Federal Register Vol. 83, No.123,
Federal Register Volume 83, Issue 123 (June 26, 2018)
Federal Register Volume 83, Issue 123 (June 26, 2018)
| Page Range | 29665-30029 | |
| FR Document |
Document Created: 2017-12-29 23:37:52
Document Modified: 2017-12-29 23:37:52
| Page and Subject | |
|---|---|
| 83 FR 29745 - Sunshine Act Meeting | |
| 83 FR 29835 - Sunshine Act Meeting Notice | |
| 83 FR 29827 - Sunshine Act Meeting; National Science Board | |
| 83 FR 29838 - Sunshine Act Meetings | |
| 83 FR 29736 - Federal Acquisition Regulation: Special Emergency Procurement Authority | |
| 83 FR 29788 - Notice of Agreements Filed | |
| 83 FR 29769 - Applications for New Awards; Special Programs for Indian Children-Demonstration Grants | |
| 83 FR 29822 - Steel Racks From China; Institution of Antidumping and Countervailing Duty Investigations and Scheduling of Preliminary Phase Investigations | |
| 83 FR 29823 - Notice of Receipt of Complaint; Solicitation of Comments Relating to the Public Interest | |
| 83 FR 29702 - Fluroxypyr; Pesticide Tolerances | |
| 83 FR 29723 - Approval of Air Quality Implementation Plans; New York; Subpart 225-1, Fuel Composition and Use-Sulfur Limitations | |
| 83 FR 29731 - National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List: Partial Deletion of the Omaha Lead Superfund Site | |
| 83 FR 29782 - Brownfields Utilization, Investment and Local Development (BUILD) Act | |
| 83 FR 29784 - Call for Information on Adverse Effects of Strategies for Attainment and Maintenance of National Ambient Air Quality Standards | |
| 83 FR 29825 - Agency Information Collection Activities; Proposed eCollection eComments Requested; New Collection | |
| 83 FR 29785 - Review of the National Ambient Air Quality Standards for Ozone-Call for Scientific and Policy-Relevant Information | |
| 83 FR 29706 - Ocean Dumping; Withdrawal of Designated Disposal Site; Grays Harbor, Washington | |
| 83 FR 29691 - Previously-Incurred Costs in the WIFIA Program | |
| 83 FR 29786 - Second External Review Draft Integrated Science Assessment for Oxides of Nitrogen, Oxides of Sulfur, and Particulate Matter-Ecological Criteria | |
| 83 FR 29765 - Proposed Collection; Comment Request | |
| 83 FR 29791 - Antimicrobial Drugs Advisory Committee; Notice of Meeting; Establishment of a Public Docket; Request for Comments | |
| 83 FR 29790 - Antimicrobial Drugs Advisory Committee; Notice of Meeting; Establishment of a Public Docket; Request for Comments | |
| 83 FR 29768 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; International Early Learning Study (IELS) 2018 Main Study | |
| 83 FR 29778 - FreedomWorks, LLC; Notice of Preliminary Permit Application Accepted for Filing and Soliciting Comments, Motions To Intervene, and Competing Applications | |
| 83 FR 29781 - Peak Hour Power, LLC; Notice of Preliminary Permit Application Accepted for Filing and Soliciting Comments, Motions To Intervene, and Competing Applications | |
| 83 FR 29781 - Footprint Power LLC; Footprint Power Salem Harbor Operations LLC; Notice of Designation of Commission Staff as Non-Decisional | |
| 83 FR 29779 - American Municipal Power, Inc.; Notice of Filing | |
| 83 FR 29766 - Submission for OMB Review; Comment Request | |
| 83 FR 29837 - Product Change-Priority Mail Negotiated Service Agreement | |
| 83 FR 29767 - Proposed Collection; Comment Request | |
| 83 FR 29710 - Service Rules Governing Narrowband Operations in the 769-775/799-805 MHz Bands | |
| 83 FR 29864 - 30-Day Notice of Intent To Seek Extension of Approval and Merger of Collections: Statutory Authority To Preserve Rail Service | |
| 83 FR 29741 - Submission for OMB Review; Comment Request | |
| 83 FR 29716 - Certain Non-Government Attorneys Not Authorized To Participate in Examinations of Books and Witnesses as a Section 6103(n) Contractor; Hearing | |
| 83 FR 29776 - Basic Energy Sciences Advisory Committee | |
| 83 FR 29835 - Submission for OMB Review; Comments Request | |
| 83 FR 29836 - Submission for OMB Review; comments request | |
| 83 FR 29768 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Income Driven Repayment Plan Request for the William D. Ford Federal Direct Loans and Federal Family Education Loan Programs | |
| 83 FR 29792 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Guidance for Industry: Assessing User Fees Under the Biosimilar User Fee Amendments of 2017 | |
| 83 FR 29838 - Submission for OMB Review; Comment Request | |
| 83 FR 29850 - Submission for OMB Review; Comment Request | |
| 83 FR 29847 - Submission for OMB Review; Comment Request | |
| 83 FR 29837 - Submission for OMB Review; Comment Request | |
| 83 FR 29839 - Submission for OMB Review; Comment Request | |
| 83 FR 29841 - Submission for OMB Review; Comment Request | |
| 83 FR 29719 - Safety Zone, Swim Around Charleston; Charleston, SC | |
| 83 FR 29777 - Agency Information Collection Extension | |
| 83 FR 29776 - Agency Information Collection Extension | |
| 83 FR 29748 - Steel Propane Cylinders From Taiwan: Termination of Less-Than-Fair-Value Investigation | |
| 83 FR 29824 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-Automated Driving Behaviors Consortium | |
