenic sounds, studies of other marine and terrestrial animals lead us to expect some marine mammals to experience physiological stress responses and, perhaps, physiological responses that would be classified as distress upon exposure to low-frequency sounds. For example, Jansen (1998) reported on the relationship between acoustic exposures and physiological responses that are indicative of stress responses in humans (
Hearing is one of the primary senses marine mammals use to gather information about their environment and communicate with conspecifics. Although empirical information on the relationship between sensory impairment (TTS, PTS, and acoustic masking) and stress in marine mammals remains limited, it is reasonable to assume that reducing an animal's ability to gather information about its environment and communicate with conspecifics could induce stress in animals that use hearing as their primary sensory mechanism. We also assume that acoustic exposures sufficient to trigger onset of PTS or TTS would be accompanied by physiological stress responses, because terrestrial animals exhibit those responses under similar conditions (NRC, 2003). More importantly, due to the effect of noise and the need to effectively gather acoustic information and respond, marine mammals might experience stress responses at received levels lower than those necessary to trigger onset of TTS. Based on empirical studies of the
Behavioral responses to sound are highly variable and context-specific. Many different variables can influence an animal's perception of, as well as the nature and magnitude of response to, an acoustic event. An animal's prior experience with a sound or sound source affects whether it is less likely (habituation) or more likely (sensitization) to respond to certain sounds in the future. Animals can also be innately pre-disposed to respond to certain sounds in certain ways (Southall
Studies by DeRuiter
Ellison
Friedlaender
Exposure of marine mammals to sound sources can result in, but is not limited to, no response or any of the following observable responses: Increased alertness; orientation or attraction to a sound source; vocal modifications; cessation of feeding; cessation of social interaction; alteration of movement or diving behavior; avoidance; habitat abandonment (temporary or permanent); and, in severe cases, panic, flight, stampede, or stranding, potentially resulting in death (Southall
Nowacek
Blue whales exposed to simulated mid-frequency sonar in the Southern California Bight were less likely to produce low frequency calls usually associated with feeding behavior (Melcón
In 1998, the Navy conducted a Low Frequency Sonar Scientific Research Program (LFS SRP) specifically to study behavioral responses of several species of marine mammals to exposure to LF sound, including one phase that focused on the behavior of gray whales to low frequency sound signals. The objective of this phase of the LFS SRP was to determine whether migrating gray whales respond more strongly to received levels (RL), sound gradient, or distance from the source, and to compare whale avoidance responses to an LF source in the center of the migration corridor versus in the offshore portion of the migration corridor. A single source was used to broadcast LFA sonar sounds at RLs of 170-178 dB re 1µPa. The Navy reported that the whales showed some avoidance responses when the source was moored one mile (1.8 km) offshore, and located within in the migration path, but the whales returned to their migration path when they were a few kilometers beyond the source. When the source was moored two miles (3.7 km) offshore, responses were much less even when the source level was increased to achieve the same RLs in the middle of the migration corridor as whales received when the source was located within the migration corridor (Clark
Also during the LFS SRP, researchers sighted numerous odontocete and pinniped species in the vicinity of the sound exposure tests with LFA sonar. The MF and HF hearing specialists present in the study area showed no immediately obvious responses or changes in sighting rates as a function of source conditions. Consequently, the researchers concluded that none of these species had any obvious behavioral reaction to LFA sonar signals at received levels similar to those that produced only minor short-term behavioral responses in the baleen whales (
Maybaum (1993) conducted sound playback experiments to assess the effects of mid-frequency active sonar on humpback whales in Hawaiian waters. Specifically, she exposed focal pods to sounds of a 3.3-kHz sonar pulse, a sonar frequency sweep from 3.1 to 3.6 kHz, and a control (blank) tape while monitoring the behavior, movement, and underwater vocalizations. The two types of sonar signals differed in their effects on the humpback whales, but both resulted in avoidance behavior. The whales responded to the pulse by increasing their distance from the sound source and responded to the frequency sweep by increasing their swimming speeds and track linearity. In the Caribbean, sperm whales avoided exposure to mid-frequency submarine sonar pulses, in the range of 1000 Hz to 10,000 Hz (IWC 2005).
Kvadsheim
In 2007, the first in a series of behavioral response studies (BRS) on deep diving odontocetes conducted by NMFS, Navy, and other scientists showed one beaked whale (
Tyack
Southall
In the 2010 BRS study, researchers again used controlled exposure experiments (CEE) to carefully measure behavioral responses of individual animals to sound exposures of MF active sonar and pseudo-random noise. For each sound type, some exposures were conducted when animals were in a surface feeding (approximately 164 ft (50 m) or less) and/or socializing behavioral state and others while animals were in a deep feeding (greater than 164 ft (50 m)) and/or traveling mode. The researchers conducted the largest number of CEEs on blue whales (n=19) and of these, 11 CEEs involved exposure to the MF active sonar sound type. For the majority of CEE transmissions of either sound type, they noted few obvious behavioral responses detected either by the visual observers or on initial inspection of the tag data. The researchers observed that throughout the CEE transmissions, up to the highest received sound level (absolute RMS value approximately 160 dB re: 1μPa with signal-to-noise ratio values over 60 dB), two blue whales continued surface feeding behavior and remained at a range of around 3,820 ft (1,000 m) from the sound source (Southall
It is difficult to distinguish between animals that continue their pre-disturbance behavior without stress responses, animals that continue their behavior but experience stress responses (that is, animals that cope with disturbance), and animals that habituate to disturbance (that is, they may have experienced low-level stress responses initially, but those responses abated over time). Watkins (1986) reviewed data on the behavioral reactions of fin, humpback, right and minke whales that were exposed to continuous, broadband
Aicken
Southall
In the Southall
The studies that address responses of low-frequency cetaceans to non-pulse sounds include data gathered in the field and related to several types of sound sources, including: Vessel noise, drilling and machinery playback, low-frequency M-sequences (sine wave with multiple phase reversals) playback, tactical low-frequency active sonar playback, drill ships, Acoustic Thermometry of Ocean Climate (ATOC) source, and non-pulse playbacks. These studies generally indicate no (or very limited) responses to received levels in the 90 to 120 dB re: 1 μPa range and an increasing likelihood of avoidance and other behavioral effects in the 120 to 160 dB re: 1 μPa range. As mentioned earlier, though, contextual variables play a very important role in the reported responses, and the severity of effects are not necessarily linear when compared to a received level. Also, few of the laboratory or field datasets had common conditions, behavioral contexts, or sound sources, so it is not surprising that responses differ.
The studies that address responses of mid-frequency cetaceans to non-pulse sounds include data gathered both in the field and the laboratory and related to several different sound sources including: Pingers, drilling playbacks, ship and ice-breaking noise, vessel noise, Acoustic Harassment Devices (AHDs), Acoustic Deterrent Devices (ADDs), MF active sonar, and non-pulse bands and tones. Southall
The studies that address responses of high-frequency cetaceans to non-pulse sounds include data gathered both in the field and the laboratory and related to several different sound sources including: Pingers, AHDs, and various laboratory non-pulse sounds. All of these data were collected from harbor porpoises. Southall
The studies that address the responses of pinnipeds in water to non-pulse sounds include data gathered both in the field and the laboratory and related to several different sound sources including: AHDs, ATOC, various non-pulse sounds used in underwater data communication, underwater drilling, and construction noise. Few studies exist with enough information to include them in this analysis. The limited data suggest that exposure to non-pulse sounds between 90 and 140
The different ways that marine mammals respond to sound are sometimes indicators of the ultimate effect that exposure to a given stimulus will have on the fitness (survival, reproduction, etc.) of an animal. There are few quantitative marine mammal data relating the exposure of marine mammals to sound to effects on reproduction or survival, though data exist for terrestrial species to which we can draw comparisons for marine mammals. Several authors have reported that disturbance stimuli cause animals to abandon nesting and foraging sites (Sutherland and Crockford, 1993); cause animals to increase their activity levels and suffer premature deaths or reduced reproductive success when their energy expenditures exceed their energy budgets (Daan
One consequence of behavioral avoidance results in the altered energetic expenditure of marine mammals because energy is required to move and avoid surface vessels or the sound field associated with active sonar (Frid and Dill, 2002). Most animals can avoid that energetic cost by swimming away at slow speeds or speeds that minimize the cost of transport (Miksis-Olds, 2006), as has been demonstrated in Florida manatees (Miksis-Olds, 2006).
Those energetic costs increase, however, when animals shift from a resting state, which is designed to conserve an animal's energy, to an active state that consumes energy the animal would have conserved had it not been disturbed. Marine mammals that have been disturbed by anthropogenic noise and vessel approaches are commonly reported to shift from resting to active behavioral states, which would imply that they incur an energy cost.
Morete
Constantine and Brunton (2001) reported that bottlenose dolphins in the Bay of Islands, New Zealand engaged in resting behavior just five percent of the time when vessels were within 300 m, compared with 83 percent of the time when vessels were not present. However, Heenehan
Attention is the cognitive process of selectively concentrating on one aspect of an animal's environment while ignoring other things (Posner, 1994). Because animals (including humans) have limited cognitive resources, there is a limit to how much sensory information they can process at any time. The phenomenon called “attentional capture” occurs when a stimulus (usually a stimulus that an animal is not concentrating on or attending to) “captures” an animal's attention. This shift in attention can occur consciously or unconsciously (
Vigilance is normally an adaptive behavior that helps animals determine the presence or absence of predators, assess their distance from conspecifics, or attend to cues from prey (Bednekoff and Lima, 1998; Treves, 2000). Despite those benefits, vigilance comes at a cost; when animals focus their attention on specific environmental cues, they are not attending to other activities, such as foraging. These costs have been documented best in foraging animals, where vigilance has been shown to substantially reduce feeding rates (Saino, 1994; Beauchamp and Livoreil, 1997; Fritz
Several authors have established that long-term and intense disturbance stimuli can cause population effects by reducing the physical condition of individuals that have been disturbed, followed by reduced reproductive success, reduced survival, or both (Daan
The primary mechanism by which increased vigilance and disturbance appear to affect the fitness of individual animals is by disrupting an animal's time budget, reducing the time they might spend foraging and resting (which increases an animal's activity rate and energy demand while decreasing their caloric intake/energy). As an example of this concept with terrestrial species involved, a study of grizzly bears (
On a related note, many animals perform vital functions, such as feeding, resting, traveling, and socializing, on a diel cycle (24-hr cycle). Behavioral reactions to noise exposure (such as disruption of critical life functions, displacement, or avoidance of important habitat) are more likely to be significant for fitness if they last more than one diel cycle or recur on subsequent days (Southall
In order to understand how the effects of activities may or may not impact species and stocks of marine mammals, it is necessary to understand not only what the likely disturbances are going to be, but how those disturbances are likely to affect the reproductive success and survivorship of individuals, and then how those impacts to individuals translate to population-level effects. Following on the earlier work of a committee of the U.S. National Research Council (NRC, 2005), an effort by New
The definition for a stranding under the MMPA is that (A) a marine mammal is dead and is (i) on a beach or shore of the United States; or (ii) in waters under the jurisdiction of the United States (including any navigable waters); or (B) a marine mammal is alive and is (i) on a beach or shore of the United States and is unable to return to the water; (ii) on a beach or shore of the United States and, although able to return to the water, is in need of apparent medical attention; or (iii) in the waters under the jurisdiction of the United States (including any navigable waters), but is unable to return to its natural habitat under its own power or without assistance (16 U.S.C. 1421h).
Marine mammals are known to strand for a variety of reasons, such as infectious agents, biotoxicosis, starvation, fishery interaction, ship strike, unusual oceanographic or weather events, sound exposure, or combinations of these stressors sustained concurrently or in series. However, the cause or causes of most strandings are unknown (Geraci
In 1992, Congress amended the MMPA to establish the Marine Mammal Health and Stranding Response Program (MMHSRP) under authority of NMFS. The MMHSRP was created out of concern over marine mammal mortalities, to formalize the stranding response process, to focus efforts being initiated by numerous local stranding organizations, and as a result of public concern.
Several sources have published lists of mass stranding events of cetaceans in an attempt to identify relationships between those stranding events and military active sonar (Hildebrand, 2004; IWC, 2005; Taylor
To date, there have been five stranding events coincident with military MF active sonar use for which NMFS and Navy concluded the exposure to sonar was likely a contributing factor to strandings: Greece (1996); the Bahamas (2000); Madeira (2000); Canary Islands (2002); and Spain (2006). NMFS refers the reader to DoN (2013) for a report on these strandings
There is no empirical evidence of strandings of marine mammals associated with the employment of SURTASS LFA sonar since its use began in the early 2000s. Moreover, both the system acoustic characteristics and the operational parameters differ between SURTASS LFA sonar and MFA sonars. SURTASS LFA sonars use frequencies generally below 1,000 Hz, with relatively long signals (pulses) on the order of 60 sec; while MF sonars use frequencies greater than 1,000 Hz, with relatively short signals on the order of 1 sec. SURTASS LFA sonars involve use of one slower-moving vessel operating far from shore, as opposed to the faster-moving, multi-vessel MFA sonar training scenarios operating in closer proximity to shore that have been co-incident with strandings.
As discussed previously, Cox
Vessel movement in the vicinity of marine mammals has the potential to result in either a behavioral response or a direct physical interaction. Both scenarios are discussed below.
There are limited data concerning marine mammal behavioral responses to vessel traffic and vessel noise, and a lack of consensus among scientists with respect to what these responses mean or whether they result in short-term or long-term adverse effects. As discussed previously, behavioral responses are context-dependent, complex, and influenced to varying degrees by a number of factors. For example, an animal may respond differently to a sound emanating from a ship that is moving towards the animal than it would to an identical received level coming from a vessel that is moving away, or to a ship traveling at a different speed or at a different distance from the animal. In cases where vessels actively approach marine mammals (
Behavioral responses to stimuli are complex and influenced to varying degrees by a number of factors, such as species, behavioral contexts, geographical regions, source
In reviewing more than 25 years of whale observation data, Watkins (1986) concluded that whale reactions to vessel traffic were “modified by their previous experience and current activity: habituation often occurred rapidly, attention to other stimuli or preoccupation with other activities sometimes overcame their interest or wariness of stimuli.” Watkins noticed that over the years of exposure to ships in the Cape Cod area, minke whales changed from frequent positive interest (
Although the radiated sound from Navy vessels will be audible to marine mammals over a large distance, it is unlikely that animals will respond behaviorally (in a manner that NMFS would consider indicative of harassment under the MMPA) to low-level distant ship noise as the animals in the area are likely to be habituated to such noises (Nowacek
Ship strikes of cetaceans can cause immediate death or major injury, which may eventually lead to the death of the animal. An animal at the surface could be struck directly by a vessel, a surfacing animal could hit the bottom of a vessel, or an animal just below the surface could be cut by a vessel's propeller. The severity of injuries typically depends on the size and speed of the vessel (Knowlton and Kraus, 2001; Laist
The most vulnerable marine mammals are those that spend extended periods of time at the surface, often to restore oxygen levels within their tissues after deep dives (
An examination of all known ship strikes from all shipping sources (civilian and military) indicates vessel speed is a principal factor in whether a vessel strike results in death (Knowlton and Kraus, 2001; Laist
Jensen and Silber (2004) detailed 292 records of known or probable ship strikes of all large whale species from 1975 to 2002. Of these, vessel speed at the time of collision was reported for 58 cases. Of these cases, 39 (or 67 percent) resulted in serious injury or death (19 of those resulted in serious injury as determined by blood in the water; propeller gashes or severed tailstock, and fractured skull, jaw, vertebrae; hemorrhaging; massive bruising or other injuries noted during necropsy and 20 resulted in death). Operating speeds of vessels that struck various species of large whales ranged from 2 to 51 kts, with the majority (79 percent) of these strikes occurring at speeds of 13 kts or greater. The average speed that resulted in serious injury or death was 18.6 kts. Pace and Silber (2005) found that the probability of death or serious injury increased rapidly with increasing vessel speed. Specifically, the predicted probability of serious injury or death increased from 45 percent to 75 percent as vessel speed increased from 10 to 14 kts, and exceeded 90 percent at 17 kts. Higher speeds during collisions result in greater force of impact, but higher speeds also appear to increase the chance of severe injuries or death by pulling whales toward the vessel. While modeling studies have suggested that hydrodynamic forces pulling whales toward the vessel hull increase with increasing vessel speed (Clyne, 1999; Knowlton
The Jensen and Silber (2004) report notes that the database represents a minimum number of collisions, because the vast majority probably goes undetected or unreported. In contrast, Navy vessels are likely to detect any strike that does occur, and they are required to report all ship strikes involving marine mammals. Overall, the percentage of Navy vessel traffic relative to overall large shipping vessel traffic is very small (on the order of two percent). Moreover, as mentioned previously, there are only four SURTASS LFA sonar vessels operating worldwide, which would equate to an extremely small percentage of the total vessel traffic.
The Navy's operation of up to four SURTASS LFA sonar vessels worldwide is extremely small in scale compared to the number of commercial ships transiting at higher speeds in the same areas on an annual basis. The probability of vessel and marine mammal interactions occurring during SURTASS LFA sonar activities is unlikely due to the surveillance vessel's slow operational speed, which is typically 3.4 mph (5.6 km/hr; 3 kts). Outside of SURTASS LFA sonar activities, each vessel's cruising speed would be a maximum of approximately 11.5 to 14.9 mph (18.5 to 24.1 km/hr; 10
As a final point, the SURTASS LFA surveillance vessels have a number of other advantages for avoiding ship strikes as compared to most commercial merchant vessels, including the following: The catamaran-type split hull shape and enclosed propeller system of the Navy's T-AGOS ships; the bridge of T-AGOS ships positioned forward of the centerline, offering good visibility ahead of the bow and good visibility aft to visually monitor for marine mammal presence; lookouts posted during activities scan the ocean for marine mammals and must report visual alerts of marine mammal presence to the Deck Officer; lookouts receive extensive training that covers the fundamentals of visual observing for marine mammals and information about marine mammals and their identification at sea; and SURTASS LFA vessels travel at low speed (3-4 kts (approximately 3.4 mph; 5.6 km/hr)) with deployed arrays. Lastly, the use of passive and active acoustic monitoring for marine mammals as mitigation measures to monitor for marine mammals along with visual marine mammal observers would detect cetaceans well in advance of any potential ship strike distance (for a thorough discussion of mitigation measures, please see the Proposed Mitigation section later in this document).
Due to the reasons described above (low probability of vessel/marine mammal interactions; relatively slow vessel speeds; and high probability of detection due to applied mitigation measures), the Navy and NMFS have determined that take of marine mammals by vessel strike is highly unlikely. Therefore, the Navy has not requested any take of marine mammals due to ship strike, nor is NMFS considering any authorization of take due to ship strike.
From the commencement of SURTASS LFA sonar use in 2002 through the present, neither operation of LFA sonar, nor operation of the T-AGOS vessels, has been associated with any mass or individual strandings of marine mammals temporally or spatially. In addition, the Navy's required monitoring reports indicate that there have been no apparent avoidance reactions observed, and no takes by Level A harassment due to SURTASS LFA sonar since its use began in 2002. Lastly, monitoring reports from previous years of operation indicate that the Navy typically transmits SURTASS LFA sonar well below the authorized number of hours and the actual percentages of affected stocks are well below the 12 percent cap for Level B harassment for each stock. In summary, results of the analyses conducted for SURTASS LFA sonar and more than thirteen years of documented operational results support the determination that the only takes anticipated would be short-term Level B harassment of relatively small percentages of affected marine mammal stocks.
Based on the following information and the supporting information included in the Navy's application as well as the 2001; 2007; 2012; and 2015 NEPA documents, and 2016 DSEIS/SOEIS, NMFS has preliminarily determined that SURTASS LFA sonar activities are not likely to adversely impact marine mammal habitat. For reasons described above, unless the sound source is stationary and/or continuous over a long duration in one area, the effects of the introduction of sound into the environment are generally considered to have a less severe impact on marine mammal habitat than actions involving physical alteration of the habitat. Marine mammals may be temporarily displaced from areas where SURTASS LFA activities are occurring to avoid noise exposure (see above), but those areas themselves will not be altered and will likely be available for use again after the activities have ceased or moved out of the area.
The Navy's proposed SURTASS LFA sonar activities could potentially affect marine mammal habitat through the introduction of pressure and sound into the water column, which in turn could impact prey species of marine mammals.
Among invertebrates, only cephalopods (octopus and squid) and decapods (lobsters, shrimps, and crabs) are known to sense LF sound (Packard
Andre
The Navy's DSEIS/SOEIS includes a detailed discussion of the effects of active sonar on marine fish and several studies on the effects of both Navy sonar and seismic airguns that are relevant to potential effects of SURTASS LFA sonar on
Several studies on the effects of SURTASS LFA sonar sounds on three species of fish (rainbow trout, channel catfish, and hybrid sunfish) examined long-term effects on sensory hair cells of the ear. In all species, even up to 96 hours post-exposure, there were no indications of damage to sensory cells (Popper
Under section 101(a)(5)(A) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse 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 subsistence uses (“least practicable adverse impact”). NMFS does not have a regulatory definition for least practicable adverse impact. The FY 2004 NDAA amended the MMPA as it relates to military readiness activities and the incidental take authorization process such that “least practicable adverse impact” shall include consideration of personnel safety, practicality of implementation, and impact on the effectiveness of the “military readiness activity.”
In
Before NMFS can issue incidental take regulations under section 101(a)(5)(A) of the MMPA, it must make a finding that the total taking will have a “negligible impact” on the affected “species or stocks” of marine mammals. NMFS' and U.S. Fish and Wildlife Service's joint implementing regulations for section 101(a)(5)(A) define “negligible impact” 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.” (50 CFR 216.103 and 50 CFR 18.27(c)) Recruitment (
As we stated in the preamble to the final rule for the joint implementing regulations, not every population-level impact violates the negligible impact requirement. The negligible impact standard does not require a finding that the anticipated take will have “no effect” on population numbers or growth rates: “The statutory standard does not require that the same recovery rate be maintained, rather that no significant effect on annual rates of recruitment or survival occurs [. . .]. [T]he key factor is the significance of the level of impact on rates of recruitment or survival.” (See 54 FR 40338, 40341-42 (September 29, 1989))
While some level of impact on population numbers or growth rates of a species or stock may occur and still satisfy the negligible impact requirement—even without consideration of mitigation—the least practicable adverse impact provision separately requires NMFS to prescribe the means of “effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance [. . .].”
The negligible impact and least practicable adverse impact standards in the statute share a common reference to “species or stocks.” A “species” is defined as a group of animals or plants that are similar and can produce young animals or plants: A group of related animals or plants that is smaller than a genus
Recognizing this common focus of the two provisions on “species or stock” does not mean we conflate the standards; despite some common statutory language, we recognize the two provisions are different in other ways and have different functions.
Further, section 101(a)(5)(A)(i)(II) requires NMFS to issue, in conjunction with its authorization, binding—and enforceable—restrictions (in the form of regulations) setting forth how the activity must be conducted, thus ensuring the activity has the “least practicable adverse impact” on the affected species or stocks. In situations where mitigation is needed to reach a negligible impact determination, section 101(a)(5)(A)(i)(II) also provides a mechanism for ensuring compliance with the “negligible impact” requirement. Finally, we also reiterate that the “least practicable adverse impact” standard requires mitigation for marine mammal habitat, with particular attention to rookeries, mating grounds, and other areas of similar significance, and for mitigating subsistence impacts; whereas the negligible impact standard is concerned with conclusions about the impact of an activity on the affected populations.
In
We have carefully reviewed and considered the Ninth Circuit's opinion in
Given this most recent court decision, we further clarify how we determine whether a measure or set of measures meets the “least practicable adverse impact” standard. Our evaluation of potential mitigation measures includes consideration of two primary factors:
(1) The manner in which, and the degree to which, implementation of the measure(s) is expected to reduce impacts to marine mammal species or stocks, their habitat, and their availability for subsistence uses (where relevant). Among other things, this analysis will consider the nature of the potential adverse impact (such as likelihood, scope, range), the likelihood that the measure will be effective if implemented; and the likelihood of successful implementation.
(2) The practicability of the measures for applicant implementation. Practicability of implementation may consider such things as cost, impact on operations, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity (16 U.S.C. 1371(a)(5)(A)(ii)).
While the language of the least practicable adverse impact standard calls for minimizing impacts to affected species or stocks, we recognize that the reduction of impacts to those species or stocks accrues through the application of mitigation measures that limit impacts to individual animals. Accordingly, NMFS' analysis will focus on measures designed to avoid or minimize impacts on marine mammals from activities that are likely to increase the probability or severity of population-level effects. While direct evidence of impacts to species or stocks from a specified activity is rarely available, and additional study is still needed to describe how specific disturbance events affect the fitness of individuals of certain species, there have been improvements in understanding the process by which disturbance effects are translated to the population. With recent scientific advancements (both marine mammal energetic research and the development of energetic frameworks), the relative likelihood or degree of impacts on species or stocks may often be inferred given a detailed understanding of the activity, the environment, and the affected species or stocks. This same information is used in the development of mitigation measures and helps us understand how mitigation measures contribute to lessening species or stock effects.
In the evaluation of specific measures, the details of the specified activity will necessarily inform each of the two factors and will be carefully considered to determine the types of mitigation that are appropriate under the least practicable adverse impact standard. The greater the likelihood that a measure will contribute to reducing the probability or severity of adverse impacts to the species or stock, the greater the weight that measure(s) is given when considered in combination with practicability to determine the appropriateness of the mitigation measure(s), and vice versa.
Below we discuss how these factors are considered.
1.
The ultimate impact on any individual from a disturbance event (which informs the likelihood of adverse species or stock-level effects) is dependent on the circumstances and associated contextual factors, such as duration of exposure to stressors. Though any proposed mitigation needs to be evaluated in the context of the
The status of the species or stock is also relevant in evaluating the appropriateness of certain mitigation measures in the context of least practicable adverse impact. The following are examples of factors that may (either alone, or in combination) result in greater emphasis on the importance of a mitigation measure in reducing impacts on a species or stock: The stock is known to be decreasing or status is unknown, but believed to be declining; the known annual mortality (from any source) is approaching or exceeding the potential biological removal (PBR) level (as defined in 16 U.S.C. 1362(20)); the affected species or stock is a small, resident population; or the stock is involved in an unusual mortality event (UME) or has other known vulnerabilities, such as recovering from an oil spill.
2.
The above section describes the factors considered in making a least practicable adverse impact finding. In summary, NMFS will carefully balance the likelihood and degree to which a measure will reduce adverse impacts on species or stocks with the measure's practicability in determining appropriate mitigation measures.
As with other rulemakings for SURTASS LFA sonar, our consideration of mitigation under the least practicable adverse impact standard was conducted at scales that take into account the entire five-year rulemaking period and broad geographic scope of potential areas of SURTASS LFA sonar activities and the types of general impacts that could occur under the rule. Based on the types of impacts that could occur, and the mitigation outlined for the activities in this proposed rule, NMFS has preliminarily determined that the least practical adverse impact standard is met. Specifically, NMFS and the Navy have considered worldwide mitigation at the scale appropriate, given the available information, and have additionally considered mitigation recommended in a white paper, entitled, “Identifying Areas of Biological Importance to Cetaceans in Data-Poor Regions” (White Paper), for SURTASS LFA sonar generally, and in consideration of the more specific information applicable to the current proposed operating areas for 2017-2018. The adaptive management provisions in the proposed rule allow for the consideration of new information that will potentially support the modification of mitigation and monitoring measures. This information may include new science, but also may include additional detail regarding the operational needs of the Navy described in an LOA application, which could inform a more refined least practicable adverse impact analysis, where needed.
The Navy has proposed to implement the following mitigation measures for marine mammals, most of which are included in NMFS' current regulations and LOAs for SURTASS LFA sonar:
(1) LFA sonar mitigation zone—LF source transmissions are suspended if the Navy detects marine mammals within the 180 dB received level mitigation zones by any of the following detection methods:
(a) Visual monitoring;
(b) Passive acoustic monitoring;
(c) Active acoustic monitoring.
(2) Geographic restrictions such that the received level of SURTASS LFA sonar transmissions will not exceed 180 dB in the following areas:
(a) Offshore Biologically Important Areas (OBIAs) during periods of biological importance;
(b) Coastal Standoff Zone (22 km (12 nmi) from any land).
Additionally, as with the previous rulemaking, NMFS proposes to include additional operational restrictions for SURTASS LFA sonar activities:
(1) Additional 1-km buffer around the LFA sonar mitigation zone; and
(2) Additional 1-km buffer around an OBIA perimeter.
Both the Navy's proposed mitigation and NMFS' additional proposed mitigation are discussed in the following section.
The Navy has proposed in its application to establish an LFA sonar mitigation zone corresponding to the 180-dB (RL) isopleth around the surveillance vessel (
Prior to commencing and during SURTASS LFA transmissions, the Navy will determine the propagation of LFA sonar signals in the ocean and the distance from the SURTASS LFA sonar source to the 180-dB isopleth (See Description of Real-Time SURTASS LFA Sonar Sound Field Modeling section). The 180-dB isopleth will define the LFA sonar mitigation zone for marine mammals around the surveillance vessel.
The Navy modeling of the sound field in near-real time conditions provides the information necessary to modify SURTASS LFA activities, including the delay or suspension of LFA transmissions. Acoustic model updates are nominally made every 12 hours, or more frequently when meteorological or oceanographic conditions change. If the sound field criteria were exceeded, the sonar operator would notify the Officer in Charge (OIC), who would order the delay or suspension of transmissions. If
This section explains how the Navy will determine the propagation of SURTASS LFA sonar signals in the ocean and the distance from the SURTASS LFA sonar source to the 180-dB re: 1 μPa isopleth (
Prior to commencing and during SURTASS LFA sonar transmissions, the sonar operators on the vessel will measure oceanic conditions (such as sea water temperature, salinity, and water depth) in the proposed action area. This information is required for the sonar technicians to accurately determine the speed at which sound travels and to determine the path that the sound would take through the water column at a particular location (
The sonar operators use the near real-time environmental data and the Navy's underwater acoustic performance prediction models (updated every 12 hours or more frequently when meteorological or oceanographic conditions change) to generate a plot of sound speed versus depth, typically referred to as a sound speed profile (SSP). The SSP enables the technicians to determine the sound field by predicting the received levels of sound at various distances from the SURTASS LFA sonar source location. Modeling of the sound field in near-real time provides the information necessary to modify SURTASS LFA activities, including the delay or suspension of LFA sonar transmissions for mitigation.
As an added measure NMFS again proposes to require a buffer zone that extends an additional 1 km (0.62 mi; 0.54 nm) beyond the Navy's proposed 180-dB isopleth LFA sonar mitigation zone. This buffer coincides with the full detection range of the HF/M3 active sonar for mitigation monitoring (approximately 2 to 2.5 km; 1.2 to 1.5 mi; 1.1 to 1.3 nmi). Thus, the 180-dB isopleth for the LFA sonar mitigation zone, plus NMFS' 1-km (0.54 nm) buffer zone would comprise the entire shutdown mitigation zone for SURTASS LFA sonar activities, wherein suspension of transmissions would occur if a marine mammal approaches or enters either zone. Implementation of this additional 1 km buffer zone increases the shutdown zone to approximately 2 km (1.2 mile; 1.1 nmi) around the LFA sonar array and vessel and, given the highly effective monitoring capabilities (described below), will ensure that no marine mammals are exposed to an SPL greater than approximately 174 dB re: 1 μPa. In past applications, the Navy has noted that this additional mitigation is practicable and the Navy has implemented this measure in previous authorizations, so it is known that the measure is practicable. In addition, as noted above, this mitigation is more effective at reducing a broader range of impacts compared to prior authorizations, due to the revised criteria in the NMFS 2016 Acoustic Technical Guidance.
Navy has also proposed to establish a mitigation zone for human divers at 145 dB re: 1 μPa at 1 m around all known human commercial and recreational diving sites. Although this geographic restriction is intended to protect human divers, it will also reduce the LF sound levels received by marine mammals located in the vicinity of known dive sites.
The use of shipboard lookouts is a critical component of most Navy mitigation measures. Navy shipboard lookouts are highly qualified and experienced observers of the marine environment. Their duties require that they report all objects sighted on the water surface to the Deck Officer (
Visual monitoring consists of daytime observations for marine mammals from the bridge of SURTASS LFA sonar vessels by lookouts (personnel trained in detecting and identifying marine mammals). The objective of these observations is to maintain a bearing of marine mammals observed and to ensure that none approach close enough to enter the LFA mitigation zone or the 1-km buffer zone.
Daylight is defined as 30 min before sunrise until 30 min after sunset. Visual monitoring would begin 30 min before sunrise or 30 min before the Navy deploys the SURTASS LFA sonar array. Lookouts will continue to monitor the area until 30 min after sunset or until recovery of the SURTASS LFA sonar array.
The lookouts would maintain a topside watch and marine mammal observation log during activities that employ SURTASS LFA sonar in the active mode. These trained monitoring personnel maintain a topside watch and scan the water's surface around the vessel systematically with standard binoculars (7x) and with the naked eye. If the lookout sights a possible marine mammal, the lookout will use big-eye binoculars (25x) to confirm the sighting and potentially identify the marine mammal species. Lookouts will enter numbers and identification of marine mammals sighted into the log, as well as any unusual behavior. A designated ship's officer will monitor the conduct of the visual watches and periodically review the log entries.
If a lookout observes a marine mammal outside of the LFA mitigation or buffer zone, the lookout will notify the officer in charge (OIC). The OIC shall then notify the HF/M3 active sonar operator to determine the range and projected track of the marine mammal. If the HF/M3 sonar operator or the lookout determines that the marine mammal will pass within the LFA mitigation or buffer zones, the OIC shall order the delay or suspension of SURTASS LFA sonar transmissions when the animal enters the LFA mitigation or buffer zone to prevent Level A harassment.
If a lookout observes a marine mammal anywhere within the LFA mitigation or 1-km buffer zone (as proposed by NMFS), the lookout shall notify the OIC who will promptly order the immediate delay or suspension of SURTASS LFA sonar transmissions. The lookout will enter his/her observations into the log. The lookout will enter these observations about sighted marine mammals into the log: Date/time; vessel name; mission area; type and number of marine mammals observed; assessment basis (
Marine mammal biologists who are qualified in conducting at-sea marine
For the second of the three-part mitigation monitoring measures, the Navy again proposes to conduct passive acoustic monitoring using the SURTASS towed horizontal line array to listen for vocalizing marine mammals as an indicator of their presence. This system serves to augment the visual and active sonar detection systems. If a passive acoustic technician detects a vocalizing marine mammal that may be potentially affected by SURTASS LFA sonar prior to or during transmissions, the technician will notify the OIC who will immediately alert the HF/M3 active sonar operators and the lookouts. The OIC will order the delay or suspension of SURTASS LFA sonar transmissions when the animal enters the LFA mitigation or buffer zone as detected by either the HF/M3 sonar operator or the lookouts. The passive acoustic technician will record all contacts of marine mammals into a log.
HF active acoustic monitoring uses the HF/M3 sonar to detect, locate, and track marine mammals that could pass close enough to the SURTASS LFA sonar array to enter the LFA sonar mitigation or buffer zones. HF/M3 acoustic monitoring begins 30 min before the first SURTASS LFA sonar transmission of a given mission is scheduled to commence and continues until the Navy terminates LFA sonar transmissions.
If the HF/M3 sonar operator detects a marine mammal contact outside the LFA sonar mitigation zone or buffer zones, the HF/M3 sonar operator shall determine the range and projected track of the marine mammal. If the operator determines that the marine mammal will pass within the LFA sonar mitigation or buffer zone, he/she shall notify the OIC. The OIC then immediately orders the delay or suspension of transmissions when the animal is predicted to enter the LFA sonar mitigation or buffer zone.
If the HF/M3 sonar operator detects a marine mammal within the LFA mitigation or buffer zone, he/she shall notify the OIC who will immediately order the delay or suspension of transmissions. The HF/M3 sonar operator will record all contacts of marine mammals into the log.
Prior to full-power operations of the HF/M3 active sonar, and prior to any SURTASS LFA sonar calibrations or testing that are not part of regular SURTASS LFA sonar transmission, the Navy will ramp up the HF/M3 sonar power level over a period of 5 min from the source level of 180 dB re 1 μPa at 1 m in 10-dB increments until the system attains full power (if required) to ensure that there are no inadvertent exposures of marine mammals to received levels greater than 180 dB re 1 μPa from the HF/M3 sonar. The Navy will not increase the HF/M3 sonar source level if any of the three monitoring programs detect a marine mammal during ramp-up. Ramp-up may continue once marine mammals are no longer detected by any of the three monitoring programs.
In situations where the HF/M3 sonar system has been powered down for more than 2 min, the Navy will ramp up the HF/M3 sonar power level over a period of 5 min from the source level of 180 dB re 1 μPa at 1 m in 10-dB increments until the system attains full power.
As noted above, the Navy again has proposed two types of geographic restrictions for SURTASS LFA activities in their rulemaking/LOA application that entail restricting SURTASS LFA sonar activities within these designated areas such that the SURTASS LFA sonar-generated sound field will not exceed 180 dB re: 1μPa (RL): (1) Establishing OBIAs for marine mammals; and (2) observing a coastal standoff range restricting SURTASS LFA sonar activities within 22 km (13. mi; 12 nmi) of any coastline, including islands.
As with previous rulemakings for SURTASS LFA sonar, this proposed rulemaking contains a broad programmatic consideration of geographic restrictions, including OBIAs, in the world's oceans. However, as noted above, NMFS proposes to refine the process to consider additional geographic restrictions annually, as appropriate, based on any new science and the areas in which the Navy will conduct SURTASS LFA sonar activities in those years, as described in any subsequent LOA applications. The reason for this change is to allow the Navy and NMFS to focus on areas of Navy activities and known operational needs, and consideration of whether additional geographic restrictions are appropriate based on new information that may be available and taking practicability into account, at the time of the LOA application.
Given the unique operational characteristics of SURTASS LFA sonar, Navy and NMFS developed geographical restrictions for SURTASS LFA sonar in the SURTASS LFA Sonar FOEIS/EIS (DoN, 2001): A 12 nmi coastal standoff zone where received levels from SURTASS LFA sonar could not exceed 180 dB and designating OBIAs wherein received levels could not exceed 180 dB. These areas are intended to reduce the severity and/or scale of impacts on affected marine mammal species or stocks by avoiding or minimizing impacts in areas where marine mammals are: (1) Known to engage in specific behaviors that lead to more severe impacts if interrupted; (2) known to congregate in higher densities, and; (3) known to have a limited range and small abundance that creates more vulnerability for the stock as a whole. OBIAs were defined originally in the 2001 SURTASS LFA Sonar FOEIS/EIS (Subchapter 2.3.2.1) as those areas of the world's oceans outside of the geographic stand-off distance (greater than 22 km (12 nmi)) from a coastline (including islands) where marine animals of concern (those animals listed under the ESA and/or marine mammals) carry out biologically important activities, including migration, foraging, breeding, and calving. Limiting activities in these important areas is expected to limit the likelihood or severity of species or stock effects by minimizing the chances that take resulting from the activity will result in detrimental energetic effects (such as those that could occur in known feeding areas) or direct interference in breeding or mother/young interactions (such as those that could occur in reproductive areas) that could translate readily to reductions in reproductive success or survivorship. Three OBIAs were identified in the 2001 FOEIS/EIS: 200 m isobaths of the east coast of North America; Costa Rica Dome; and Antarctic Convergence Zone. In 2007, the Navy published a supplemental FEIS/FOEIS that designated six new OBIAs in addition to the three OBIAs that were designated in the 2001 FEIS/FOEIS.
For the 2012-2017 rule, the Deputy Assistant Secretary of the Navy for Environment (DASN(E)) determined that the purpose of NEPA and EO 12114 would be furthered by the preparation of an additional supplemental analysis related to the employment of SURTASS LFA sonar. Accordingly, the DASN(E) directed that an SEIS/SOEIS (among other things) provide further analysis of potential additional OBIAs in regions of
In parallel, for the 2012 rule, NMFS, with Navy input, developed a new process and screening criteria for determining an area's eligibility to be considered as an OBIA nominee for marine mammals. The new criteria consisted of: Areas with (a) High densities of marine mammals; or (b) Known/defined breeding/calving grounds, foraging grounds, migration routes; or (c) Small, distinct populations of marine mammals with limited distributions. The revised biological criteria differed from the criteria in the 2001 FOEIS/EIS (and as continued in the 2007 SEIS) in two respects. First, under the 2001 FOEIS/EIS, 2007 SEIS, and the 2007 Final Rule, an area could be designated as an OBIA only if it met a conjunctive test of being an area where: (1) Marine mammals congregate in high densities, and (2) for a biologically important purpose. Under the new criteria, any one of the biological criteria alone could be a sufficient basis for designation as an OBIA if it also met the geographic criterion of falling outside of 12 nmi (22 km) from any coastline. Second, the revised biological criteria included a new criterion of “small, distinct population with limited distribution” that could also, standing alone, be a basis for designation.
Notably, for the 2012 FSEIS/SOEIS and 2012 rule, NMFS also developed and implemented a robust, systematic screening process for reviewing existing and potential marine protected areas against the OBIA criteria based on the World Database on Protected Areas (WDPA, 2009), Hoyt (2005), and prior SURTASS LFA sonar OBIAs. This process produced a preliminary list of 403 OBIA nominees. As stated in the FR notice for the 2012 Final Rule (77 FR 50290), over 80 percent of the 403 existing and potential marine protected areas reviewed as potential OBIAs (340/403) were within 12 nmi from a coastline and therefore were afforded protection due to the coastal standoff zone. The remaining areas were evaluated under the OBIA criteria, and approximately 43 percent of these had sufficient information to be provided to subject matter experts (SMEs), from both within NMFS and outside of the agency, with expertise in the specific geographic regions to review for consideration of OBIAs. These SMEs provided their individual analyses of those areas and recommendations for additional OBIAs, resulting in a total of 73 potential OBIAs for consideration by the Navy and NMFS. Further analysis of the biological evidence and robustness of the data for each of these recommendations included ranking them in categories using a numbering system ranging from 0 to 4. Any of the nominees that received a ranking of 2 or higher were eligible for continued consideration as an OBIA nominee, which means that even areas requiring more data were eligible for further consideration as an OBIA. As a result of this process, 45 areas ranked high enough to be further considered as an OBIA.
Although not part of its initial screening criteria, consideration of marine mammal hearing frequency sensitivity led NMFS to screen out areas that qualified solely on the basis of their importance for mid- or high-frequency hearing specialists in past rulemaking. This was due to the LFA sound source being below the range of best hearing sensitivity for most MF and HF odontocete hearing specialists. This means, for example, for harbor porpoises, that a sound with a frequency less than 1 kHz would need to be significantly louder (more than 40 dB louder) than a sound in their area of best sensitivity (around 100 kHz) in order for them to hear it. Additionally, during the 1997 to 1998 SURTASS LFA Sonar Low Frequency Sound Scientific Research Program (LFS SRP), numerous odontocete and pinniped species (
In addition to the considerations above, NMFS reviewed Hoyt (2011), which was an update and revision of Hoyt's 2005 earlier work, along with areas recommended in public comments received on the 2012 DSEIS/SOEIS. As a result of this further analysis, NMFS concluded that there was adequate basis to designate 22 OBIAs for the Navy to consider for practicability. The OBIAs in the 2012 FSEIS/SOEIS and NMFS' proposed rule were: Georges Bank (year round); Roseway Basin Right Whale Conservation Area (Canadian restriction June through December annually); Great South Channel, US Gulf of Maine, and Stellwagen Bank NMS (January 1 to November 14 annually); Southeastern US Right Whale Seasonal Habitat (November 15 to April 15 annually); North Pacific Right Whale Critical Habitat (March through August annually); Silver Bank and Navidad Bank (December through April); Coastal Waters of Gabon, Congo and Equatorial Guinea (June through October annually); Patagonia and Shelf Break (year round); Southern Right Whale Seasonal Habitat (May through December annually); Central California NMS (June through November); Antarctic Convergence Zone (October through March annually); Piltun and Chayvo Offshore Feeding Grounds—Sea of Okhotsk (June through November annually); Coastal Waters off Madagascar (July through September and November through December annually); Madagascar Plateau, Madagascar Ridge, and Walters Sound (November through December annually); Ligurian-Corsican-Provencal Basin and Western Pelagos Sanctuary (July to August annually); Hawaiian Islands Humpback Whale NMS—Penguin Bank (November through April annually); Costa Rica Dome (year round); Great Barrier Reef Between (May through September annually); Bonney Upwelling (December through May annually); Northern Bay of Bengal and Head of Swatch-of-No-Ground (year round); Olympic Coast: The Prairie, Barkley Canyon, and Nitnat Canyon (December, January, March and May and June to September); and an area within the Southern California Bight (specifically including Tanner and Cortez Banks—June through November, annually). The Southern California Bight area was the only OBIA candidate that was operationally impracticable for the Navy. Therefore, 21 OBIAs were considered candidates in the 2012 Proposed Rule. For the Final Rule, NMFS designated one additional OBIA (Abrolhos Bank, August through November annually), resulting in 22 designated OBIAs for SURTASS LFA sonar.
In response to public comments on the 2012 proposed rule, NMFS also reevaluated its preliminary decision not to include areas that meet the criteria for sperm whales and pinnipeds, and ultimately determined such areas would be appropriate for OBIA designation where information established the criteria were met, and in fact noted that OBIA 8 (Patagonia Shelf) had already
From 2012 to the present, the Navy and NMFS have maintained a list of potential marine areas for which information or data have not been sufficient to designate as OBIAs, and reviewed new literature to determine if additional areas should be added to the list of potential areas. Potential areas are periodically evaluated or re-assessed to determine if information and data are available to provide adequate support under one of the OBIA biological criteria. NMFS refers the reader to the Navy's 2016 SDEIS/SOEIS, subsection 4.2.2.2.5 and Appendix C for more detail on the analysis for potential OBIAs as part of this 2017 action. As part of the ongoing Adaptive Management component of the 2012 final rule, and in preparation for the DSEIS/SOEIS, NMFS and Navy reviewed potential OBIAs. This process included conducting a comprehensive assessment of newly available peer-reviewed scientific data, information, or survey data on marine areas that met the geographic eligibility requirements for consideration as OBIAs and reviewing the updated WDPA (2016); 2014 United Nations List of Protected Areas (Deguignet
Based on this extensive review (including examination of new data for areas that previously did not meet the OBIA criteria), a preliminary list of eight new candidate OBIAs and the expansion of four existing OBIAs were developed and presented to SMEs for review. During the SME review, it was suggested that another existing OBIA be considered for expansion, bringing the total number of existing OBIAs to be considered for expansion to five.
After additional evaluation, NMFS and Navy agreed that two of the new areas on the preliminary candidate list did not meet the criteria for designation as an OBIA. One of these (Southern Australia Southern Right Whale Calving Area) was determined to be solely within the coastal exclusion zone. The other (Tanner and Cortez Banks, which was included in an area considered in the original list of 22 OBIAs) was considered as possibly meeting the foraging biological criterion based on Calambokidis
In summary, NMFS and Navy agreed to a total of six new proposed OBIAs and the proposed expansion of five existing OBIAs. These were presented to Navy for a practicability review. The Navy determined that there were no practicability issues related to the use of SURTASS LFA sonar that would affect the implementation of these OBIAs, and in fact agreed to observe restrictions in each of these areas near requested mission areas as part of their 2016-2017 LOAs under the 2012 rule while public review of these areas is underway as part of the NEPA process (DSEIS/SOEIS) and rulemaking for the 2017-2022 period. While none of these new OBIAs were identified specifically for sperm whales, OBIA #28 (Perth Canyon) is designated for blue and pygmy blue whales with added protection for sperm whales. An area, the Hellenic Trench area in the Mediterranean Sea, was considered solely for sperm whales, but the core usage area was wholly within the coastal standoff range, so the area did not qualify as an OBIA based on the geographical criteria (while receiving similar treatment due to the fact that it was within the coastal standoff range).
A comprehensive list of the resulting 28 proposed OBIAs for SURTASS LFA sonar, as presented in the Navy's SDEIS/SOEIS, is provided in Table 31 below (see Navy's DSEIS/SOEIS, sections 3.3.5.3 and 4.2.2.2.5, and Appendix C for more detail on OBIAs).
NMFS also proposes an OBIA “buffer” requirement that would restrict the operation of SURTASS LFA sonar so that the SURTASS LFA sonar sound field does not exceed 180 dB re: 1 μPa at a distance of 1 km (0.62 mi; 0.54 nmi) seaward of the outer perimeter of any OBIA designated for marine mammals during the specified period. The Navy has noted in previous authorizations that this measure is practicable and it would adhere to this additional measure, so there would effectively be a 174-dB exclusion zone around any OBIA perimeter with implementation of this buffer.
OBIAs are mitigation measures for SURTASS LFA sonar and are based on the system's unique operating and physical characteristics and should not be assumed to be appropriate for other activities.
Under Section 7 of the ESA, all Federal agencies must ensure that any actions they authorize, fund, or carry out are not likely to jeopardize the continued existence of a listed species or destroy or adversely modify its designated critical habitat. Critical habitat is not designated in foreign countries or any other areas outside of U.S. jurisdiction. Critical habitat within the U.S. Exclusive Economic Zone (EEZ) has been designated for six of the 22 of the ESA-listed marine mammal species. Of the designated critical habitat for marine mammals, four areas of critical habitat are located at a distance sufficient from shore to potentially be affected by SURTASS LFA sonar: Critical habitat for the north Atlantic right whale (NARW), north Pacific right whale (NPRW), Hawaiian monk seal, and Steller sea lion. The Navy proposes that the sound field would not exceed 180 dB re: 1 μPa in the areas designated as critical habitat for the NARW and NPRW.
In 2016, critical habitat for the NARW was expanded to include a total of 29,763 nmi
In 2008, NMFS designated two areas of critical habitat for the NPRW. One of these locations is in the Bering Sea, where the Navy will not conduct SURTASS LFA sonar activities, and the other is in the Gulf of Alaska. For the designated critical habitat area in the Gulf of Alaska, the Navy designated an OBIA (#5) in previous rulemaking that bounds the designated critical habitat for the species. This OBIA is additionally proposed for expansion in the Navy's 2016 DSEIS/SOEIS to include waters beyond the critical habitat boundary where more recent sightings have been documented for this species.
Much of the proposed critical habitat for Hawaiian monk seals is located within the coastal standoff range for SURTASS LFA sonar (22 km (13. mi; 12 nmi) of any land) and no existing or proposed OBIA encompasses the entirety of Hawaiian monk seal critical habitat. However, OBIA (#16) encompasses the Penguin Bank portion of the Hawaiian Islands Humpback Whale National Marine Sanctuary. The portion of the Hawaiian monk seal critical habitat that may occur beyond the coastal standoff range for SURTASS LFA sonar is the lowest portion of the water column, including the waters 33 ft (10 m) above the seafloor and the seafloor, seaward from certain areas of the Hawaiian Island's shoreline to the 656-ft (200 m) isobath.
Much of the critical habitat for the Steller sea lion is located in the Bering Sea, where SURTASS LFA sonar will not operate. No proposed OBIA encompasses the Gulf of Alaska critical habitat for Steller sea lions. Although it is possible that SURTASS LFA sonar will be operated in the western Gulf of Alaska where the eastern critical habitat for the Steller sea lion is located and some of that habitat lies beyond 22 km (13. mi; 12 nmi) from shore (
Both the Navy and NMFS Protected Resources Permits and Conservation Division are consulting with NMFS Protected Resources Interagency Cooperation Division on effects on critical habitat pursuant to section 7 of the ESA.
The Navy has proposed to restrict SURTASS LFA sonar activities within 22 km (13. mi; 12 nmi) of any coastline, including islands, such that the SURTASS LFA sonar-generated sound field will not exceed 180 dB re: 1 μPa (RL) at that seaward distance. This measure is intended to minimize both the severity and scale of effects to marine mammals by avoiding the higher densities of many species that may be found in coastal areas and it is practicable. Additionally, this restriction limits exposures of marine mammals to high-level sounds in the vicinity of geographical features that
It may be necessary for SURTASS LFA sonar transmissions to be at or above 180 dB re 1 μPa (rms) within the boundaries of a designated OBIA when: (1) Operationally necessary to continue tracking an existing underwater contact; or (2) operationally necessary to detect a new underwater contact within the OBIA. This exception will not apply to routine training and testing with the SURTASS LFA sonar systems.
As discussed above, NMFS convened a panel of SMEs to help identify marine mammal OBIAs relevant to the Navy's use of SURTASS LFA sonar. Separately, we asked a NMFS scientist, who was also on that same panel, to help address a recommendation that NMFS consider a global habitat model (Kaschner
In the White Paper, the authors acknowledge that “[m]anagement decisions that NMFS must make often incorporate species-specific information on cetacean distribution, population density, abundance, or ecology to identify regions of biological importance. When relevant cetacean data are lacking for the appropriate region or spatial scale, it is not acceptable to proceed in the decision making process as if the `no data' scenario were equivalent to `zero population density' or `no biological importance.' ” The authors recognize this is not an assumption that NMFS makes in regard to identification of OBIAs by stating “[t]his is acknowledged in the screening criteria for identification of OBIA Nominees, which state, `For locations/regions and species and stocks for which density information is limited or not available, high density areas should be defined (if appropriate) using some combination of the following: Available data, regional expertise, and/or habitat suitability models utilizing static and/or predictable dynamic oceanographic features and other factors that have been shown to be associated with high marine mammal densities.' ” We additionally note here that the absence of an OBIA does not mean that NMFS assumes no marine mammal presence or biological importance. Even where there are no OBIAs, NMFS continues to impose mitigation measures (
The White Paper authors considered examples of an approach relying on minimal information (analogous to a data-poor scenario) and provided Kaschner
For data-poor scenarios, the White Paper recommends considering general guidelines based on ecological principles to identify areas of biological importance and potential restriction for cetaceans. However, the authors conclude the White Paper by stating that “. . . the question of whether the decision-making process and management actions should be precautionary will affect the type of guidelines that should be used to make inferences about cetacean density and biological importance in data-poor regions.”
In
In the 2012 rule, NMFS evaluated the White Paper through the lens of the OBIA process, which may have limited fuller consideration of the recommendation. Here, for this 2017
(1) Designation of all continental shelf waters and waters 100 km seaward of the continental slope as biologically important habitat for marine mammals;
(2) Establishment of OBIAs within 100 km of all islands and seamounts that rise within 500 m of the surface; and
(3) Nomination of high productivity regions that are not included in the continental shelf, continental slope, seamount, and island ecosystems above as biologically important areas.
These recommendations are evaluated below in the context of the proposed SURTASS LFA sonar activities and the other mitigation measures that are proposed to minimize the impacts on the affected marine mammal species or stocks from these activities. To reiterate, NMFS is proposing several mitigation measures for SURTASS LFA sonar activities that: (1) Minimize or alleviate the likelihood of injury, TTS, or more severe behavioral responses (the 180-dB LFA mitigation zone plus 1-km buffer zone shutdown measure); (2) minimize or avoid behavioral impacts in known important areas that would have a higher potential to have negative energetic effects or deleterious effects on reproduction that could reduce the likelihood of survival or reproductive success (OBIAs); and (3) generally lessen the total number of takes of many species with coastal or shelf habitat preferences (coastal standoff). The nature and context of how LFA sonar is used in these activities (only 4 ships operating in open oceans areas and typically using active sonar only sporadically) is such that impacts to any individual are expected to be limited primarily because of the short duration of exposure to any individual mammal. In addition, as explained above, an animal would need to be fairly close to the source for the entire length of a transmission to experience injury; exposures occur in open water areas in which animals can more readily avoid the source or find alternate habitat relatively easily; and highly effective mitigation measures have been adopted that further ensure impacts are limited to lower-level effects with limited potential to significantly alter natural behavior patterns in ways that would affect the fitness of individuals.
SURTASS LFA operates at 100 to 500 Hz. This frequency is far below the best hearing sensitivity for MF and HF species. HF species have their best hearing between 60 and 125 kHz (best around 100 kHz), which means that a sound at 500 Hz (and below) has to be at least 50 dB louder for HF species to hear it as well as a sound in their best hearing range. MF cetaceans have their best hearing between 40 and 80 kHz (best around 55 kHz), which means that at 500 Hz and below, the sound has to be 40 dB louder, or more, for this group to hear the sound as well as a sound in their best hearing range. This means that these species have to be much closer to a sound to hear it, which means that, generally, they have to be much closer to the SURTASS sonar source for it to cause PTS, TTS, or a behavioral response. Additionally, during the 1997 to 1998 SURTASS LFA Sonar Low Frequency Sound Scientific Research Program (LFS SRP), numerous odontocete species (
As described in the 2012 rule, NMFS believes that MF and HF odontocete hearing specialists have such reduced sensitivity to the LFA sonar source that limiting ensonification in OBIAs for those animals would not afford meaningful protection beyond that which is already incurred by implementing a shutdown when any marine mammal enters the LFA mitigation and buffer zones. For the same reason, our discussion of the White Paper recommendations will be limited to lower frequency sensitive species, although it is worth noting that the existing 22 km coastal standoff ensures a reduced number of potential takes of many MF and HF species with coastal habitat preferences.
As noted previously, in evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, we carefully balance the expected benefits of the mitigation measures against the practicability of implementation. This balancing considers the following factors: (1) The manner in which, and the degree to which, the implementation of the measure(s) is expected to reduce impacts to marine mammal species or stocks, their habitat, and their availability for subsistence uses (where relevant). Among other things, this analysis will consider the nature of the proposed adverse impact (likelihood, scope, range), the likelihood that the measure will be effective if implemented, and the likelihood of successful implementation; (2) the practicability of the measures for applicant implementation. Practicability of implementation may consider such things as cost, impact on operations, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity (16 U.S.C. 1371(a)(5)(A)(ii)).
In addition to the considerations discussed above, NMFS' evaluation of the recommendations of the White Paper is described below:
The Navy already implements a coastal standoff zone of 22 km, which includes large parts of the continental shelf around the world, includes parts of the slope in some areas, and reduces potential takes of many marine mammal species and stocks with coastal habitat preferences. The White Paper provided little basis for the 100 km buffer seaward of the continental slope and we have found no specific literature to support such a broad buffer in all areas. Therefore, in the context of this evaluation, NMFS first considered if there was evidence of the importance of the continental slope itself, without any consideration for a buffer. In support of understanding the additional value of expanding this standoff to 100 km beyond the continental slope margin, NMFS assessed known marine mammal density information for lower frequency hearing specialists from the U.S. East (Roberts
We have emphasized in the OBIA context that although we are identifying “known” biologically important areas, other biologically important areas have yet to be identified, especially for data-poor areas. However, it is important to note that much more research is conducted close to shore, in the United States and other areas, and typically areas within 100 km of the slope are much less likely to be data-poor areas. NOAA, Navy, other agencies, and many independent researchers have been conducting marine mammal research throughout the U.S. EEZ (200 miles from shore) for decades. While higher densities of LF species may be found in some shelf and slope areas close to shore, which may indicate some important habitat features are present for some of these species, these higher densities are not associated with important behaviors in the same way OBIAs represent areas that are biologically important to a species or stock. Moreover, the prevalence of research makes it much less likely that important areas closer to shore have been missed.
NMFS acknowledges that large ocean areas such as the continental shelf and slope and seamounts may exhibit habitat features that provide important habitat for marine mammals at certain times—as the White Paper states, the higher productivity in these areas could generally be associated with higher densities of marine mammals. However, due to the fact that other mitigation measures would already limit most take of marine mammals to lower Level B behavioral harassment, there is little to no indication that there is a risk to marine mammal species or stocks that would be avoided or lessened if waters 100 km seaward of the continental slope were subject to restrictions. Of note, of the 22 OBIAs in the 2012 proposed rule, 17 of these included continental shelf/slope areas and similar coastal waters. In addition, these waters of the continental shelf/slope would be afforded significant protection due to the coastal standoff mitigation measure.
Given the mitigation measures already in place, and proposed for this rule, that would limit most takes of marine mammals to lower Level B behavioral harassment, the only additional benefit to restricting activities in continental shelf waters and waters 100 km seaward of continental slope would be a further, though not significant, reduction in these lower level behavioral takes in those areas. As discussed above, not all behavioral responses may result in take and not all behavioral takes necessarily result in fitness consequences to individuals that have the potential to translate to population consequences to the species or stock. For example, energetic costs of short-term intermittent exposures would be unlikely to affect individuals such that vital rates of the population are affected.
In addition to the mitigation measures in place, and proposed again, for SURTASS LFA sonar use that would already provide protection for continental shelf/slope waters, it is important to note that there are a total of four SURTASS LFA sonar ships that would each be operating up to a maximum of 255 transmission hours per year (amounting to approximately 40 days maximum of LFA, which is spread over the entire year). It is not known, nor does the Navy indicate in its plans, that activities of these four vessels would be focused in any specified area. It is likely, based on past monitoring reports, that the activities of these four vessels are spread out and would not necessarily overlap marine mammal high-density areas for an extended period of time. Although some LFA sonar activities could, on occasion, overlap marine mammal high-density areas, the Navy is still bound by the 12% cap on Level B takes per marine mammal stock annually. However, because areas of marine mammal high density are dispersed over large ocean areas for each species, it is certain that LFA sonar would not implicate all of these areas for a given species or stock in any year. Given the expanse of these areas (
NMFS and the Navy evaluated the practicability of implementation of the White Paper's recommended continental shelf, slope, and 100-km seaward The Navy has indicated, and NMFS concurs, that additional continental shelf, slope, and 100 km seaward restrictions beyond the existing coastal standoff and OBIAs would unacceptably impact the Navy's national security mission as large areas of the ocean would be restricted where targets of interest may operate. The mission of SURTASS LFA sonar is to detect quieter and harder to-find foreign submarines at greater distances. For the system to perform its national defense function, the Navy must operate within coastal, littoral waters in order to track relevant targets. The Navy has indicated that if large areas of the continental shelf or slope were restricted, the Navy would not have the benefit of being able to train and operate in these challenging environments, while adversaries would use these distinctive geographic features to their advantage. Year-round access to all of these areas of challenging topography and bathymetry is necessary as the Navy cannot telegraph to potential adversaries that it will not be operating in large parts of the ocean for long periods of time.
In summary, while restricting SURTASS LFA sonar use in waters 100 km seaward from the continental slope could potentially reduce individual exposures or behavioral responses for
Currently, waters surrounding all islands are already protected by the coastal standoff zone (22km). As discussed previously, this means that SURTASS LFA sonar received levels would not exceed 180 dB re 1μPa within 22 km (12 nmi) from the coastline. This 22 km coastal standoff was determined in previous analyses (DoN, 2007) to result in the lowest potential risk to marine species, particularly marine mammals. Morato
Morato
Along the northeastern U.S. continental shelf, cetaceans tend to frequent regions based on food preferences (
NMFS and the Navy evaluated the practicability of implementation of the White Paper's recommendation regarding seamounts that rise to within 500 m of the sea surface. The Navy has indicated, and NMFS concurs, that additional restrictions within 100 km of all islands and seamounts that rise to within 500 m of the surface beyond the existing coastal standoff and OBIAs would unacceptably impact their national security mission. The mission of SURTASS LFA sonar is to detect quieter and harder to-find foreign submarines at greater distances. Seamounts provide complex bathymetric and oceanographic conditions that can be used by submarines to hide and avoid detection. Training, testing and operations in and around seamounts is vitally important for the Navy to understand how these features can be exploited to evade detection. If the Navy's use of SURTASS was restricted within 100 km of these features, the Navy would not have the benefit of being able to train and operate in these challenging environments, while adversaries would use these distinctive geographic features to their advantage. Year-round access to all of these areas of challenging topography and bathymetry is necessary, as the Navy cannot telegraph to potential adversaries that it will not be operating in specific seamounts areas for long periods of time.
In summary, while restricting LFA sonar use in areas 100 km seaward from islands and seamounts could potentially reduce take numbers for some individuals within a limited number of species and potentially provide some additional protection of preferred habitat in some cases (potential feeding), data indicate that marine mammal associations with these areas are limited, and the benefits would be, at best, ephemeral. Furthermore, the potential avoidance would likely be more associated with mid-frequency and high frequency species, while low frequency species are more of a concern for potential effects. Limiting SURTASS LFA sonar activities in these large areas when activities are already comparatively low (four ships each operating a maximum of 255 transmission hours spread across expansive distances and an entire year), and the existing risks to the affected species and stocks are comparatively low (limited to lower level Level B behavioral harassment), would provide limited additional benefit to individual marine mammals, but would not change the effect on the population, species, or stock. Given the limited potential for additional reduction of impacts to a
Regions of high productivity have the potential to be important foraging habitat for some species of marine mammals at certain times of the year and could potentially correlate with either higher densities and/or feeding behaviors through parts of their area. Productive areas of the ocean are difficult to consistently define due to interannual spatial and temporal variability. High productivity areas have ephemeral boundaries that are difficult to define and do not always persist interannually or within the same defined region. While there is not one definitive guide to the productive areas of the oceans, NMFS and the Navy examined these areas in the 2017/2018 SURTASS operation area.
These areas are typically very large, which means that animals are not constrained in high densities in a particular feeding area and there are typically ample alternative opportunities to move into, or within, other parts of these high productivity areas should they choose to avoid the area around the SURTASS vessel. Additionally, these areas are often associated with coastal areas, for instance, Houston and Wolverton (2009) show areas of high/highest productivity that are either (1) confined to high latitude (polar) areas that are not in the SURTASS LFA sonar operational area, or (2) very coastally and typically seasonally associated with areas of high coastal run off (
NMFS and the Navy evaluated the practicability of implementation of the White Paper's recommended restrictions on high productivity. The Navy has indicated, and NMFS concurs, that additional restrictions in high productivity regions that are not included in the continental shelf, continental slope, seamount, and island ecosystems beyond the existing coastal standoff and OBIAs would unacceptably impact their national security mission. The mission of SURTASS LFA sonar is to detect quieter and harder to-find foreign submarines at greater distances. For the system to perform its national defense function, the Navy must operate within coastal, littoral waters, which may include high productivity areas, in order to track relevant targets. If large areas of the ocean were excluded from potential usage, the Navy would not have the benefit of being able to train and operate in these challenging environments, while adversaries would use these distinctive geographic features to their advantage. Year-round access to all of these areas of challenging topography and bathymetry is necessary as the Navy cannot telegraph to potential adversaries that it will not be operating in large parts of the ocean for long periods of time. Also, because high productivity areas are highly variable and ephemeral, implementation would not be operationally practicable for the Navy.
Restricting use of SURTASS LFA sonar seasonally in high productivity areas could potentially reduce take numbers for certain species and potentially provide some additional protection of preferred or feeding habitat in some cases. However, as noted above, the size of the primary productivity areas is such that animals could likely easily access adjacent high productivity areas should they be temporarily diverted away from a particular area due to a SURTASS LFA sonar source. In addition, marine mammals are certainly not concentrated through all or even most of these large areas for all or even most of the time when productivity is highest, so a broad limitation of this nature would likely unnecessarily limit LFA sonar activities while providing negligible protective benefits to marine mammal species or stocks. Limiting activities in these large areas when activities are already comparatively low (four ships operating approximately 255 transmission hours spread across expansive ocean distances), and the existing risks to the affected species and stocks are comparatively low, would provide limited additional protection. Given the limited potential for additional reduction of impacts to marine mammal species and the high degree of impracticability (serious impacts on mission effectiveness), NMFS has preliminarily determined that this measure would not be required.
In conclusion, NMFS has considered the White Paper recommendations. While we acknowledge that these measures could potentially reduce the numbers of take for some individual marine mammals within a limited number of species, or may add some small degree of protection to preferred habitat or feeding behaviors in certain circumstances, this limited and uncertain benefit to the affected species or stocks and their habitat is not justified when considered against the degree of impracticability for Navy implementation. This is especially true in light of the operational impacts and the anticipated success of the significant mitigation measures that the Navy has already been implementing (and which have provided a large degree of protection and have limited takes to lower level Level B behavioral harassment) to reduce impacts.
NMFS has determined preliminarily that the Navy's proposed mitigation measures together with the additional mitigation measures proposed by NMFS provide the means of effecting the least practicable adverse impacts on marine mammals species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and which include consideration of personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity. NMFS provides further details in the following section.
NMFS believes that the shutdown in the LFA sonar mitigation and buffer zones, based on detection from highly effective visual monitoring, passive acoustic monitoring, active acoustic monitoring using HF/M3 sonar with ramp-up procedures, and geographic restriction measures proposed will enable the Navy to: (1) Avoid Level A harassment of marine mammals; (2) minimize the incidences of marine mammals exposed to SURTASS LFA sonar sound levels associated with TTS and higher levels of significant behavioral disruptions under Level B harassment; ands; and (3) minimize exposure of marine mammal takes in areas and during times of important behaviors, such as feeding, migrating, calving, or breeding based on the best available information.
The SURTASS LFA sonar signal is not expected to cause mortality, serious injury, PTS, or TTS due to implementation of the shutdown zone mitigation measures, which include the Navy's proposed 180 dB rms isopleth shutdown zone (LFA Mitigation Zone) as well as an additional 1 km buffer proposed by NMFS. Although the distance to the 180 dB isopleth is based on existing environmental conditions, the distance is frequently, but not always, approximately 1 km. Implementing an additional 1-km buffer zone increases the extent around the LFA sonar array and vessel, which will ensure that no marine mammals are exposed to an SPL greater than about 174 dB re: 1 μPa rms. As shown in Table 29 above, the TTS threshold for LF cetaceans, which are the hearing group most likely affected by SURTASS LFA sonar, is 179 dB SEL. A low-frequency cetacean would need to remain within 41 meters (135 ft) for an entire LFA sonar transmission (60 seconds) to potentially experience PTS and within 413 m (1,345 ft) for an entire LFA sonar transmission (60 seconds) to potentially experience TTS. Therefore, implementation of the shutdown zone mitigation measures would minimize the potential for LF cetaceans to be exposed to LFA sonar at levels associated with the onset of TTS. The best information available indicates that effects from SPLs less than 180 dB re: 1 μPa will be limited to short-term, Level B behavioral harassment, and animals are expected to return to behaviors shortly after exposure.
As described above, NMFS has included a robust suite of mitigation measures for world-wide SURTASS LFA sonar operation that: Minimize or alleviate the likelihood of injury, TTS, or more severe behavioral responses due to implementation of shutdown measures (implementation of the LFA mitigation zone plus a 1 km buffer); minimize or avoid behavioral impacts in important areas where these impacts would be more likely to have negative energetic effects, or deleterious effects on reproduction, which could reduce the likelihood of survival or reproductive success (measures to avoid or lessen exposures of marine mammals within OBIAs); and generally lessen the total number of takes of many species due to implementation of coastal standoff measures. These measures, taken together, constitute the means of effecting the least practicable adverse impact on the affected species and stocks worldwide and for operating areas in the upcoming annual LOA period. We also carefully evaluated the potential inclusion of additional measures in data-poor areas (White Paper recommendations) before reaching this conclusion. With regard to habitat, NMFS has not identified any impacts to habitat from SURTASS LFA sonar that persist beyond the time and space that the impacts to marine mammals themselves could occur. Therefore, the mitigation measures that address important areas that serve as important habitat for marine mammals in all or part of the year (
In the 2012 rule, NMFS and the Navy annually considered how new information, from anywhere in the world, should be considered in an adaptive management context—including whether this new information would support the identification of new OBIAs or other mitigation measures. Moving forward, new information will still be considered annually, but only in the context of the area in which SURTASS LFA assets will be operating in that year. This approach makes sense because it is not possible to conduct a meaningful practicability analysis on a measure in an area where SURTASS is not deployed and there are no real details to apply to the analysis. Additionally, evaluating potential additional measures in areas that will not be used is not a good use of agency resources. Should SURTASS LFA sonar deploy to new action areas during the time period covered by this proposed rule, NMFS will reconsider the recommendations made in the White Paper in the context of those specific areas and operational considerations in advance of any potential LOA issuance in that area, and publish our evaluation in the associated FR notice.
Section 101(a)(5)(A) of the MMPA states that in order to issue an ITA for an activity, 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 LOAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species, the level of taking, or impacts on populations of marine mammals that are expected to be present.
Monitoring measures prescribed by NMFS should accomplish one or more of the following general goals:
• An increase in our understanding of how many marine mammals are likely to be exposed to levels of LFA sonar that we associate with specific adverse effects, such as disruption of behavioral patterns and TTS (Level B harassment), or PTS.
• An increase in our understanding of how individual marine mammals respond (behaviorally or physiologically) to LFA sonar (at specific received levels or other stimuli expected to result in take).
• An increase in our understanding of how anticipated takes of individuals (in different ways and to varying degrees) may impact the population, species, or stock (specifically through effects on annual rates of recruitment or survival).
• An increase in knowledge of the affected species.
• An increase in our understanding of the effectiveness of certain mitigation and monitoring measures.
• A better understanding and record of the manner in which the authorized entity complies with the incidental take authorization.
• An increase in the probability of detecting marine mammals, both within the mitigation zone (thus allowing for more effective implementation of the mitigation) and in general to better achieve the above goals.
In addition to the real-time monitoring associated with mitigation, the Navy is engaging in exploring other monitoring efforts described here:
The Marine Mammal Monitoring (M3) Program uses the Navy's fixed and mobile passive acoustic monitoring systems to monitor the movements of some large cetaceans (principally baleen whales), including their migration and feeding patterns, by tracking them through their vocalizations.
At present, the M3 Program's data are classified, as are the data reports created by M3 Program analysts, due to the inclusion of sensitive national security information. The Navy (OPNAV N2/N6F24) continues to assess and analyze M3 Program data collected from Navy passive acoustic monitoring systems and is working toward making some portion of that data (after appropriate security reviews) available to scientists with appropriate clearances and ultimately to the public (D0N, 2015). Progress has been achieved on addressing securing concerns and declassifying the results of a specific dataset pertinent to a current area of scientific inquiry for which a peer-reviewed scientific paper is being prepared for submission to a scientific journal.
Due to research indicating that beaked whales and harbor porpoises may be particularly sensitive to a range of underwater sound (Southall et al., 2007; Tyack et al., 2011; Kastelein et al., 2012), in the 2012 rule and LOAs for these activities, NMFS included conditions for understanding of the potential effects of SURTASS LFA sonar on these taxa. The Navy convened an independent Scientific Advisory Group (SAG), whose purpose was to investigate and assess different types of research and monitoring methods that could increase the understanding of the potential effects to beaked whales and harbor porpoises from exposure to SURTASS LFA sonar transmissions. The SAG was composed of six scientists affiliated with two universities, one Federal agency (NMFS), and three private research and consultancy firms. The SAG prepared and submitted a report, entitled, “Potential Effects of SURTASS LFA Sonar on Beaked Whales and Harbor Porpoises,” describing the SAG's monitoring and research recommendations. In August 2013, the SAG report was submitted to the Navy, NMFS, and the Executive Oversight Group (EOG) for SURTASS LFA sonar.
The EOG is comprised of representatives from the U.S. Navy (Chair, OPNAV N2/N6F24), Office of the Deputy Assistant Secretary of the Navy for the Environment, Office of Naval Research, Navy Living Marine Research Program, and the NMFS Office of Protected Resources (OPR) (Permits, Conservation, and Education Division). Representatives of the Marine Mammal Commission have also attended EOG meetings as observers. The EOG for SURTASS LFA sonar met twice in 2014 to review and further discuss the research recommendations put forth by the SAG, the feasibility of implementing any of the research efforts, and existing budgetary constraints. In addition to the research and monitoring efforts recommended by the SAG, additional promising suggestions for research/monitoring were recommended for consideration by the EOG. The EOG is considering which research/monitoring efforts are the most efficacious, given existing budgetary constraints, and will provide the Navy with a ranked list of research/monitoring recommendations. The EOG also determined that a study should be conducted to determine the extent of the overlap between potential LFA sonar operations and the distributional range of harbor porpoises; the Navy is in the process of finalizing this study. Following completion of all EOG consideration and evaluation, the Navy will prepare a research action plan for submittal to the NMFS Office of Protected Resources outlining the way forward (DoN, 2015). The Navy is committed to completing its assessment of the validity, need, and recommendations for field and/or laboratory research on the potential effects of SURTASS LFA sonar on beaked whales and harbor porpoises.
Several efforts (federal and academic) are underway to develop a comprehensive ocean noise budget (
The Navy will collect ambient noise data when the SURTASS passive towed horizontal line array is deployed. However, because the collected ambient noise data may also contain sensitive acoustic information, the Navy classifies the data, and thus does not make these data publicly available. The Navy is exploring the feasibility of declassifying and archiving portions of the ambient noise data for incorporation into appropriate ocean noise budget efforts after all related security concerns have been resolved.
The Navy sponsors significant research and monitoring projects for marine living resources to study the potential effects of its activities on marine mammals. N2/N6 provides a representative to the Navy's Living Marine Resources advisory board to provide input to future research projects that may address SURTASS LFA sonar needs. In Fiscal Year 2014, the Navy reported that it spent $29.6 million (M) on marine mammal research and conservation during that year. This ongoing marine mammal research relates to hearing and hearing sensitivity, auditory effects, marine mammal monitoring and detection, noise impacts, behavioral responses, diving physiology and physiological stress, and distribution. The Navy sponsors a significant portion of U.S. research on the effects of human-generated underwater sound on marine mammals and approximately 50 percent of such research conducted worldwide. These research projects may not be specifically related to SURTASS LFA sonar activities; however, they are crucial to the overall knowledge base on marine mammals and the potential effects from underwater anthropogenic noise. The Navy also sponsors research to determine marine mammal abundances and densities for all Navy ranges and other operational areas. The Navy notes that research and evaluation is being carried out on various monitoring and mitigation methods, including passive acoustic monitoring, and the results from this research could be applicable to SURTASS LFA sonar passive acoustic monitoring. The Navy has also sponsored several workshops to evaluate the current state of knowledge and potential for future acoustic monitoring of marine mammals. The workshops bring together underwater acoustic subject matter experts and marine biologists from the Navy and other research organizations to present data and information on current acoustic monitoring research efforts, and to evaluate the potential for incorporating similar technology and methods on Navy instrumented ranges.