| 83 FR 29824 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-R Consortium, Inc. | |
| 83 FR 29748 - Rubber Bands From the People's Republic of China and Thailand: Postponement of Preliminary Determinations in the Less-Than-Fair-Value Investigations | |
| 83 FR 29747 - Small Diameter Graphite Electrodes From the People's Republic of China: Notice of Partial Rescission of Antidumping Duty Administrative Review; 2017-2018 | |
| 83 FR 29764 - Expeditionary Technology Search (xTechSearch) Prize Competition Announcement | |
| 83 FR 29763 - Board on Coastal Engineering Research; Notice of Federal Advisory Committee Meeting | |
| 83 FR 29762 - Advisory Committee on Arlington National Cemetery; Notice of Federal Advisory Committee Meeting | |
| 83 FR 29684 - Safety Zone; Officer Lehner Memorial Vintage Regatta; Buffalo Outer Harbor, Buffalo, NY | |
| 83 FR 29721 - Safety Zone; USA Triathlon Age Group National Championships Lake Erie, Cleveland, OH | |
| 83 FR 29780 - Herrin, Michael D.; Notice of Filing | |
| 83 FR 29781 - Combined Notice of Filings | |
| 83 FR 29778 - Combined Notice of Filings #1 | |
| 83 FR 29813 - 30-Day Notice of Proposed Information Collection: Community Development Block Grant (CDBG) Grantees | |
| 83 FR 29815 - 30-Day Notice of Proposed Information Collection: HUD Multifamily Rental Project Closing Documents | |
| 83 FR 29686 - Safety Zone; Wine and Walleye Festival Fireworks; Ashtabula River, Ashtabula, OH | |
| 83 FR 29868 - Waiver Request for Aquaculture Support Operations for the 2018 Calendar Year: MILDRED 1 | |
| 83 FR 29866 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel PRIVATE RESERVE; Invitation for Public Comments | |
| 83 FR 29866 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel MISS SANDY RITA; Invitation for Public Comments | |
| 83 FR 29865 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel KAT ATOMIC; Invitation for Public Comments | |
| 83 FR 29869 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel FROM RUSSIA WITH LOVE; Invitation for Public Comments | |
| 83 FR 29867 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel EAGLE; Invitation for Public Comments | |
| 83 FR 29782 - Clean Air Act Operating Permit Program; Petitions for Objection to State Operating Permit for South Louisiana Methanol L.P., St. James Methanol Plant in St. James Parish, Louisiana | |
| 83 FR 29727 - Approval and Promulgation of Implementation Plans; Texas; Reasonably Available Control Technology in the Houston-Galveston-Brazoria Ozone Nonattainment Area | |
| 83 FR 29814 - 60-Day Notice of Proposed Information Collection: Community Development Block Grant-Disaster Recovery (CDBG-DR); 2 Year Expenditure Deadline Extension Request | |
| 83 FR 29821 - Notice of Filing of Plats of Survey, Colorado | |
| 83 FR 29767 - Notice of Intent To Grant Partially Exclusive License; OLLI Technology Corporation dba Tanka | |
| 83 FR 29713 - Indefinite Delivery and Indefinite Quantity Contracts for Federal-Aid Construction | |
| 83 FR 29687 - Safety Zone; Lower Mississippi River, New Orleans, LA | |
| 83 FR 29682 - Safety Zone; City of Erie Fourth of July Fireworks; Lake Erie, Erie, PA | |
| 83 FR 29788 - FDIC Advisory Committee on Community Banking; Notice of Meeting | |
| 83 FR 29863 - 60-Day Notice of Proposed Information Collection: Petition To Classify Special Immigrant Under INA 203(b)(4) as Employee or Former Employee of the U.S. Government Abroad | |
| 83 FR 29665 - Airworthiness Directives; International Aero Engines Turbofan Engines | |
| 83 FR 29843 - Self-Regulatory Organizations; Options Clearing Corporation; Notice of Designation of Longer Period for Commission Action on Proceedings To Determine Whether To Approve or Disapprove a Proposed Rule Concerning Updates to and Formalization of OCC's Recovery and Orderly Wind-Down Plan | |
| 83 FR 29846 - Self-Regulatory Organizations; Options Clearing Corporation; Notice of Designation of Longer Period for Commission Action on Proceedings To Determine Whether To Approve or Disapprove a Proposed Rule Change Concerning Enhanced and New Tools for Recovery Scenarios | |
| 83 FR 29802 - National Institute of Neurological Disorders and Stroke; Notice of Closed Meetings | |
| 83 FR 29804 - National Institute on Aging; Notice of Closed Meeting | |
| 83 FR 29805 - National Institute on Aging; Notice of Closed Meeting | |
| 83 FR 29801 - National Heart, Lung, and Blood Institute; Notice of Closed Meetings | |
| 83 FR 29802 - National Human Genome Research Institute; Notice of Closed Meeting | |
| 83 FR 29802 - National Center for Complementary & Integrative Health; Notice of Closed Meeting | |
| 83 FR 29805 - National Center for Complementary & Integrative Health; Notice of Closed Meeting | |
| 83 FR 29803 - Center for Scientific Review; Notice of Closed Meetings | |
| 83 FR 29804 - Center for Scientific Review; Notice of Closed Meetings | |
| 83 FR 29828 - State of Wyoming: NRC Staff Assessment of a Proposed Agreement Between the Nuclear Regulatory Commission and the State of Wyoming | |
| 83 FR 29744 - Proposed Information Collection; Comment Request; Wheelchair Seat Height Survey | |
| 83 FR 29827 - Advisory Committee on Reactor Safeguards; Notice of Meeting | |