Our understanding about marine mammals and the potential effects of SURTASS LFA sonar on marine mammals is continually evolving. Reflecting this, the proposed rule again includes an adaptive management framework that is supported by the Navy's 2016 SEIS/SOEIS. This allows the agencies to consider new/revised peer-reviewed and published scientific data and information from qualified and recognized sources within academia, industry, and government/non-government organizations to determine (with input regarding practicability) whether SURTASS LFA sonar mitigation, monitoring, or reporting measures should be modified (including additions or deletions) and to make such modification if new scientific data indicate that they would be appropriate. Modifications that are substantial would be made only after a 30-day period of public review and comment. Substantial modifications include a change in mission areas or new information that results in significant changes to mitigation. The framework also allows for updates to marine mammal stock estimates and newly classified species or stocks to be included in annual LOA applications, which, in turn, provides for the use of the best available scientific data for predictive models, including the Acoustic Integration Model © (AIM).
As discussed in the Mitigation section above, NMFS and Navy have refined the adaptive management process for this rule compared to previous rulemakings. New information will still be considered
In order to issue an ITA for an activity, section 101(a)(5)(A) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking.” Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring. There are several different reporting requirements in these proposed regulations:
The Navy will systematically observe SURTASS LFA sonar activities for injured or disabled marine mammals. In addition, the Navy will monitor the principal marine mammal stranding networks and other media to correlate analysis of any whale mass strandings that could potentially be associated with SURTASS LFA sonar activities.
Navy personnel will ensure that NMFS is notified immediately or as soon as clearance procedures allow if an injured, stranded, or dead marine mammal is found during or shortly after, and in the vicinity of, any SURTASS LFA sonar activities. The Navy will provide NMFS with species or description of the animal(s), the condition of the animal(s) (including carcass condition if the animal is dead), location, time of first discovery, observed behaviors (if alive), and photo or video (if available).
In the event that an injured, stranded, or dead marine mammal is found by the Navy SURTASS LFA sonar vessel crew during transit, or that is not in the vicinity of, or found during or shortly after SURTASS LFA sonar activities, the Navy will report the same information as listed above as soon as operationally feasible and clearance procedures allow.
Because SURTASS LFA vessels move slowly, it is not likely these vessels would strike a marine mammal. In the event of a ship strike by the SURTASS LFA vessel, at any time or place, the Navy shall do the following:
• Immediately report to NMFS the species identification (if known), location (lat/long) of the animal (or the strike if the animal has disappeared), and whether the animal is alive or dead (or unknown);
• Report to NMFS as soon as operationally feasible the size and length of the animal, an estimate of the injury status (
• Report to NMFS the vessel length, speed, and heading as soon as feasible; and
• Provide NMFS a photo or video, if equipment is available.
On a quarterly basis, the Navy would provide NMFS with classified and unclassified reports that include all active-mode missions for each SURTASS LFA sonar vessel. The Navy would provide the quarterly mission reports no later than 45 days following the end of each quarter, beginning on the effective date of the annual LOA. Specifically, the classified reports will include dates/times of exercises, location of vessel, mission operational area, location of the mitigation zone in relation to the LFA sonar array, marine mammal observations, and records of any delays or suspensions of activities. Marine mammal observations would include animal type and/or species, number of animals sighted by species, date and time of observations, type of detection (visual, passive acoustic, HF/M3 sonar), the animal's bearing and range from vessel, behavior, and remarks/narrative (as necessary). The quarterly reports would include the Navy's analysis of take by Level A and/or Level B harassment, estimates of the percentage of marine mammal stocks affected (both for the quarter and cumulatively (to date) for the year covered by the LOA) by SURTASS LFA sonar activities. The Navy's estimates of the percentage of marine mammal stocks and number of individual marine mammals affected by exposure to SURTASS LFA sonar transmissions would be derived using acoustic impact modeling based on operating locations, season of missions, system characteristics, oceanographic environmental conditions, and marine mammal demographics. In the event that no SURTASS LFA missions are completed during a quarter, the Navy will provide NMFS with a report of negative activity for each SURTASS LFA sonar vessel.
The annual report, which is due no later than 60 days after the expiration date of the annual LOAs, would provide NMFS with an unclassified summary of the year's quarterly reports including estimations of total percentages of each marine mammal stock affected by all SURTASS LFA sonar transmissions during the annual period using predictive modeling based on operating locations, dates/times of operations, system characteristics, oceanographic environmental conditions, and animal demographics.
Additionally, the annual report would include: (1) Analysis of the effectiveness of the mitigation measures with recommendations for improvements where applicable; (2) assessment of any long-term effects from SURTASS LFA sonar activities; and (3) any discernible or estimated cumulative impacts from SURTASS LFA sonar activities.
NMFS proposes to require the Navy to provide NMFS and the public with a final comprehensive report analyzing the impacts of SURTASS LFA sonar on marine mammal species and stocks. This report would include an in-depth analysis of all monitoring and Navy-funded research pertinent to SURTASS LFA sonar activities conducted during the 5-year period of these regulations, a scientific assessment of cumulative impacts on marine mammal stocks, and an analysis on the advancement of alternative (passive) technologies as a replacement for LFA sonar. This report would be a key document for NMFS' review and assessment of impacts for any future rulemaking.
The Navy shall respond to NMFS comments and requests for additional information or clarification on the quarterly, annual or comprehensive reports. These reports will be considered final after the Navy has adequately addressed NMFS' comments or provided the requested information, or three months after the submittal of the draft if NMFS does not comment within the three-month time period. NMFS will post the annual and comprehensive reports on the internet at:
This section includes an estimate of the number of incidental takes proposed for authorization pursuant to this rulemaking, which will inform NMFS' consideration of the negligible impact determination.
Harassment is the primary means of take expected to result from these activities. For this military readiness activity, the MMPA defines “harassment” as: (i) Any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild (Level A Harassment); or (ii) any act that disturbs or is likely
Based on the nature of the activities and the anticipated effectiveness of the mitigation measures, take by Level A Harassment is neither anticipated nor proposed to be authorized. The Navy's acoustic impact analysis for marine mammals represents an evolution that builds upon the analysis, methodology, and impact criteria documented in previous SURTASS LFA sonar NEPA efforts (DoN, 2001; 2007; 2012; 2015), and includes updates of the most current acoustic impact criteria and methodology to assess acoustic impacts (NMFS, 2016). A detailed discussion of the acoustic impact analysis is provided in Appendix B of the Navy's DSEIS/SOEIS, but is summarized here. Using AIM, the Navy modeled 26 representative mission areas in the Pacific, Atlantic, and Indian Oceans, as well as the Mediterranean Sea, representing the acoustic regimes and marine mammal species that may be encountered worldwide during SURTASS LFA sonar activities. To estimate real-world exposure estimates, the Navy used AIM to take the ship movement and speed, as well as LFA sonar transmissions, into account, and to simulate the modeled marine mammal species by creating animats programmed with behavioral values representative of the species, using density estimates for modeled species in each of the representative mission areas.
To derive density estimates, direct estimates from line-transect surveys that occurred in or near each of the 26 mission areas were utilized first (
The process of estimating the marine mammal takes that may result from the proposed operation of SURTASS LFA sonar begins with the pertinent Navy commands proposing mission areas in which SURTASS LFA sonar may be operated. The Navy performs standard acoustic modeling and impact analyses, taking into account spatial, temporal, and/or operational parameters to determine the potential for PTS, TTS, or behavioral responses for each individual marine mammal. Then, the Navy applies standard mitigation measures (180-dB rms shutdown criteria) to the analysis to calculate take estimates for Level A harassment of marine mammal stocks in the proposed mission area. Based on these estimates, the Navy determines that the proposed missions meet the conditions of the MMPA incidental take regulation and LOAs, as issued (
The Navy assesses the potential impacts on marine mammals by predicting the sound field that a given marine mammal species could be exposed to over time in a potential mission area. This is a multi-part process involving: (1) The ability to measure or estimate an animal's location in space and time; (2) the ability to measure or estimate the three-dimensional sound field at these times and locations; (3) the integration of these two data sets into the acoustic impact model to estimate the total acoustic exposure for each animal in the modeled population; and (4) the conversion of the resultant cumulative exposures for a modeled population into an estimate of the risk of a disruption of natural behavioral patterns or TTS (
The Navy estimated the three-dimensional sound field using its standard parabolic equation (PE) transmission loss model. The results of this model are the primary input to the AIM, which the Navy used to estimate marine mammal sound exposures. AIM integrates simulated movements (including dive patterns) of marine mammals, a schedule of SURTASS LFA sonar transmissions, and the predicted sound field for each transmission to estimate acoustic exposure during a hypothetical SURTASS LFA sonar operation in each proposed mission area seasonally. A description of the PE and AIM models, including AIM input parameters for animal movement, diving behavior, and marine mammal distribution, abundance, and density are all described in detail in the Navy's application and in the Navy's DSEIS/SOEIS (see Appendix B for detailed information on the Marine Mammal Impact Analysis). NMFS has reviewed this information and has accepted the Navy modeling procedure and results.
The acoustic impact analysis for this effort represents an evolution that builds upon the analysis, methodology, and impact criteria documented in previous SURTASS LFA sonar efforts summarized below (DoN, 2001; 2007; and 2012), but incorporates the most current acoustic impact criteria and methodology to assess the potential for auditory impacts and the best available data on behavioral responses of marine mammals to SURTASS LFA sonar. In addition, the Navy continuously updates the analysis with new marine mammal biological data (behavior, distribution, abundance and density) whenever new information becomes available.
Because it is infeasible to model all potential LFA sonar operating areas worldwide, the Navy's application presents 26 modeled sites as examples to provide estimates of potential mission areas based on the current political climate. The Navy analyzed these 26 mission areas using the most up-to-date marine mammal abundance, density, and behavioral information available. These sites represent areas where SURTASS LFA sonar activities could potentially occur based on today's political climate. Table 6-2 of the Navy's application (pages 6-14 through 6-34) provides the Navy's estimates of the percentage of marine mammal stocks potentially affected by SURTASS LFA sonar activities based on reasonable and realistic estimates of the potential effects to marine mammal stocks specific to the potential mission areas. These data are examples of areas where the Navy could request LOAs under the 5-year rule because they are in areas of potential strategic importance and/or areas of possible naval fleet exercises. The percentage of marine mammal stocks that may experience TTS or behavioral changes from LFA sonar exposures was calculated for one season in each of the 26 representative mission areas. The noise exposure scenario was also for a 24-hour period with LFA sonar transmitting 60-second signals every ten minutes for the entire period. Based on historical mission data, it is unlikely that such a scenario would occur, but is a conservative method for estimating potential impacts. As stated previously, this proposed rule calculates percentages of marine mammal species or stocks and does not specify the number of marine mammals that may be taken in the proposed locations because these are determined annually through various inputs such as mission location, mission duration, and season of operation and are included in the application for LOAs due to the fact that the Navy cannot know where they will need to operate each year over the five-year effective period of the proposed rule. For the annual application for an LOA, the Navy identifies the mission areas and proposes to present both the estimated percentage of a stock incidentally harassed as well as the estimated number of animals by species or stock that may be potentially harassed by SURTASS LFA sonar in each of the proposed mission areas for that annual period.
With the implementation of the three-part monitoring programs (visual, passive acoustic, and HF/M3 monitoring), NMFS and the Navy do not expect that marine mammals would be injured by SURTASS LFA sonar because a marine mammal should be detected and active transmissions suspended or delayed. The probability of detection of a marine mammal by the HF/M3 system within the LFA sonar mitigation zone approaches 100 percent based on multiple pings (see the 2001 FOEIS/EIS, Subchapters 2.3.2.2 and 4.2.7.1 for the HF/M3 sonar testing results). Quantitatively, modelling output shows zero takes by Level A harassment for all marine mammal stocks in all representative mission areas with mitigation applied. As noted above, all hearing groups of marine mammals would need to be within 22 ft (7 m) for an entire LFA transmission (60 seconds), and a LF cetacean would need to be within 135 ft (41 m) for an entire LFA transmission to potentially experience PTS. This is unlikely to occur, especially given the mitigation measures in place and their proven effectiveness at detecting marine mammals well outside of this range so that shut down measures would be implemented well before marine mammals would be within these ranges. Again, NMFS notes that over the course of the previous three rulemakings, there have been no reported or known incidents of Level A harassment of any marine mammal. Therefore, NMFS will not authorize any Level A takes for any marine mammal species or stocks over the course of the 5-year regulations. To potentially experience TTS, marine mammals would need to be at farther distances, but still within the approximately 2-km shutdown distance. The distances to the TTS thresholds are less than 50 ft (15 m) for MF and HF cetaceans and otariids, 216 ft (66 m) for phocids, and 1,354 ft (413 m) for LF cetaceans, if an animal were to remain at those distances for an entire LFA sonar signal (60 sec). While it is likely that mitigation measures would also avoid TTS, some small subset of the animals exposed above the Level B harassment threshold may also experience TTS. Any TTS incurred would likely be of a low level and of short duration because we do not expect animals to be exposed for long durations close to the source.
As with the previous rules, the Navy will limit operation of SURTASS LFA sonar to ensure no marine mammal stock will be subject to more than 12 percent of the individuals of any stock taken by Level B harassment annually, during the five-year regulations. This annual per-stock cap applies regardless of the number of LFA vessels operating. The Navy will use the 12 percent cap to guide its mission planning and annual LOA applications.
As discussed, the Navy uses a behavioral response function to estimate the number of behavioral responses that would qualify as Level B behavioral harassment under the MMPA. As the statutory definition is currently applied, a wide range of behavioral reactions may qualify as Level B harassment under the MMPA, including but not limited to avoidance of the sound source, temporary changes in vocalizations or dive patterns, temporary avoidance of an area, or temporary disruption of feeding, migrating, or reproductive behaviors. The estimates calculated using the behavioral response function do not differentiate between the different types of potential behavioral reactions. Nor do the estimates provide information regarding the potential fitness or other biological consequences of the reactions on the affected individuals.
NMFS notes that legislative history suggests that Congress intended that Level B harassment be limited to behavioral disturbances that have “demographic consequences to reproduction or survivability of the species.” H.R. Conf. Rep. 108-354 (2003), 108th Cong., 1st Sess., reprinted in 2004 U.S.C.C.A.N. 1407, 1447. However, no methodology currently exists that would allow the Navy to estimate each type of potential behavioral response, predict any long-term consequences for the affected mammals, and then limit its take request to only the most severe responses that could have demographic consequences to reproduction or survivability. Therefore, as described above, the Navy's take estimates capture a wider range of less significant responses. NMFS does not assume that each instance of Level B harassment modeled by the Navy has, or is likely to have, an adverse population-level impact. Rather, NMFS considers the available scientific evidence to determine the likely nature of the modeled behavioral responses and the potential fitness consequences for affected individuals in its negligible impact evaluation.
NMFS has defined negligible impact 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 (50 CFR 216.103). A negligible impact finding is based on the lack of likely
To avoid repetition, the discussion of our analyses applies to all the stocks listed in Tables 3 through 28, given that the anticipated effects of this activity on these different marine mammal stocks are expected to be similar, given the operational parameters of the activity. While there are differences in the hearing sensitivity of different groups, these differences have been factored into the analysis for auditory impairment. However, the nature of their behavioral responses is expected to be similar for SURTASS LFA sonar, especially given the context of their short duration open ocean exposures. Additionally, because of the comparatively small percentage of any population expected to be taken, combined with the operational avoidance of areas that are known to be important for specific biologically important reasons and the anticipated low-level effects, there is no need to differentially evaluate species based on varying status.
The Navy has described its specified activities based on best estimates of the number of hours that the Navy will conduct SURTASS LFA activities. The exact number of transmission hours may vary from year to year, but will not exceed the annual total of 225 transmission hours per vessel per year as indicated in Table 1. This has been reduced from previous SURTASS LFA sonar rulemakings, which evaluated and authorized 432 transmission hours per vessel per year. We note that this reduction in transmission hours represents a 41% reduction in sonar hours per ship during this next rulemaking period, which corresponds to less exposure and lessened takes compared to previous rules.
As mentioned previously, NMFS estimates that 104 species of marine mammals could be taken by Level B harassment over the course of the five-year period. For reasons stated previously in this document, no mortalities are anticipated to occur as a result of the Navy's proposed SURTASS LFA sonar activities, and none are proposed to be authorized by NMFS. The Navy has operated SURTASS LFA sonar under NMFS regulations for the last fourteen years without any reports of serious injury or death. The evidence to date, including recent scientific reports and annual monitoring reports, and fourteen years of experience conducting SURTASS LFA activities further supports the conclusion that the potential for injury, and particularly serious injury, to occur is minimal.
Taking the above into account, considering the sections discussed further, and dependent upon the implementation of the proposed mitigation measures, NMFS has preliminarily determined that use of SURTASS LFA sonar during activities will have a negligible impact on the marine mammal species and stocks present in operational areas in the Pacific, Atlantic, and Indian Oceans and the Mediterranean Sea, as listed in Tables 3-28 above.
There is no empirical evidence of strandings of marine mammals associated spatially or temporally with the employment of SURTASS LFA sonar. Moreover, the sonar system acoustic characteristics differ between LFA sonar and MF sonars that have been associated with strandings: LFA sonars use frequencies from 100 to 500 Hz, with relatively long signals (pulses) on the order of 60 sec; while MF sonars use frequencies greater than 1,000 Hz, with relatively short signals on the order of 1 sec. NMFS has provided a summary of common features shared by the stranding events in Greece (1996), Bahamas (2000), Madeira (2000), Canary Islands (2002), Hanalei Bay (2004), and Spain (2006) earlier in this document. These included operation of MF sonar, deep water close to land (such as offshore canyons), presence of an acoustic waveguide (surface duct conditions), and periodic sequences of transient pulses (
Implementing a shutdown zone of approximately 2 km (1.2 mi; 1.1 nmi, which is comprised of the LFA mitigation zone plus a 1-km buffer zone) around the LFA sonar array and vessel will ensure that no marine mammals are exposed to an SEL that would cause PTS or TTS. The proposed mitigation measures would allow the Navy to avoid exposing marine mammals to received levels of SURTASS LFA sonar or HF/M3 sonar sound that would result in injury (Level A harassment) and, as discussed in the Estimated Take of Marine Mammals section, most TTS (Level B harassment) would also be avoided due to mitigation measures, so that the majority of takes would be expected to be in the form of behavioral harassment (lower-level Level B harassment).
As noted above, the context of exposures is important in evaluating the ultimate impacts of the take on the individuals. In the case of SURTASS LFA sonar, the approaching sound source would be moving through the open ocean at low speeds, so concerns of noise exposure are somewhat lessened in this context compared to situations where animals may not be as able to avoid strong or rapidly approaching sound sources. In addition, the duration of the take is important in the case of SURTASS LFA sonar, as the vessel continues to move and any interruption of behavior would be of relatively short duration.
For SURTASS LFA sonar activities, the Navy provided information (Table 6-2 of the Navy's application) estimating percentages of marine mammal stocks that could potentially occur within the proposed 26 worldwide mission areas. Based on our evaluation, take from the specified activities associated with the proposed SURTASS LFA sonar activities will most likely fall within the realm of short-term and temporary, or ephemeral, disruption of behavioral patterns (Level B harassment). NMFS bases this assessment on a number of factors considered together:
(1) Geographic Restrictions—The OBIA and coastal standoff geographic restrictions on SURTASS LFA sonar activities are designed to minimize to the extent practicable the likelihood of disruption of marine mammals in areas where important behavior patterns such as migration, calving, breeding, feeding, or sheltering occur, or in areas with higher densities of marine mammals. As a result, the takes that occur are less likely to result in energetic effects or
(2) Low Frequency Sonar Scientific Research Program (LFS SRP)—The Navy designed the three-phase LFS SRP study to assess the potential impacts of SURTASS LFA sonar on the behavior of low-frequency hearing specialists, those species believed to be at (potentially) greatest risk due to the presumed overlap in hearing of these species and the frequencies at which SURTASS LFA sonar is operated. This field research addressed three important behavioral contexts for baleen whales: (1) Blue and fin whales feeding in the southern California Bight, (2) gray whales migrating past the central California coast, and (3) humpback whales breeding off Hawaii. Taken together, the results from the three phases of the LFS SRP do not support the hypothesis that most baleen whales exposed to RLs near 140 dB re: 1 μPa would exhibit disturbance or avoidance behaviors. These experiments, which exposed baleen whales to received levels ranging from 120 to about 155 dB re: 1 μPa, confirmed that some portion of the total number of whales exposed to LFA sonar responded behaviorally by changing their vocal activity, moving away from the source vessel, or both; but the responses were short-lived and animals returned to their normal activities within tens of minutes after initial exposure. These short-term behavioral responses do not necessarily constitute significant changes in biologically important behaviors. In addition, these experiments illustrated that the context of an exposure scenario is important for determining the probability, magnitude, and duration of a response. This was shown by the fact that migrating gray whales responded to a sound source in the middle of their migration route but showed no response to the same sound source when it was located offshore, outside the migratory corridor, even when the source level was increased to maintain the same received levels within the migratory corridor. Although this study is nearly two decades old, the collected behavioral response data remain valid and highly relevant, particularly since the information has been bolstered by other, more recent studies as discussed in the Behavioral Response/Disturbance section above. Therefore, take estimates for SURTASS LFA sonar are likely very conservative (though we analyze them here nonetheless), and takes that do occur will be limited to lower Level B harassment takes.
(3) Efficacy of the Navy's Three-Part Mitigation Monitoring Program—Review of Final Comprehensive and Annual Reports from August 2002 through August 2016 (14 years) indicates that the Navy has completed 171 missions and has reported 27 visual sightings, 11 passive acoustic detections, and 206 HF/M3 active sonar detections of marine mammals. The HF/M3 active sonar system has proven to be the most effective of the mitigation monitoring measures to detect possible marine mammals in proximity to the transmitting LFA sonar array, and use of this system substantially increases the probability of detecting marine mammals within the mitigation zone (and beyond), providing a superior monitoring capability. Because the HF/M3 active sonar is able to monitor large and medium marine mammals out to an effective range of 2 to 2.5 km (1.2 to 1.5 mi; 1.1 to 1.3 nmi) from the vessel, it is unlikely that the SURTASS LFA operations would expose marine mammals to an SPL greater than about 174 dB re: 1 μPa at 1 m. Past results of the HF/M3 sonar system tests provide confirmation that the system has a demonstrated probability of single-ping detection of 95 percent or greater for single marine mammals that are 10 m (32.8 ft) in length or larger, and a probability approaching 100 percent for multiple pings of any sized marine mammal. Lastly, as noted above, from the commencement of SURTASS LFA sonar use in 2002 through the present, neither operation of LFA sonar, nor operation of the T-AGOS vessels, has been associated with any mass or individual strandings of marine mammals. In addition, required monitoring reports indicate that there have been no apparent avoidance reactions observed, and no Level A harassment takes due to SURTASS LFA sonar since its use began in 2002 (see
In examining the results of the mitigation monitoring procedures over the previous 14 years of SURTASS LFA activities, NMFS has concluded that the mitigation and monitoring measures for triggering shutdowns of the LFA sonar system have been implemented properly and have successfully minimized the potential adverse effects of SURTASS LFA sonar to marine mammals in the mitigation and buffer zone around the vessel. This conclusion is further supported by documentation that no known mortality or injury to marine mammals has occurred over this period.
For reasons discussed previously, NMFS anticipates that the effect of masking will be limited and the chances of an LFA sonar sound overlapping whale calls at levels that would interfere with their detection and recognition will be extremely low. Also as discussed previously, NMFS does not expect any short- or long-term effects to marine mammal food resources from SURTASS LFA sonar activities. It is unlikely that the activities of the four SURTASS LFA sonar vessels operating approximately 40 days maximum of LFA at any place in the action area over the course of a year would implicate all of the areas for a given species or stock in any year. It is anticipated that ample similar habitat areas are available for species/stocks in the event that portions of preferred areas are ensonified. Implementation of the LFA shutdown zone and additional 1-km buffer would ensure that most marine mammal takes are limited to lower-level Level B harassment. Further, in areas of known biological importance for functions such as feeding, reproduction, etc., effects are mitigated by OBIAs. As described previously, the Navy implements a 12% cap on affected species/stocks of marine mammals and, as indicated from previous monitoring reports, this level has generally never come close to being affected by SURTASS LFA sonar.
In summary (from the discussion above this section), NMFS has made a preliminary finding that the total taking from SURTASS LFA sonar activities will have a negligible impact on the affected species or stocks based on following: (1) The historical demonstrated effectiveness of the Navy's three-part monitoring program in detecting marine mammals and triggering shutdowns, which make it unlikely that an animal will be exposed to sound levels associated with potential injury or TTS; (2) Geographic restrictions requiring the SURTASS LFA sonar sound field not exceed 180 dB within 22 km of any shoreline, including islands, or at a distance of one km from the perimeter of an OBIA; (3) The small number of SURTASS LFA sonar systems that would be operating world-wide (likely not in close proximity to one another); (4) The relatively low duty cycle, short mission periods and offshore nature of the SURTASS LFA sonar; (5) The fact that marine mammals in unspecified migration corridors and open ocean concentrations would be adequately protected from exposure to sound levels that would result in injury, TTS, and more severe levels of behavioral disruption by the three-part monitoring and mitigation protocols; and (6) Monitoring results from the previous fourteen years of SURTASS LFA sonar activities show that take numbers have been well below the 12 percent cap for Level B harassment for each stock, and there have been no Level A takes.
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 the proposed activity will have a negligible impact on all affected marine mammal species or stocks.
Although the Navy will not operate SURTASS LFA sonar in the vast majority of Arctic waters, the Navy may potentially operate LFA sonar in the Gulf of Alaska or southward off the Aleutian Island chain, where subsistence uses of marine mammals under NMFS jurisdiction occur. Seven species of pinnipeds, one species of odontocetes (beluga whale), and one species of mysticetes (bowhead whale) are targeted by subsistence hunting in Alaska. The stocks of beluga whales that experience Alaska Native subsistence hunting are located in the Arctic waters and would not be impacted by SURTASS LFA sonar. The Western Arctic stock of bowhead whales experience subsistence hunting from Alaska, Canadian, and Russian Natives, but would not occur in the operational areas of SURTASS LFA sonar and would not be impacted by sonar transmissions. The distributions of bearded and ringed seals overlap with operational areas of SURTASS LFA sonar in the Sea of Okhotsk, but these are not stocks that experience subsistence hunting. The Alaska Native harvest of harbor seals from twelve stocks identified in Alaska occurs at haul-out sites within the coastal standoff geographic restriction of SURTASS LFA sonar. The remaining four species of pinnipeds (northern fur seal, ribbon seal, spotted seal, and Steller sea lion) experience Native Alaska subsistence hunting and may be exposed to SURTASS LFA sonar transmissions. Pinnipeds are not low-frequency hearing specialists and the potential for impacts from SURTASS LFA sonar are limited to minimal risk for behavioral change.
Should the Navy operate SURTASS LFA sonar in the Gulf of Alaska, sonar operation would adhere to the shutdown in the mitigation and buffer zones, as well as established geographic restrictions, which include the coastal standoff range and OBIAs (which dictates that the sound field produced by the sonar must be below 180 dB re: 1 μPa at 1 m within 22 km (13. mi; 12 nmi) of any coastline or 1 km from the boundary of an OBIA during the time of its biological importance).
Although there are peaks in harvest activity for both species, most subsistence hunting occurs in the winter from January to March when seals have restricted distributions on the ice front. While it is impossible to predict the future timing of the possible employment of SURTASS LFA sonar in the Gulf of Alaska, regardless of the time of year the sonar may be employed in the Gulf of Alaska, there should be no overlap in time or space with subsistence hunts due to the geographic restrictions on the sonar use (
As part of the public review and comment period for the 2016 DSEIS/SOEIS, letters requesting review were distributed by the Navy to solicit comment from Alaska Native groups on the potential use of SURTASS LFA sonar worldwide. To date, the Navy has not received comments on the DSEIS/SOEIS from Alaska Native groups, nor any requests from Alaskan tribes for government-to-government consultation pursuant to Executive Order 13175. The Navy will continue to keep the Alaskan tribes informed of the timeframes of any future SURTASS LFA sonar exercises planned for the area.
There are 20 marine mammal species under NMFS' jurisdiction that are listed as endangered or threatened under the ESA with confirmed or possible occurrence in potential world-wide mission areas for SURTASS LFA: The blue; fin; sei; humpback (Arabian Sea, Cape Verde Islands/Northwest Africa, Central America, Mexico, and Western North Pacific distinct population segments (DPS)); bowhead; North Atlantic right; North Pacific right; southern right; Western North Pacific DPS of gray; sperm; Cook Inlet DPS of beluga; Main Hawaiian Islands Insular DPS of false killer; and Southern Resident DPS of killer whales, as well as the western DPS of the Steller sea lion; Mediterranean monk seal; Hawaiian monk seal; the Guadalupe fur seal; the Okhotsk ringed seal; the Okhotsk DPS of Pacific bearded seal; and the Southern DPS of spotted seal. In addition, NMFS has proposed to list the Gulf of Mexico Bryde's whale as an endangered species (81 FR 88639, December 8, 2016).
On October 3, 2016, the Navy submitted a Biological Assessment to NMFS to initiate consultation under section 7 of the ESA for the 2017-2022 SURTASS LFA sonar activities and NMFS' authorization for incidental take under section 101(a)(5)(A) of the MMPA. NMFS and Navy will conclude consultation with NMFS's Office of Protected Resources, Interagency Cooperation Division prior to making a determination on the issuance of the final rule and LOAs.
The USFWS is responsible for regulating the take of the several marine mammal species including the southern sea otter, polar bear, walrus, West African manatee, Amazonian manatee, West Indian manatee, and dugong. The Navy has determined that none of these species occur in geographic areas that overlap with SURTASS LFA sonar activities and, therefore, that SURTASS LFA sonar activities will have no effect on the endangered or threatened species or the critical habitat of ESA-listed species under the jurisdiction of the USFWS. Thus, no consultation with the USFWS pursuant to Section 7 of the ESA will occur.
Pursuant to the National Environmental Policy Act (NEPA), the Navy has prepared a DSEIS/SOEIS for the specified activity. NMFS is acting as a cooperating agency in the development of the NEPA document.
The Navy published a Notice of Availability of a DSEIS/SOEIS for employment of SURTASS LFA sonar in the
Prior to issuing the final rule and the first LOA for the proposed activities, NMFS will evaluate the comments received on the DSEIS/SOEIS, comments received as a result of this proposed rulemaking, and the Navy's Final SEIS/SOEIS, and will issue a Record of Decision (ROD).
This action does not contain any collection of information requirements for purposes of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501
The Office of Management and Budget has determined that this proposed rule is not significant for purposes of Executive Order 12866.
Pursuant to the Regulatory Flexibility Act (RFA), the Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The RFA requires a Federal agency to prepare an analysis of a rule's impact on small entities whenever the agency is required to publish a notice of proposed rulemaking. However, a Federal agency may certify, pursuant to 5 U.S.C. 605 (b), that the action will not have a significant economic impact on a substantial number of small entities. The Navy is the sole entity that will be affected by this rulemaking and is not a small governmental jurisdiction, small organization, or small business, as defined by the RFA. Any requirements imposed by LOAs issued pursuant to these regulations, and any monitoring or reporting requirements imposed by these regulations, will be applicable only to the Navy.
NMFS does not expect the issuance of these regulations or the associated LOAs to result in any impacts to small entities pursuant to the RFA. Because this action, if adopted, would directly affect the Navy and not a small entity, NMFS concludes the action would not result in a significant economic impact on a substantial number of small entities.
Exports, Fish, Imports, Indians, Labeling, Marine mammals, Penalties, Reporting and recordkeeping requirements, Seafood, Transportation.
For reasons set forth in the preamble, 50 CFR part 218 is proposed to be amended as follows:
16 U.S.C. 1361
Regulations in this subpart apply only to the incidental taking of those marine mammal species specified in paragraph (b) of this section by the U.S. Navy, Department of Defense, while engaged in the operation of no more than four SURTASS LFA sonar systems conducting active sonar activities in areas specified in paragraph (a) of this section. The authorized activities, as specified in a Letter of Authorization issued under §§ 216.106 and 218.238 of this chapter, include the transmission of low frequency sounds from the SURTASS LFA sonar system and the transmission of high frequency sounds from the mitigation sonar described in § 218.234 during routine training, testing, and military operations.
(a) The incidental take, by Level B harassment, of marine mammals from the activity identified in this section may be authorized in certain areas of the Pacific, Atlantic, and Indian Oceans and the Mediterranean Sea, as specified in a Letter of Authorization.
(b) The incidental take of marine mammals from the activity identified in this section is limited to the following currently classified species and stocks, and may also cover stocks that represent further formal divisions of these species and stocks of marine mammals, provided that NMFS is able to confirm that the level of taking for those stocks and other factors will be consistent with the findings made for current stocks:
(1)
(2)
(3)
Regulations are effective August 15, 2017, through August 14,
(a) Under Letters of Authorization issued pursuant to §§ 216.106 and 218.238 of this chapter, the Holder of the Letter of Authorization may incidentally, but not intentionally, take marine mammals by Level B harassment within the areas described in (a), provided that the activity is in compliance with all terms, conditions, and requirements of this subpart and the appropriate Letter of Authorization.
(b) The incidental take of marine mammals under the activities identified in § 218.230 is limited to the species listed in § 218.230(b) by the method of take indicated in paragraph (b)(2) of this section.
(1) The Navy must maintain a running calculation/estimation of takes of each species or stock over the effective period of this subpart.
(2) Takes by Level B Harassment will not exceed 12 percent of any marine mammal stock listed in § 218.230(b)(1) through (3) annually over the course of the five-year regulations. This annual per-stock cap of 12 percent applies regardless of the number of LFA vessels operating.
No person in connection with the activities described in § 218.230 may:
(a) Take any marine mammal not specified in § 218.230(b);
(b) Take any marine mammal specified in § 218.230 other than by incidental take as specified in § 218.232(b)(2);
(c) Take any marine mammal specified in § 218.230 if NMFS makes a determination that such taking will result, or is resulting, in more than a negligible impact on the species or stocks of such marine mammal; or
(d)(d) Violate, or fail to comply with, any of the terms, conditions, or requirements of this subpart or any Letter of Authorization issued under § 216.106 and 218.238 of this chapter.
When conducting activities identified in § 218.230, the mitigation measures described in this section and in any Letter of Authorization issued under § 216.106 and § 218.238 must be implemented.
(a)
(2) The Navy will hire one or more marine mammal biologist qualified in conducting at-sea marine mammal visual monitoring from surface vessels to train and qualify designated ship personnel to conduct at-sea visual monitoring. This training may be accomplished either in-person, or via video training.
(b)
(2) The Holder of a Letter of Authorization will not transmit the SURTASS LFA sonar signal at a frequency greater than 500 Hz.
(c)
(2) The Holder of a Letter of Authorization will establish an 180-dB LFA mitigation zone around the surveillance vessel that is equal in size to the 180-dB re: 1 μPa isopleth (
(3) If a marine mammal is detected, through monitoring required under § 218.235, within or about to enter the LFA mitigation zone plus the 1-km buffer zone, the Holder of the Authorization will immediately delay or suspend SURTASS LFA sonar transmissions.
(d)
(i) All marine mammals have left the area of the LFA mitigation and buffer zones; and
(ii) There is no further detection of any marine mammal within the LFA mitigation and buffer zones as determined by the visual, passive, and high frequency monitoring described in § 218.235.
(2) [Reserved]
(e)
(i) At least 30 minutes prior to any SURTASS LFA sonar transmissions;
(ii) Prior to any SURTASS LFA sonar calibrations or testing that are not part of regular SURTASS LFA sonar transmissions described in § 218.230; and
(iii) Anytime after the HF/M3 source has been powered down for more than two minutes.
(2) The Holder of a Letter of Authorization will not increase the HF/M3 sound pressure level once a marine mammal is detected; ramp-up may resume once marine mammals are no longer detected.
(f)
(i) The SURTASS LFA sonar sound field exceeds 180 dB re: 1 μPa (rms) at a distance less than 12 nautical miles (nmi) (22 kilometers (km)) from any land, including offshore islands;
(ii) The SURTASS LFA sonar sound field exceeds 180 dB re: 1 μPa (rms) at a distance less than 1 km (0.5 nm) seaward of the outer perimeter of any Offshore Biologically Important Area (OBIA) designated in § 218.234(f)(2), or identified through the Adaptive Management process specified in § 218.241, during the period specified. The boundaries and periods of such OBIAs will be kept on file in NMFS' Office of Protected Resources and on its Web site at
(2) Offshore Biologically Important Areas (OBIAs) for marine mammals (with specified periods) for SURTASS LFA sonar activities include the following:
(g)
(1) Operationally necessary to continue tracking an existing underwater contact; or
(2) Operationally necessary to detect a new underwater contact within the OBIA. This exception does not apply to routine training and testing with the SURTASS LFA sonar systems.
(a) The Holder of a Letter of Authorization issued pursuant to §§ 216.106 and 218.238 must:
(1) Conduct visual monitoring from the ship's bridge during all daylight hours (30 minutes before sunrise until 30 minutes after sunset). During activities that employ SURTASS LFA sonar in the active mode, the SURTASS vessels shall have lookouts to maintain a topside watch with standard binoculars (7x) and with the naked eye.
(2) Use low frequency passive SURTASS sonar to listen for vocalizing marine mammals; and
(3) Use the HF/M3 sonar to locate and track marine mammals in relation to the SURTASS LFA sonar vessel and the sound field produced by the SURTASS LFA sonar source array, subject to the ramp-up requirements in § 216.234(e) of this chapter.
(b) Monitoring under paragraph (a) of this section must:
(1) Commence at least 30 minutes before the first SURTASS LFA sonar transmission;
(2) Continue between transmission pings; and
(3) Continue either for at least 15 minutes after completion of the SURTASS LFA sonar transmission exercise, or, if marine mammals are exhibiting unusual changes in behavioral patterns, for a period of time until behavior patterns return to normal or conditions prevent continued observations.
(c) Holders of Letters of Authorization for activities described in § 218.230 are required to cooperate with the National Marine Fisheries Service and any other federal agency for monitoring the impacts of the activity on marine mammals.
(d) The Navy must designate qualified on-site individuals to conduct the mitigation, monitoring and reporting activities specified in the Letter of Authorization.
(e) Holders of Letters of Authorization will continue to assess data from the Marine Mammal Monitoring Program and work toward making some portion of that data, after appropriate security reviews, available to scientists with appropriate clearances. Any portions of the analyses conducted by these scientists based on these data that are determined to be unclassified after appropriate security reviews will be made publically available.
(f) Holders of Letters of Authorization will collect ambient noise data and will explore the feasibility of declassifying and archiving the ambient noise data for incorporation into appropriate ocean noise budget efforts.
(g) Holders of Letters of Authorization must conduct all monitoring required under the Letter of Authorization.
(a) The Holder of a Letter of Authorization must submit classified and unclassified quarterly mission reports to the Director, Office of Protected Resources, NMFS, no later than 45 days after the end of each quarter beginning on the date of effectiveness of a Letter of Authorization or as specified in the appropriate Letter of Authorization. Each quarterly mission report will include a summary of all active-mode missions completed during that quarter. At a minimum, each classified mission report must contain the following information: (1) Dates, times, and location of each vessel during each mission;
(2) Information on sonar transmissions during each mission;
(3) Results of the marine mammal monitoring program specified in the Letter of Authorization; and
(4) Estimates of the percentages of marine mammal species and stocks affected (both for the quarter and cumulatively for the year) covered by the Letter of Authorization.
(b) The Holder of a Letter of Authorization must submit an unclassified annual report to the Director, Office of Protected Resources, NMFS, no later than 60 days after the expiration of a Letter of Authorization. The reports must contain all the information required by the Letter of Authorization.
(c) The fifth annual report shall be prepared as a final comprehensive report, which will include information for the final year as well as the prior four years of activities under the rule. This final comprehensive report must also contain an unclassified analysis of new passive sonar technologies and an assessment of whether such a system is feasible as an alternative to SURTASS LFA sonar, and shall be submitted to the Director, Office of Protected Resources, NMFS as described in paragraph (b) of this section.
(d) The Navy will continue to assess the data collected by its undersea arrays and work toward making some portion of that data, after appropriate security reviews, available to scientists with appropriate clearances. Any portions of the analyses conducted by these scientists based on these data that are determined to be unclassified after appropriate security reviews will be made publically available. The Navy will provide a status update to NMFS when it submits an annual application for the Letters of Authorization.
(a) To incidentally take marine mammals pursuant to this subpart, the U.S. Navy authority conducting the activity identified in § 218.230 must apply for and obtain a Letter of Authorization in accordance with § 216.106 of this chapter.
(b) The application for a Letter of Authorization must be submitted to the Director, Office of Protected Resources, NMFS, at least 60 days before the date that either the vessel is scheduled to begin conducting SURTASS LFA sonar activities or the previous Letter of Authorization is scheduled to expire. If the Navy will change mission areas, or if there are other substantial modifications to the described activity, mitigation, or monitoring undertaken during the upcoming period, the Navy will submit its application for a Letter of Authorization at least 90 days before the date that either the vessel is scheduled to begin conducting SURTASS LFA sonar activities or the previous Letter of Authorization is scheduled to expire.
(c) All applications for a Letter of Authorization must include the following information:
(1) The area(s) where the vessel's activity will occur;
(2) The species and/or stock(s) of marine mammals likely to be found within each area;
(3) The type of incidental taking authorization requested (
(4) The estimated percentage of marine mammal species/stocks potentially affected in each area for the period of effectiveness of the Letter of Authorization; and
(5) The means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and the level of taking or impacts on marine mammal populations.
(d) The National Marine Fisheries Service will review an application for a Letter of Authorization in accordance with § 216.104(b) of this chapter and, if adequate and complete, issue a Letter of Authorization.
(a) A Letter of Authorization, unless suspended or revoked, will be valid for a period of time not to exceed one year, but may be renewed annually subject to renewal conditions in § 218.239.
(b) Each Letter of Authorization will set forth:
(1) Permissible methods of incidental taking;
(2) Authorized geographic areas for incidental takings;
(3) Means of effecting the least practicable adverse impact on the species of marine mammals authorized for taking, their habitat, and the availability of the species for subsistence uses; and
(4) Requirements for monitoring and reporting incidental takes.
(c) Issuance of a letter of authorization will be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under this subpart.
(d) Notice of issuance or denial of an application for a Letter of Authorization will be published in the
(a) A Letter of Authorization issued for the activity identified in § 218.230 may be renewed upon:
(1) Notification to NMFS that the activity described in the application submitted under § 218.237 will be undertaken and that there will not be a substantial modification to the described activity, mitigation or monitoring undertaken during the upcoming period;
(2) Notification to NMFS of the information identified in § 218.237(c);
(3) Timely receipt of the monitoring reports required under § 218.236, which have been reviewed by NMFS and determined to be acceptable;
(4) A determination by NMFS that the mitigation, monitoring and reporting measures required under §§ 218.234, 218.235, and 218.236 and the previous Letter of Authorization were undertaken and will be undertaken during the upcoming period of validity of a renewed Letter of Authorization; and
(5) A determination by NMFS that the level of taking will be consistent with the findings made for the total taking allowable under this subpart, including for newly identified stocks that represent smaller divisions of species or stocks listed in § 218.230(b).
(b) If a request for a renewal of a Letter of Authorization indicates that a substantial modification to the described work, mitigation, or monitoring will occur, or if NMFS proposes a substantial modification to the Letter of Authorization, NMFS will provide a period of 30 days for public review and comment on the proposed modification. Modifying OBIAs is not considered a substantial modification to the Letter of Authorization.
(c) A notice of issuance or denial of a renewal of a Letter of Authorization will be published in the
(a) Except as provided in paragraph (b) of this section, no substantial modification (including withdrawal or suspension) to a Letter of Authorization subject to the provisions of this subpart shall be made by NMFS until after notification and an opportunity for public comment has been provided.
(b) If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in § 218.230(b)(1), (2), or (3), NMFS may modify a Letter of Authorization without prior notice and opportunity for public comment. Notification will be published in the
NMFS may modify or augment the existing mitigation or monitoring measures (after consulting with the Navy regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of mitigation and monitoring. NMFS will provide a period of 30 days for public review and comment if such modifications are substantial. Amending the areas for upcoming SURTASS LFA sonar activities or OBIA boundaries are not considered substantial modifications to the Letter of Authorization. Below are some of the possible sources of new data that could contribute to the decision to modify the mitigation or monitoring measures:
(a) Results from the Navy's monitoring from the previous year's operation of SURTASS LFA sonar).
(b) Compiled results of Navy-funded research and development studies.
(c) Results from specific stranding investigations.
(d) Results from general marine mammal and sound research funded by the Navy or other sponsors.
(e) Any information that reveals marine mammals may have been taken in a manner, extent or number not anticipated by this subpart or subsequent Letters of Authorization.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
Upon application from the U.S. Navy (Navy), we (NMFS) are issuing regulations under the Marine Mammal Protection Act (MMPA) to govern the unintentional taking of marine mammals incidental to the training activities conducted in the Gulf of Alaska (GOA) Temporary Maritime Activities Area (TMAA) Study Area (hereafter referred to the Study Area) from May 2017 through May 2022. These regulations allow us to issue a Letter of Authorization (LOA) for the incidental take of marine mammals during the Navy's specified activities and timeframes, set forth the permissible methods of taking, set forth other means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, and set forth requirements pertaining to the monitoring and reporting of the incidental take.
Effective April 26, 2017, through April 26, 2022.
To obtain an electronic copy of the Navy's LOA application or other referenced documents, visit the internet at:
Jolie Harrison, Office of Protected Resources, NMFS, (301) 427-8477.
A copy of the Navy's LOA application may be obtained by visiting the internet at:
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
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 Secretary sets forth permissible methods of taking and other means of effecting the least practicable impact on the species or stock and its habitat. 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.”
The National Defense Authorization Act of 2004 (NDAA) (Pub. L. 108-136) removed the “small numbers” and “specified geographical region” limitations indicated above and amended the definition of “harassment” as applies to a “military readiness activity” to read as follows (section 3(18)(B) of the MMPA, 16 U.S.C. 1362(18)(B)): “(i) Any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild” (Level A Harassment); or “(ii) Any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered” (Level B Harassment).
On July 28, 2014, NMFS received an application from the Navy requesting an LOA for the take of 19 species of marine mammals, representing 27 stocks, incidental to Navy training activities to be conducted in the Study Area over 5 years. On October 14, 2014, the Navy submitted a revised LOA application to reflect minor changes in the number and types of training activities. To address minor inconsistencies with the draft SEIS/OEIS (DSEIS/OEIS), the Navy submitted a final revision to the LOA application (hereafter referred to as the LOA application) on January 21, 2015. In November 2016, the Navy requested that the final rule and LOA be issued for the training activities addressed by Alternative 1 of the FSEIS/OEIS. The Navy's LOA application was based on the training activities addressed by Alternative 2 of the DSEIS/OEIS; therefore, our proposed rule (81 FR 9950; February 26, 2016) analyzed the level of activities as described by Alternative 2. Pursuant to the Navy's November 2016 request, the final rule now reflects the training activities addressed by Alternative 1 of the FSEIS/OEIS, which include a subset of the activities analyzed in the proposed rule. The change from Alternative 2 to Alternative 1 results in a significant reduction in proposed training activities (see “Training” and “Summary of Impulsive and Non-Impulsive Sources”), lessening the number of the Carrier Strike Group Events from 2 to 1 per year, and the number of SINKEXs from 2 to 0 per year, which means that several types of explosives will no longer be used and there will be no live MISSILEX. This significantly decreases the number of anticipated and authorized takes for this activity (see “Take Request”) compared to what was presented in the proposed rule.
The Navy is requesting a five-year LOA for training activities to be conducted from May 2017 through May 2022. The Study Area is a polygon roughly the shape of a 300 nm by 150 nm rectangle oriented northwest to southeast in the long direction, located south of Prince William Sound and east of Kodiak Island, Alaska (see Figure 1-1 of the LOA application for a map of the Study Area). The activities conducted within the Study Area are classified as military readiness activities. The Navy states that these activities may expose some of the marine mammals present within the Study Area to sound from underwater acoustic sources and explosives. The Navy's request for authorization is for the incidental take of individuals of 19
The LOA application, proposed rule (81 FR 9950; February 26, 2016), and GOA FSEIS/OEIS contain acoustic thresholds that, in some instances, represent changes from what NMFS has used to evaluate the Navy's activities for previous authorizations. These thresholds, which the Navy developed in coordination with NMFS, are based on the evaluation and inclusion of new information from recent scientific studies; a detailed explanation of how they were derived is provided in the GOA FSEIS/OEIS Criteria and Thresholds for U.S. Navy Acoustic and Explosive Effects Analysis Technical Report (available at
On August 4, 2016, NMFS released its Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (new Guidance). This new Guidance established new thresholds and associated weighting functions for predicting auditory injury, or permanent threshold shift (PTS), which equates to Level A harassment under the MMPA, and temporary threshold shift (TTS), which is considered Level B harassment under the MMPA. In the August 4, 2016,
In developing the new Guidance, NMFS compiled, interpreted, and synthesized scientific information currently available on the effects of anthropogenic sound on marine mammals, including a recent Technical Report by Dr. James Finneran (U.S. Navy-SPAWAR Systems Center Pacific) that proposed new weighting functions and thresholds for predicting the onset of both PTS and temporary threshold shifts (TTS) in marine mammals (Finneran, 2016). The methodologies presented within this paper (and in NMFS' new Guidance) build upon the methodologies used to develop the criteria applied within the proposed rule and Navy's GOA FSEIS/OEIS (Finneran and Jenkins, 2012), and incorporate relevant auditory research made available since 2012 (
In addition to the fact that it was possible to address the new Guidance adequately without remodeling it would have been impractical for the Navy to entirely re-model its proposed action based on the new Guidance. The Navy committed substantial time and resources to the development of acoustic analyses based on previous acoustic thresholds. Data and information (
For the sonar exposure estimates, if the new Guidance was quantitatively applied to the GOA TMAA effects analysis and new modeling conducted, predicted numbers of PTS and/or TTS would change to some small degree (even if only by fractions of a take). However, because the new Guidance relies on much of the same data as the auditory criteria presented in the proposed rule and the Navy's GOA FSEIS/OEIS, these changes would not be substantial (as described in more detail below), and in most cases would result in a reduction in the predicted impacts.
Onset PTS thresholds for non-impulsive sound (sonar) are largely lower (
For impulsive sound (explosives), the Navy was able to reprocess anticipated ranges to effects for Level A harassment (PTS), and subsequently ranges to effects for TTS and behavioral exposures, based on the new Guidance to assess if the new impulsive criteria could result in any additional species-specific takes. The conclusion from that analysis was that the new impulsive criteria would not change previous species-specific quantities of impulsive PTS, TTS, or behavioral exposures for any species except Dall's porpoise, and the mitigation zones described in the proposed rule (as shown in
In summary, NMFS' consideration of the new Guidance does not substantially alter our assessment of the likely responses of marine mammals to acoustic sources employed by the Navy in the GOA TMAA Study Area (though take numbers have been altered slightly where appropriate as described above and in the Estimated Take section), or the likely fitness consequences of those responses. Overall, predicted auditory effects within this rulemaking would not change significantly. As described, application of the new Guidance represents only minor changes in take estimates, and would not change NMFS' final analysis and negligible impact determination. Further, the robust monitoring and mitigation measures in this final rule satisfy the “least practicable adverse impact” standard.
Of additional note, the definition of an “Unusual Mortality Event,” which is necessary to the implementation of the Navy's Stranding Response Plan, has been added to the final regulations. This addition corrects an oversight in the proposed rule and does not represent a significant change.
The Navy's mission is to organize, train, equip, and maintain combat-ready naval forces capable of winning wars, deterring aggression, and maintaining freedom of the seas. Consistent with this mission, 10 U.S.C. 5062 mandates that naval forces be trained and equipped for prompt and sustained combat incident to operations at sea, and that naval forces be prepared for the effective prosecution of war.
The Navy proposes to continue conducting training activities within the Study Area, which have been ongoing since the 1990s. The tempo and types of training activities have evolved and fluctuated to some degree because of the introduction of new technologies, the dynamic nature of international events, advances in war fighting doctrine and procedures, and force structure (organization of ships, submarines, aircraft, weapons, and personnel) changes. Such developments influence the frequency, duration, intensity, and location of required training activities, but the essential character and basic level of the military readiness activities conducted in the Study Area has remained largely unchanged. The Navy's LOA request covers training activities that would occur over a five-year period beginning in May 2017. NMFS' previous MMPA incidental take authorization for the GOA TMAA expired in May 2016.
The proposed rule (81 FR 9950; February 26, 2016) and GOA FSEIS/OEIS include a complete description of the Navy's specified training activities incidental to which NMFS is authorizing take of marine mammals in this final rule. Sonar use and underwater detonations are the stressors most likely to result in impacts on marine mammals that could rise to the level of harassment. Detailed descriptions of these activities are provided in the FSEIS/OEIS and in the LOA application (
The Navy routinely trains in the Study Area in preparation for national defense missions. Training activities and exercises covered in the Navy's LOA request are briefly described below, and in more detail within chapter 2 of the GOA FSEIS/OEIS. Each military training activity described meets a requirement that can be traced ultimately to requirements set forth by the National Command Authority.
The Navy categorizes training activities into eight functional warfare areas called primary mission areas: Anti-air warfare; amphibious warfare; strike warfare; Anti-surface warfare (ASUW); anti-submarine warfare (ASW); electronic warfare; mine warfare (MIW); and naval special warfare (NSW). Most training activities are categorized under one of these primary mission areas; those activities that do not fall within one of these areas are in a separate
The Navy described and analyzed the effects of its training activities within the GOA FSEIS/OEIS. In its assessment, the Navy concluded that of the activities conducted within the Study Area, sonar use and underwater detonations were the stressors resulting in impacts on marine mammals that could rise to the level of harassment as defined under the MMPA. Therefore, the LOA application provides the Navy's assessment of potential effects from these stressors. The specific acoustic sources used in the LOA application are contained in the GOA FSEIS/OEIS and are presented in the following sections based on the primary mission areas.
The mission of ASUW is to defend against enemy ships or boats. In the conduct of ASUW, aircraft use cannons, air-launched cruise missiles or other precision-guided munitions; ships employ torpedoes, naval guns, and surface-to-surface (S-S) missiles; and submarines attack surface ships using torpedoes or submarine-launched, anti-ship cruise missiles.
Anti-surface warfare training in the Study Area includes S-S gunnery and missile exercises (GUNEX and MISSILEX) and air-to-surface (A-S) bombing exercises (BOMBEX), GUNEX, and MISSILEX. Of note, the MISSILEX in GOA does not expend ordnance.
The mission of ASW is to locate, neutralize, and defeat hostile submarine threats to surface forces. ASW is based on the principle of a layered defense of surveillance and attack aircraft, ships, and submarines all searching for hostile submarines. These forces operate together or independently to gain early warning and detection, and to localize, track, target, and attack hostile submarine threats.
Anti-submarine warfare training addresses basic skills such as detection and classification of submarines, distinguishing between sounds made by enemy submarines and those of friendly submarines, ships, and marine life. ASW training evaluates the ability of fleet assets to use systems, for example, active and passive sonar and torpedo systems to counter hostile submarine threats. More advanced, integrated ASW training exercises are conducted in coordinated, at-sea training events involving submarines, ships, and aircraft. This training integrates the full spectrum of ASW from detecting and tracking a submarine to attacking a target using simulated weapons.
The Navy uses a variety of sensors, platforms, weapons, and other devices to meet its mission. Training with these systems and devices may introduce acoustic (sound) energy into the environment. The Navy's current LOA application describes underwater sound as one of two types: Impulsive and non-impulsive. Sonar and similar sound producing systems are categorized as non-impulsive sound sources. Underwater detonations of explosives and other percussive events are impulsive sounds.
Modern sonar technology includes a variety of sonar sensor and processing systems. In concept, the simplest active sonar emits sound waves, or “pings,” sent out in multiple directions, and the sound waves then reflect off of the target object in multiple directions. The sonar source calculates the time it takes for the reflected sound waves to return; this calculation determines the distance to the target object. More sophisticated active sonar systems emit a ping and then rapidly scan or listen to the sound waves in a specific area. This provides both distance to the target and directional information. Even more advanced sonar systems use multiple receivers to listen to echoes from several directions simultaneously and provide efficient detection of both direction and distance. Active sonar is rarely used continuously throughout the listed activities. In general, when sonar is in use, the sonar “pings” occur at intervals, referred to as a duty cycle, and the signals themselves are very short in duration. For example, sonar that emits a 1-second ping every 10 seconds has a 10 percent duty cycle. The Navy's largest hull-mounted mid-frequency sonar source typically emits a 1-second ping every 50 seconds representing a 2 percent duty cycle. The Navy utilizes sonar systems and other acoustic sensors in support of a variety of mission requirements. Primary uses include the detection of and defense against submarines (ASW) and mines (MIW); safe navigation and effective communications; use of unmanned undersea vehicles; and oceanographic surveys. Sources of sonar and other active acoustic sources include surface ship sonar, sonobuoys, torpedoes, and unmanned underwater vehicles.
Most ordnance and munitions used during training events fall into three basic categories: Projectiles (such as gun rounds), missiles (including rockets), and bombs. Ordnance can be further defined by their net explosive weight (NEW), which considers the type and quantity of the explosive substance without the packaging, casings, bullets, etc. NEW is the trinitrotoluene (TNT) equivalent of energetic material, which is the standard measure of strength of bombs and other explosives. For example, a 5-inch shell fired from a Navy gun is analyzed at approximately 9.5 pounds (lb.) (4.3 kilograms (kg)) of NEW. The Navy also uses non-explosive ordnance in place of explosive ordnance in many training and testing events. Non-explosive ordnance look and perform similarly to explosive ordnance, but lack the main explosive charge.
Naval forces depend on effective defensive countermeasures to protect themselves against missile and torpedo attack. Defensive countermeasures are devices designed to confuse, distract, and confound precision-guided munitions. Defensive countermeasures analyzed in this LOA application include acoustic countermeasures, which are used by surface ships and submarines to defend against torpedo attack. Acoustic countermeasures are either released from ships and submarines, or towed at a distance behind the ship.
In order to better organize and facilitate the analysis of approximately 300 individual sources of underwater acoustic sound or explosive energy, a series of source classifications, or source bins, were developed by the Navy. The use of source classification bins provides the following benefits:
• Provides the ability for new sensors or munitions to be covered under existing regulatory authorizations, as long as those sources fall within the parameters of a “bin”;
• Simplifies the source utilization data collection and reporting requirements anticipated under the MMPA;
• Ensures a conservative approach to all impact analysis, as all sources in a single bin are modeled as the loudest source (
○ Allows analysis to be conducted more efficiently, without compromising the results; and
○ Provides a framework to support the reallocation of source usage (hours/explosives) between different source bins, as long as the total number and severity of marine mammal takes remain within the overall analyzed and authorized limits. This flexibility is required to support evolving Navy training requirements, which are linked to real world events.
There are two primary types of acoustic sources: Impulsive and non-impulsive. A description of each source classification is provided in Tables 1 and 2. Impulsive source class bins are based on the NEW of the munitions or explosive devices or the source level for air and water guns. Non-impulsive acoustic sources are grouped into source class bins based on the frequency,
• Frequency of the non-impulsive source:
○ Low-frequency sources operate below 1 kilohertz (kHz);
○ Mid-frequency sources operate at and above 1 kHz, up to and including 10 kHz;
○ High-frequency sources operate above 10 kHz, up to and including 100 kHz;
○ Very high-frequency sources operate above 100 kHz but below 200 kHz.
• Source level of the non-impulsive source;
○ Greater than 160 decibels (dB), but less than 180 dB;
○ Equal to 180 dB and up to 200 dB;
○ Greater than 200 dB.
• Application in which the source would be used;
○ How a sensor is employed supports how the sensor's acoustic emissions are analyzed;
○ Factors considered include pulse length (time source is on); beam pattern (whether sound is emitted as a narrow, focused beam or, as with most explosives, in all directions); and duty cycle (how often or how many times a transmission occurs in a given time period during an event).
As described in the GOA FSEIS/OEIS, non-impulsive acoustic sources that have low source levels (not loud), narrow beam widths, downward directed transmission, short pulse lengths, frequencies beyond known hearing ranges of marine mammals, or some combination of these characteristics, are not anticipated to result in takes of protected species and therefore were not modeled. These sources generally meet one of the following criteria, are considered
• Acoustic sources with frequencies greater than 200 kHz (based on known marine mammal hearing ranges); and
• Sources with source levels less than 160 dB.
Table 1 shows the impulsive sources (
The training activities with potential impacts to marine mammals that the Navy proposes to conduct in the Study Area are described in Table 3. The table is organized according to primary mission areas and includes the activity name, associated stressor(s), description of the activity, the primary platform used (
Table 4 provides a quantitative annual summary of training activities by sonar and other active acoustic source class analyzed in the Navy's LOA request. Annual use has been updated since publication of the notice for the proposed rule and now reflects Navy's Alternative 1, which results in a reduction of annual use by about half.
Table 5 provides a quantitative annual summary of training explosive source classes analyzed in the Navy's LOA request. Annual number of in-water detonations has been updated since publication of the notice for the proposed rule and now reflects Navy's Alternative 1, which results in a reduction of detonations by at least half.
Training activities would be conducted in the Study Area during one exercise of up to 21 days per year between the months of April and October to support a major joint training exercise in Alaska and off the Alaskan coast that involves the Departments of the Navy, the Army, Air Force, and the U.S. Coast Guard (Coast Guard). The Service participants report to a unified or joint commander who coordinates the activities planned to demonstrate and evaluate the ability of the services to engage in a conflict and carry out plans in response to a threat to national security. Take incidental to the annual exercise would be authorized between May 2017 and May 2022.
The Study Area (see Figure 1-1 of the LOA application) is entirely at sea and is composed of the established GOA TMAA and a warning area in the Gulf of Alaska. The Navy uses “at-sea” to include its training activities in the Study Area that occur (1) on the ocean surface, (2) beneath the ocean surface, and (3) in the air above the ocean surface. Navy training activities occurring on or over the land outside the GOA TMAA are covered under previously prepared environmental documentation prepared by the U.S. Air Force and the U.S. Army. Gulf of Alaska Temporary Maritime Activities Area (GOA TMAA)
The GOA TMAA is a temporary area established in conjunction with the Federal Aviation Administration (FAA) for one exercise period of up to 21 days, that is a surface, undersea space, and airspace maneuver area within the Gulf of Alaska for ships, submarines, and aircraft to conduct required training activities. The GOA TMAA is a polygon roughly resembling a rectangle oriented from northwest to southeast, approximately 300 nautical miles (nm) in length by 150 nm in width, located south of Prince William Sound and east of Kodiak Island.
The airspace of the GOA TMAA overlies the surface and subsurface training area and is called an Altitude Reservation (ALTRV). This ALTRV is a temporary airspace designation, typically requested by the Alaskan Command (ALCOM) and coordinated through the FAA for the duration of the exercise. This overwater airspace supports the majority of aircraft training activities conducted by Navy and Joint aircraft throughout the joint training exercise. The ALTRV over the GOA TMAA typically extends from the ocean surface to 60,000 feet (ft) (18,288 meters (m)) above mean sea level and encompasses 42,146 square nautical miles (nm
Additionally, the GOA TMAA overlies a majority of Warning Area W-612 (W-612) located over Blying Sound, towards the northwestern quadrant of the GOA TMAA. When not included as part of the GOA TMAA, W-612 provides 2,256 nm
The GOA TMAA surface and subsurface areas are also depicted in Figure 1-1 of the LOA application. Total surface area of the GOA TMAA is 42,146 nm
The complex bathymetric and oceanographic conditions, including a continental shelf, submarine canyons, numerous seamounts, and fresh water infusions from multiple sources, create a challenging environment in which to search for and detect submarines in ASW training activities. In the summer, the GOA TMAA provides a safe cold-water training environment that resembles other areas where Navy may need to operate in a real-world scenario.
The GOA TMAA meets large-scale joint exercise training objectives to
Twenty-two marine mammal species have confirmed or possible occurrence within or adjacent to the Study Area, including seven species of baleen whales (mysticetes), eight species of toothed whales (odontocetes), six species of seals (pinnipeds), and the sea otter (mustelid). Three of these species (gray whale, sea otter, and ribbon seal) are not expected to be taken by the training activities, as discussed in Chapter 4 of the LOA application. Nine of these species are listed under the ESA: Blue whale, fin whale, humpback whale (Distinct Population Segment (DPS) and Western North Pacific DPS), sei whale, sperm whale, gray whale (Western North Pacific stock), North Pacific right whale, Steller sea lion (Western U.S. stock), and sea otter. The “Description of Marine Mammals in the Area of the Specified Activities” section was included in the proposed rule (81 FR 9950, 9956-57; February 26, 2016). These descriptions have not changed, with the exception of the humpback whale. On September 8, 2016, NMFS revised the ESA listing for humpback whales to identify 14 DPSs, listing one as threatened, four as endangered, and identifying nine others as not warranted for listing (81 FR 40870). Humpback whales from the threatened Mexico DPS, endangered Western North Pacific DPS, and Hawaii DPS, which was identified as not warranted for listing, could all occur in the Study Area.
Table 6 of the proposed rule provided a list of marine mammals with possible or confirmed occurrence within the GOA TMAA Study Area, including stock, abundance, and status. Information on the status, distribution, abundance, and vocalizations of marine mammal species in the Study Area may also be viewed in Chapter 4 of the LOA application (
In the “Potential Effects of Specified Activities on Marine Mammals” section of the proposed rule (81 FR 9950; 9961-78; February 26, 2016), we included a qualitative discussion of the different ways that Navy training activities may potentially affect marine mammals without consideration of mitigation and monitoring measures. With the exception of the new information related to thresholds for auditory injury described earlier in this document, that information has not changed in a manner that would affect our analysis or findings and is not repeated here.
Under section 101(a)(5)(A) of the MMPA, NMFS must set forth the “permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse 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 subsistence uses” (“least practicable adverse impact”). NMFS does not have a regulatory definition for least practicable adverse impact. The NDAA for FY 2004 amended the MMPA as it relates to military readiness activities and the incidental take authorization process such that “least practicable adverse impact” shall include consideration of personnel safety, practicality of implementation, and impact on the effectiveness of the “military readiness activity.”
As discussed in the proposed rule, in
Before NMFS can issue incidental take regulations under section 101(a)(5)(A) of the MMPA, it must make a finding that the total taking will have a “negligible impact” on the affected “species or stocks” of marine mammals. NMFS' and U.S. Fish and Wildlife Service's joint implementing regulations for section 101(a)(5)(A) define “negligible impact” 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.” 50 CFR 216.103 and 50 CFR 18.27(c). Recruitment (
As we stated in the preamble to the final rule for the joint implementing regulations, not every population-level impact violates the negligible impact requirement. The negligible impact standard does not require a finding that the anticipated take will have “no effect” on population numbers or growth rates: “The statutory standard does not require that the same recovery rate be maintained, rather that no significant effect on annual rates of recruitment or survival occurs [. . .] . [T]he key factor is the significance of the level of impact on rates of recruitment or survival.” See 54 FR 40338, 40341-42 (September 29, 1989).
While some level of impact on population numbers or growth rates of a species or stock may occur and still satisfy the negligible impact requirement—even without
The negligible impact and least practicable adverse impact standards in the statute share a common reference to “species or stocks.” A “species” is defined as a group of animals or plants that are similar and can produce young animals or plants: a group of related animals or plants that is smaller than a genus (
Recognizing this common focus of the two provisions on “species or stock” does not mean we conflate the standards; despite some common statutory language, we recognize the two provisions are different in other ways and have different functions.
Further, section 101(a)(5)(A)(i)(II) requires NMFS to issue, in conjunction with its authorization, binding—and enforceable—restrictions (in the form of regulations) setting forth how the activity must be conducted, thus ensuring the activity has the “least practicable adverse impact” on the affected species or stocks. In situations where mitigation is needed to reach a negligible impact determination, section 101(a)(5)(A)(i)(II) also provides a mechanism for ensuring compliance with the “negligible impact” requirement. Finally, we also reiterate that the “least practicable adverse impact” standard requires mitigation for marine mammal habitat, with particular attention to rookeries, mating grounds, and other areas of similar significance, and for mitigating subsistence impacts; whereas the negligible impact standard is concerned with conclusions about the impact of an activity on the affected populations.
In
We have carefully reviewed and considered the Ninth Circuit's opinion in
Given this most recent court decision, we further clarify how we determine whether a measure or set of measures meets the “least practicable adverse impact” standard. Our evaluation of potential mitigation measures includes consideration of two primary factors:
(1) The manner in which, and the degree to which, implementation of the measure(s) is expected to reduce impacts to marine mammal species or stocks, their habitat, and their availability for subsistence uses (where relevant). Among other things, this analysis will consider the nature of the potential adverse impact (such as likelihood, scope, and range), the likelihood that the measure will be effective if implemented, and the likelihood of successful implementation.
(2) The practicability of the measures for applicant implementation. Practicability of implementation may consider such things as cost, impact on operations, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity. 16 U.S.C. 1371(a)(5)(A)(ii).
While the language of the least practicable adverse impact standard
In the evaluation of specific measures, the details of the specified activity will necessarily inform each of the two factors and will be carefully considered to determine the types of mitigation that are appropriate under the least practicable adverse impact standard. The greater the likelihood that a measure will contribute to reducing the probability or severity of adverse impacts to the species or stock, the greater the weight that measure(s) is given when considered in combination with practicability to determine the appropriateness of the mitigation measure(s), and vice versa.
Below we discuss how these factors are considered.
The ultimate impact on any individual from a disturbance event (which informs the likelihood of adverse species or stock-level effects) is dependent on the circumstances and associated contextual factors, such as duration of exposure to stressors. Though any proposed mitigation needs to be evaluated in the context of the specific activity and the species or stocks affected, measures with the following types of goals are often applied to reduce the likelihood or severity of adverse species or stock-level impacts: Avoiding or minimizing injury or mortality; limiting interruption of known feeding, breeding, mother/young, or resting behaviors; minimizing the abandonment of important habitat (temporally and spatially); minimizing the number of individuals subjected to these types of disruptions; and limiting degradation of habitat. Mitigating these types of effects is intended to reduce the likelihood that the activity will result in energetic or other types of impacts that are more likely to result in reduced reproductive success or survivorship. It is also important to consider the degree of impacts that were expected in the absence of mitigation in order to assess the added value of any potential measures.
The status of the species or stock is also relevant in evaluating the appropriateness of certain mitigation measures in the context of least practicable adverse impact. The following are examples of factors that may (either alone, or in combination) result in greater emphasis on the importance of a mitigation measure in reducing impacts on a species or stock: The stock is known to be decreasing or status is unknown, but believed to be declining; the known annual mortality (from any source) is approaching or exceeding the potential biological removal (PBR) level (as defined in 16 U.S.C. 1362(20)); the affected species or stock is a small, resident population; or the stock is involved in an unusual mortality event (UME) or has other known vulnerabilities, such as recovering from an oil spill.
The above section describes the factors considered in making a least practicable adverse impact finding. In summary, NMFS will carefully balance the likelihood and degree to which a measure(s) will reduce adverse impacts on species or stocks with the measure's practicability in determining appropriate mitigation measures.
NMFS reviewed the proposed activities and the proposed mitigation measures as described in the Navy's LOA application to determine if they would result in the least practicable adverse effect on marine mammal species or stocks. NMFS described the Navy's proposed mitigation measures in detail in the proposed rule (81 FR 9950, 9978-86; February 26, 2016). As described below and in responses to comments, and in the GOA FSEIS/OEIS, some additional measures were also considered and analyzed. Time/area specific mitigation measures considered by the Navy and NMFS for the Navy's low use of hull-mounted mid-frequency active sonar and explosives activities in certain areas of particular importance to specific marine mammals have been clarified and described below (see “Consideration of Time/Area Limitations”) and in the “Comments and Responses” section of this rule. This final rule includes the adoption of a new “Cautionary Area” for North Pacific right whales. This additional time/area specific measure is also included in the regulatory text (see § 218.154 Mitigation) at the end of this rule. Other additional mitigation measures were considered but ultimately not chosen for implementation because they were unlikely to reduce impacts to marine mammals or implementation was considered unacceptable with regard to personal safety, practicality of implementation, and impact on effectiveness of the military readiness activity. Separately, as mentioned previously, live MISSILEX exercises were eliminated from the Navy's proposed activities covered under this Final Rule and, therefore, the associated mitigation measures for live MISSILEX exercises that were included in the proposed rule have been removed from the Final Rule. In addition, further details were added to one of the mitigation zones regarding close approaches to marine mammals by vessels to clarify when it is applicable.
Below are the mitigation measures as agreed upon by the Navy and NMFS. For additional details regarding the Navy's mitigation measures, see the “Proposed Mitigation” section of the
The Navy shall have two types of Lookouts for the purposes of conducting visual observations: Those positioned on ships; and those positioned ashore, in aircraft, or on small boats. Lookouts positioned on ships shall diligently observe the air and surface of the water. They shall have multiple observation objectives, which include but are not limited to detecting the presence of biological resources and recreational or fishing boats, observing the mitigation zones, and monitoring for vessel and personnel safety concerns.
Due to manning and space restrictions on aircraft, small boats, and some Navy ships, Lookouts for these platforms may be supplemented by the aircraft crew or pilot, boat crew, range site personnel, or shore-side personnel. Lookouts positioned in minimally manned platforms may be responsible for tasks in addition to observing the air or surface of the water (
The procedural measures described in the remainder of this section primarily consist of having Lookouts during specific training activities.
All personnel standing watch on the bridge, Commanding Officers, Executive Officers, maritime patrol aircraft aircrews, anti-submarine warfare helicopter crews, civilian equivalents, and Lookouts shall successfully complete the United States Navy Marine Species Awareness Training prior to standing watch or serving as a Lookout. Additional details on the Navy's Marine Species Awareness Training can be found in the GOA FSEIS/OEIS. The Navy shall use one or more Lookouts during the training activities described below, which are organized by stressor category.
The Navy's previous Lookout mitigation measures during training activities involving hull-mounted MFAS in the GOA TMAA included requirements such as the number of personnel on watch and the manner in which personnel are to visually search the area in the vicinity of the ongoing activity. The Navy shall maintain the number of Lookouts required by the Phase I incidental take rule and LOA for the GOA TMAA for ships using hull-mounted MFAS.
Ships using hull-mounted MFAS sources associated with ASW activities at sea (with the exception of ships less than 65 ft (20 m) in length, which are minimally manned) will have two Lookouts at the forward position. While using hull-mounted MFAS sources underway, vessels less than 65 ft (20 m) in length and ships that are minimally manned shall have one Lookout at the forward position due to space and manning restrictions.
The Navy plans to conduct activities using high-frequency and non-hull-mounted MFAS in the Study Area. Non-hull-mounted MFAS training activities include the use of aircraft deployed sonobuoys, helicopter dipping sonar, and submarine sonar. During those activities, the Navy shall employ the following mitigation measures regarding Lookout procedures:
• Navy aircraft participating in exercises at sea shall conduct and maintain, when operationally feasible and safe, surveillance for marine species of concern as long as it does not violate safety constraints or interfere with the accomplishment of primary operational duties.
• Helicopters shall observe/survey the vicinity of an ASW training event for 10 minutes before the first deployment of active (dipping) sonar in the water.
The Navy shall continue to use the number of Lookouts (one) required by the Phase I incidental take rule and LOA for the GOA TMAA for ships or aircraft conducting non-hull-mounted MFA sonar activities.
The Phase I incidental take rule and LOA for the GOA TMAA did not include mitigation measures for other high-frequency active sonar activities associated with ASW, or for new platforms; therefore, the Navy shall add a new Lookout and other measures for these activities and on these platforms when conducted in the Study Area. The measure is: The Navy shall have one Lookout on ships conducting high-frequency or non-hull mounted mid-frequency active sonar activities associated with ASW activities at sea.
The Navy is not proposing use of Improved Extended Echo Ranging Sonobuoys during the GOA TMAA training activities.
The previous, and first, incidental take rule and LOA (Phase I) for the GOA TMAA did not include lookout measures for explosive signal underwater sound (SUS) buoy activities using >0.5-2.5 pound (lb.) NEW. The Navy shall add this measure. Aircraft conducting SUS activities using >0.5-2.5 lb. NEW will have one Lookout.
The following Lookout procedures during gunnery exercises are included:
• From the intended firing position, trained Lookouts shall survey the mitigation zone for marine mammals prior to commencement and during the exercise as long as practicable.
• Target towing vessels shall maintain a Lookout. If a marine mammal is sighted in the vicinity of the exercise, the tow vessel shall immediately notify the firing vessel in order to secure gunnery firing until the area is clear.