| 83 FR 29825 - Agency Information Collection Activities: Submission for OMB Review; Comment Request | |
| 83 FR 29826 - Agency Information Collection Activities: Submission for OMB Review; Comment Request | |
| 83 FR 29844 - Self-Regulatory Organizations; Cboe Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Its Rule Governing Crowd Space Disputes | |
| 83 FR 29855 - Self-Regulatory Organizations; Municipal Securities Rulemaking Board; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To, Among Other Things, Amend MSRB Rule G-3 To Restructure the MSRB's Current Municipal Securities Representative Qualification Examination and Harmonize Certain MSRB Qualification Requirements With FINRA Rules | |
| 83 FR 29861 - Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Rule 4702 | |
| 83 FR 29838 - Self-Regulatory Organizations; Cboe BZX Exchange, Inc.; Notice of Designation of a Longer Period for Commission Action on a Proposed Rule Change To List and Trade Shares of the Principal Morley Short Duration Index ETF | |
| 83 FR 29842 - Self-Regulatory Organizations; Nasdaq ISE, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Relocate the Exchange's Rules Pertaining to Co-location and Direct Connectivity | |
| 83 FR 29848 - Self-Regulatory Organizations; Cboe Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Clarify the SPX Select Market-Maker Program | |
| 83 FR 29840 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Extend the Implementation of FINRA Rule 4240 (Margin Requirements for Credit Default Swaps) | |
| 83 FR 29761 - Coastal Nonpoint Pollution Control Program: Intent To Find That Georgia Has Satisfied All Conditions of Approval Placed on Its Coastal Nonpoint Pollution Control Program | |
| 83 FR 29762 - Market Risk Advisory Committee | |
| 83 FR 29667 - IFR Altitudes; Miscellaneous Amendments | |
| 83 FR 29775 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Magnet Schools Assistance Program-Government Performance and Results Act (GPRA) Table Form | |
| 83 FR 29775 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Formula Grant EASIE Annual Performance Report | |
| 83 FR 29807 - Final Flood Hazard Determinations | |
| 83 FR 29805 - Final Flood Hazard Determinations | |
| 83 FR 29834 - Duane Arnold Energy Center | |
| 83 FR 29808 - Changes in Flood Hazard Determinations | |
| 83 FR 29789 - Agency Recordkeeping/Reporting Requirements Under Emergency Review by the Office of Management and Budget (OMB) | |
| 83 FR 29716 - Safety Improvement Technologies for Mobile Equipment at Surface Mines, and for Belt Conveyors at Surface and Underground Mines | |
| 83 FR 29811 - Agency Information Collection Activities; Revision of a Currently Approved Collection: Application for Replacement Naturalization/Citizenship Document | |
| 83 FR 29820 - Foreign Endangered Species; Receipt of Permit Applications | |
| 83 FR 29689 - Safety Zone; Bay Village Independence Day Fireworks; Lake Erie, Bay Village, OH | |
| 83 FR 29698 - Approval and Promulgation of Air Quality Implementation Plans; South Dakota; Revisions to the Permitting Rules | |
| 83 FR 29694 - Approval and Promulgation of Air Quality Implementation Plans; State of Montana; Revisions to PSD Permitting Rules | |
| 83 FR 29779 - Combined Notice of Filings #1 | |
| 83 FR 29778 - American Municipal Power, Inc.; Notice of Filing | |
| 83 FR 29850 - Program for Allocation of Regulatory Responsibilities Pursuant to Rule 17d-2; Notice of Filing and Order Approving and Declaring Effective an Amended Plan for the Allocation of Regulatory Responsibilities Between the Financial Industry Regulatory Authority, Inc. and BOX Options Exchange LLC | |
| 83 FR 29793 - National Vaccine Injury Compensation Program; List of Petitions Received | |
| 83 FR 29796 - Proposed Standards for the Children's Hospitals Graduate Medical Education Payment Program's Quality Bonus System | |
| 83 FR 29749 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Construction at the City Dock and Ferry Terminal, in Tenakee Springs, Alaska | |
| 83 FR 29798 - Agency Information Collection Activities: Submission to OMB for Review and Approval; Public Comment Request; National Survey of Organ Donation Attitudes and Practices, OMB No. 0915-0290-Reinstatement With Change | |
| 83 FR 29742 - Nuseed Americas Inc.; Availability of a Draft Plant Pest Risk Assessment and Draft Environmental Assessment for Canola Genetically Engineered for Altered Oil Profile | |
| 83 FR 29762 - Notice Inviting Preliminary Public Input on Transformation and Sustainability Plan; Correction | |
| 83 FR 29800 - Agency Information Collection Activities: Proposed Collection: Public Comment Request Information Collection Request Title: Health Resources and Service Administration Uniform Data System, OMB No. 0915-0193-Revision | |
| 83 FR 29813 - Agency Information Collection Activities; Extension, Without Change, of a Currently Approved Collection: Request for the Return of Original Documents | |
| 83 FR 29812 - Agency Information Collection Activities; Extension, Without Change, of a Currently Approved Collection: Application for T Nonimmigrant Status; Application for Immediate Family Member of T-1 Recipient; and Declaration of Law Enforcement Officer for Victim of Trafficking in Persons, Form I-914 and Supplements A and B | |