The Navy shall continue using these Lookout procedures previously implemented for this activity. The Navy shall have one Lookout on the vessel or aircraft conducting small-, medium-, or large-caliber gunnery exercises against a surface target. Towing vessels shall also maintain one Lookout.
The following Lookout procedures during missile exercises are included:
• Aircraft shall visually survey the target area for marine mammals. Visual inspection of the target area shall be made by flying at 1,500 ft (457 m) or lower, if safe to do so, and at slowest safe speed.
• Firing or range clearance aircraft must be able to actually see ordnance impact areas.
The Navy shall continue using the Lookout procedures previously implemented for this activity. When aircraft are conducting missile exercises against a surface target, the Navy shall have one Lookout positioned in an aircraft.
The following Lookout procedures during bombing exercises are included:
• If surface vessels are involved, Lookouts shall survey for floating kelp and marine mammals.
• Aircraft shall visually survey the target and mitigation zone for marine
The Navy shall continue implementing these measures for bombing exercises, and shall have one Lookout positioned in an aircraft conducting bombing exercises, and trained Lookouts in any surface vessels involved.
The Navy shall continue using the number of Lookouts previously required by the Phase I GOA incidental take rule and LOA for gunnery exercises. The Navy shall have one Lookout on the ship conducting explosive and non-explosive gunnery exercises. This may be the same Lookout described for Gunnery Exercises—Small-, Medium-, and Large-Caliber Using a Surface Target when that activity is conducted from a ship against a surface target.
The Navy shall employ the following Lookout procedures to avoid physical disturbance and strike of marine mammals during at-sea training:
• While underway, surface vessels shall have at least one Lookout with binoculars, and surfaced submarines shall have at least one Lookout with binoculars. Lookouts already posted for safety of navigation and man-overboard precautions may be used to fill this requirement. As part of their regular duties, Lookouts will watch for and report to the Officer of the Deck the presence of marine mammals.
The Navy employs the same mitigation measures for non-explosive practice munitions—small-, medium-, and large-caliber gunnery exercises—as described above for Gunnery Exercises—Small-, Medium-, and Large-Caliber Using a Surface Target.
The Navy shall continue using the number of Lookouts previously implemented for these activities pursuant to the Phase I incidental take rule and LOA for the GOA TMAA. The Navy shall have one Lookout during activities involving non-explosive practice munitions (
No MISSILEX using live ordnance will be conducted in GOA. When aircraft are conducting non-explosive missile exercises (including exercises using rockets) against a surface target, the Navy shall have one Lookout positioned in an aircraft.
The Navy employs the same mitigation measures for non-explosive bombing exercises as described for Bombing Exercises (Explosive).
The Navy shall continue using the same Lookout procedures previously implemented for these activities pursuant to the Phase I incidental take rule and LOA for the GOA TMAA. The Navy will have one Lookout positioned in an aircraft during non-explosive bombing exercises, and trained Lookouts in any surface vessels involved.
The Navy shall use mitigation zones to reduce the potential impacts to marine mammals from training activities. Mitigation zones are measured as the radius from a source. Unique to each activity category, each radius represents a distance that the Navy will visually observe to help reduce injury to marine species. Visual detections of applicable marine species will be communicated immediately to the appropriate watch station for information dissemination and appropriate action. If the presence of marine mammals is detected acoustically, Lookouts posted in aircraft and on surface vessels will increase the vigilance of their visual surveillance. As a reference, aerial surveys are typically made by flying at 1,500 ft (457 m) altitude or lower at the slowest safe speed.
Many of the proposed activities have mitigation measures that were implemented during the Navy's Phase I activities in the GOA TMAA as required by previous environmental documents or consultations. Most of the mitigation zones for activities that involve the use of impulsive and non-impulsive sources were originally designed to reduce the potential for onset of TTS. For the GOA FSEIS/OEIS and the LOA application, the Navy updated the acoustic propagation modeling to incorporate updated hearing threshold metrics (
As a result of the updates described above, in some cases the ranges to onset of TTS effects are much larger than previous model outputs (
The activity-specific mitigation zones are based on the longest range for all the functional hearing groups. The mitigation zone for a majority of activities is driven by either the high-frequency cetaceans or the sea turtles functional hearing groups. Therefore, the mitigation zones are even more protective for the remaining functional hearing groups (
Table 6 includes explosive ranges to TTS and the onset of auditory injury, non-auditory injury, slight lung injury, and mortality. For every source but one proposed for use by the Navy, the mitigation zones included in Table 6 exceed each of these ranges. The TTS range for BOMBEX is larger than the mitigation zone. The mitigation zones and their associated assessments are provided throughout the remainder of this section.
For some activities specified throughout the remainder of this section, Lookouts may be required to observe for concentrations of detached floating vegetation (Sargassum or kelp paddies), which are indicators of potential marine mammal presence within the mitigation zone. Those specified activities will not commence if floating vegetation (Sargassum or kelp paddies) is observed within the mitigation zone prior to the initial start of the activity. If floating vegetation is observed prior to the initial start of the activity, the activity will be relocated to an area where no floating vegetation is observed. Training will not cease as a result of floating vegetation entering the mitigation zone after activities have commenced. This measure is intended only for floating vegetation detached from the seafloor.
Activities that involve the use of hull-mounted MFA sonar will use Lookouts for visual observation from a ship immediately before and during the activity. Mitigation zones for these activities involve powering down the sonar by 6 dB when a marine mammal is sighted within 1,000 yd (914 m) of the sonar dome, and by an additional 4 dB when sighted within 500 yd (457 m) from the source, for a total reduction of 10 dB. Active transmissions will cease if a marine mammal is sighted within 200 yd (183 m). Active transmission will recommence if any one of the following conditions is met: (1) The animal is observed exiting the mitigation zone, (2) the animal is thought to have exited the mitigation zone based on its course and speed, (3) the mitigation zone has been clear from any additional sightings for a period of 30 minutes, (4) the ship has transited more than 2,000 yd (1.8 km) beyond the location of the last sighting, or (5) the ship concludes that dolphins are deliberately closing in on the ship to ride the ship's bow wave (and there are no other marine mammal sightings within the mitigation zone). Active transmission may resume when dolphins are bow riding because they are out of the main transmission axis of the active sonar while in the shallow-wave area of the ship bow.
Mitigation will include visual observation from a vessel or aircraft (with the exception of platforms operating at high altitudes) immediately before and during active transmission within a mitigation zone of 200 yd (183 m) from the active sonar source. For activities involving helicopter deployed
Mitigation will include pre-exercise aerial monitoring during deployment within a mitigation zone of 350 yd (320 m) around an explosive SUS buoy. Explosive SUS buoys will not be deployed if concentrations of floating vegetation (kelp paddies) are observed in the mitigation zone (around the intended deployment location). SUS deployment will cease if a marine mammal is sighted within the mitigation zone. Deployment will recommence if any one of the following conditions is met: (1) The animal is observed exiting the mitigation zone, (2) the animal is thought to have exited the mitigation zone based on its course and speed, or (3) the mitigation zone has been clear from any additional sightings for a period of 10 minutes.
Passive acoustic monitoring will also be conducted with Navy assets, such as sonobuoys, already participating in the activity. These assets would only detect vocalizing marine mammals within the frequency bands monitored by Navy personnel. Passive acoustic detections would not provide range or bearing to detected animals, and therefore cannot provide locations of these animals. Passive acoustic detections would be reported to Lookouts posted in aircraft in order to increase vigilance of their visual surveillance.
Mitigation will include visual observation from a vessel or aircraft immediately before and during the exercise within a mitigation zone of 200 yd (183 m) around the intended impact location. Vessels will observe the mitigation zone from the firing position. When aircraft are firing, the aircrew will maintain visual watch of the mitigation zone during the activity. The exercise will not commence if concentrations of floating vegetation (kelp paddies) are observed in the mitigation zone. Firing will cease if a marine mammal is sighted within the mitigation zone. Firing will recommence if any one of the following conditions is met: (1) The animal is observed exiting the mitigation zone, (2) the animal is thought to have exited the mitigation zone based on its course and speed, (3) the mitigation zone has been clear from any additional sightings for a period of 10 minutes for a firing aircraft, (4) the mitigation zone has been clear from any additional sightings for a period of 30 minutes for a firing ship, or (5) the intended target location has been repositioned more than 400 yd (366 m) away from the location of the last sighting.
Mitigation will include visual observation from a ship immediately before and during the exercise within a mitigation zone of 600 yd (549 m) around the intended impact location. Ships will observe the mitigation zone from the firing position. The exercise will not commence if concentrations of floating vegetation (kelp paddies) are observed in the mitigation zone. Firing will cease if a marine mammal is sighted within the mitigation zone. Firing will recommence if any one of the following conditions is met: (1) The animal is observed exiting the mitigation zone, (2) the animal is thought to have exited the mitigation zone based on its course and speed, or (3) the mitigation zone has been clear from any additional sightings for a period of 30 minutes.
During Phase I activities, the Navy employed the following mitigation zone procedures during bombing exercises:
• Explosive ordnance shall not be targeted to impact within 2,500 yd (2.3 km) of known or observed floating kelp or marine mammals.
• A 2,500 yd (2.3 km) radius mitigation zone shall be established around the intended target.
• The exercise will be conducted only if marine mammals are not visible within the mitigation zone.
The Navy will (1) maintain the previously required mitigation zone to be used for non-explosive bombing activities, (2) revise the mitigation zone procedures to account for predicted ranges to impacts to marine species when high explosive bombs are used, and (3) add a requirement to visually observe for kelp paddies.
Mitigation will include visual observation from the aircraft immediately before the exercise and during target approach within a mitigation zone of 2,500 yd (2.3 km) around the intended impact location for explosive bombs and 1,000 yd (920 m) for non-explosive bombs. The exercise will not commence if concentrations of floating vegetation (kelp paddies) are observed in the mitigation zone. Bombing will cease if a marine mammal is sighted within the mitigation zone. Bombing will recommence if any one of the following conditions is met: (1) The animal is observed exiting the mitigation zone, (2) the animal is thought to have exited the mitigation zone based on its course and speed, or (3) the mitigation zone has been clear from any additional sightings for a period of 10 minutes.
The Navy employed no mitigation zone procedures for this activity in the Study Area during Phase I training activities in the GOA TMAA.
For Phase II activities, the Navy will adopt measures currently used during Navy gunnery exercises in other ranges outside of the Study Area. For all explosive and non-explosive large-caliber gunnery exercises conducted from a ship, mitigation will include visual observation immediately before and during the exercise within a mitigation zone of 70 yd (64 m) within 30 degrees on either side of the gun target line on the firing side. The exercise will not commence if concentrations of floating vegetation (kelp paddies) are observed in the mitigation zone. Firing will cease if a marine mammal is sighted within the mitigation zone. Firing will recommence if any one of the following conditions is met: (1) The animal is observed exiting the mitigation zone, (2) the animal is thought to have exited the mitigation zone based on its course and
The Navy will use a 500 yd (457 m) mitigation zone for whales, and a 200 yd (183 m) mitigation zone for all other marine mammals. Vessels will avoid approaching marine mammals head on and will maneuver to maintain a mitigation zone of 500 yd (457 m) around observed whales and 200 yd (183 m) around all other marine mammals (except bow-riding dolphins), providing it is safe to do so. These requirements will not apply if a vessel's safety is threatened, such as when change of course will create an imminent and serious threat to a person, vessel, or aircraft, and to the extent vessels are restricted in their ability to maneuver. Restricted maneuverability includes, but is not limited to, situations when vessels are engaged in dredging, submerged activities, launching and recovering aircraft or landing craft, minesweeping activities, replenishment while underway, and towing activities that severely restrict a vessel's ability to deviate course. While in transit, Navy vessels shall be alert at all times, use extreme caution, and proceed at a “safe speed” so that the vessel can take proper and effective action to avoid a collision with any sighted object or disturbance, including any marine mammal or sea turtle, and can be stopped within a distance appropriate to the prevailing circumstances and conditions.
The Navy employed no mitigation zone procedures for this activity in the Study Area during Phase I training activities in the GOA TMAA.
During Phase II activities in the GOA TMAA, the Navy will adopt measures currently used in other ranges outside of the Study Area during activities involving towed in-water devices. The Navy will ensure that towed in-water devices being towed from manned platforms avoid coming within a mitigation zone of 250 yd (229 m) around any observed marine mammal, providing it is safe to do so.
The Navy will employ the same mitigation measures for non-explosive gunnery exercises as described above for Gunnery Exercises—Small-, Medium-, and Large-Caliber Using a Surface Target.
Mitigation will include visual observation from a vessel or aircraft immediately before and during the exercise within a mitigation zone of 200 yd (183 m) around the intended impact location. The exercise will not commence if concentrations of floating vegetation (kelp paddies) are observed in the mitigation zone. Firing will cease if a marine mammal is sighted within the mitigation zone. Firing will recommence if any one of the following conditions is met: (1) The animal is observed exiting the mitigation zone, (2) the animal is thought to have exited the mitigation zone based on its course and speed, (3) the mitigation zone has been clear from any additional sightings for a period of 10 minutes for a firing aircraft, (4) the mitigation zone has been clear from any additional sightings for a period of 30 minutes for a firing ship, or (5) the intended target location has been repositioned more than 400 yd (366 m) away from the location of the last sighting.
Mitigation will include visual observation from the aircraft immediately before the exercise and during target approach within a mitigation zone of 1,000 yd (914 m) around the intended impact location. The exercise will not commence if concentrations of floating vegetation (kelp paddies) are observed in the mitigation zone. Bombing will cease if a marine mammal is sighted within the mitigation zone. Bombing will recommence if any one of the following conditions is met: (1) The animal is observed exiting the mitigation zone, (2) the animal is thought to have exited the mitigation zone based on its course and speed, or (3) the mitigation zone has been clear from any additional sightings for a period of 10 minutes.
The Navy's and NMFS' analysis of effects to marine mammals considers the best available science regarding locations where cetaceans are known to engage in specific activities (
NMFS' Office of Protected Resources routinely considers available information about marine mammal habitat use to inform discussions with applicants regarding potential spatio-temporal limitations on their activities that might help effect the least practicable adverse impact on species or stocks and their habitat. BIAs are useful tools for planning and impact assessments and are being provided to the public via this Web site:
Given their current extremely low population numbers (the North Pacific right whale is one of the most endangered whale species in the world with approximately 31 individuals) and the general lack of sightings in the Gulf of Alaska, the occurrence of right whales in the GOA TMAA is considered rare. North Pacific right whales have not been visually detected in the GOA TMAA since at least the 1960s and there are no current known detections in the portion of the feeding area that overlaps with the GOA TMAA. The Quinn Seamount passive acoustic detections in summer 2013 (Širović
Marine protected areas (MPAs) in the National System of MPAs potentially occurring within the Study Area are listed and described in Section 6.1.2 of the GOA FSEIS/OEIS (Marine Protected Areas, Table 6.1-2). As shown in Figure 6.1-1 of the GOA FSEIS/OEIS very few MPA are located within the GOA TMAA. MPAs vary widely in purpose, level of protection, and restrictions on human uses. As discussed in the GOA FSEIS/OEIS, MPAs in the vicinity of the GOA TMAA generally focus on natural heritage, fishery management, and sustainable production. The GOA FSEIS/OEIS has been prepared in accordance with the requirements to avoid harm to the natural and cultural resources of existing National System MPAs. The identified impacts and purpose for the designation of these areas is to limit or restrict specific fishing activities. Navy activities, should they occur within or near a MPA, would fully abide by the regulations of the individual MPA, including designated fishery management habitat protection areas, and relevant resources (in the case of the GOA TMAA, mainly restrictions on commercial and recreational fishing) (see Table 6.1-2 of the GOA FSEIS/OEIS for more information). Further, NMFS' issuance of an authorization to the Navy to take marine mammals would not conflict with the management, protection, or conservation objectives of these MPAs. Therefore, NMFS has determined that Navy avoidance of these areas is not warranted, nor would it contribute to the least practicable impact standard or any lessening of the likelihood of adverse impacts on species or stocks or their habitat.
As with previous Navy Phase II proposed rulemakings, commenters have requested that the Navy avoid training activities in the vicinity of seamounts or seamount chains, which represent potentially important habitat for marine species. Numerous seamounts are located partially or wholly within the TMAA, including seamount habitat protection areas designated by the North Pacific Fishery Management Council to help maintain productivity of fishery resources. However, NMFS does not believe that Navy avoidance of these areas is warranted, or will contribute to the least practicable impact standard or any lessening of the likelihood of adverse impacts on marine mammal species or stocks for the following reasons:
If marine mammals are known to prefer certain
The Navy has been training with sonar and other systems for decades in locations having seamounts or slope areas, or that are adjacent to continental shelfs where, to date, there has been no evidence of any long-term consequences for individuals or populations of marine mammals generally or around seamounts. This finding is based on years of research and monitoring that show, for example, higher densities and long-term residency by species such as beaked whales in Southern California, where the Navy trains and tests, than in other adjacent areas (Falcone
When the impact on the effectiveness of the training is considered along with the facts described above (
NMFS and the Navy developed a Stranding Response Plan for GOA TMAA in 2011 as part of the previous (2011-2016) MMPA authorization and rulemaking process for the Study Area. The Stranding Response Plan is specifically intended to outline the applicable requirements in the event that a marine mammal stranding is reported in the complexes during a major training exercise. NMFS considers all plausible causes within the course of a stranding investigation and this plan in no way presumes that any strandings are related to, or caused by, Navy training activities, absent a determination made during investigation. The plan is designed to address mitigation, monitoring, and compliance. NMFS has updated the Stranding Response Plan for the GOA TMAA for 2017-2022 training activities. The updated Stranding Response Plan can be found at:
NMFS has carefully evaluated the Navy's proposed mitigation measures—many of which were developed with NMFS' input during the first phase of incidental take authorizations for the Navy's training activities—and considered a broad range of other measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable adverse impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included the manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, their habitat, and their availability for subsistence uses (where relevant). Among other things, this analysis considered the nature of the potential adverse impact (likelihood, scope, range), the likelihood that a measure would be effective if implemented, and the likelihood of effective successful implementation. Our evaluation of potential measures also considered the practicability of the measures for applicant implementation. Practicability of implementation includes consideration of such things as cost, impact on operations, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
Based on our evaluation of the Navy's proposed measures, as well as other measures considered by NMFS, NMFS has determined that the mitigation measures required by this rule are adequate means of effecting the least practicable adverse impacts on marine mammals species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, while also considering personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
Section 101(a)(5)(A) of the MMPA states that in order to issue an ITA for an activity, 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 LOAs 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.
The Navy's ICMP is intended to coordinate monitoring efforts across all regions and to allocate the most appropriate level and type of effort for each range complex based on a set of standardized objectives, and in acknowledgement of regional expertise and resource availability. The ICMP is designed to be flexible, scalable, and adaptable through the adaptive management and strategic planning processes to periodically assess progress and reevaluate objectives. Although the ICMP does not specify actual monitoring field work or projects, it does establish top-level goals that have been developed in coordination with NMFS. As the ICMP is implemented, detailed and specific studies will be developed which support the Navy's top-level monitoring goals. In essence, the ICMP directs that monitoring activities relating to the effects of Navy training and testing activities on marine species should be designed to contribute towards one or more of the following top-level goals:
• An increase in our understanding of the likely occurrence of marine mammals and/or ESA-listed marine species in the vicinity of the action (
• An increase in our understanding of the nature, scope, or context of the likely exposure of marine mammals and/or ESA-listed species to any of the potential stressor(s) associated with the action (
• An increase in our understanding of how individual marine mammals or ESA-listed
• An increase in our understanding of how anticipated individual responses, to individual stressors or anticipated combinations of stressors, may impact either: (1) The long-term fitness and survival of an individual; or (2) the population, species, or stock (
• An increase in our understanding of the effectiveness of mitigation and monitoring measures;
• A better understanding and record of the manner in which the authorized entity complies with the ITA and Incidental Take Statement; and
• An increase in the probability of detecting marine mammals (through improved technology or methods), 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 would address the ICMP top-level goals through a collection of specific regional and ocean basin studies based on scientific objectives. Quantitative metrics of monitoring effort (
The Navy also developed the Strategic Planning Process for Marine Species Monitoring, which establishes the guidelines and processes necessary to develop, evaluate, and fund individual projects based on objective scientific study questions. The process uses an underlying framework designed around top-level goals, a conceptual framework incorporating a progression of knowledge, and in consultation with a Scientific Advisory Group and other regional experts. The Strategic Planning Process for Marine Species Monitoring would be used to set intermediate scientific objectives, identify potential species of interest at a regional scale, and evaluate and select specific monitoring projects to fund or continue supporting for a given fiscal year. This process would also address relative investments to different range complexes based on goals across all range complexes, and monitoring would leverage multiple techniques for data acquisition and analysis whenever possible. The Strategic Planning Process for Marine Species Monitoring is also available online (
NMFS has received multiple years' worth of annual exercise and monitoring reports addressing active sonar use and explosive detonations within the GOA TMAA and other Navy range complexes. The data and information contained in these reports have been considered in developing mitigation and monitoring measures for the proposed training activities within the Study Area. The Navy's annual exercise and monitoring reports may be viewed at:
This section is a summary of Navy-funded compliance monitoring in the GOA TMAA since 2011. Additional Navy-funded monitoring outside of and in addition to the Navy's commitments to NMFS is provided later in this section.
In July 2011, the Navy funded deployment of two long-term bottom-mounted passive acoustic monitoring buoys by Scripps Institute of Oceanography (Scripps). These HARPs were deployed southeast of Kenai Peninsula in the GOA TMAA with one on the shelf approximately 50 nm from land (in 111 fathoms (203 m) depth) and on the shelf-break slope approximately 100 nm from land (in 492 fathoms (900 m) depth). Intended to be collected annually, results from the first deployment (July 2011-May 2012) included over 5,756 hours of passive acoustic data (Baumann-Pickering
Analysis of the passive acoustic detections made from May 2012 to June 2013 were presented in Baumann-Pickering
As also presented in Debich
Additional monitoring conducted in the GOA TMAA through spring/summer 2015 included the deployment of five HARPs to detect marine mammals and anthropogenic sounds (Rice
During review of Rice
No mid-frequency active (MFA) sonar events were detected throughout the 2014-2015 HARP recordings. Future monitoring will include varying numbers of HARPs or other passive acoustic technologies based on annual adaptive management and monitoring meeting discussions with NMFS.
In the Gulf of Alaska, the Navy has also funded two previous marine mammal surveys to gather occurrence and density data. Although there was no regulatory requirement for the Navy to undertake either survey, the Navy funded the data collection to first support analysis of potential effects for the 2011 GOA FEIS/OEIS and again recently to support the current GOA SEIS/OEIS. The first Navy-funded survey (GOALS) was conducted by NMFS in April 2009 (see Rone
• Assess the abundance, spatial distribution and/or density of marine mammals, with a focus on beaked whales and ESA-listed cetacean species through visual line-transect surveys and passive acoustics using a towed hydrophone array and sonobuoys.
• Increase knowledge of species' vocal repertoire by linking visual sightings to vocally active cetaceans, in order to improve the effectiveness of passive acoustic monitoring.
• Attempt to photo-identify and biopsy sample individual whales opportunistically for analysis of population structure, genetics and habitat use.
• Attempt to locate whales for opportunistic satellite tagging using visual and passive acoustic methodology in order to provide information on both large- and fine-scale movements and habitat use of cetaceans.
The Navy-funded GOALS II survey also sampled four distinct habitat areas (shelf, slope, offshore, and seamounts) which were partitioned into four strata. The survey design was intended to provide uniform coverage within the Gulf of Alaska. However, given the overall limited knowledge of beaked whales within the Gulf of Alaska, the survey was also designed to provide coverage of potential beaked whale habitat and resulted in 13 encounters with beaked whales numbering 67 individual animals (Rone
In one effort between May 2010 and May 2013, satellite tracking tags were placed on three gray whales, 11 fin whales, five humpback whales, and two killer whales off the Washington coast (Schorr
Based on the NMFS-Navy adaptive management meeting in June 2015 and the annual monitoring meeting in March 2016, future Navy compliance monitoring, including ongoing monitoring, will address ICMP top-level goals through a series of regional and ocean basin study questions with a prioritization and funding focus on species of interest as identified for each range complex. The ICMP will also address relative investments to different range complexes based on goals across all range complexes, and monitoring will leverage multiple techniques for data acquisition and analysis whenever possible.
Within the GOA TMAA Study Area, the Navy's monitoring for GOA TMAA under this LOA authorization and concurrently in other areas of the Pacific Ocean will therefore be structured to address region-specific species-specific study questions in consultation with NMFS. The 2015 annual monitoring report submitted by the Navy to NMFS concludes the Navy's monitoring within the GOA TMAA under the 2011-2016 MMPA authorization. The HARPs used as part of that monitoring effort are currently being retrieved and returned to Scripps Institution of Oceanography for refurbishment. In consultation with NMFS during the June 2015 adaptive management meeting, the Navy and NMFS agreed that Navy-funded monitoring within the GOA TMAA would be revisited during subsequent adaptive management meetings in 2017 and 2018. Given four years of constant 24/7 passive acoustic marine mammal baseline monitoring through the years 2011-2015, scientifically significant ambient background data for a region used infrequently by the Navy has been sufficiently obtained under the 2011-2016 authorization. Therefore, the Navy, with NMFS' concurrence, did not fund GOA TMAA marine mammal monitoring in 2016.
For 2017, Navy will deploy minimum of two bottom-mounted passive acoustic devices with an option for third deep-water buoy passive acoustic device. Devices will be High-frequency acoustic recording packages (HARP) and, for consistency and comparison with past efforts, will be deployed at the same sites as previously. The third planned option consists of a new deep-water open ocean site, on line with the shallower sites, and will include deployment of both a HARP and a new buoy. Scripps will conduct post-deployment of marine mammal vocalizations, ambient sounds and anthropogenic sounds.
Additional Navy monitoring projects proposed during the 2017-2022 GOA TMAA rulemaking period will be posted on the Navy's marine species monitoring Web site (
The U.S. Navy is one of the world's leading organizations in assessing the effects of human activities on the marine environment including marine mammals. From 2004 through 2013, the Navy has funded over $240 million specifically for marine mammal research. Navy scientists work cooperatively with other government researchers and scientists, universities, industry, and non-governmental conservation organizations in collecting, evaluating, and modeling information
ONR's current Marine Mammals and Biology Program thrusts include, but are not limited to: (1) Monitoring and detection research, (2) integrated ecosystem research including sensor and tag development, (3) effects of sound on marine life (such as hearing, behavioral response studies, physiology (diving and stress), and population consequences of acoustic disturbance (PCAD)), and (4) models and databases for environmental compliance.
To manage some of the Navy's marine mammal research programmatic elements, OPNAV N45 developed in 2011 a new Living Marine Resources (LMR) Research and Development Program (
• Providing science-based information to support Navy environmental effects assessments for research, development, acquisition, testing and evaluation as well as Fleet at-sea training, exercises, maintenance, and support activities.
• Improving knowledge of the status and trends of marine species of concern and the ecosystems of which they are a part.
• Developing the scientific basis for the criteria and thresholds to measure the effects of Navy generated sound.
• Improving understanding of underwater sound and sound field characterization unique to assessing the biological consequences resulting from underwater sound (as opposed to tactical applications of underwater sound or propagation loss modeling for military communications or tactical applications).
• Developing technologies and methods to monitor and, where possible, mitigate biologically significant consequences to living marine resources resulting from naval activities, emphasizing those consequences that are most likely to be biologically significant.
The integration between the Navy's new LMR Research and Development Program and related range complex monitoring will continue and improve during this LOA application period with applicable results presented in GOA TMAA annual monitoring reports.
The final regulations governing the take of marine mammals incidental to Navy training activities in the Study Area contain an adaptive management component, as did previous authorizations. The reporting requirements associated with this final rule are designed to provide NMFS with monitoring data from the previous year to allow NMFS to consider whether any changes are appropriate. NMFS and the Navy would meet to discuss the monitoring reports, Navy R&D developments, and current science and whether mitigation or monitoring modifications are appropriate. The use of adaptive management allows NMFS to consider new information from different sources to determine (with input from the Navy regarding practicability) on an annual or biennial basis if mitigation or monitoring measures should be modified (including additions or deletions). Mitigation measures could be modified if new data suggests that such modifications would have a reasonable likelihood of reducing adverse effects to marine mammal species or stocks and their habitat and if the measures are practicable.
The following are some of the possible sources of applicable data to be considered through the adaptive management process: (1) Results from monitoring and exercises reports, as required by MMPA authorizations; (2) compiled results of Navy funded R&D studies; (3) results from specific stranding investigations; (4) results from general marine mammal and sound research; and (5) any information which reveals that marine mammals may have been taken in a manner, extent, or number not authorized by these regulations or subsequent LOA.
In order to issue an ITA for an activity, section 101(a)(5)(A) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking.” Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring. NMFS described the proposed Navy reporting requirements in the proposed rule (81 FR 9950, 9991-92; February 26, 2016). Reports from individual monitoring events, results of analyses, publications, and periodic progress reports for specific monitoring projects will be posted to the Navy's Marine Species Monitoring web portal:
Navy personnel will ensure that NMFS (the appropriate Regional Stranding Coordinator) is notified immediately (or as soon as clearance procedures allow) if an injured or dead marine mammal is found during or shortly after, and in the vicinity of, any Navy training exercise utilizing MFAS, HFAS, or underwater explosive detonations. The Navy will provide NMFS with species identification or a description of the animal(s), the condition of the animal(s) (including carcass condition if the animal is dead), location, time of first discovery, observed behaviors (if alive), and photographs or video (if available). The Navy shall consult the Stranding Response Plan to obtain more specific reporting requirements for specific circumstances.
NMFS has developed the following language to address monitoring and reporting measures specific to vessel strike. Most of this language comes directly from the Stranding Response Plan for other Navy training and testing rulemakings. This section has also been included in the regulatory text at the end of this final rule. Vessel strike during Navy training activities in the Study Area is not anticipated; however, in the event that a Navy vessel strikes a whale, the Navy shall do the following:
Immediately report to NMFS (pursuant to the established Communication Protocol) the:
• Species identification (if known);
• Location (latitude/longitude) of the animal (or location of the strike if the animal has disappeared);
• Whether the animal is alive or dead (or unknown); and
• The time of the strike.
As soon as feasible, the Navy shall report to or provide to NMFS, the:
• Size, length, and description (critical if species is not known) of animal;
• An estimate of the injury status (
• Description of the behavior of the whale during event, immediately after the strike, and following the strike (until the report is made or the animal is no longer sighted);
• Vessel class/type and operational status;
• Vessel length;
• Vessel speed and heading; and
• To the best extent possible, obtain a photo or video of the struck animal, if the animal is still in view.
Within 2 weeks of the strike, provide NMFS:
• A detailed description of the specific actions of the vessel in the 30-minute timeframe immediately preceding the strike, during the event, and immediately after the strike (
• A narrative description of marine mammal sightings during the event and immediately after, and any information as to sightings prior to the strike, if available; and use established Navy shipboard procedures to make a camera available to attempt to capture photographs following a ship strike.
NMFS and the Navy will coordinate to determine the services the Navy may provide to assist NMFS with the investigation of the strike. The response and support activities to be provided by the Navy are dependent on resource availability, must be consistent with military security, and must be logistically feasible without compromising Navy personnel safety. Assistance requested and provided may vary based on distance of strike from shore, the nature of the vessel that hit the whale, available nearby Navy resources, operational and installation commitments, or other factors.
The Navy shall submit an annual report of the GOA TMAA monitoring describing the implementation and results from the previous calendar year. Data collection methods will be standardized across range complexes and study areas to allow for comparison in different geographic locations. Although additional information will be gathered, Navy Lookouts collecting marine mammal data pursuant to the GOA TMAA monitoring plan shall, at a minimum, provide the same marine mammal observation data required in § 218.155. The report shall be submitted either 90 days after the calendar year, or 90 days after the conclusion of the monitoring year to be determined by the adaptive management process. The GOA TMAA Monitoring Report may be provided to NMFS within a larger report that includes the required Monitoring Plan reports from multiple range complexes and study areas (the multi-Range Complex Annual Monitoring Report). Such a report would describe progress of knowledge made with respect to monitoring plan study questions across all Navy ranges associated with the Integrated Comprehensive Monitoring Program. Similar study questions shall be treated together so that progress on each topic shall be summarized across all Navy ranges. The report need not include analyses and content that does not provide direct assessment of cumulative progress on the monitoring plan study questions.
Each year, the Navy shall submit a preliminary report detailing the status of authorized sound sources within 21 days after the anniversary of the date of issuance of the LOA. Each year, the Navy shall submit a detailed report within 3 months after the anniversary of the date of issuance of the LOA. The annual report shall contain information on Major Training Exercises (MTEs), and a summary of all sound sources used (total hours or quantity (per the LOA) of each bin of sonar or other non-impulsive source; total annual number of each type of explosive exercises; and total annual expended/detonated rounds (missiles, bombs, etc.) for each explosive bin). The analysis in the detailed report will be based on the accumulation of data from the current year's report and data collected from previous reports for the rule. Information included in the classified annual reports may be used to inform future adaptive management of activities within the GOA TMAA.
This report will be included as part of the 2022 annual exercise report. This report will provide the annual totals for each sound source bin with a comparison to the annual allowance and the 5-year total for each sound source bin with a comparison to the 5-year allowance. Additionally, if there were any changes to the sound source allowance, this report will include a discussion of why the change was made and include the analysis to support how the change did or did not result in a change in the SEIS and final rule determinations. The report will be submitted 3 months after the expiration of the rule. NMFS will submit comments on the draft close-out report, if any, within 3 months of receipt. The report will be considered final after the Navy has addressed NMFS' comments, or 3 months after the submittal of the draft if NMFS does not provide comments.
On February 26, 2016, NMFS published a proposed rule (81 FR 9950) in response to the Navy's request to take marine mammals incidental to training
Comments specific to section 101(a)(5)(A) of the MMPA and NMFS' analysis of impacts to marine mammals are summarized, sorted into general topic areas, and addressed below and/or throughout the final rule. Comments specific to the GOA FSEIS/OEIS, which NMFS participated in developing as a cooperating agency and adopted, or that were also submitted to the Navy during the GOA DSEIS/OEIS public comment period are addressed in Appendix D (Public Participation) of the GOA FSEIS/OEIS. Some commenters presented technical comments on the general behavioral risk function that are largely identical to those posed during the comment period for proposed rules for the Atlantic Fleet Training and Testing (AFTT), Hawaii-Southern California Training and Testing (HSTT), Mariana Islands Training and Testing (MITT), and NWTT study areas—Phase II predecessors to the GOA TMAA rule. The behavioral risk function remains unchanged since then, and here we incorporate our responses to those initial technical comments (78 FR 73010, 73038 (December 3, 2013), Acoustic Thresholds; 78 FR 78106, 78129 (December 24, 2013), Acoustic Thresholds; 80 FR 46112, 46146 (August 3, 2015), Criteria and Thresholds; 80 FR 73556, 73579 (November 24, 2015)). Full copies of the comment letters may be accessed at
Regarding concerns over subsistence resources, the proposed action is the continuation of the types of training activities that have been ongoing for more than a decade. No impacts to traditional subsistence practices or resources are predicted to result from the proposed activities. Further, after consultations with Alaska Native tribes from the Kodiak and Kenai Peninsula region, the Navy has confirmed that training events in the TMAA would not involve the use of any explosives in one particular and well-defined fishing area known as Portlock Bank.
Also note that as described in the 2011 GOA FEIS/OEIS, sonar use is unlikely to disturb fish since most fish cannot hear sonar at the frequencies in the proposed action and science indicates that the few fish that can hear in those frequencies have no significant, if any, reaction to sonar. Please also see the GOA FSEIS/OEIS Section 3.8.5 (Summary of Observations During
Additionally, the effects on marine mammal prey species were addressed in the proposed rule and deemed not to be significant and, further, NMFS' biological opinion analyzing the Navy's activities found that they were not likely to jeopardize any listed fish species or destroy or adversely modify any designated critical habitat for ESA-listed fish.
Additionally, we note here that since the publication of the proposed rule, the Navy chose to reduce the proposed amount of activity significantly, lessening the number of the Carrier Strike Group Events from two to one per year, and the number of SINKEXs from two to zero per year. This significantly decreases (by about half) the number of anticipated and authorized takes for this activity.
Comments suggesting not holding the training activities during the summer period have also been predicated on avoiding impacts to fisheries during the fishing season and the livelihood of fishermen and fishing communities. As detailed in Section 3.6 (Fish) of the GOA FSEIS/OEIS, based on the best available science, the continuation of training in the GOA TMAA would not have an impact on populations of fish, the health of the fisheries, or the ability of fishermen to fish. It is also important to note that training has been conducted for many years in the GOA TMAA and there have been no reported impacts to any fish populations or fishery activities. Therefore, training in the winter would not be practicable and would not be effective in avoiding impacts to fish or fisheries but would unnecessarily increase risk and threaten the safety of the Navy personnel engaged in training.
NMFS is charged with promulgating regulations and issuing LOAs for the requested activity, provided we find that the authorized take will have a negligible impact on the effected marine mammal species or stock and that we ensure that measures are required that ensure the least practicable adverse impact on the species or stocks and their habitat—which we have. The specific activity that the Navy requested was to conduct these activities for 21 days (initially two times, now lowered to one time) between the months of April and October—requiring them to conduct the exercise outside of these dates is not mitigation within the context of the requested action, but rather asking them to change their requested activity.
NRDC
NMFS notes that legislative history suggests that Congress intended that Level B harassment be limited to behavioral disturbances that have “demographic consequences to reproduction or survivability of the species.” H.R. Conf. Rep. 108-354 (2003), 108th Cong., 1st Sess.,
Effects on marine mammals will be minimized through the Navy's implementation of the following mitigation measures (among others): (1) The use of lookouts to monitor for marine mammals and begin powerdown and shutdown of sonar when marine mammals are detected within ranges where the received sound level is likely to result in PTS or other injury; (2) the use of mitigation zones that avoid exposing marine mammals to levels of explosives likely to result in injury or death of marine mammals; (3) vessel maneuvering protocols; and (4) operational restrictions in a North Pacific right whale Cautionary Area. NMFS and the Navy have also worked to develop a robust monitoring plan to improve our understanding of the environmental effects resulting from the use of active sonar and underwater explosives. Additionally, the final rule includes an adaptive management component that allows for timely modification of mitigation or monitoring measures based on new information, when appropriate.
Given the number of commercial and private vessels using sonar for fishing, navigation, and research in the Gulf of Alaska and the Navy's authorized use of sonar in training events since 2011, it is unlikely that there are “marine mammal populations in the Gulf of Alaska that are naïve to an acoustic stressor,” especially in the Navy's historically used GOA TMAA.
The facts regarding the beaked whales found stranded in 2004 were presented in the 2011 GOA FEIS/OEIS and are also presented in the referenced technical report accompanying the FSEIS/OEIS. In 2004, between June 27 and July 19, five beaked whales were discovered stranded at various locations along 1,600 mi (2,625 km) of the Alaskan coastline and one was found floating (dead) at sea. Sonar training events had not been part of an exercise which took place in that general timeframe in the TMAA and there are no Navy vessels stationed in Alaska or otherwise using those waters for training purposes. Beaked whale strandings do occur routinely in Alaska waters and NMFS did not consider these strandings unusual or otherwise declare them to be a UME.
Regarding the presence of North Pacific right whale and gray whale and associated biologically important habitat adjacent to, and within, the GOA TMAA, please refer to the “Consideration of Time/Area Limitations” section of this rule for a complete discussion and evaluation of the spatio-temporal overlap of Navy activities and important feeding and migratory areas for these species. NMFS' consideration of additional mitigation (time/area closures) in these areas is also discussed in that section, and later in the “Response to Comments” section. To summarize, NMFS is requiring a North Pacific right whale “Cautionary Area” between June and September in the overlapping 2,051 km
Because the proposed training (Northern Edge) has historically occurred in the May to July timeframe, the proposed training in the GOA TMAA is different from other Navy range complexes such as the Northwest Training and Testing Range Complex, where there is year-round unit level training. Therefore, a seasonal analysis is called for in modeling activities in the GOA TMAA; modeling for GOA was not done for year-round continuous activity because the Navy's training activities do not occur year-round in the GOA TMAA. To provide for future flexibility if needed, the GOA FSEIS/OEIS indicated that the proposed activities could occur during the summer months (April-October); however, they are most likely to occur in the May-July timeframe. Overall, any monthly differences in marine mammal densities from July to October is likely to be very similar to the July data used for density derivation in the GOA analysis. Five years (2011-2015) of year-round Navy funded passive acoustic monitoring in GOA found higher likelihood for more species, including ESA listed marine mammals, in mid-summer to late summer (July-October) as compared to early summer (May-June). Therefore, the current density estimates used for the GOA FSEIS/OEIS are equivalent for species abundance in the July to October timeframe, and likely over predictive for the more probably time in which an actual Northern Edge exercise would be expected to occur (May-July).
The use of these densities is scientifically valid, representative of expected densities for all species over the proposed date range, and based on the best available science. Monthly seasonal densities are not available for the Study Area, and even if they were, they would not likely change any of the conclusions in the FSEIS/OEIS or this final rule.
Using the mean value to estimate densities is a reasonable and scientifically acceptable approach. While the mean may underestimate a species' density, by definition, it is equally probable that it could overestimate a species' density. The mean density estimate is the best value to use as input into the Navy's acoustic effects model to minimize the influence of uncertainty inherent in the science. Also, the future application of this survey data as representative for year-round densities has no bearing on the GOA FSEIS/OEIS, because the proposed action does not occur year-round. Furthermore, the use of the mean density estimate is consistent with the approach taken by NMFS to estimate and report the populations of marine mammals in NMFS' Stock Assessment Reports. For these reasons, the mean density estimate is thus considered the “best available data.”
Using the upper limit of the 95 percent confidence interval or adjusting the mean estimates as suggested would result in unreasonable and unrealistic estimates of species densities, particularly given the very high coefficients of variation (CVs) associated with most marine mammal density estimates. A confidence interval is only meant to be an indication of the uncertainty associated with a point estimate, and should not be used to derive any absolute number within the confidence interval. Using the upper limit of the range as an input would do nothing to decrease the level of uncertainty. Implementing the recommendation would result in an unrepresentative overestimate of the expected effects (takes) from the proposed action. Further, as detailed in Section 3.8.3.1.6.3 (Navy Acoustic Effects Model) of the GOA FSEIS/OEIS, the Navy's acoustic model already includes conservative assumptions (
Further, we note that although modeled take estimates are our best attempt at quantifying the impacts of the proposed action, they do not represent the entirety of our analysis. For the Gulf of Alaska specifically, we have described elsewhere the context and nature of the anticipated impacts on marine mammals, which are expected to be of short duration and a comparatively small degree—meaning that a small number of additional Level B harassment takes would not be expected to change our assessment of the effects on the population.
As currently modeled, the estimated takes of the two DPSs of Steller sea lions are relatively small compared to estimated takes for other species under Alternative 1 (
For elephant seals, the text presented in the GOA FSEIS/OEIS does not indicate absolute geographic presence or absence of elephant seals, but is presented as a generalization based on findings presented in the three references cited (Le Boeuf
Briefly, the original experimental data is weighted using the prescribed weighting function to determine the numerical threshold value. The Commission did not consider the appropriate weighting schemes when comparing thresholds presented in Southall
More importantly, the Navy and NMFS have continued to revise acoustic thresholds based on emergent research. In August 2016, NOAA released its
The specific recommendations made by the Commission in its comments on the proposed rule were overcome by events when Finneran (2016) was published and adopted by NMFS in its new Guidance. All the methods used for synthesizing and interpreting new data sets into thresholds data were shared with the public and all comments were addressed prior to finalizing the Guidance. NMFS' new Guidance uses 153 dB for TTS for HF species from non-impulsive sources (1 dB less conservative than Finneran (2012) and 2 dB less conservative than the Commission recommended) and uses 140 dB for TTS for HF species from impulsive sources (6 dB more conservative than Finneran (2012) and 5 dB more conservative than the Commission recommends). Further, as recommended, 20 dB was added to the TTS value to get the PTS value for the non-impulsive sources, and 15 dB was added for the explosive source threshold.
At the time of the release of the proposed rule and GOA FSEIS/OEIS, NMFS' final Guidance had not been issued. Further, the new criteria were not available for the Navy's acoustic effects modeling used to calculate distances to harassment thresholds and resulting take estimates. Therefore, the Navy did not use the new auditory weighting functions and PTS/TTS criteria in its GOA FSEIS/OEIS. However, the underlying science contained within Finneran (2016) has been addressed qualitatively within the applicable sections of the GOA FSEIS/OEIS and this final rulemaking. Further, although the writers of the base code for the model used for Phase II were not available to recode the model with the updated impulsive criteria in terms of weighting functions, the Navy was able to use the model to reprocess anticipated explosive ranges to effects for PTS based on the criteria presented in the new Guidance, from which TTS and behavioral exposures could be estimated, to assess if the new criteria could result in any additional species-specific injury exposures. For more information on this analysis, see the “Summary of Request” section in this final rule.
As described in the “Summary of Request” section of this rule, NMFS and the Navy assessed the training activities in the GOA TMAA in the context of the new Guidance and all of the associated new data that support it (see previous comment response) and made changes to the take estimates where appropriate. As described, although most thresholds changed a little in one direction or the other (including going down for LF and HF species by 4 and 6 dB, respectively, for explosives), and the weighting functions for all taxa changed, when considered together and in the context of the proposed activities, the changes in the take estimates were relatively small (increasing takes only for Dall's porpoise, by 3 Level A and 149 Level B harassments). In short, much of this comment has been overcome by events, but nonetheless, we address some of the details below. Although the commenter is not specifically commenting on it
Regarding the commenters' first point, NMFS disagrees that the thresholds are unjustified and insufficiently conservative. The discussion presented in the GOA FSEIS/OEIS Section 3.8.2.3.3 (Low-Frequency Cetaceans) and Section 3.8.3.1.11 (Frequency Weighting) describes the derivation of the thresholds and criteria for low frequency cetaceans that were used in take calculations in the proposed rule. Specifically, it was the low- and high-frequency cetacean weighting functions (see Southall
NMFS disagrees with the commenters' second point, as the data used in the Navy's and NMFS' analyses included many animals and species at multiple experimental facilities around the world as well as auditory measurements on wild animals that had stranded, in addition to anatomical analyses of the auditory system of mysticetes (Cranford and Krysl, 2015; Houser
Regarding the commenters' third point, the most recent publications by Dr. Kastelein are cited and were considered in the analysis presented in the GOA FSEIS/OEIS (see Kastelein
Additionally, TTS represents a physiological metric for a behavioral reaction and an exposure resulting in TTS has been and is considered an MMPA Level B harassment take. As presented in Section 3.8.3.1.5 (Sonar and Other Active Acoustic Sources, Subsection
The reference to Tougaard
Regarding the commenters' fourth point, NMFS and the Navy have incorporated empirical data on humans (see the GOA FSEIS/OEIS citations to Ward
With regard to the references cited by the commenters: Kastak
Regarding the Hanalei Bay event, NMFS included an extensive analysis of this event in the “Stranding and Mortality” section of the proposed rule (81 FR 9950, 9970-76; February 26, 2016). Please see that section for further information regarding NMFS' assessment and consideration of that event. It should be noted that NMFS considered active sonar transmissions a plausible, if not likely, contributing
Last, in further and more specific quantitative acknowledgement of the sensitivity of these species, more conservative step functions are used to evaluate behavioral disturbance (
This analysis is further corroborated by the healthy, and in some locations, increasing marine mammal populations, where sonar use has been occurring for decades and is frequently in use on an annual basis, such as on instrumented ranges. As noted previously, there is no evidence that Navy activities have had or are having any long-term impact on marine mammal populations or stocks. For more information, see the
Finally, the proposed Navy training activities will occur over a short period of time (up to 21 days) once a year. Further, with the change in preferred alternative to Alternative 1, the Navy activities, and resulting predicted takes, have essentially been reduced by half and consist of mainly low-level behavioral responses and occasional occurrences of TTS, with only 4 Level A harassment takes estimated for one species. As a result, long-term behavioral impacts on marine mammals within the GOA TMAA during the Northern Edge exercise are unlikely to occur.
Generally speaking, for the modeled ranges, the representative sources include the most powerful active sonar source and the charge with the largest net explosive weight analyzed. NMFS believes that these representative sources provide adequate information to analyze potential effects on marine mammals. Because the Navy conducts training in a variety of environments having variable acoustic propagation conditions, variations in acoustic propagation conditions are considered in the Navy's acoustic modeling and the quantitative analysis of acoustic impacts. Average ranges to effect are provided in the GOA FSEIS/OEIS to show the reader
Because the ranges to PTS for acoustic sources are relatively short, the ranges to PTS presented in the GOA FSEIS/OEIS are representative of the ranges for purposes of the discussion. In short, the information provided in the GOA FSEIS/OEIS (and updated in Table 6 here) should be considered applicable to the GOA TMAA Study Area. The approximate maximum ranges to TTS provided in the GOA FSEIS/OEIS (Table 3.8-12) are also representative of the ranges to effect and are provided in the FSEIS/OEIS to show the typical zones of impact around representative sources.
As explained in the GOA FSEIS/OEIS in Section 3.8.3.3.1.1 (Range to Effects), there is no reason to show a PTS range for more than one ping because of the short distances over which a PTS has the potential to occur. For the case of the most powerful hull-mounted source (hull-mounted mid-frequency anti-submarine warfare sonar) the ship moves beyond the PTS zone for each successive ping and there is no difference in magnitude of successive pings. Refer to Section 3.8.3.1.1 (Non-impulsive and Impulsive Sound Sources) of the GOA FSEIS/OEIS. Pings occur approximately every 50 seconds, and each subsequent ping has the same approximate range to PTS from the bow of the ship as the first ping. Therefore, there is not sufficient overlapping energy from one ping to the next to make presentation of multiple pings useful. As noted in the comment and presented in the GOA FSEIS/OEIS, an animal would have to be exposed at the TTS level by the first ping and then continue parallel to the ship within close proximity for 50 seconds to receive a second ping, potentially resulting in a PTS level exposure. Given the science detailed in the GOA FSEIS/OEIS (see Section 3.8.3.1.7, Marine Mammal Avoidance of Sound Exposures) indicating that marine mammals will behaviorally avoid high levels of sound, the assumption that a marine mammal would not remain alongside a pinging vessel is a simple but reasonable assumption. The GOA FSEIS/OEIS and this final rule conclude that it is unlikely for an animal to maintain a speed of 10 knots and stay in close proximity to a vessel using active sonar. As presented in the GOA FSEIS/OEIS (see Section 3.8.3.3.1.1, Range to Effects), while 10 knots was the ship's speed used in the model, a ship engaged in anti-submarine warfare training could be moving at between 10 and 15 knots. For a Navy vessel moving at a nominal 10 knots, it is unlikely a marine mammal could maintain the speed to parallel the ship and receive adequate energy over successive pings to result in a PTS exposure.
Passive acoustic monitoring is already and will continue to be implemented. As mentioned in Chapter 5 (Standard Operating Procedures, Mitigation, and Monitoring) of the GOA FSEIS/OEIS and the “Mitigation” section of this final rule, passive acoustic monitoring would be conducted with Navy assets, such as passive ships sonar systems or sonobuoys, already participating in the activity. The Navy does not have the resources to construct and maintain passive acoustic monitoring (PAM) systems for each training and testing activity. Discussion in the GOA FSEIS/OEIS Section 5.3.3.1.11 (Increasing Visual and Passive Acoustic Observations) further articulates why increased use of passive acoustics for the purpose of mitigation would be impractical with regard to implementation of military readiness activities and result in an unacceptable impact on readiness. Additionally, mitigation measures were developed based on predicted potential impacts; therefore, the use of acoustic monitoring is not always warranted, nor practicable from an operational standpoint (GOA FSEIS/OEIS Section 5.3.2.1, Acoustic Stressors). The Navy's visual mitigation has been demonstrated to be effective over the 8 years of monitoring associated with Navy training and testing at sea as reflected in publically available reports submitted to NMFS since 2006 and accessible on the NMFS Office of Protected Resources Web site (
Regarding its effectiveness, passive, and active in specific cases, acoustic detection can increase the likelihood of detecting marine mammals for the purposes of implementing mitigation, although passive acoustic detection can only be effective when animals are vocalizing, and when they are vocalizing at a level and in a direction that will be detected and recognized by the sensor (only a subset of the time). Also, with the exception of the largest sound sources, the size of any ensonified zone combined with the density of marine mammals and the likelihood that they avoid loud sounds, there is only a relatively small number of times (compared to overall scope of exercises) that we would predict that animals would come within distances that require shutdowns (as noted above), and that would be further improved by the use of PAM. Additionally, sophisticated use of multiple sensors is needed in order to predict the distance and bearing of the vocalizing animals that is needed to justify implementing a shutdown. The effectiveness of PAM for mitigation implementation is somewhat further impeded by fast moving sources because of the constantly changing location of the marine mammal in relation to the moving source combined with the inability to detect the direction of movement of the animal in the moment it is detected. PAM is expensive and operationally challenging (or impossible) to implement in many cases and the Navy uses thousands of sound sources across its exercises. As described above, Navy uses PAM in certain activities where the risk is higher (
The SURTASS LFA platforms are slow moving and deploy a high frequency active sonar (HF/M3) to identify marine mammals in close proximity (2 km) to the SURTASS LFA vessel. The active sonar system used by SURTASS LFA is built into the system's vertical array and can only be employed in this fashion from a slow-moving or stationary platform. It is not possible to employ this system on the types of vessels used for the GOA training activities because a vertical array cannot be used on other ship classes whose mission includes speed and tactical movement while protecting aircraft carriers and other high value units. Further, in addition to the difficulty in implementation, NMFS does not generally support the use of active acoustic monitoring except in cases where it is mitigating an effect of potentially very high or singular severity and there is a high likelihood of successful use (stationery or slow-moving platforms), as it essentially equates to harassing marine mammals by putting the active detection signal in the water in order to prevent harassing marine mammals with the main sound source for which takes are being authorized. NMFS has only previously considered the use of active acoustic detection in a few situations, one for SURTASS LFA (actually implemented), in which the HF active acoustics are used from a slow-moving platform to implement mitigation and avoid impacts from a very high-level LF source, and two other situations that were never implemented—one from a dock for testing a very loud source in port, and one from a large piece of heavy machinery wherein bodily injury was a possibility.
Modifying sonobuoys to increase their bandwidth is considered impractical for the Navy because it would require significant modification to the sonobuoy receiving equipment at a substantial cost and reduce the effectiveness of the sonobuoy system's ability to detect submarines. See section 5.3.3.1.13 of the GOA FSEIS/OEIS (Increasing Visual and Passive Acoustic Observations) for further information regarding the use of passive sensors.
Other commenters recommended similar time/area-specific mitigation for Navy training activities, including avoidance of seamounts and BIAs, and restriction of training during the spring/summer time period.
As discussed in the proposed and final rules and in the GOA FSEIS/OEIS, biologically important feeding areas for North Pacific right whale and migration areas for gray whale (Ferguson
Very few MPAs are located near or within the GOA TMAA. MPAs vary widely in purpose, level of protection, and restrictions on human uses. As discussed in “Consideration of Time/Area Limitations” and in the GOA FSEIS/OEIS, MPAs in the vicinity of the GOA TMAA generally focus on natural heritage, fishery management, and sustainable production. The identified impacts and purpose for the designation of these areas is to limit or restrict specific fishing activities, and the Navy would fully abide by the regulations (mainly restrictions on commercial and recreational fishing) of the individual MPA and relevant resources. Since the Navy does not engage in fishing activities, restricting Navy training activities in these areas would be ineffective at preventing the identified impacts caused by fishing. Our issuance of an authorization to take marine mammals would not conflict with the management, protection, or conservation objectives of these MPAs. Therefore, NMFS has determined that Navy avoidance of these areas is not warranted, nor would it contribute to the least practicable impact standard or any lessening of the likelihood of adverse impacts on species or stocks.
While seamounts may represent important habitat for multiple species (including marine mammals), the major seamounts located within the TMAA (
It is not practicable to require limited activity during phytoplankton blooms. The key consideration is these features are highly variable temporally and spatially throughout the entire Gulf of
NMFS notes that the call rate data cited by the commenters, as well as the Navy's more recent and more robust passive acoustic data from 2011-2015, only provide occurrence specifically for that part of a given species' population that may be calling at a particular time. The Navy data set alone represents over 58,953 hours or 2,456 days' worth of passive acoustic data that has been collected, analyzed, and results reported. The science of density and relative density estimation from passive acoustic data is still being researched under funding from several different Navy programs. For example, the current Navy funded research is focusing on aspects such as the proper characterization of calling rates, range of detection, and group size, all of which can vary by species, region, time of year/day, sex, etc. All of these variables can impact the resulting density estimate, and therefore the method of incorporating these variables needs to be investigated further. Meanwhile, the best available density data (available at
With respect to surface ducting conditions, environmental conditions in the Gulf of Alaska during the timeframe when Navy training activities would generally occur do not support surface ducting conditions. A surface duct requires cold water at the surface with warmer water at deeper depths which is highly unlikely during the warmer summer months in the Gulf of Alaska when training has historically occurred. In addition, there has been no indication that mixed layer depth has any direct influence on marine mammal behavior or response to anthropogenic sounds.
Regarding the benefits of the proposed time/area limitations that NMFS has decided not to require, it is possible that the application of one or more of these areas could potentially decrease the number of takes of one species or another, depending on when and where the exercise ended up taking place. However, as we have explained, due to the nature of the exercise (short duration) and the effectiveness of the existing mitigation measures, the anticipated impacts are already expected to be primarily lower-level behavioral responses and are not anticipated to occur in times or places where impacts would be more likely to lead to fitness effects on individuals. When the limited anticipated potential benefit to marine mammal species and stocks of applying these measures is combined with the impracticability of implementation, NMFS has concluded that requiring these measures is not warranted. NMFS has determined that the mitigation measures required by this rule, including those clarified or updated above (see “Consideration of Time/Area Limitation”), are adequate means of effecting the least practicable adverse impacts on marine mammals species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, while also considering personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
NMFS agrees with NRDC and other commenters that there continues to be a need to better understand the spatial distribution and occurrence of marine mammals within the Gulf of Alaska, including the use of potentially important habitat areas within the GOA TMAA. Therefore, NMFS envisions a more focused monitoring effort in the GOA TMAA during the Phase II training activities. Objectives of any future monitoring in the GOA TMAA will be discussed during upcoming NMFS-Navy adaptive management meetings in 2017.
Implementation of mitigation measures is most effective when the mitigation zone is appropriately sized to be realistically observed. The mitigation zones contained in this final rule represent the maximum area the Navy can effectively observe based on the platform of observation, number of personnel that will be involved, and the number and type of assets and resources available. As mitigation zone sizes increase, the potential for reducing impacts decreases. For instance, if a mitigation zone increases from 1,000 to 4,000 yd (914 to 3,658 m), the area that must be observed increases sixteen-fold, which is not practicable. The Navy does not have the resources to maintain additional Lookouts or observer platforms that would be needed to effectively observe mitigation zones of increased size. The mitigation zones contained in this final rule balance the need to reduce potential impacts with the Navy's ability to provide effective observations throughout a given area.
With respect to passive acoustic monitoring, all passive acoustic detections will be reported to Lookouts to increase vigilance of the visual surveillance. However, as stated previously, passive acoustic monitoring can neither provide range or bearing to detected animals, and therefore cannot provide locations of these animals.
As described previously, Navy watchstanders report both inanimate objects and marine mammals. Although they attend training to understand more about marine mammals, they are not expected to be able to identify animals at the species level and they report only with the specificity that they can (typically whether the marine mammal observed was a whale, dolphin, or pinniped). Therefore, they would not be able to implement mitigation measures that require identification of specific species (and we have described previously why the Navy cannot utilize non-Navy trained observers). Moreover, the 2011 and 2015 exercise reports for GOA indicate that during these previous training exercises, watchstanders had a total of 4 and 31 sightings, respectively (10 and 68 marine mammals). Only 2 sightings occurred when sonar was operating. Only 5 sightings included more than 3 animals, and the vast majority were of a single animal. This data suggests that shutting down for aggregations would not actually occur with any regularity and would not, therefore, be expected to contribute to any meaningful reduction of impacts on marine mammals.
The additional mitigation measure recommended by commenters is designed to further reduce the numbers of takes by Level B harassment, focusing on aggregations or endangered species. One point that is often overlooked is that when a training exercise is interrupted for a shutdown, it does not just start back up; training exercises often involve a series of actions and movements that develop over a period of time. Also, the effectiveness of some of the exercises involving certain types of targets with a limited battery life can be jeopardized if restarts result in the exercise length exceeding the needed battery life. It is difficult to predict how much of an exercise will need to be redone, but it is safe to say that shutting down will typically result in a longer total duration of sound source operation as operators reacquire targets or otherwise get back to where they were before the shutdown—potentially increasing impacts.
In short, the existing mitigation measures for marine mammals minimize the likelihood of PTS, TTS, or more severe behavioral responses and, with the addition of the North Pacific Right Whale Cautionary Area, ensure that takes are not occurring in particularly important areas or times that would be more likely to result in impacts on individual fitness. Additionally, as explained throughout this final rule, the predicted Level B harassment authorized is expected to be of a lower level type of effect, of short duration, and unlikely to adversely impact reproductive success or survivorship of any individuals (the type of effects that would lead to population-level impacts). Further, there are comparatively low numbers of Level B harassment authorized for endangered and threatened whales, and only three annual takes of North Pacific right whales. In addition to the fact that the current watchstander requirements do not support the implementation of any measures that require species identification, shutdowns beyond those currently recommended to minimize more severe effects will have limited, if any, ability to reduce impacts on marine mammal species or stocks and their habitat, while being disruptive to Navy training and potentially lengthening the overall time that sound sources are operating. For these reasons, NMFS does not believe that these measures are warranted.
As discussed in Section 2.3.2.4 (Simulated Training) of the 2011 GOA FEIS/OEIS and Section 5.3.3.1.2 (Replacing Training with Simulated Activities) of the GOA FSEIS/OEIS, the Navy uses computer simulation for training whenever possible. However, training in near-coastal environments is an essential component to maintaining military readiness. Computer simulation can provide familiarity and complement live training; however, it cannot provide the fidelity and level of training necessary to prepare naval forces for deployment. Sound propagates differently in shallower water and operators must learn to train in this environment. Additionally, submarines have become quieter through the use of improved technology and have learned to hide in the higher ambient noise levels of the shallow waters of coastal environments. In real world events, it is highly likely Sailors would be working in, and therefore must train in, these types of areas. The littoral water space is also the most challenging area to operate in due to a diverse acoustic environment. It is not realistic or practicable to refrain from training in the areas that are the most challenging and operationally important. Operating in near-costal environments is essential in order to provide realistic training on real world combat conditions with regard to shallow water sound propagation.
In conclusion, in the case of a Navy operation overlapping with a surface duct, it is possible that some higher number of animals might be taken by Level B harassment in those moments, or exposed to slightly higher levels than otherwise as the sound from nearby sources might propagate farther—and therefore, numbers of Level B harassment might be lowered slightly by avoiding a surface duct. However, a slight reduction in takes of this sort would not be expected to contribute meaningfully to a reduction in adverse impacts on species or stocks given the already low number and level of takes anticipated and the fact that the existing measures are expected to minimize the likelihood of injury, TTS or more severe behavioral responses, and impacts to North Pacific Right Whales in a known feeding area. When the minimal potential likelihood of reducing impacts to marine mammal species or stocks and their habitat is weighed along with the degree of impracticability for implementing this measure, NMFS finds that requiring it is unwarranted.
The majority of Navy training activities involving “ship tracks” would occur in the offshore portion of the Study Area and therefore would not involve embayments. In inland waters where there may be areas that could be considered embayments, ship tracks are generally constrained by the vessel traffic separation scheme, safety of operation, and mission requirements. See Section 5.3.3.1.6 of the GOA FSEIS/OEIS (Limiting Access to Training Locations) for further information regarding limiting the location of activities.
The Navy must train at night and in low-visibility conditions to ensure personnel may operate in similar conditions when required for actual operations. After sunset and prior to sunrise, watch personnel employ night visual search techniques, which could include the use of night vision devices. Please see the “Mitigation” section of the rule for further information. Section 5.3.3.1.8 of the GOA FSEIS/OEIS (Avoiding or Reducing Active Sonar at Night and During Periods of Low Visibility) also discusses activities conducted during varying environmental conditions.
In conclusion, the anticipated impacts from explosives are already low and there are detection techniques in place that are expected to avoid some of the nighttime exposures of marine mammals. It is difficult to predict the added value of avoiding nighttime explosive exercises completely above the exposures that will be avoided by implementing nighttime detection techniques—and further, how this might translate to any reduction in the already low explosive take numbers for Dall's porpoise. At any rate, when this small potential benefit is weighed against the impracticability of the Navy being unable to train in realistic environments, NMFS finds that this measure is unwarranted.
With respect to practicability, specific aerial monitoring is not typically feasible given the limited duration of typical monitoring flights (less than four hours). In addition, there are significant flight safety considerations and airspace restrictions during many Navy exercises when larger groups of military aircraft are present in high numbers at various altitudes. When the minimal potential benefit of this measure is weighed along with the impracticability, NMFS believes that the measure is not warranted.
With respect to practicability, specific aerial monitoring is not typically effective or feasible given the limited duration of typical monitoring flights (less than four hours). In addition, there are significant flight safety considerations and airspace restrictions during Navy training when military aircraft are present in high numbers at various altitudes. Ship-based surveys before, during, and after multi-unit exercises are impractical due to the large amount of resources required and the significant impact such a requirement would have on readiness. In addition to the mitigation and monitoring required by this rule, which have proven to be effective, the Navy is also committed to a robust marine mammal monitoring program designed to answer specific questions about the effects of the Navy's activities on marine mammals.
NMFS disagrees that using Lookouts as the primary strategy for limiting potential impacts from Navy activities is inadequate. Navy Lookouts are qualified and experienced observers of the marine environment. All Lookouts take part in Marine Species Awareness Training so that they are better prepared to spot marine mammals. Their duties require that they report all objects sighted in the water to the Office of the Deck (OOD) and all disturbances that may be indicative of a threat to the vessel and its crew. Lookouts are on duty at all times, day and night, when a ship or surfaced submarine is moving through the water. Visual detections of marine mammals would be communicated immediately to a watch station for information disseminations and appropriate mitigation action. The number of Lookouts required for each activity represents the maximum level of effort (
Navy personnel are extensively trained in spotting items on or near the water surface. The use of third-party observers (
In 2010, the Navy initiated a study designed to evaluate the effectiveness of the Navy Lookout team versus experienced MMOs. The University of St. Andrews, Scotland, under contract to the Navy, developed an initial data collection protocol for use during the study. Between 2010 and 2012, trained Navy marine mammal observers collected data during nine field trials as part of a “proof of concept” phase. The goal of the proof of concept phase was to develop a statistically valid protocol for quantitatively analyzing the effectiveness of Lookouts during Navy training exercises. Field trials were conducted in the HRC, SOCAL Range Complex, and Jacksonville Range Complex onboard one frigate, one cruiser, and seven destroyers. Preliminary analysis of the proof of concept data is ongoing. The Navy is also working to finalize the data collection process for use during the next phase of the study. While data was collected as part of this proof of concept phase, those data are not fairly comparable because protocols were being changed and assessed, nor are those data statistically significant. Therefore, it is improper to use these data to draw any conclusions on the effectiveness of Navy Lookouts at this time.
Additionally, as noted previously, the higher level effects that shutdowns mitigate (PTS, TTS, and more severe behavioral effects) are already minimal as modeled. Further, in the two previous exercises for which we have reports (2011 and 2015), only two observations of marine mammals occurred when sonar was in operation, suggesting that augmentation of detection capabilities would not necessarily result in fewer exposures to marine mammals. For these reasons, NMFS has not required the use of these additional platforms.
As discussed earlier in this rule in the “Mitigation” section and in Section 5.3.2.2 of the GOA FSEIS/OEIS (Physical Disturbance and Strike), the Navy's speed protocol is as follows: While in transit, Navy vessels shall be alert at all times, use extreme caution, and proceed at a “safe speed” so that the vessel can take proper and effective action to avoid a collision with any sighted object or disturbance, including any marine mammal or sea turtle and can be stopped within a distance appropriate to the prevailing circumstances and conditions. Other mitigation measures will be implemented to avoid vessel strikes, such as maneuvering to keep at least 500 yards from whales observed in a vessel's path, and not approaching whales head-on, provided it is safe to do so. The Navy will also be required to report any vessel strike.
Navy ship speed has not been implicated in impacts to marine mammals in the GOA TMAA Study Area. As discussed in the “Take Request” section and elsewhere in this rule, there has never been a recorded vessel strike of marine mammals during any training activities in the Study Area. The Navy's proposed actions would not result in any appreciable changes in locations or frequency of vessel activity in the GOA TMAA. The manner in which the Navy has trained would remain consistent with the range of variability observed over the last decade, so neither the Navy nor NMFS anticipate that vessel strikes would occur within the Study Area during training events, and NMFS has not authorized take by ship strike.
While NMFS would never say that a ship strike is absolutely impossible where vessels are in use, the probability here given historical data in the region and the comparatively small number of vessels is considered to so small as to be discountable. Therefore, ship speed restrictions would not be expected to reduce adverse impacts on marine mammal species or stocks and their habitat in any measurable manner. When this is coupled with the operational challenges of reducing speed (navigational and safety hazards or training impacts), the measure is not warranted.
Section 5.3.1.1.11 of the GOA FSEIS/OEIS (Avoiding Marine Species Habitats and Biologically Important Areas) discusses habitat avoidance. Section 3.6 of the GOA FSEIS/OEIS (Fish) provides the effects determinations on fish. As noted in Section 3.6 of the GOA FSEIS/OEIS, the current science regarding behavioral impacts to fish from sonar is that the potential for effects within the near field (within few tens of meters of the source), intermediate, or far distances is low (Popper
In short, NMFS does not anticipate serious, focused, or long-term effects on any species of fish, especially in the context of their importance to marine mammal species or stocks and their habitat. Therefore, NMFS does not expect the effects of Navy activities on marine mammal prey to result in effects on feeding that would have negative
The Navy has standard operating procedures in place to reduce the amount of military expended materials to the maximum extent practical, including recovering targets and associated parachutes (see Section 5.1 of the GOA FSEIS/OEIS (Standard Operating Procedures).
NMFS believes that the post-modeling analysis is an effective method for quantifying the implementation of mitigation measures to reduce impacts on marine mammals and the science regarding the avoidance of sound sources by marine mammals which cannot be captured within the modeling process itself, and that the resulting exposure estimates are, nevertheless, a conservative estimate of impacts on marine mammals from the Navy's proposed activities. As explained in the above-referenced documents, as part of the post-modeling analysis the Navy reduced some predicted Level A (PTS) exposures based on the potential for marine mammals to be detected and mitigation implemented, and the potential for marine mammals to avoid a sound source. Given this potential, not taking into account some possible reduction in Level A exposures would result in a less realistic, overestimation of possible Level A harassment takes, as if there were no mitigation measures implemented. For example, with respect to mitigation effectiveness, the period of time between clearing the impact area of any non-participants or marine mammals and weapons release is on the order of minutes, making it highly unlikely that a marine mammal would enter the mitigation zone. Information provided in Section 3.8.3.1.8 (Implementing Mitigation to Reduce Sound Exposures) of the GOA FSEIS/OEIS indicates how much of a reduction each factor represents for specific activities. As explained in the documents referenced above, the adjustments move a percentage of the model predicted Level A (PTS) effects at close range to more likely behavioral effects (Level B harassment) and do not conclude that all modeled mortalities or non-PTS injuries will be avoided. This process represents peer-reviewed and accepted scientific process.
The assignment of mitigation effectiveness scores and the appropriateness of consideration of sightability using detection probability, g(0), when assessing the mitigation in the quantitative analysis of acoustic impacts is discussed in the GOA FSEIS/OEIS (Section 3.8.3.1.8, Implementing Mitigation to Reduce Sound Exposures). Additionally, the activity category, mitigation zone size, and number of Lookouts are provided in the proposed rule (81 FR 9950, 9978-87; February 26, 2016) and GOA FSEIS/OEIS (Section 5, Tables 5.3-2 and 5.4-1). In addition to the information already contained within the GOA FSEIS/OEIS, the Post-Model Quantitative Analysis of Animal Avoidance Behavior and Mitigation Effectiveness for GOA Training Activities Technical Report (
The Navy is in the process of assessing Lookout effectiveness at detecting marine mammals during Navy exercises. Lookouts will not always be effective at avoiding impacts on all species. However, Lookouts are expected to increase the overall likelihood that certain marine mammal species and some sea turtles will be detected at the surface of the water, when compared to the likelihood that these same species would be detected if Lookouts are not used. The continued use of Lookouts contributes to helping reduce potential impacts on these species from training and testing activities. Results from the Lookout effectiveness study will be reviewed and any recommendations for improving Lookout effectiveness will be considered at that time. In summary, NMFS and the Navy believe that consideration of marine mammal sightability and activity-specific mitigation effectiveness is appropriate in the Navy's quantitative analysis in order to provide decision makers a reasonable assessment of potential impacts from the Navy's proposed activities.
After consideration of the frequency weighting, the functional TTS threshold for high frequency cetaceans (which includes both harbor porpoise and Dall's porpoise) at 3.5 kHz is a sound exposure level of 169 dB re 1µPa
NMFS does not agree with the Commission that the Navy should adjust behavioral response functions based on TTS thresholds as there is no consistent correlation between sound levels known to induce hearing loss and those with a specific probability of behavioral reaction. Therefore, the take estimates in the Navy's GOA SEIS/OEIS and LOA application are correct based on species densities used, species occurrence distribution within the TMAA, and modeling results.
The environmental conditions in the GOA TMAA Study Area and the types of activities proposed in the GOA
With regard to the harbor porpoise strandings in Washington State (2003), NMFS has since determined that these strandings were unrelated to Navy sonar use. There was a lack of evidence of any acoustic trauma among the harbor porpoises, and the identification of probable causes (
Lastly, while not referenced by the commenters and not related to active sonar exposure, NMFS considered an investigation into a long-finned pilot whale mass stranding event at Kyle of Durness, Scotland, on July 22, 2011 (Brownlow
The GOA FSEIS/OEIS provides an analysis of potential impacts occurring in the GOA TMAA Study Area. While most of the world's coastlines lack coverage by a stranding network, the Navy's analysis of impacts has focused on scientific data collected in and around the Navy range complexes, which are the proposed locations for the continuation of historically occurring training and testing activities including the use of sonar. A summary of the compendium of the research in that regard is presented in the GOA FSEIS/OEIS in Section 3.8.5 (Summary of Observations During Previous Navy Activities). Unlike the rest of the world's oceans, there has not been an absence of observation where the U.S. Navy has been routinely training and testing for years. In particular, and as ongoing for approximately the last 8 years, the Navy, NMFS, and an independent group of scientists have been engaged in implementing a comprehensive monitoring program and associated research that includes monitoring before, during, and after Navy activities on U.S. Navy range complexes. In short, the research and monitoring associated with Navy training and testing activities makes the Navy range complexes different than the remainder of the world's oceans.
There have been no mortalities or strandings associated with Navy sonar use during the past approximately 8 years of monitoring, but to the contrary there has been overwhelming evidence from research and monitoring indicating the continued presence or residence of individuals and populations in Navy range complexes and no clear evidence indicating long-term effects from Navy training and testing in those locations. For example, photographic records spanning more than two decades demonstrated re-sightings of individual beaked whales (from two species: Cuvier's and Blainville's beaked whales), suggesting long-term site fidelity to the area west of the Island of Hawaii where intensive swept-channel exercises historically occurred (McSweeney
In the GOA FSEIS/OEIS, the sensitivity of beaked whales is taken into consideration both in the application of Level B harassment thresholds and in how beaked whales are expected to avoid sonar sources at higher levels. No beaked whales were predicted in the acoustic analysis to be exposed to sound levels associated with PTS, other injury, or mortality (note: There is no data from which to develop or set a mortality criterion and there is no evidence that sonar can lead to a direct mortality due to lack of a shock wave). After years of the Navy conducting similar activities in the Study Area without incident, NMFS does not expect strandings, injury, or mortality of beaked whales or any other species to occur as a result of training activities. Additionally, through the MMPA rulemaking (which allows for adaptive management), NMFS and the Navy will determine the appropriate
NMFS has considered the body of science regarding strandings that have occurred coincident with Naval training exercises, paying particular attention to the few instances where scientific review has concluded that the exercises may have had a causal contribution. In short, the strandings that have been more conclusively linked to Naval activities in some way have largely been associated with certain environmental and/or operational factors that the Navy has addressed through preventative monitoring measures to be implemented when the factors may be present in an operational area. In general, there seems to be a low probability that strandings could occur in any Navy training areas, and in the GOA this probability is considered discountable because none of the complicating environment factors are present, because of short duration and comparatively low volume of potential tactical sonar use, and because of the historical absence of Navy-associated strandings in the area. NMFS and the Navy have adequately considered the science on this topic and applied it to actions where appropriate.