| 83 FR 29696 - Air Plan Approval; SC; VOC Definition | |
| 83 FR 29672 - Safety Standard for Baby Changing Products | |
| 83 FR 29746 - Notice of Charter Renewal of the U.S. Investment Advisory Council and Soliciting Nominations for Members | |
| 83 FR 29872 - Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to the U.S. Navy Training and Testing Activities in the Hawaii-Southern California Training and Testing Study Area |
Issue
Animal and Plant Health Inspection Service
International Trade Administration
National Oceanic and Atmospheric Administration
Army Department
Navy Department
Energy Information Administration
Federal Energy Regulatory Commission
Children and Families Administration
Food and Drug Administration
Health Resources and Services Administration
National Institutes of Health
Coast Guard
Federal Emergency Management Agency
U.S. Citizenship and Immigration Services
Fish and Wildlife Service
Land Management Bureau
Antitrust Division
Federal Bureau of Investigation
Mine Safety and Health Administration
Federal Aviation Administration
Federal Highway Administration
Maritime Administration
Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents electronic mailing list, go to https://public.govdelivery.com/accounts/USGPOOFR/subscriber/new, enter your e-mail address, then follow the instructions to join, leave, or manage your subscription.
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
We are adopting a new airworthiness directive (AD) for certain International Aero Engines (IAE) PW1133G-JM, PW1133GA-JM, PW1130G-JM, PW1127G-JM, PW1127GA-JM, PW1127G1-JM, PW1124G-JM, PW1124G1-JM, and PW1122G-JM turbofan engines. This AD requires a one-time visual inspection of the engine fan hub for damage, and removal of parts if damage or defects are found that are outside the serviceable limits. This AD was prompted by reports of damage to the engine fan hub. We are issuing this AD to address the unsafe condition on these products.
This AD is effective July 11, 2018.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of July 11, 2018.
We must receive comments on this AD by August 10, 2018.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this final rule, contact International Aero Engines, 400 Main Street, East Hartford, CT 06118; phone: 800-565-0140; email:
You may examine the AD docket on the internet at
Kevin M. Clark, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7088; fax: 781-238-7199; email:
We received information concerning damage to the engine fan hub found during an engine shop visit of an IAE PW1100G-series turbofan engine. The damage is believed to be the result of the installation of the inlet cone without using alignment pins, which might lead to bolts impacting and damaging the engine fan hub. This condition, if not addressed, could result in uncontained failure of the engine fan hub, damage to the engine, and damage to the airplane. We are issuing this AD to address the unsafe condition on these products.
We reviewed Pratt & Whitney (PW) Service Bulletin (SB) PW1000G-C-72-00-0104-00A-930A-D, Issue No. 002, dated May 31, 2018. The SB describes procedures for performing a one-time visual inspection of the inlet cone mating face and counter weight flange on the engine fan hub assembly for surface damage. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We are issuing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This AD requires a one-time visual inspection of the engine fan hub for damage, and replacement of the engine fan hub if damage or defects are found that are outside of serviceable limits.
PW SB PW1000G-C-72-00-0104-00A-930A-D, Issue No. 002, dated May 31, 2018, only applies to PW1100G-JM engine models in service. This AD applies to all PW1100G-JM engine models certified under type certificate E00087EN. PW SB PW1000G-C-72-00-0104-00A-930A-D also excludes from its applicability certain serial numbered engines. We have no way to determine if these engines have been inspected and are therefore including these engines in the applicability of this AD.
We consider this AD interim action. An investigation to determine the cause of the failure is on-going and we may consider additional rulemaking if final action is identified.
An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because the compliance time is less than the time required for public comment. In addition, all engine fan hubs must be inspected, and if needed, replaced before further flight. Therefore, we find good cause that notice and compliance for prior public comment are impracticable. In addition, for the reasons stated above, we find that good cause exists for making this amendment effective in less than 30 days.
This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We estimate that this AD affects 14 engines installed on airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to engines, propellers, and associated appliances to the Manager, Engine and Propeller Standards Branch, Policy and Innovation Division.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective July 11, 2018.
None.
This AD applies to International Aero Engines (IAE) PW1133G-JM, PW1133GA-JM, PW1130G-JM, PW1127G-JM, PW1127GA-JM, PW1127G1-JM, PW1124G-JM, PW1124G1-JM, and PW1122G-JM turbofan engines with serial numbers (S/Ns) up to and including S/N 770735.
Joint Aircraft System Component (JASC) Code 7230, Turbine Engine Compressor Section.
This AD was prompted by reports of damage to the engine fan hub. We are issuing this AD to detect defects, damage, and cracks that could result in an uncontained failure of the engine fan hub. The unsafe condition, if not addressed, could result in uncontained failure of the engine fan hub, damage to the engine, and damage to the airplane.
Comply with this AD within the compliance times specified, unless already done.
Within 90 days after the effective date of this AD:
(1) For engines installed on an airplane, perform a visual inspection of the engine fan hub, in accordance with the Accomplishment Instructions, paragraphs 1.E.(1) to 1.E.(4), of Pratt & Whitney (PW) Service Bulletin (SB) PW1000G-C-72-00-0104-00A-930A-D, Issue No. 002, dated May 31, 2018.
(2) For engines not installed on an airplane, perform a visual inspection of the engine fan hub, in accordance with the Accomplishment Instructions, paragraphs 2.D.(1) to 2.D.(4), of PW SB PW1000G-C-72-00-0104-00A-930A-D, Issue No. 002, dated May 31, 2018.
(3) If the engine fan hub visual inspection reveals defects or damage to the engine fan hub that are found outside the serviceable limits specified in Table 3 in the Accomplishment Instructions of PW SB PW1000G-C-72-00-0104-00A-930A-D, Issue No. 002, dated May 31, 2018, remove the engine fan hub from service and replace with a part that is eligible for installation, prior to further flight.
You may take credit for the inspection required by paragraph (g) of this AD if you performed the inspection before the effective date of this AD using PW SB PW1000G-C-72-00-0104-00A-930A-D, Original Issue, dated May 21, 2018.
(1) The Manager, ECO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (j) of this AD. You may email your request to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
For more information about this AD, contact Kevin M. Clark, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7088; fax: 781-238-7199; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Pratt & Whitney Service Bulletin PW1000G-C-72-00-0104-00A-930A-D, Issue No. 002, dated May 31, 2018.
(ii) Reserved.
(3) For International Aero Engines service information identified in this AD, contact International Aero Engines, 400 Main Street, East Hartford, CT 06118; phone: 800-565-0140; email:
(4) You may view this service information at FAA, Engine and Propeller Standards Branch, 1200 District Avenue, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7759.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
This amendment adopts miscellaneous amendments to the required IFR (instrument flight rules) altitudes and changeover points for certain Federal airways, jet routes, or direct routes for which a minimum or maximum en route authorized IFR altitude is prescribed. This regulatory action is needed because of changes occurring in the National Airspace System. These changes are designed to provide for the safe and efficient use of the navigable airspace under instrument conditions in the affected areas.
Thomas J Nichols, Flight Procedure Standards Branch (AMCAFS-420), Flight Technologies and Programs Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125) telephone: (405) 954-4164.
This amendment to part 95 of the Federal Aviation Regulations (14 CFR part 95) amends, suspends, or revokes IFR altitudes governing the operation of all aircraft in flight over a specified route or any portion of that route, as well as the changeover points (COPs) for Federal airways, jet routes, or direct routes as prescribed in part 95.
The specified IFR altitudes, when used in conjunction with the prescribed changeover points for those routes, ensure navigation aid coverage that is adequate for safe flight operations and free of frequency interference. The reasons and circumstances that create the need for this amendment involve matters of flight safety and operational efficiency in the National Airspace System, are related to published aeronautical charts that are essential to the user, and provide for the safe and efficient use of the navigable airspace. In addition, those various reasons or circumstances require making this amendment effective before the next scheduled charting and publication date of the flight information to assure its timely availability to the user. The effective date of this amendment reflects those considerations. In view of the close and immediate relationship between these regulatory changes and safety in air commerce, I find that notice and public procedure before adopting this amendment are impracticable and contrary to the public interest and that good cause exists for making the amendment effective in less than 30 days.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under 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. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Airspace, Navigation (air).
Accordingly, pursuant to the authority delegated to me by the Administrator, part 95 of the Federal Aviation Regulations (14 CFR part 95) is amended as follows effective at 0901 UTC, July 19, 2018.
49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44719, 44721.
Consumer Product Safety Commission.
Final rule.
The Consumer Product Safety Improvement Act of 2008 (CPSIA) requires the United States Consumer Product Safety Commission (CPSC) to adopt consumer product safety standards for durable infant or toddler products. To comply with the CPSIA, the Commission is issuing a safety standard for baby changing products. This rule incorporates by reference ASTM F2388-18,
The rule will become effective on June 26, 2019. The incorporation by reference of the publication listed in this rule is approved by the Director of the Federal Register as of June 26, 2019.