The referenced studies of North Atlantic right whales (
The opinion on how stress affects individuals and more importantly marine mammal stocks or populations is still under scientific review and research. The Navy via the ONR basic research program is a leading sponsor of ongoing stress related studies. These include but are not limited to: Development and Validation of a Technique for Detection of Stress and Pregnancy in Large Whales (multiple academic performers); Validating the Novel Method of Measuring Cortisol Levels in Cetacean Skin by Use of an ACTH Challenge in Bottlenose Dolphins (Aarhus University); Measuring and Validating Levels of Steroid Hormones in the Skin of Bottlenose Dolphins (
NMFS and the Navy have reviewed the large body of science on this issue and summarized the more salient articles in the proposed rule and the FSEIS/OEIS. We address the known risks of stress impacts and highlight the need for more work on the subject, while acknowledging that there are no specific actions (beyond the sorts of mitigation already included) that would be expected to effectively reduce these risks.
Navy vessels operate differently from commercial vessels in ways important to the prevention of whale collisions. Surface ships operated by or for the Navy have personnel assigned to stand watch at all times, day and night, when a ship or surfaced submarine is moving through the water (underway). A primary duty of personnel standing watch on surface ships is to detect and report all objects and disturbances sighted in the water that may indicate a threat to the vessel and its crew, such as debris, a periscope, surfaced submarine, or surface disturbance. Per vessel safety requirements, personnel standing watch also report any marine mammals sighted in the path of the vessel as a standard collision avoidance procedure. All vessels use extreme caution and proceed at a safe speed so they can take proper and effective action to avoid a collision with any sighted object or disturbance, and can be stopped within a distance appropriate to the prevailing circumstances and conditions. Further, this rule requires vessels to avoid approaching marine mammals head on and to maneuver to maintain a mitigation zone of 500 yd (457 m) around observed whales and 200 yd (183 m) around all other marine mammals (except bow-riding dolphins), providing it is safe to do so.
The research by Nowacek
In addition, there is no scientific basis for the suggestion that animals exposed to sonar would have “greater susceptibility to vessel strike.” Navy sonar is used intermittently for short durations, and is not aimed at or designed to be an alarm signal for low frequency mysticetes or other cetaceans. Further, studies where experimental sound source are used have had an extremely different frequency, duration, and temporal pattern of signal presentation from anything used by or proposed for use by the Navy. Of note, and in contrast to the comment's assertion, an equally plausible interpretation of the study is that an active mid-frequency sound source could potentially alert marine mammals to the presence of a Navy vessel and therefore reduce the potential for ship strikes. There has never been any association with Navy sonar use and ship strikes in over 30 years of worldwide Navy ship strike reporting to NMFS. Therefore, it is erroneous to assume Navy sonar use in the GOA TMAA would increase marine mammal vulnerability to Navy ship strike. Further, there has been no indication from more frequent Navy sonar use in other areas of the Pacific outside of the GOA TMAA of significant large whale reactions such that ship strike risk would increase.
Unusual Mortality Events (see “Strandings in the GOA TMAA” in the proposed rule (81 FR 9950, 9976; February 26, 2016)) and any ship strikes that have been reported in and outside of the GOA are not from Navy activities. The 2015 GOA strandings discussed in the proposed rule may be correlated with Pacific coast wide toxic algal poisoning. The large whale UME in the GOA is still under investigation, with the causes currently listed as “undetermined, possible ecological causes.”
In summary, both NMFS and the Navy fully evaluated the potential effects of ship strike. While the possibility of ship strike can never by fully ruled out where vessels are involved, the history and limited use of Navy vessels in the GOA, combined with the training, safety, and mitigation
Regarding vessel noise, both NMFS and the Navy have considered, and addressed in the proposed rule and the FSEIS/OEIS, the body of science indicating that harbor porpoises are generally more sensitive to sound exposure than other species, typically avoid human activities at larger distances than other species, and have been documented responding to vessel noise. Because of this, we use a lower behavioral threshold, 120dB, to predict when harbor porpoises will be taken by Level B harassment by Navy's sound sources. We believe that this approach allows for us to fully capture the extent of meaningful effects and take of harbor porpoises resulting from Navy activities.
Regarding the potential for collision with oil tankers, the Navy does not restrict commercial vessel traffic in the TMAA during exercises but it does publish Notices to Mariners (NTMs) prior to an exercise alerting vessels to the presence of Navy ships for the exercise. While the Navy does not publish daily NTMs, USCG District 17, Juneau, Alaska, communicates any active Navy training activity to shipping vessels through broadcast NTMs on VHF-FM Channel 16 and 22A (Navy 2016. During the exercise, consistent with standard practice for Navy training worldwide, the Navy avoids areas, to the extent practicable, with high concentrations of commercial vessels (
As discussed in the “Analysis and Negligible Impact Determination” section of this final rule, Chapter 4 of the GOA FSEIS/OEIS contains a comprehensive assessment of potential cumulative impacts, including analyzing the potential for cumulatively significant impacts to the marine environment and marine mammals. The Navy used the best available science and a comprehensive review of past, present, and reasonably foreseeable actions to develop a robust cumulative impacts analysis. The cumulative impacts analysis focused on impacts that are “truly meaningful.” This was accomplished by reviewing the direct and indirect impacts that have the potential to occur on each resource under each of the alternatives. Key factors considered were the current status and sensitivity of the resource and the intensity, duration, and spatial extent of the impacts of each potential stressor. In general, long-term rather than short-term impacts and widespread rather than localized impacts were considered more likely to contribute to cumulative impacts. As required under NEPA, the level and scope of the analysis are commensurate with the potential impacts of the action as reflected in the resource-specific discussions in Chapter 3 of the GOA FSEIS/OEIS. The GOA FSEIS/OEIS considered its activities alongside those of other activities in the region whose impacts are truly meaningful to the analysis.
In addition, NMFS' Biological Opinion concludes that NMFS' proposed rulemaking and LOA and any take associated with activities authorized by the rulemaking and LOA are not likely to jeopardize the continued existence of threatened or endangered species (or species proposed for listing) in the action area during any single year or as a result of the cumulative impacts of a 5-year authorization.
Additionally, NMFS notes that, even in areas where the Navy uses sonar frequently, such as instrumented ranges, marine mammal populations are present, not diminishing, and in some cases, thriving. NMFS and the Navy relied on actual trends in marine mammal populations and the best available science regarding marine mammals, including behavioral response studies and the satellite tracking of tagged marine mammals in areas of higher sonar use.
NMFS has reporting and monitoring data from the Navy on training and testing events occurring around the U.S. since 2006. For example, results from 2 years (2009-2010) of intensive monitoring by independent scientists and Navy observers in Southern California Range Complex and Hawaii Range Complex recorded an estimated 161,894 marine mammals with no evidence of distress or unusual behavior observed during Navy activities. Additional information and data summarized in the GOA FSEIS/OEIS Section 3.8.5 (Summary of Observations During Previous Navy Activities) provide support for the conclusions that it is unlikely there would be any population level or long-term consequences resulting from implementation of this final rule.
In addition, and as explained in response to a previous comment above, there is no scientific basis for the suggestion that animals taken by harassment would have “greater susceptibility to vessel strike.” NMFS considered Nowacek
The Navy's acoustic impact modeling does consider and quantify the potential for additive effects from multiple activities involving acoustic stressors by modeling all sound sources within a scenario simultaneously, which accounts for accumulative sound and provides a more realistic depiction of the potential effects of an activity. Further, as explained throughout this rule, NMFS' assessment is that the cumulative impacts of active sonar would be extremely small because the exercises would occur for relatively short periods of time; the sources of active sonar would most often not be stationary; and the effects of any LF/MFAS/HFAS exposure would stop when transmissions stop. Additionally, the vast majority of impacts expected from sonar exposure and underwater detonations are behavioral in nature, temporary and comparatively short in duration, relatively infrequent, and not of the type or severity that would be expected to be additive for the portion of the stocks and species likely to be exposed. NMFS' final rule is specifically designed to reduce the effects of the Navy's activity on marine mammal species and stocks to the least practicable impact, through the inclusion of appropriate mitigation and monitoring measures, and the issuance of an Authorization with those conditions does not result in significant cumulative impacts when considered with all other past, present, and reasonably foreseeable projects.
Chapter 4 of the GOA FSEIS/OEIS contains a comprehensive assessment of potential cumulative impacts, including analyzing the potential for cumulatively significant impacts to the marine environment and marine mammals. Specifically, the Navy concluded, and NMFS concurs, that its proposed action is likely to result in generally no more than temporary changes to the noise environment and sediment and water quality. Therefore, there is limited potential for those effects to interact cumulatively with the effects of other past, present, and reasonably foreseeable projects. Implementation of the proposed action, in conjunction with other past, present, and reasonably foreseeable future actions, would not be expected to result in significant cumulative impacts to the environment. As such, the proposed action will not result in cumulative adverse effects that could have a substantial effect on species and populations in the action area.
In addition, we note that the Navy has been training in the same relative area for years using substantially similar training systems, and coupled with the multitude of other activities taking place in the area, there is no evidence of long term consequences to marine mammal populations or stocks.
While climate change may result in changes in the distribution of marine mammals, it is currently not possible to predict how or under what conditions such changes might occur without engaging in unsupported conjecture. Therefore, it is not possible to reasonably determine what hypothetical future marine mammal distributions may look like as a result of climate change or otherwise factor such changes into an analysis of resulting potential effects and impacts from Navy activities.
Section 5.3.1.1.11 of the GOA FSEIS/OEIS (Avoiding Marine Species Habitats and Biologically Important Areas) discusses habitat avoidance. Section 3.6 of the GOA FSEIS/OEIS (Fish) provides the effects determinations on fish. As noted in Chapter 3.6 of the GOA FSEIS/OEIS, the current science regarding behavioral impacts to fish from sonar is that the potential for effects within the near field (within few tens of meters of the source), intermediate, or far distances is low (Popper
As described in the GOA FSEIS/OEIS, there is updated information such as fish stock assessment reports and information on fish hearing since the publication of the 2011 FEIS/OEIS. However, upon a comprehensive review of this new information, there are no changes to the affected environment (
Visual line-transect surveys using medium to large oceanographic vessels is the current scientific gold standard promoted by NMFS for deriving marine mammal density. Successive data collection from these vessels is highly dependent on sea state with limited sightings available during higher sea states. This limitation means bad weather, a significant potential anytime in the offshore waters of GOA, can serious degrade the amount of data collected. For instance, the 2013 GOA line-transect survey was scheduled in July, the most optimum at-sea time in which to survey the GOA. However, only 59 percent (4,504) of the proposed pre-survey proposed tracks (7,644 km) could be realized. Additional future vessel use for visual surveys and towed passive acoustic surveys would likely have similar limitations.
The Navy-funded 2013 GOA survey provided the most current scientific sighting and density data available for GOA marine mammals. Over 164,953 km
The Navy has already funded over $2.6 million in new marine mammal monitoring within the GOA from 2011-2015. This included a 2013 visual line-transect and passive acoustic survey, up to five long-term (365 days/year) bottom-mounted passive acoustic devices on the shelf, slope, and seamounts, and a slope deployment of an underwater glider with passive acoustic sensors. The bottom-mounted devices deployed year-round have contributed valuable new science as to the occurrence and seasonality of GOA marine mammals, including blue whales, fin whales, gray whales, humpback whales, sperm whales, and beaked whales. To date, over 58,953 hours or 2,456 days' worth of passive acoustic data over all seasons have been collected, analyzed, and results reported through annual monitoring reports.
The Navy and NMFS believe that marine mammal density estimation from passive acoustic monitoring data is a promising field, which is why the Navy is a leader in funding new research to advance the state of the science. The Office of Naval Research (ONR) and the Living Marine Resources (LMR) program are currently funding multiple projects focused on the development and validation of statistical tools and analysis processes. To date, this field is very much in its infancy, and there are a number of unresolved issues that the current research is working to address. For example, the current Navy-funded research is focusing on aspects such as the proper characterization of calling rates, range of detection, and group size, all of which can vary by species, region, time of year/day, sex, etc. All of these variables can impact the resulting density estimate, and therefore the method of incorporating these variables needs to be investigated further. Once these methods are further developed and validated, marine mammal density estimation from passive acoustic monitoring data will be a promising tool to help characterize population abundance and distribution. Therefore, with few exceptions, universal density derivation from additional passive acoustic monitoring in the GOA over the next 3-5 years is premature given the science underlying this protocol is still in development.
The Navy currently has an ongoing satellite tagging project for blue and fin whales on the US West Coast (2014-2017). These are long-term tags reporting individual movement for a period of several weeks in a worst case scenario, and up to a year in a best case scenario. These are highly mobile species that could conceivably move through portions of the GOA TMAA and if applicable, those results will be highlighted in the Navy's future GOA monitoring reports. There has already been non-Navy funded satellite tagging of select Gulf of Alaska species separate and unrelated to Navy funded monitoring in the same region. Pacific Life Foundation funded the Marine Mammal Institute of Oregon State University to attach long-term satellite tracking tags to humpback whales adjacent to the Gulf of Alaska from 2014 to 2015. To date, 40 animals have been tagged and results are currently under analysis. Tagged humpback whales have been successfully tracked whales across the Gulf of Alaska to winter reproductive areas around Hawaii and through more coastal routes along the eastern North Pacific (including the Gulf) to the tip of Baja and nearshore regions off mainland Mexico.
See the “Monitoring” section of this final rule for more information on monitoring activities planned for 2017 to 2022. Through the adaptive management process, NMFS and Navy will work together to define future GOA TMAA monitoring in consideration of achievable scientific objectives, and in terms of logistical considerations including but not limited to funding availability, applicability of one technology in GOA vs. another, and other Navy monitoring commitments in other regions of the Pacific.
Integration of a non-Navy designed system into the sensor suite of a modern Navy ship is not a trivial task, and given the complexity of this or similar thermal imaging systems, would not be practical as a Navy surface ship mitigation. There are issues of quantity available to account for the several hundred Navy ships stationed in the Pacific, the overall costs for that many units, the concerns with lifecycle maintenance and upkeep with a system on ships deployed for long periods of time, ability to keep spare parts and critical components in stock and supplied as needed, and the issue of electromagnetic interference and engineering considerations when any new technology is proposed for a Navy ship. Some new technologies can take five to ten years to resolve all these issues, and in some cased may never be safely or
Vessel operators need to be able to react to changing tactical situations and evaluate system capabilities in training as they would in actual combat. Widespread speed restrictions would not allow the Navy to properly test vessel capabilities or train to react to these situations. Speed restrictions during some activities (
Collection of Navy ship speed data would not inform or improve the GOA FSEIS/OEIS analysis or NMFS' negligible impact determination for the GOA TMAA given the relative different speeds of vessels depending on activities and the lack of such impacts in the past that would suggest ship strikes are reasonably likely to occur.
Navy vessels operate differently from commercial vessels in ways important to the prevention of whale collisions. Surface ships operated by or for the Navy have personnel assigned to stand watch at all times, day and night, when a ship or surfaced submarine is moving through the water (underway). A primary duty of personnel standing watch on surface ships is to detect and report all objects and disturbances sighted in the water that may indicate a threat to the vessel and its crew, such as debris, a periscope, surfaced submarine, or surface disturbance. Per vessel safety requirements, personnel standing watch also report any marine mammals sighted in the path of the vessel as a standard collision avoidance procedure. All vessels use extreme caution and proceed at a safe speed so they can take proper and effective action to avoid a collision with any sighted object or disturbance, and can be stopped within a distance appropriate to the prevailing circumstances and conditions.
NMFS' Office of Protected Resources has thoroughly reviewed the Navy's GOA FSEIS/OEIS and concluded that the impacts evaluated by the Navy are substantially the same as the impacts of NMFS' proposed action to issue regulations (and associated LOA) governing the take of marine mammals incidental to Navy training activities in the GOA TMAA Study Area from May 2017 through May 2022. In addition, the Office of Protected Resources has evaluated the GOA FSEIS/OEIS and found that it includes all required components for adoption by NOAA including: A discussion of the purpose and need for the action; a listing of the alternatives to the proposed action; a description of the affected environment; a succinct description of the environmental impacts of the proposed action and alternatives, including cumulative impacts; and a listing of agencies and persons consulted, and to whom copies of the GOA FSEIS/OEIS are sent.
Per the cooperating agency commitment, the Navy provided NMFS with early preliminary drafts of the GOA DSEIS/OEIS and the FSEIS/OEIS and a designated (and adequate) timeframe within which NMFS could provide comments. The Office of Protected Resources circulated the Navy's preliminary NEPA documents to other interested NOAA line offices and NMFS' regional and science center offices, compiled any comments received, and submitted them to the Navy. Subsequently, the Navy and NMFS participated in comment resolution meetings, in which the Navy addressed NMFS' comments, and in which any outstanding issues were resolved. The Navy has incorporated the majority of NMFS' comments into the GOA FSEIS/OEIS, and adequately addressed those comments that were not incorporated. As a result of this review, the Office of Protected Resources has determined that it is not necessary to prepare a separate Environmental Assessment or EIS to issue regulations or LOA authorizing the incidental take of marine mammals pursuant to the MMPA, and that adoption of the Navy's GOA FSEIS/OEIS is appropriate. Based on NMFS' review of the FSEIS, NMFS has adopted the FSEIS under the Council on Environmental Quality's Regulations for Implementing the National Environmental Policy Act (40 CFR 1506.3). Furthermore, in accordance with NEPA, its implementing regulations, and the NOAA's Administrative Order (NAO) 216-6A and Companion Manual, we have prepared a Record of Decision (ROD) which addresses NMFS' determination to issue regulations and LOA to the Navy pursuant to section 101(a)(5)(A) of the MMPA, for the taking of marine mammals incidental to the conduct of the Navy's training activities.
In the “Estimated Take of Marine Mammals” section of the proposed rule, NMFS described the potential effects to marine mammals from active sonar and underwater detonations in relation to the MMPA regulatory definitions of Level A and Level B harassment (81 FR 9950, 9992-97; February 26, 2016). Much of that information has not changed and is not repeated here; however, two changes to the input into take estimates have occurred and are
It is important to note that, as Level B harassment is interpreted here and quantified by the behavioral thresholds described below, the fact that a single behavioral pattern (of unspecified duration) is abandoned or significantly altered and classified as a Level B harassment take does not mean, necessarily, that the fitness of the harassed individual is affected either at all or significantly, or that, for example, a preferred habitat area is abandoned. Further analysis of context and duration of likely exposures and effects is necessary to determine the impacts of the estimated effects on individuals and how those may translate to population-level impacts, and is included in the Analysis and Negligible Impact Determination.
Tables 7 and 8 provide a summary of non-impulsive and impulsive thresholds to TTS and PTS for marine mammals, reflecting the acoustic thresholds used by the Navy for its acoustic effects model (NAEMO) in the Navy's FEIS/OEIS and reflected in the proposed rule. Behavioral thresholds for impulsive sources are summarized in Table 9. A detailed explanation of how these thresholds were derived is provided in the Criteria and Thresholds Technical Report (Finneran and Jenkins, 2012) and summarized in Chapter 6 of the LOA application (
The GOA FSEIS/OEIS considered all training activities proposed to occur in the Study Area that have the potential to result in the take of marine mammals as defined by the MMPA. The stressors associated with these activities included the following:
• Acoustic (sonar and other active non-impulse sources, explosives, swimmer defense airguns, weapons firing, launch and impact noise, vessel noise, aircraft noise);
• Energy (electromagnetic devices);
• Physical disturbance or strikes (vessels, in-water devices, military expended materials, seafloor devices);
• Entanglement (fiber optic cables, guidance wires, parachutes);
• Ingestion (munitions, military expended materials other than munitions); and
• Secondary stressors (sediments and water quality).
The Navy determined, and NMFS agrees, that two stressors could potentially result in the incidental taking of marine mammals from training activities within the Study Area: (1) Non-impulsive stressors (sonar and other active acoustic sources) and (2) impulsive stressors (explosives). Non-impulsive and impulsive stressors have the potential to result in incidental takes of marine mammals by harassment, injury, or mortality. Explanation of why the other stressors listed above are unlikely to result in the incidental taking of marine mammals is provided in the FSEIS/OEIS and the proposed rule.
Based on the Navy's model and post-model analysis, modified as described below, Table 10 summarizes the Navy's final take request for training activities for a year (1 exercise occurring over a 7-month period (April-October) and the summation over a 5-year period (1 exercise occurring over a 7-month period (April-October) for a total of 5 exercises).
Table 11 provides details on the Navy's final take request for training activities by species from the acoustic effects modeling estimates. There are no mortalities predicted for any species incidental to the proposed training activities. Only four Level A harassment takes are predicted to occur for one species (
Derivations of the numbers presented in Table 11 are described in more detail within Chapter 6 of the LOA application, but modified as described in the “Summary of Request” section. As described in that section, take estimates have changed since publication of proposed rule based on the following:
(1) The Navy modified its incidental take request to reflect the level of activities described by Alternative 1 of the FSEIS/OEIS (as opposed to Alternative 2) following a reassessment of reasonably foreseeable training requirements for the GOA TMAA. This change in alternative will reduce the total anticipated amount of annual training activities by reducing the number of annual Carrier Strike Group Exercises from 2 to 1 and the number of SINKEXs from 2 to 0 (see “Summary of Request”), ultimately reducing the take authorized. Thus, the take estimates shown in Table 11 reflect those presented for Alternative 1 in the GOA FSEIS/OEIS and are greatly reduced from what was presented in the proposed rule and the Navy's application.
(2) Level A and Level B harassment takes shown in Table 11 are slightly different for one species (
The Navy's proposed training activities could potentially affect marine mammal habitat through the introduction of sound into the water column, impacts to the prey species of marine mammals, bottom disturbance, or changes in water quality. Each of these components was considered in Chapter 3 of the GOA FSEIS/OEIS. Based on the information in the “Marine Mammal Habitat” section of the proposed rule (81 FR 9950, 10000-03; February 26, 2016) and the supporting information included in the GOA FSEIS/OEIS, NMFS has determined that training activities would not have adverse or long-term impacts on marine mammal habitat. In summary, expected effects to marine mammal habitat will include transitory elevated levels of anthropogenic sound in the water column; short-term physical alteration of the water column or bottom topography; brief disturbances to marine invertebrates; localized and infrequent disturbance to fish; a limited number of fish mortalities; and temporary marine mammal avoidance.
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 (
The Navy's specified activities have been described based on best estimates of the maximum amount of sonar and other acoustic source use or detonations that the Navy would conduct. There may be some flexibility in that the exact number of hours, items, or detonations may vary from year to year, but the total amount of incidental take is not authorized to exceed the 5-year totals indicated in Table 11. We base our analysis and NID on the maximum number of takes authorized, although, as stated before, the number of takes are only a part of the analysis, which includes extensive qualitative consideration of other contextual factors that influence the degree of impact of the takes on the effected individuals. To avoid repetition, we provide some general analysis immediately below that applies to all the species listed in Table 11, given that some of the anticipated effects (or lack thereof) of the Navy's training activities on marine mammals are expected to be relatively similar in nature. However, below that, we break our analysis into species, or groups of species where relevant similarities exist, to provide more specific information related to the anticipated effects on individuals or where there is information about the status or structure of any species that would lead to a differing assessment of the effects on the population.
The Navy's take request is based on its model and post-model analysis, modified as described in the “Summary of Request” and “Take Request” sections. In the discussions below, the “acoustic analysis” refers to the Navy's modeling results and post-model analysis. The model calculates sound energy propagation from sonar, other active acoustic sources, and explosives during naval activities; the sound or impulse received by animat dosimeters representing marine mammals distributed in the area around the modeled activity; and whether the sound or impulse received by a marine mammal exceeds the thresholds for effects. The model estimates are then further analyzed to consider animal avoidance and implementation of highly effective mitigation measures to prevent Level A harassment, resulting in final estimates of effects due to Navy training. NMFS provided input to the Navy on this process and the Navy's qualitative analysis is described in detail in Chapter 6 of its LOA application (
Generally speaking, and especially with other factors being equal, the Navy and NMFS anticipate more severe effects from takes resulting from exposure to higher received levels (although this is in no way a strictly linear relationship throughout species, individuals, or circumstances) and less severe effects from takes resulting from exposure to lower received levels. The requested number of Level B harassment takes does not equate to the number of individual animals the Navy expects to harass (which is lower), but rather to the instances of take (
As discussed in the proposed rule, marine mammals can respond to LF/MFAS/HFAS in many different ways, a subset of which qualifies as Level B harassment. As described in the proposed rule, the Navy uses the behavioral response function to quantify the number of behavioral responses that would qualify as Level B harassment under the MMPA. As the statutory definition is currently applied, a wide range of behavioral reactions may qualify as Level B harassment under the MMPA, including but not limited to avoidance of the sound source, temporary changes in vocalizations or dive patterns, temporary avoidance of an area, or temporary disruption of feeding, migrating, or reproductive behaviors. The estimates calculated using the behavioral response function do not differentiate between the different types of potential reactions. Nor do the estimates provide information regarding the potential fitness or other biological consequences of the reactions on the affected individuals. We therefore consider the available scientific evidence to determine the likely nature of the modeled behavioral responses and the potential fitness consequences for affected individuals.
For LF/MFAS/HFAS use in the GOA TMAA, the Navy provided information (Table 12) estimating the percentage of Level B harassment that would occur within the 6-dB bins (without considering mitigation or avoidance). As mentioned above, an animal's exposure to a higher received level is more likely to result in a behavioral response that is more likely to adversely affect the health of the animal. As illustrated below, the majority (including about 65-72 percent for the most powerful ASW hull-mounted sonar, which is responsible for a large portion of the sonar takes) of calculated takes from MFAS result from exposures less than 162 dB and more than 20km away. Less than 1-2 percent of the takes are expected to result from exposures above 168 dB or closer than 4km. Specifically, given a range of behavioral responses that may be classified as Level B harassment, to the degree that higher received levels are expected to result in more severe behavioral responses, only
Although the Navy has been monitoring to discern the effects of LF/MFAS/HFAS on marine mammals since 2006, and research on the effects of MFAS is advancing, our understanding of exactly how marine mammals in the Study Area will respond to LF/MFAS/HFAS is still improving. However, the Navy has submitted more than 80 reports, including Major Exercise Reports, Annual Exercise Reports, and Monitoring Reports, documenting hundreds of thousands of marine mammals across Navy range complexes, and there are only two instances of overt behavioral disturbances that have been observed. One cannot conclude from these results that marine mammals were not harassed from MFAS/HFAS, as a portion of animals within the area of concern were not seen (especially those more cryptic, deep-diving species, such as beaked whales or
Some of the lower level physiological stress responses discussed in the Potential Effects section of the proposed rule would also likely co-occur with the predicted harassments, although these responses are more difficult to detect and fewer data exist relating these responses to specific received levels of sound. Level B harassment takes, then, may have a stress-related physiological component as well; however, we would
As noted in the Potential Effects section of the proposed rule, many animals perform vital functions, such as feeding, resting, traveling, and socializing on a diel cycle (24-hour cycle). Behavioral reactions to noise exposure (when taking place in a biologically important context, such as disruption of critical life functions, displacement, or avoidance of important habitat) are more likely to be significant if they last more than one diel cycle or recur on subsequent days (Southall
Durations for non-impulsive activities utilizing tactical sonar sources vary and are fully described in Appendix A of the GOA FSEIS/OEIS. ASW training exercises using MFAS/HFAS proposed for the GOA TMAA generally last for 2-16 hours, and may have intervals of non-activity in between. Because of the need to train in a large variety of situations (in the case of the GOA TMAA, complex bathymetric and oceanographic conditions include a continental shelf, submarine canyons, seamounts, and fresh water infusions from multiple sources), the Navy does not typically conduct successive ASW exercises in the same locations. Given the average length of ASW exercises (times of continuous sonar use) and typical vessel speed, combined with the fact that the majority of the cetaceans in the GOA TMAA Study Area would not likely remain in an area for successive days, it is unlikely that an animal would be exposed to MFAS/HFAS at levels likely to result in a substantive response that would then be carried on for more than one day or on successive days.
Planned explosive exercises for the GOA TMAA are of a short duration (1-6 hours). Although explosive exercises may sometimes be conducted in the same general areas repeatedly, because of their short duration and the fact that they are in the open ocean and animals can easily move away, it is similarly unlikely that animals would be exposed for long, continuous amounts of time.
As mentioned previously, TTS can last from a few minutes to days, be of varying degree, and occur across various frequency bandwidths, all of which determine the severity of the impacts on the affected individual, which can range from minor to more severe. The TTS sustained by an animal is primarily classified by three characteristics:
1.
2.
3.
Based on the range of degree and duration of TTS reportedly induced by exposures to non-pulse sounds of energy higher than that to which free-swimming marine mammals in the field are likely to be exposed during MFAS/HFAS training exercises in the GOA TMAA, it is unlikely that marine mammals would ever sustain a TTS from MFAS that alters their sensitivity
Masking only occurs during the time of the signal (and potential secondary arrivals of indirect rays), versus TTS, which continues beyond the duration of the signal. Standard MFAS typically pings every 50 seconds for hull-mounted sources. For the sources for which we know the pulse length, most are significantly shorter than hull-mounted active sonar, on the order of several microseconds to tens of microseconds. For hull-mounted active sonar, though some of the vocalizations that marine mammals make are less than one second long, there is only a 1 in 50 chance that they would occur exactly when the ping was received, and when vocalizations are longer than one second, only parts of them are masked. Alternately, when the pulses are only several microseconds long, the majority of most animals' vocalizations would not be masked. Masking effects from MFAS/HFAS are expected to be minimal. If masking or communication impairment were to occur briefly, it would be in the frequency range of MFAS, which overlaps with some marine mammal vocalizations; however, it would likely not mask the entirety of any particular vocalization, communication series, or other critical auditory cue, because the signal length, frequency, and duty cycle of the MFAS/HFAS signal does not perfectly mimic the characteristics of any marine mammal's vocalizations. The other sources used in Navy training, many of either higher frequencies (meaning that the sounds generated attenuate even closer to the source) or lower amounts of operation, are similarly not expected to result in masking.
NMFS believes that many marine mammals would deliberately avoid exposing themselves to the received levels of active sonar necessary to induce injury by moving away from or at least modifying their path to avoid a close approach. Additionally, in the unlikely event that an animal approaches the sonar vessel at a close distance, NMFS believes that the mitigation measures (
If a marine mammal is able to approach a surface vessel within the distance necessary to incur PTS, the likely speed of the vessel (nominal 10-15 knots) would make it very difficult for the animal to remain in range long enough to accumulate enough energy to result in more than a mild case of PTS. As mentioned previously and in relation to TTS, the likely consequences to the health of an individual that incurs PTS can range from mild to more serious dependent upon the degree of PTS and the frequency band it is in, and many animals are able to compensate for the shift, although it may include energetic costs. Because of the small degree of PTS that would likely result, if it occurs, any energetic costs incurred by four Dall's porpoises would be expected to be relatively small.
No Level A harassment takes are predicted to occur to any species from exposure to non-impulsive sound. As mentioned previously, the Navy reprocessed anticipated ranges to PTS for impulsive sources (explosives) based on NMFS' new Guidance to assess if the new acoustic criteria could result in any additional species-specific injury exposures. The Navy did not reprocess anticipated sonar ranges to effects for PTS because the acoustic thresholds used in the Navy's modeling are largely more conservative that the new Guidance, and NMFS and the Navy qualitatively evaluated (described earlier) the effects the change would have on our analyses. The Navy's analysis concluded that only four Level A (PTS) takes per year to one species (Dall's porpoise) are predicted to occur from GOA training activities. No species other than Dall's porpoise would be expected to incur PTS from explosives if the new Guidance was applied to the Navy's activities.
We assume that the acoustic exposures sufficient to trigger onset PTS (or TTS) would be accompanied by behavioral responses and/or physiological stress responses, although the sound characteristics that correlate with specific stress responses in marine mammals are poorly understood. However, as discussed above in the “Behavioral Responses” section, we would not expect the Navy's generally short-term, intermittent, and (in the case of sonar) transitory activities to create conditions of long-term, continuous noise leading to long-term physiological stress responses in marine mammals.
As discussed previously, marine mammals (especially beaked whales) could potentially respond to MFAS at a received level lower than the injury threshold in a manner that indirectly results in the animals stranding. The exact mechanism of this potential response, behavioral or physiological, is not known. When naval exercises have been associated with strandings in the past, it has typically been when three or more vessels are operating simultaneously, in the presence of a strong surface duct, and in areas of constricted channels, semi-enclosed areas, and/or steep bathymetry. While these features certainly do not define the only factors that can contribute to a stranding, and while they need not all be present in their aggregate to increase the likelihood of a stranding, it is worth noting that they are not all present in the GOA TMAA, which only has a strong surface duct present during the winter, and does not have bathymetry or constricted channels of the type that have been present in the sonar associated strandings. When this is combined with consideration of the number of hours of active sonar training that will be conducted and the total
As stated previously, there have been no recorded Navy vessel strikes of any marine mammals during training in the GOA Study Area to date, nor were takes by injury or mortality resulting from vessel strike predicted in the Navy's analysis.
Predicted effects on marine mammals from exposures to sonar and other active acoustic sources and explosions during annual training activities are shown in Table 11. The vast majority of predicted exposures (greater than 99 percent) are expected to be Level B harassment (non-injurious TTS and behavioral reactions) from sonar and other active acoustic sources at relatively low received levels (Table 12). The acoustic analysis predicts the majority of marine mammal species in the Study Area would not be exposed to explosive (impulsive) sources associated with training activities. Only Dall's porpoise is predicted to have Level B (TTS) exposures resulting from explosives, and only a limited number (4) of Dall's porpoise are expected to have injurious take (PTS), which are from explosions. There are no lethal takes predicted for any marine mammal species for the GOA activities.
The analysis below may in some cases (
Generally, these represent a limited number of takes relative to population estimates for most mysticete stocks in the Study Area. When the numbers of behavioral takes are compared to the estimated stock abundance and if one assumes that each take happens to a separate animal, less than approximately 10 percent of each of these stocks, with the exception of the Northeast Pacific stock of fin whale and the Alaska stock of minke whale, would be behaviorally harassed during the course of a year. There currently are no reliable population estimates for the Northeast Pacific stock of fin whale and the Alaska stock of minke whale because only portions of the stocks' range have been surveyed (Muto and Angliss, 2016). However, NMFS believes the portion of these stocks expected to be taken is relatively small. Older provisional surveys in small subsets of the Minke range (Bering shelf and shelf and nearshore waters from Kenai Fjords to the Aleutians) showed partial abundances or 389-2,020 and 1,233, respectively, suggesting numbers larger than the sum of those if all areas in the Alaska range were surveyed. A provisional estimate of the minimum population of portion of the fin whale range west of the Kenai peninsula (about a third of the range) is 1,368 and earlier estimates of multiple subsets of the portion of the population east of the Kenai peninsula were in the thousands, suggesting that the abundance of the full population is at least more than several thousand. Because the estimates given above represent the total number of exposures and not necessarily the number of individuals exposed, it is more likely that fewer individuals would be taken, but a subset would be taken more than one time per year. In the ocean, the use of sonar and other active acoustic sources is transient and is unlikely to repeatedly expose the same population of animals over a short period.
Level B harassment takes are anticipated to be in the form of TTS and behavioral reactions and no injurious takes of North Pacific right, humpback, blue, fin, minke, or sei whales from sonar and other active acoustic stressors or explosives are expected. The majority of acoustic effects to mysticetes from sonar and other active sound sources during training activities would be primarily from anti-submarine warfare events involving surface ships and hull mounted sonar. Research and observations show that if mysticetes are exposed to sonar or other active acoustic sources they may react in a number of ways depending on the characteristics of the sound source, their experience with the sound source, and whether they are migrating or on seasonal grounds (
Specific to U.S. Navy systems using low frequency sound, studies were undertaken in 1997-98 pursuant to the Navy's Low Frequency Sound Scientific Research Program. These studies found only short-term responses to low frequency sound by mysticetes (fin, blue, and humpback whales) including changes in vocal activity and avoidance
Specific to mid-frequency sound, studies by Melcón
High-frequency systems are notably outside of mysticetes' ideal hearing and vocalization range. Therefore, mysticetes are unlikely to be able to detect higher-frequency systems and these systems would not interfere with their communication or detection of biologically relevant sounds or cause a significant behavioral reaction.
Most Level B harassments to mysticetes from sonar in the Study Area would result from received levels less than 156 dB SPL. Therefore, the majority of Level B harassment takes are expected to be in the form of milder responses (
As explained above, recovery from a threshold shift (TTS) can take a few minutes to a few days, depending on the exposure duration, sound exposure level, and the magnitude of the initial shift, with larger threshold shifts and longer exposure durations requiring longer recovery times (Finneran
Overall, the number of predicted behavioral reactions is low and occasional behavioral reactions are unlikely to cause long-term consequences for individual animals or populations. This assessment of long-term consequences is based in part on findings from ocean areas where the Navy has been intensively training and testing with sonar and other active acoustic sources for decades. While there are many factors such as the end of large-scale commercial whaling complicating any analysis, there is no data suggesting any long-term consequences to mysticetes from exposure to sonar and other active acoustic sources. On the contrary, there are findings suggesting mysticete populations are increasing in the two primary locations (Southern California and Hawaii) where the Navy's most intensively used range complexes are located. These findings include: (1) Calambokidis
As discussed in the “Consideration of Time/Area Limitations” section of this rule, a biologically important feeding area has been identified for North Pacific right whale (feeding area) within a small portion of the GOA TMAA (Ferguson
In summary, the GOA TMAA activities are not expected to adversely impact annual rates of recruitment or survival of mysticete whales.
The majority of Level B harassment takes are expected to be in the form of mild responses (low-level exposures) and of a generally short duration. Relative to the last known population size, the number of anticipated Level B harassment takes is very limited. Because the estimates given above represent the total number of exposures and not necessarily the number of individuals exposed, it is more likely that fewer individuals would be taken, but a subset would be taken more than one time per year. In the ocean, the use of sonar and other active acoustic sources is transient and is unlikely to repeatedly expose the same population of animals over a short period. Overall, the number and nature of predicted behavioral reactions are unlikely to cause long-term consequences for individual animals or populations. The GOA activities are not expected to occur in an area/time of specific importance for reproductive, feeding, or other known critical behaviors for sperm whales, and there is no designated critical habitat in the Study Area. Consequently, the activities are not expected to adversely impact annual rates of recruitment or survival of sperm whales.
All of these takes are anticipated to be in the form of Level B harassment (TTS and behavioral reaction) and no injurious takes of delphinids from sonar and other active acoustic stressors or explosives are requested or proposed for authorization. Further, the majority of takes are anticipated to be by Level B harassment in the form of mild responses. Research and observations show that if delphinids are exposed to
Research has demonstrated that Alaska Resident killer whales may routinely move over long large distances (Andrews and Matkin, 2014; Fearnbach
Delphinid species generally travel in large pods and should be visible from a distance, allowing for a high level of mitigation effectiveness, which has been considered quantitatively in the calculation of Level A harassment take, but is also expected to potentially reduce the occurrences of more severe behavioral impacts resulting from higher level exposures. Many of the recorded delphinid vocalizations overlap with the MFAS/HFAS TTS frequency range (2-20 kHz); however, as noted above, NMFS does not anticipate TTS of a serious degree or extended duration to occur as a result of exposure to MFAS/HFAS. Recovery from a threshold shift (TTS) can take a few minutes to a few days, depending on the exposure duration, sound exposure level, and the magnitude of the initial shift, with larger threshold shifts and longer exposure durations requiring longer recovery times (Finneran
The predicted effects to delphinids are unlikely to cause long-term consequences for individual animals or populations. The GOA TMAA activities are not expected to occur in an area/time of specific importance for reproductive, feeding, or other known critical behaviors for delphinids. Stocks of delphinid species found in the Study Area are not depleted under the MMPA, nor are they listed under the ESA. Consequently, the activities are not expected to adversely impact rates of recruitment or survival of delphinid species.