Keysha Walker, Office of Compliance and Field Operations, U.S. Consumer Product Safety Commission; 4330 East-West Highway, Bethesda, MD 20814; telephone: (301) 504-6820; email:
Congress enacted the CPSIA (Pub. L. 110-314, 122 Stat. 3016), including the Danny Keysar Child Product Safety Notification Act, on August 14, 2008. Section 104(b) of the CPSIA requires the Commission to: (1) Examine and assess the effectiveness of voluntary consumer product safety standards for durable infant or toddler products, in consultation with representatives of consumer groups, juvenile product manufacturers, and independent child product engineers and experts; and (2) promulgate consumer product safety standards for durable infant or toddler products. Any standard the Commission adopts under this mandate must be substantially the same as the applicable voluntary standard, or more stringent than the voluntary standard if the Commission determines that more stringent requirements would further reduce the risk of injury associated with the product. Section 104(f)(1) of the CPSIA defines the term “durable infant or toddler product” as “a durable product intended for use, or that may be reasonably expected to be used, by children under the age of 5 years,” and the Commission identified baby changing tables as a durable infant or toddler product in the product registration card rule codified in 16 CFR 1130.2(a)(14).
On September 29, 2016, the Commission issued a notice of proposed rulemaking (NPR), proposing to incorporate by reference the then-current voluntary standard for baby changing products, ASTM F2388-16, with more stringent requirements for
In this final rule, the Commission is incorporating by reference ASTM F2388-18, with no modifications, as the mandatory safety standard for baby changing products. As section 104(b)(1)(A) of the CPSIA requires, CPSC staff consulted with manufacturers, retailers, trade organizations, laboratories, consumer advocacy groups, consultants, and the public to develop this standard, largely through the ASTM standard-development process. In addition, this final rule amends the list of NORs in 16 CFR part 1112 to include the standard for baby changing products. This rule is based on information CPSC staff provided in its briefing package, “Draft Final Rule for Baby Changing Products for Domestic Use under the Danny Keysar Child Product Safety Notification Act,” which is available on CPSC's website at:
ASTM F2388-18 defines a “changing product” as “one of the following: changing table, changing table accessory, add-on changing unit, contoured changing pad.” The standard defines each of those terms, as follows:
• A changing table is “an elevated, freestanding structure generally designed to support and retain a child with a body weight of up to 30 lb (13.6 kg) in a horizontal position for the purpose of allowing a caregiver to change the child's diaper. Changing tables may convert from or to other items of furniture, such as, but not limited to, a dresser, desk, hutch, bookshelf, or play yard, may have pull-out or drop-down changing surfaces, and may provide storage for diapers and diaper products”;
• a changing table accessory is “an accessory that attaches to a crib or play yard designed to convert the product into a changing table typically having a rigid frame with soft fabric or mesh sides or bottom surface, or both”;
• an add-on changing unit is “a rigid addition to or separate product used in conjunction with an item of furniture that provides barriers to prevent the infant from rolling off the product when a diaper is being changed”; and
• a contoured changing pad is “a changing pad designed for use on an elevated surface which incorporates barriers to prevent a child from rolling off the changing surface.”
Most changing tables and add-on changing units are constructed of wood; contoured changing pads often consist of synthetic-covered foam with contoured edges; and changing table accessories that attach to a play yard or crib generally are constructed of plastic or wood with a foam pad. Changing tables come in various designs, some of which include drawers, cabinets, or retractable stairs to assist children getting onto them.
CPSC staff has identified 102 domestic firms that currently supply baby changing products to the U.S. market. Eighty-four of the firms (61 manufacturers and 23 importers or wholesalers) are small, according to the U.S. Small Business Administration's (SBA) standards,
At the time CPSC staff assessed the baby changing products market, staff identified 22 of the 61 small domestic manufacturers, and 10 of the 23 small domestic importers and wholesalers, as compliant with the ASTM standard for baby changing products (based on firms' assertions of compliance, certifications from the Juvenile Products Manufacturers Association, or participation in the development of the ASTM changing products standard).
CPSC receives data regarding product-related injuries from several sources. One source is the National Electronic Injury Surveillance System (NEISS), from which CPSC can estimate, based on a probability sample, the number of injuries that are associated with specific consumer products that are treated in U.S. hospital emergency departments (U.S. EDs) nationwide. Other sources include reports from consumers and others through the Consumer Product Safety Risk Management System (which also includes some NEISS data) and reports from retailers and manufacturers through CPSC's Retailer Reporting System—CPSC refers to these sources collectively as Consumer Product Safety Risk Management System data (CPSRMS).
For this rulemaking, CPSC staff reviewed the NEISS and CPSRMS databases for incidents involving baby changing products and children younger than 3 years old because that age corresponds with the 30-pound weight limit in the ASTM standard.
The preamble to the NPR summarized reports of incidents involving baby changing products that occurred between January 1, 2005 and December 31, 2015, which CPSC received through CPSRMS sources. For the final rule, CPSC staff has updated this information to reflect one reported changing product incident that occurred between January 1, 2005 and December 31, 2015, but was not included in the NPR, as well as new incidents that occurred between January 1, 2016 and November 30, 2017. In total, CPSC has received 188 reports of incidents involving baby changing products that occurred between January 1, 2005 and November 30, 2017. These incidents involved 7 fatalities, 31 injuries or adverse health problems, 116 incidents that did not result in injuries, and 34 incidents for which CPSC did not receive sufficient information to determine whether an injury occurred.
The preamble to the NPR also summarized NEISS estimates for baby changing product incidents that occurred between January 1, 2005 and December 31, 2014. After the Commission issued the NPR, complete injury data became available for 2015 and 2016, and CPSC staff has updated this information for the final rule. Including this new data and extrapolating from the probability sample, CPSC staff estimates that there were 39,010 baby changing product-related injuries to children under 3 years old that were treated in U.S. EDs between January 1, 2005 and December 31, 2016. There was a statistically significant increasing linear trend for injuries associated with baby changing products over this period. Seventy-six percent of the estimated injuries involved children between 0 and 11 months old, and 94 percent of the estimated injuries involved children under 2 years old.
CPSC is aware of seven fatal incidents to children under 3 years old that occurred between January 1, 2005 and November 30, 2017, involving baby changing products. One death involved a 10-month-old male who was strangled by a strap hanging from a changing table accessory in a play yard while the child was in the play yard beneath. Another death involved a 3-month old female who rolled over and compressed her neck on the changing table ledge, resulting in suffocation. The remaining five reported deaths involved children sleeping on baby changing products, which is not their intended use. All of the victims in these incidents were younger than 1 year old.
One of these incidents involved a 4-month-old male who was sleeping on a changing pad in a crib and died from positional asphyxia when his head hung over the raised side of the changing pad. Another incident involved a 3-day-old female, who died while sleeping on the changing portion of a play yard; her death was determined to be the result of mechanical asphyxia from being swaddled too tightly in a sleep sack. The remaining three sleep-related deaths involved babies (ages 6 weeks, 2 months, and 2 months) sleeping in the changing accessory portion of a play yard.
The injuries and treatments reported through NEISS for 2015 and 2016 were consistent with those for 2005 through 2014, described in the NPR. In 94 percent of cases between 2005 and 2016, the patient was treated in the U.S. ED and released; in 5 percent of cases, the child was hospitalized. The most commonly injured body parts were the head (71 percent for 2005-2014; 73 percent for 2015-2016) and face (13 percent for 2005-2014; 12 percent for 2015-2016). The most common types of injuries were injuries to internal organs (50 percent for 2005-2014; 53 percent for 2015-2016), contusions and abrasions (27 percent for 2005-2014; 29 percent for 2015-2016), and fractures (9 percent for 2005-2014; 8 percent for 2015-2016).
The hazards reported in the new incidents are consistent with the hazard patterns staff identified in the incidents presented in the NPR. The fatal incidents are discussed above, and primarily involved suffocation or asphyxia when babies were sleeping on baby changing products.
As reported in the NPR, structural integrity issues were the primary hazard associated with nonfatal incidents. Incident reports CPSC received after the NPR, for incidents that occurred between January 1, 2016 and November 30, 2017, also involved structural integrity issues. Three of the four nonfatal incidents that occurred between January 1, 2016 and November 30, 2017, were related to structural integrity. These incidents involved: A wooden shelf on the bottom of the changing table that fell because the small pins were too weak to keep the shelf in place; drawers falling out of a changing table; and bolts falling out. The fourth incident involved an 11-month-old male who fell off of a changing table when his caregiver was distracted.
In this final rule, the Commission incorporates by reference ASTM F2388-18. The Commission is incorporating by reference ASTM F2388-18 because it includes provisions that are the same as, or consistent with, the requirements proposed in the NPR, and CPSC staff believes that the standard addresses the hazards associated with baby changing products.
ASTM F2388,
After the Commission issued the NPR, ASTM revised ASTM F2388 three times. CPSC staff worked with representatives of manufacturers, consumer groups, retailers, and other industry members and groups on the ASTM subcommittee for baby changing products to develop requirements to address the hazards associated with baby changing products, including issues raised in the NPR. CPSC staff also participated in the ASTM Ad Hoc Committee on Standardized Wording for Juvenile Product Standards (Ad Hoc TG) to finalize recommendations for warning labels, entitled, “Recommended Language Approved by Ad Hoc Task Group, Revision C” (November 10, 2017), to provide consistent and effective warnings for juvenile product standards. The most recent version of the standard, ASTM F2388-18, reflects the work of these groups. ASTM approved ASTM F2388-18 on February 15, 2018, and published it in March 2018.
In the NPR, the Commission proposed to incorporate by reference ASTM F2388-16, which addressed many of the hazard patterns associated with baby changing products, with modifications to four areas of the standard. Specifically, the Commission proposed more stringent requirements than those in ASTM F2388-16 for structural integrity, restraint systems, warnings on labels, and instructional literature.