Behavioral responses can range from a mild orienting response, or a shifting of attention, to flight and panic (Richardson, 1995; Nowacek, 2007; Southall
Animals that experience hearing loss (TTS or PTS) may have reduced ability to detect relevant sounds such as predators, prey, or social vocalizations. Some porpoise vocalizations might overlap with the MFAS/HFAS TTS frequency range (2-20 kHz). Recovery from a threshold shift (TTS; partial hearing loss) can take a few minutes to a few days, depending on the exposure duration, sound exposure level, and the magnitude of the initial shift, with larger threshold shifts and longer exposure durations requiring longer recovery times (Finneran
Harbor porpoises have been observed to be especially sensitive to human activity (Tyack
ASW training exercises using MFAS/HFAS generally last for 2-16 hours, and may have intervals of non-activity in between. In addition, the Navy does not typically conduct ASW exercises in the same locations. Given the average length of ASW exercises (times of continuous sonar use) and typical vessel speed, combined with the fact that the majority of porpoises in the Study Area would not likely remain in an area for successive days, it is unlikely that an animal would be exposed to MFAS/HFAS at levels likely to result in a substantive response (
Considering the information above, the predicted effects to Dall's and harbor porpoise are unlikely to cause significant long-term consequences for individual animals or the population (the 4 potential takes by PTS for Dall's porpoise are anticipated to be of a small degree in a narrow frequency band that that would not have significant impacts on individual fitness). The Navy's training activities in the GOA TMAA are not expected to occur in an area/time of specific importance for reproductive, feeding, or other known critical behaviors for Dall's and harbor porpoise. Stocks of Dall's and harbor porpoise are not listed as depleted under the MMPA. Consequently, the activities are not expected to adversely impact annual rates of recruitment or survival of porpoises.
As is the case with harbor porpoises, beaked whales have been shown to be particularly sensitive to sound and therefore have been assigned a lower harassment threshold based on observations of wild animals by McCarthy
Behavioral responses can range from a mild orienting response, or a shifting of attention, to flight and panic (Richardson, 1995; Nowacek, 2007; Southall
It has been speculated for some time that beaked whales might have unusual sensitivities to sonar sound due to their likelihood of stranding in conjunction with MFAS use. Research and observations show that if beaked whales are exposed to sonar or other active acoustic sources they may startle, break off feeding dives, and avoid the area of the sound source to levels of 157 dB re 1 µPa, or below (McCarthy
Populations of beaked whales and other odontocetes on the Bahamas and other Navy fixed ranges that have been operating for decades, appear to be stable. Behavioral reactions (avoidance of the area of Navy activity) seem likely in most cases if beaked whales are exposed to anti-submarine sonar within a few tens of kilometers, especially for prolonged periods (a few hours or more) since this is one of the most sensitive marine mammal groups to anthropogenic sound of any species or group studied to date and research indicates beaked whales will leave an area where anthropogenic sound is present (Tyack
Based on the findings above, it is clear that the Navy's long-term ongoing use of sonar and other active acoustic sources has not precluded beaked whales from also continuing to inhabit those areas. In summary, based on the best available science, the Navy and NMFS believe that any TTS or behavioral responses of beaked whales due to sonar and other active acoustic training activities would generally not have long-term consequences for individuals or populations. NMFS notes that Claridge (2013) speculated that sonar use in a Bahamas range could have “a possible population-level effect” on beaked whales based on lower abundance in comparison to control sites. In summary, Claridge suggested that lower reproductive rates observed at the Navy's Atlantic Undersea Test and Evaluation Center (AUTEC), when compared to a control site, were due to stressors associated with frequent and repeated use of Navy sonar. However, it is important to note that there were some relevant shortcomings of this study. For example, all of the re-sighted whales during the 5-year study at both sites were female, which Claridge acknowledged can lead to a negative bias in the abundance estimation. There was also a reduced effort and shorter overall study period at the AUTEC site that failed to capture some of the emigration/immigration trends identified at the control site. Furthermore, Claridge assumed that the two sites were identical and therefore should have equal potential abundances, when in reality, there were notable physical differences. The author also acknowledged that “information
Moore and Barlow (2013) have noted a decline in beaked whale populations in a broad area of the Pacific Ocean area out to 300 nm from the coast and extending from the Canadian-U.S. border to the tip of Baja Mexico. There are scientific caveats and limitations to the data used for that analysis, as well as oceanographic and species assemblage changes on the U.S. Pacific coast not thoroughly addressed. Although Moore and Barlow (2013) have noted a decline in the overall beaked whale population along the Pacific coast, in the small fraction of that area where the Navy has been training and testing with sonar and other systems for decades (the Navy's SOCAL Range Complex), higher densities and long-term residency by individual Cuvier's beaked whales suggest that the decline noted elsewhere is not apparent where Navy sonar use is most intense. Navy sonar training and testing is not conducted along a large part of the U.S. west coast from which Moore and Barlow (2013) drew their survey data. In Southern California, based on a series of surveys from 2006 to 2008 and a high number encounter rate, Falcone
NMFS also considered New
No beaked whales are predicted in the acoustic analysis to be exposed to sound levels associated with PTS, other injury, or mortality. After years of the Navy conducting similar activities in the GOA Study Area without incident, NMFS does not expect strandings, injury, or mortality of beaked whales to occur as a result of training activities. Stranding events coincident with Navy MFAS use in which exposure to sonar is believed to have been a contributing factor were detailed in the “Stranding and Mortality” section of the proposed rule (81 FR 9950, 9970-76; February 26, 2016). However, for some of these stranding events, a causal relationship between sonar exposure and the stranding could not be clearly established (Cox
The GOA training activities are not expected to occur in an area/time of specific importance for reproductive, feeding, or other known critical behaviors for beaked whales. None of the Pacific stocks for beaked whale species found in the Study Area are depleted under the MMPA. The degree of predicted Level B harassment is expected to be mild, and no beaked whales are predicted in the acoustic analysis to be exposed to sound levels associated with PTS, other injury, or mortality. Consequently, the activities are not expected to adversely impact annual rates of recruitment or survival of beaked whales.
Research has demonstrated that for pinnipeds, as for other mammals, recovery from a threshold shift (TTS) can take a few minutes to a few days, depending on the exposure duration, sound exposure level, and the magnitude of the initial shift, with larger threshold shifts and longer exposure durations requiring longer recovery times (Finneran
Research and observations show that pinnipeds in the water may be tolerant of anthropogenic noise and activity (a review of behavioral reactions by pinnipeds to impulsive and non-impulsive noise can be found in Richardson
If pinnipeds are exposed to sonar or other active acoustic sources they may react in a number of ways depending on their experience with the sound source and what activity they are engaged in at the time of the acoustic exposure. Pinnipeds may not react at all until the sound source is approaching within a few hundred meters and then may alert, ignore the stimulus, change their behaviors, or avoid the immediate area by swimming away or diving. Houser
Although less of an issue here because of the short duration of the activity, it is still worth noting that in areas of repeated and frequent acoustic disturbance, some pinnipeds may habituate or learn to tolerate the new baseline or fluctuations in noise level. Habituation can occur when an animal's response to a stimulus wanes with repeated exposure, usually in the absence of unpleasant associated events (Wartzok
Thus, even repeated Level B harassment of some small subset of an overall stock is unlikely to result in any significant realized decrease in fitness to those individuals, and would not result in any adverse impact to the stock as a whole. Evidence from areas where the Navy extensively trains and tests provides some indication of the possible consequences resulting from those proposed activities. In the confined waters of Washington State's Hood Canal where the Navy has been training and intensively testing for decades and harbor seals are present year-round, the population level has remained stable suggesting the area's carrying capacity likely has been reached (Jeffries
Generally speaking, most pinniped stocks in the Study Area are thought to be stable or increasing (Carretta
In summary, the activities are not expected to adversely impact annual rates of recruitment or survival of pinniped species.
The best assessment of long-term consequences from training activities will be to monitor the populations over time within a given Navy range complex. A U.S. workshop on Marine Mammals and Sound (Fitch
Since 2006 across all Navy range complexes (in the Atlantic, Gulf of
In addition to this multi-year record of reports from across the Navy, there have also been ongoing Behavioral Response Study research efforts (in Southern California and the Bahamas) specifically focused on determining the potential effects from Navy mid-frequency sonar (Southall
In the Hawaii and Southern California Navy training and testing ranges from 2009 to 2012, Navy-funded marine mammal monitoring research completed over 5,000 hours of visual survey effort covering over 65,000 nautical miles, sighted over 256,000 individual marine mammals, took over 45,600 digital photos and 36 hours of digital video, attached 70 satellite tracking tags to individual marine mammals, and collected over 40,000 hours of passive acoustic recordings. In Hawaii alone between 2006 and 2012, there were 21 scientific marine mammal surveys conducted before, during, or after major exercises. This monitoring effort is consistent with other research from these areas in that there have been no direct evidence demonstration that routine Navy training and testing has negatively impacted marine mammal populations inhabiting these Navy ranges. Continued monitoring efforts over time will be necessary to completely evaluate the long-term consequences of exposure to noise sources. Other research findings related to the general topic of long-term impacts are discussed above in the Species-Specific Analysis.
Based on monitoring conducted before, during, and after Navy training and testing events since 2006, NMFS' assessment is that it is unlikely there will be impacts having any long-term consequences to populations of marine mammals as a result of the proposed continuation of training activities in the Study Area. In addition to the analysis presented above, this assessment of likelihood is based on four indicators from areas in the Pacific where Navy training and testing has been ongoing for decades: (1) Evidence suggesting or documenting increases in the numbers of marine mammals present (Calambokidis and Barlow, 2004; Falcone
To summarize, while the evidence covers most marine mammal taxonomic suborders, it is limited to a few species and only suggestive of the general viability of those species in intensively used Navy training and testing areas (Barlow
Training activities proposed in the GOA TMAA Study Area would result in mainly Level B and a very small number of Level A harassment takes (for one species), as summarized in Tables 10 and 11. Based on best available science, NMFS concludes that exposures to sound by marine mammal species or stocks due to GOA TMAA activities would result in individuals experiencing primarily short-term (temporary and short in duration) and relatively infrequent effects of the type or severity not expected to be additive. In addition, only a generally small portion of the stocks and species are likely to be exposed.
Marine mammal takes from Navy activities are not expected to impact annual rates of recruitment or survival and will therefore not result in population-level impacts for the following reasons, in summary:
• No mortality is anticipated or authorized, only 4 instances of Level A harassment (resulting in low-level PTS) to Dall's porpoise are likely to occur, and remaining impacts would be within the non-injurious TTS or behavioral effects zones (Level B harassment consisting of generally temporary modifications in behavior).
• As mentioned earlier, an animal's exposure to a higher received level is more likely to result in a behavioral response that is more likely to adversely affect the health of the animal. For low frequency cetaceans (mysticetes) in the Study Area, the majority (73%) of Level B exposures from hull-mounted sonar (which is responsible for most of the take) will occur at received levels less than 162 dB and from sources over 20km away. Only less than 1% of the takes are expected to result from exposures above 174 dB and closer than 4 km. The majority (63%) of estimated odontocete and pinniped takes from hull-mounted MFAS/HFAS result from exposures to received levels less than 162 dB and from sources over 20 km away. Only less than 2% of the takes are expected to result from exposures above 174 dB and closer than 4 km. For other sonar sources, 98% of the takes result from exposures below 168 dB for
• Acoustic disturbances caused by Navy sonar and explosives are short-term, intermittent, and (in the case of sonar) transitory. Even when an animal may be exposed to active sonar more than one time, the intermittent nature of the sonar signal, the signal's low duty cycle (MFAS has a typical ping of every 50 seconds), and the fact that both the vessel and animal are moving, provide only a very small chance that exposure to active sonar for individual animals and stocks would be repeated over extended periods of time. Additionally, the exercises will not last more than a total of 21 days annually. Consequently, we would not expect the Navy's activities to create conditions of long-term, continuous underwater noise leading to habitat abandonment or long-term hormonal or physiological stress responses in marine mammal species or stocks.
• Range complexes where intensive training and testing have been occurring for decades have populations of multiple species with strong site fidelity (including highly sensitive resident beaked whales at some locations) and increases in the number of some species. Populations of beaked whales and other odontocetes in the Bahamas, and in other Navy fixed ranges that have been operating for tens of years, appear to be stable.
• Navy monitoring of Navy-wide activities since 2006 has documented hundreds of thousands of marine mammals on the range complexes and there are only two instances of overt behavioral change that have been observed.
• Navy monitoring of Navy-wide activities since 2006 has documented no demonstrable instances of injury to marine mammal species or stocks as a result of non-impulsive acoustic sources.
• In at least three decades of similar Navy activities, only one instance of injury to one species type of marine mammal (In March 2011; three long-beaked common dolphins off Southern California) has occurred as a known result of training or testing using an impulsive source (underwater explosion). Of note, the time-delay firing underwater explosive training activity implicated in the March 2011 incident was not proposed for the training activities in the GOA Study Area.
• The protective measures described in the “Mitigation” section above are designed, and expected, to avoid vessel strike, sound exposures that may cause serious injury, minimize the likelihood of PTS, TTS, or more severe behavioral responses, further minimize the likelihood of take of North Pacific Right Whales in important feeding areas, and overall to result in the least practicable adverse effect on marine mammal species or stocks.
Based on this analysis of the likely effects of the specified activity on marine mammal species or stocks and their habitat, which includes consideration of the materials provided in the Navy's LOA application and GOA FSEIS/OEIS, and dependent upon the implementation of the mitigation and monitoring measures, NMFS finds that the total marine mammal take from the Navy's training activities in the GOA Study Area will have a negligible impact on the affected marine mammal species or stocks through effects on annual rates of recruitment or survival. NMFS is issuing regulations for these activities in order to prescribe the means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, and to set forth requirements pertaining to the monitoring and reporting of that taking.
The Tribes nearest the GOA TMAA include the Sun'aq Tribe of Kodiak, the Native Village of Eyak, and the Yakutat Tlingit Tribe; however, these Tribes do not use the TMAA for subsistence. In January 2013, the Navy sent letters to 12 Alaska Native federally-recognized Tribes, including those listed above, with the assistance of the Alaskan Command's Tribal liaison, requesting government-to-government consultation pursuant to Executive Order 13175. The Navy conducted a government-to-government consultation with the Native Village of Eyak and addressed many of the Village's concerns regarding the potential impacts from training activities. All 12 Tribes were also provided a copy of the GOA DSEIS/OEIS for review and comment. Comments on the GOA DSEIS/OEIS were received from the Native Village of Eyak Tribe. In July 2016, Navy held government-to-government consultation with five (5) Alaska Native Tribes in the Kodiak area regarding tribal comments and concerns of the Proposed Action. The Navy considered the concerns of the five Tribes regarding fishery resources and agreed to include a mitigation that precludes the use of ordnance in the Portlock Bank area. The Navy will continue to keep the Tribes informed of the timeframes of future joint training exercises.
There are no relevant subsistence uses of marine mammals implicated by this action. None of the training activities in the Study Area occur where traditional Arctic subsistence hunting exists. Therefore, NMFS has determined that the total taking would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
There are eight marine mammal species under NMFS jurisdiction that are listed as endangered or threatened under the ESA with confirmed or possible occurrence in the Study Area: Blue whale, fin whale, humpback whale (Western North Pacific DPS and Mexico DPS), sei whale, sperm whale, gray whale (Western North Pacific stock), North Pacific right whale, and Steller sea lion (Western U.S. stock). The Navy consulted with NMFS pursuant to section 7 of the ESA, and NMFS also consulted internally on the issuance of a rule and LOA under section 101(a)(5)(A) of the MMPA for GOA activities. NMFS issued a Biological Opinion concluding that the issuance of the rule and subsequent LOA are likely to adversely affect, but are not likely to jeopardize, the continued existence of the threatened and endangered species under NMFS' jurisdiction and are not likely to result in the destruction or adverse modification of critical habitat in the GOA TMAA Study Area. The Biological Opinion for this action is available on NMFS' Web site (
NMFS participated as a cooperating agency on the GOA FSEIS/OEIS, which was published on July 9, 2016, and is available on the Navy's Web site:
The Office of Management and Budget has determined that this final rule is not significant for purposes of Executive Order 12866.
Pursuant to the Regulatory Flexibility Act (RFA), the Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration at the proposed rule stage that this rule would not have a significant economic impact on a substantial number of small entities. The Navy is the sole entity that would be affected by this rulemaking, and the
The Assistant Administrator for Fisheries has determined that there is good cause under the Administrative Procedure Act (5 U.S.C 553(d)(3)) to waive the 30-day delay in the effective date of the measures contained in the final rule. NMFS is unable to accommodate the 30-day delay of effectiveness due to delays resulting from: Late changes in the action (reductions in activity levels), the need for new impact analyses to address policy changes initiated by NMFS (new Acoustic Guidance), and the need to analyze a recent Ninth Circuit opinion regarding section 101(a)(5)(A) of the MMPA. The Navy is the only entity subject to the regulations, and it has informed NMFS that it requests that this final rule take effect by April 2017 to accommodate a Navy training exercise in the GOA planned for May 1, 2017. A waiver of the 30-day delay of the effective date of the final rule will allow the Navy to finalize operational procedures to ensure compliance with required mitigation, monitoring, and reporting requirements, and have MMPA authorization in place to support at-sea joint exercises in the GOA scheduled for May 2017. Any delay of enacting the final rule would result in either: (1) A suspension of planned naval training, which would disrupt vital training essential to national security; or (2) the Navy's procedural non-compliance with the MMPA (should the Navy conduct training without an LOA), thereby resulting in the potential for unauthorized takes of marine mammals. Moreover, the Navy is ready to implement the rule immediately. For these reasons, the Assistant Administrator finds good cause to waive the 30-day delay in the effective date.
Exports, Fish, Imports, Incidental take, Indians, Labeling, Marine mammals, Navy, Penalties, Reporting and recordkeeping requirements, Seafood, Sonar, Transportation.
For reasons set forth in the preamble, 50 CFR part 218 is amended as follows:
16 U.S.C. 1361
(a) Regulations in this subpart apply only to the U.S. Navy for the taking of marine mammals that occurs in the area outlined in paragraph (b) of this section and that occurs incidental to the activities described in paragraph (c) of this section.
(b) The taking of marine mammals by the Navy is only authorized if it occurs within the GOA TMAA Study Area, which is bounded by a hexagon with the following six corners: 57°30′° N. lat., 141°30′° W. long.; 59°36′° N. lat., 148°10′° W. long.; 58°57′° N. lat., 150°04′° W. long.; 58°20′° N. lat., 151°00′° W. long.; 57°16′° N. lat., 151°00′° W. long.; and 55°30′° N. lat., 142°00′° W. long.
(c) The taking of marine mammals by the Navy is only authorized if it occurs incidental to the following activities:
(1)
(B) MF3—an average of 24 hours per year.
(C) MF4—an average of 26 hours per year.
(D) MF5—an average of 126 items per year.
(E) MF6—an average of 11 items per year.
(F) MF11—an average of 39 hours per year.
(ii)
(B) HF6—an average of 40 items per year.
(iii)
(B) ASW3—an average of 273 hours per year.
(C) ASW4—an average 6 items per year.
(iv)
(B) [Reserved]
(2)
(B) E9 (>100 to 250 lb NEW)—an average of 64 detonations per year.
(C) E10 (>250 to 500 lb NEW)—an average of 6 detonations per year.
(D) E12 (>650 to 1,000 lb NEW)—an average of 2 detonations per year.
(ii) [Reserved]
(a) Regulations in this subpart are effective April 26, 2017 through April 26, 2022.
(b) The following definitions are utilized in these regulations:
(1)
(i) Two or more individuals of any cetacean species (
(ii) A single individual or mother/calf pair of any of the following marine mammals of concern: beaked whale of any species, North Pacific right whale, humpback whale, sperm whale, blue
(iii) A group of two or more cetaceans of any species exhibiting indicators of distress.
(2) [Reserved]
(a) Under letter of authorization (LOA) issued pursuant to § 216.106 of this chapter and § 218.157, the holder of the LOA may incidentally, but not intentionally, take marine mammals within the area described in § 218.150, provided the activity is in compliance with all terms, conditions, and requirements of these regulations and the LOA.
(b) The activities identified in § 218.150(c) must be conducted in a manner that minimizes, to the greatest extent practicable, any adverse impacts on marine mammal species or stocks and their habitat.
(c) The incidental take of marine mammals under the activities identified in § 218.150(c) is limited to the following species, by the identified method of take and the indicated number of times:
(1)
(B) Fin whale (Balaenoptera physalus), Northeast Pacific—6,455 (an average of 1,291 per year).
(C) Humpback whale (Megaptera novaeangliae), Central North Pacific—305 (an average of 61 per year).
(D) Humpback whale (Megaptera novaeangliae), Western North Pacific—5 (an average of 1 per year).
(E) Humpback whale (Megaptera novaeangliae), CA/OR/WA—35 (an average of 7 per year).
(F) Minke whale (Balaenoptera acutorostrata), Alaska—215 (an average of 43 per year).
(G) North Pacific right whale (Eubalaena japonica), Eastern North Pacific—15 (an average of 3 per year).
(H) Sei whale (Balaenoptera borealis), Eastern North Pacific—30 (an average of 6 per year).
(ii)
(B) Cuvier's beaked whale (Ziphius cavirostris), Alaska—6,355 (an average of 1,271 per year).
(C) Dall's porpoise (Phocoenoidea dalli), Alaska—41,350 (an average of8,270 per year).
(D) Harbor porpoise (Phocoena phocoena), GOA—13,710 (an average of 2,742 per year).
(E) Harbor porpoise (Phocoena phocoena), Southeast Alaska—4,815 (an average of 963 per year).
(F) Killer whale (Orcinus orca), Alaska Resident—1,405 (an average of 281 per year).
(G) Killer whale (Orcinus orca), Eastern North Pacific Offshore—130 (an average of 26 per year).
(H) Killer whale (Orcinus orca), GOA, Aleutian Island, and Bearing Sea Transient—360 (an average of 72 per year).
(I) Pacific white-sided dolphin (Lagenorhynchus obliquidens), North Pacific—4,905 (an average of 981 per year).
(J) Stejneger's beaked whale (Mesoplodon stejnegeri), Alaska—2,880 (an average of 576 per year).
(K) Sperm whale (Physeter macrocephalus), North Pacific—490 (an average of 98 per year).
(iii)
(B) Steller sea lion (Eumetopias jubatus), Eastern U.S.—1,675 (an average of 335 per year).
(C) Steller sea lion (Eumetopias jubatus), Western U.S.—1,430 (an average of 286 per year).
(D) Harbor seal (Phoca vitulina), South Kodiak—5 (an average of 1 per year).
(E) Harbor seal (Phoca vitulina), Prince William Sound—5 (an average of 1 per year).
(F) Northern elephant seal (Mirounga angustirostris), California Breeding—610 (an average of 122 per year).
(G) Northern fur seal (Callorhinus ursinus), Eastern Pacific—3,565 (an average of 713 per year).
(2)
(B) [Reserved]
(ii) [Reserved]
Notwithstanding takings contemplated in § 218.152 and authorized by an LOA issued under § 216.106 of this chapter and § 218.157, no person in connection with the activities described in § 218.150 may:
(a) Take any marine mammal not specified in § 218.152(c);
(b) Take any marine mammal specified in § 218.152(c) other than by incidental take as specified in § 218.152(c);
(c) Take a marine mammal specified in § 218.152(c) if such taking results in more than a negligible impact on the species or stocks of such marine mammal; or
(d) Violate, or fail to comply with, the terms, conditions, and requirements of these regulations or an LOA issued under § 216.106 of this chapter and § 218.157.
(a) After review of best available science, the following mitigation was determined to result in the least practicable adverse effect on marine mammal species or stocks. When conducting training activities, as identified in § 218.150, the mitigation measures contained in the LOA issued under § 216.106 of this chapter and § 218.157 must be implemented. These mitigation measures include, but are not limited to:
(1)
(i) Lookouts positioned on surface ships shall be dedicated solely to diligent observation of the air and surface of the water. Their observation objectives shall include, but are not limited to, detecting the presence of biological resources and recreational or fishing boats, observing mitigation zones, and monitoring for vessel and personnel safety concerns.
(ii) Due to manning and space restrictions on aircraft, small boats, and some Navy ships, lookouts for these platforms may be supplemented by the aircraft crew or pilot, boat crew, range site personnel, or shore-side personnel. Lookouts positioned in minimally manned platforms may be responsible for tasks in addition to observing the air or surface of the water (
(iii) All personnel standing watch on the bridge, Commanding Officers, Executive Officers, maritime patrol aircraft aircrews, anti-submarine warfare helicopter crews, civilian equivalents, and lookouts shall successfully complete the United States Navy Marine Species Awareness Training prior to standing watch or serving as a lookout.
(iv)
(B) While using hull-mounted mid-frequency active sonar sources associated with anti-submarine warfare activities at sea, vessels less than 65 ft (20 m) in length shall have one lookout at the forward position of the vessel due to space and manning restrictions.
(C) During non-hull mounted mid-frequency active sonar training activities, Navy aircraft participating in exercises at sea shall conduct and maintain, when operationally feasible and safe, surveillance for marine species of concern as long as it does not violate safety constraints or interfere with the accomplishment of primary operational duties. Helicopters shall observe/survey the vicinity of an anti-submarine warfare training event for 10 minutes before the first deployment of active (dipping) sonar in the water.
(D) Ships or aircraft conducting non-hull-mounted mid-frequency active sonar, such as helicopter dipping sonar systems, shall maintain one lookout.
(E) Ships conducting high-frequency active sonar shall maintain one lookout.
(v)
(B) Surface vessels or aircraft conducting small-, medium-, or large-caliber gunnery exercises against a surface target shall have one Lookout. From the intended firing position, trained Lookouts shall survey the mitigation zone for marine mammals prior to commencement and during the exercise as long as practicable. Towing vessels, if applicable, shall also maintain one Lookout. If a marine mammal is sighted in the vicinity of the exercise, the tow vessel shall immediately notify the firing vessel in order to secure gunnery firing until the area is clear.
(C) Aircraft conducting explosive bombing exercises shall have one lookout and any surface vessels involved shall have trained Lookouts. If surface vessels are involved, Lookouts shall survey for floating kelp and marine mammals. Aircraft shall visually survey the target and buffer zone for marine mammals prior to and during the exercise. The survey of the impact area shall be made by flying at 1,500 ft (460 m) or lower, if safe to do so, and at the slowest safe speed. Release of ordnance through cloud cover is prohibited: Aircraft must be able to actually see ordnance impact areas. Survey aircraft should employ most effective search tactics and capabilities.
(D) When aircraft are conducting missile exercises against a surface target, the Navy shall have one Lookout positioned in an aircraft. Aircraft shall visually survey the target area for marine mammals. Visual inspection of the target area shall be made by flying at 1,500 ft (457 m) or lower, if safe to do so, and at the slowest safe speed. Firing or range clearance aircraft must be able to actually see ordnance impact areas.
(E) Ships conducting explosive and non-explosive gunnery exercises shall have one Lookout on the ship. This may be the same lookout described in paragraph (a)(1)(v)(B) of this section for surface vessels conducting small-, medium-, or large-caliber gunnery exercises when that activity is conducted from a ship against a surface target.
(vi)
(B) [Reserved]
(vii)
(B) During non-explosive bombing exercises one Lookout shall be positioned in an aircraft and trained lookouts shall be positioned in any surface vessels involved.
(C) When aircraft are conducting non-explosive missile exercises (including exercises using rockets) against a surface target, the Navy shall have one Lookout positioned in an aircraft.
(2)
(i) Mitigation zones shall be measured as the radius from a source and represent a distance to be monitored.
(ii) Visual detections of marine mammals or sea turtles within a mitigation zone shall be communicated immediately to a watch station for information dissemination and appropriate action.
(iii)
(B) The Navy shall ensure that hull-mounted mid-frequency active sonar transmissions are limited to at least 10 dB below the equipment's normal operating level if any detected marine mammals or sea turtles are within 500 yd (457 m) of the sonar dome.
(C) The Navy shall ensure that hull-mounted mid-frequency active sonar transmissions are ceased if any detected cetaceans or sea turtles are within 200 yd (183 m) and pinnipeds are within 100 yd (90 m) of the sonar dome. Transmissions shall not resume until the marine mammal has been observed exiting the mitigation zone, is thought to have exited the mitigation zone based on its course and speed, has not been detected for 30 minutes, the vessel has transited more than 2,000 yd (1830 m) beyond the location of the last detection, or the ship concludes that dolphins are deliberately closing in on the ship to ride the ship's bow wave (and there are no other marine mammal sightings within the mitigation zone). Active transmission may resume when dolphins are bow riding because they are out of the main transmission axis of the active sonar while in the shallow-wave area of the ship bow.
(D) The Navy shall ensure that high-frequency and non-hull-mounted mid-frequency active sonar transmission levels are ceased if any detected cetaceans are within 200 yd (183 m) and pinnipeds are within 100 yd (90 m) of the source. Transmissions shall not resume until the marine mammal has been observed exiting the mitigation zone, is thought to have exited the mitigation zone based on its course and speed, the mitigation zone has been clear from any additional sightings for a period of 10 minutes for an aircraft-deployed source, the mitigation zone has been clear from any additional sightings for a period of 30 minutes for a vessel-deployed source, the vessel or aircraft has repositioned itself more than 400 yd (370 m) away from the location of the last sighting, or the vessel concludes that dolphins are deliberately closing in to ride the vessel's bow wave (and there are no other marine mammal sightings within the mitigation zone).
(iv)
(B) A mitigation zone with a radius of 200 yd (183 m) shall be established for small- and medium-caliber gunnery exercises with a surface target. The exercise shall not commence if concentrations of floating vegetation (kelp paddies) are observed in the mitigation zone. Firing shall cease if a marine mammal is sighted within the mitigation zone. Firing shall recommence if any one of the following conditions is met: The animal is observed exiting the mitigation zone, the animal is thought to have exited the mitigation zone based on its course and speed, the mitigation zone has been clear from any additional sightings for a period of 10 minutes for a firing aircraft, the mitigation zone has been clear from any additional sightings for a period of 30 minutes for a firing ship, or the intended target location has been repositioned more than 400 yd (370 m) away from the location of the last sighting.
(C) A mitigation zone with a radius of 600 yd (549 m) shall be established for large-caliber gunnery exercises with a surface target. The exercise shall not commence if concentrations of floating vegetation (kelp paddies) are observed in the mitigation zone. Firing shall cease if a marine mammal is sighted within the mitigation zone. Firing shall recommence if any one of the following conditions is met: The animal is observed exiting the mitigation zone, the animal is thought to have exited the mitigation zone based on its course and speed, or the mitigation zone has been clear from any additional sightings for a period of 30 minutes.
(D) A mitigation zone with a radius of 2,500 yd (2.3 km) around the intended impact location for explosive bombs and 1000 yd (920 m) for non-explosive bombs shall be established for bombing exercises. The exercise shall not commence if concentrations of floating vegetation (kelp paddies) are observed in the mitigation zone. Bombing shall cease if a marine mammal is sighted within the mitigation zone. Bombing shall recommence if any one of the following conditions is met: The animal is observed exiting the mitigation zone, the animal is thought to have exited the mitigation zone based on its course and speed, or the mitigation zone has been clear from any additional sightings for a period of 10 minutes.
(E) A mitigation zone of 70 yd (64 m) shall be established for all explosive large-caliber gunnery exercises conducted from a ship. The exercise shall not commence if concentrations of floating vegetation (kelp paddies) are observed in the mitigation zone. Firing shall cease if a marine mammal is sighted within the mitigation zone. Firing shall recommence if any one of the following conditions is met: The animal is observed exiting the mitigation zone, the animal is thought to have exited the mitigation zone based on its course and speed, the mitigation zone has been clear from any additional sightings for a period of 30 minutes, or the vessel has repositioned itself more than 140 yd (128 m) away from the location of the last sighting.
(v)
(B) A mitigation zone of 250 yd (229 m) shall be established for all towed in-water devices, providing it is safe to do so.
(vi)
(B) A mitigation zone of 1,000 yd (920 m) shall be established for bombing exercises. Bombing shall cease if a marine mammal is sighted within the mitigation zone. The exercise shall not commence if concentrations of floating vegetation (kelp paddies) are observed in the mitigation zone. Bombing shall recommence if any one of the following conditions is met: the animal is observed exiting the mitigation zone, the animal is thought to have exited the mitigation zone based on its course and speed, or the mitigation zone has been clear from any additional sightings for a period of 10 minutes.
(3)
(i) The Navy shall avoid training activities using hull-mounted surface ship active sonar and explosive detonations within the North Pacific Right Whale Cautionary Area, defined as the portion of the NMFS-identified biologically important feeding area for North Pacific right whale overlapping the GOA TMAA, except when required by national security needs.
(ii) In the event of national security needs, the Navy shall seek approval in advance from the Commander, U.S. Third Fleet, prior to conducting training activities using hull-mounted active sonar or explosive detonations within the Cautionary Area.
(4)
(A)
(
(
(
(
(B) Within 72 hours of NMFS notifying the Navy of the presence of a USE, the Navy shall provide available information to NMFS (per the GOA TMAA Study Area Communication Protocol) regarding the location, number and types of acoustic/explosive sources, direction and speed of units using mid-frequency active sonar, and marine mammal sightings information associated with training activities occurring within 80 nautical miles (148 km) and 72 hours prior to the USE event. Information not initially available regarding the 80-nautical miles (148-km), 72-hour period prior to the event shall be provided as soon as it becomes available. The Navy shall provide NMFS investigative teams with additional relevant unclassified information as requested, if available.
(ii) [Reserved]
(b) [Reserved]
(a) The Holder of the Authorization must notify NMFS immediately (or as soon as operational security considerations allow) if the specified activity identified in § 218.150 is thought to have resulted in the mortality or injury of any marine mammals, or in any take of marine mammals not identified in § 218.152(c).
(b) The Holder of the LOA must conduct all monitoring and required reporting under the LOA, including abiding by the GOA TMAA monitoring plan.
(c)
(d)
(1) Immediately report to NMFS the species identification (if known), location (lat/long) of the animal (or the strike if the animal has disappeared), and whether the animal is alive or dead (or unknown), and the time of the strike.
(2) Report to NMFS as soon as operationally feasible the size and length of animal, an estimate of the injury status (ex., dead, injured but alive, injured and moving, unknown, etc.), vessel class/type and operational status.
(3) Report to NMFS the vessel length, speed, and heading as soon as feasible.
(4) Provide NMFS a photo or video, if equipment is available.
(5) Within 2 weeks of the strike, provide NMFS with a detailed description of the specific actions of the vessel in the 30-minute timeframe immediately preceding the strike, during the event, and immediately after the strike (
(e)
(f)
(g)
(1)
(i) Exercise Information (for each MTE):
(A) Exercise designator.
(B) Date that exercise began and ended.
(C) Location.
(D) Number and types of active sources used in the exercise.
(E) Number and types of passive acoustic sources used in exercise.
(F) Number and types of vessels, aircraft, etc., participating in exercise.
(G) Total hours of observation by lookouts.
(H) Total hours of all active sonar source operation.
(I) Total hours of each active sonar source bin.
(J) Wave height (high, low, and average during exercise).
(ii) Individual marine mammal sighting information for each sighting in each exercise when mitigation occurred:
(A) Date/Time/Location of sighting.
(B) Species (if not possible, indication of whale/dolphin/pinniped).
(C) Number of individuals.
(D) Initial Detection Sensor.
(E) Indication of specific type of platform observation made from (including, for example, what type of surface vessel or testing platform).
(F) Length of time observers maintained visual contact with marine mammal.
(G) Sea state.
(H) Visibility.
(I) Sound source in use at the time of sighting.
(J) Indication of whether animal is <200 yd, 200 to 500 yd, 500 to 1,000 yd, 1,000 to 2,000 yd, or >2,000 yd from sonar source.
(K)
(L) If source in use is hull-mounted, true bearing of animal from ship, true direction of ship's travel, and estimation of animal's motion relative to ship (opening, closing, parallel).
(M)
(iii) An evaluation (based on data gathered during all of the MTEs) of the effectiveness of mitigation measures designed to minimize the received level to which marine mammals may be exposed. This evaluation shall identify the specific observations that support any conclusions the Navy reaches about the effectiveness of the mitigation.
(2)
(A) Total annual hours or quantity (per the LOA) of each bin of sonar or other non-impulsive source; and
(B) Total annual number of each type of explosive exercises and total annual expended/detonated rounds (missiles, bombs, sonobuoys, etc.) for each explosive bin.
(ii) [Reserved]
(3)
(h)
(1) Location of the exercise.
(2) Beginning and end dates of the exercise.
(3) Type of exercise.
(i)
To incidentally take marine mammals pursuant to the regulations in this subpart, the U.S. citizen (as defined by § 216.106 of this chapter) conducting the activity identified in § 218.150(c) (the U.S. Navy) must apply for and obtain either an initial LOA in accordance with § 218.157 or a renewal under § 218.158.
(a) An LOA, unless suspended or revoked, shall be valid for a period of time not to exceed the period of validity of this subpart.
(b) Each LOA shall set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact on the species, its habitat, and on the availability of the species for subsistence uses (
(3) Requirements for mitigation, monitoring and reporting.
(c) Issuance and renewal of the LOA shall be based on a determination that the total number of marine mammals taken by the activity as a whole shall have no more than a negligible impact on the affected species or stock of marine mammal(s).
(a) A letter of authorization issued under § 216.106 of this chapter and § 218.157 for the activity identified in § 218.150(c) shall be renewed or modified upon request of the applicant, provided that:
(1) The proposed specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for these regulations (excluding changes made
(2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOA under these regulations were implemented.
(b) For LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision of this chapter) that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a notice of proposed LOA in the
(c) An LOA issued under § 216.106 of this chapter and § 218.157 for the activity identified in § 218.154 may be modified by NMFS under the following circumstances:
(1)
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, and reporting measures in an LOA:
(A) Results from Navy's monitoring from the previous year(s);
(B) Results from other marine mammal and/or sound research or studies; or
(C) Any information that reveals marine mammals may have been taken in a manner, extent, or number not authorized by these regulations or subsequent LOA.
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS would publish a notice of proposed LOA in the
(2)
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 |