The requirements in ASTM F2388-18 are largely the same as those the Commission proposed in the NPR. ASTM F2388-18 includes the same scope, definitions, general requirements (
ASTM F2388-18 includes six definitions that were not in ASTM F2388-16, two of which are consistent with definitions the Commission proposed in the NPR. In the NPR, the Commission proposed to define “key structural elements” and “non-rigid add-on changing unit accessory.” ASTM F2388-18 includes these definitions, but uses the term “changing table accessory” instead of “non-rigid add-on changing unit accessory.” In addition, ASTM F2388-18 defines the terms “changing product,” “protective component,” “secondary support component,” and “threaded fastener.” As explained below, the Commission concludes that these definitions are appropriate and provide additional clarity.
ASTM F2388-18 defines “changing product” to clarify that this general term, used in the title of the standard and throughout the standard, encompasses changing tables, changing table accessories, add-on changing units, and contoured changing pads. Although the Commission did not propose to define this term in the NPR, the NPR did use “changing products” as the general term encompassing all products subject to the standard and the proposed rule, which included each of the products listed in the ASTM F2388-18 definition. Accordingly, this definition is appropriate and provides clarity about the products that are subject to the standard.
ASTM F2388-16 (and the NPR, through proposed incorporation by reference) used the term “protective component,” although that version of the standard did not define it. ASTM F2388-16 described protective components as “caps, sleeves, or plugs used for protection from sharp edges, points or entrapment of fingers and toes.” The definition in ASTM F2388-18 is nearly identical to this description, stating “any component used for protection from sharp edges, points or entrapment of fingers or toes.” Consequently, this definition is accurate and adds clarity to the standard.
Although the Commission did not propose to define “secondary support component” in the NPR, the NPR did propose requirements regarding secondary support straps, and the preamble to the NPR described the feature as “a metal band that runs under the center of the changing surface to provide additional support” that is installed by consumers when assembling a baby changing product. 81 FR at 66888. ASTM F2388-18 defines a “secondary support component” as “a strap, bar, rod, or other component that is consumer installed and provides added support, to the changing surface of the changing table.” Because these descriptions are consistent, this definition is appropriate, and it provides added clarity to include an explicit definition in the standard.
Similarly, the Commission did not propose to define “threaded fastener” in the NPR, but the NPR did describe threaded fasteners as products, such as wood or sheet metal screws, metal inserts, and machine screws, which allow consumers to assemble and disassemble products. 81 FR at 66887. ASTM F2388-18 defines a “threaded fastener” as “a discrete piece of hardware that has internal or external screw threads which is used for the assembly of multiple parts and facilitates disassembly.” This definition is consistent with the NPR description, indicating that the definition is accurate, and including it in the standard provides clarity.
ASTM F2388-18 requires baby changing products to be designed to prevent injuries from scissoring, shearing, or pinching, and includes a method of assessing compliance with this requirement (which consists of admitting a probe of particular dimensions). ASTM F2388-16 did not include requirements regarding scissoring, shearing, and pinching, and the Commission did not propose additional requirements to address these hazards in the NPR. However, these requirements are appropriate in light of other durable infant and toddler product standards. The scissoring, shearing, and pinching provisions in ASTM F2388-18 are identical to those in other ASTM durable infant and toddler product standards (
ASTM F2388-18 includes two distinct methods of assessing the single action release mechanism on self-folding steps, depending on the type of action necessary to release the mechanism. In ASTM F2388-16, the test for assessing self-folding steps on a baby changing product applied to all products with self-folding steps that had a “single action release mechanism.” The test involved applying a force of 10 lbf (45 N) to the locking or latching mechanism. The NPR proposed to incorporate this requirement by reference, without modification. ASTM F2388-18 retains this test for mechanisms that require a “pull or push action,” and adds a duration for applying the force. Specifying a test duration is helpful to provide clarity about the test procedure.
ASTM F2388-18 also includes a different test for self-folding steps with a release mechanism that requires a “twist or turn action” to release, which was not in ASTM F2388-16 and was not proposed in the NPR. For steps with this mechanism, testers must apply a torque of 4 lb-in. (0.5 N-m) to the mechanism. This separate test is appropriate to better reflect and assess the different types of release mechanisms on self-folding steps.
In the NPR, the Commission proposed more stringent requirements in two areas to address structural integrity issues—threaded fasteners and secondary support straps. First, the Commission proposed requirements for threaded fasteners, to provide secure connections between fasteners and key structural elements of changing tables and products. Specifically, the Commission proposed to:
• Prohibit the use of threaded fasteners, such as wood screws or sheet metal fasteners, directly into wood components that are key structural elements assembled by consumers;
• require a means of preventing manufacturer-installed metal threaded fasteners used in key structural elements from loosening (such as with lock washers); and
• require a means of preventing manufacturer-installed metal inserts in key structural elements from loosening (such as by gluing).
ASTM F2388-18 includes the same requirements regarding threaded fasteners as the Commission proposed in the NPR, as well as two additions. As one minor addition, ASTM F2388-18 includes additional detail about the features that are “non-key structural elements,” and therefore, not subject to the threaded fastener requirements. Specifically, where the NPR listed drawers, secondary supports, storage components, and accessory items, ASTM F2388-18 lists these as well as
Second, the Commission proposed to adopt the structural integrity testing required in ASTM F2388-16, but modified the test to specify that consumer-installed secondary support straps must not be installed for the test. This would reflect the less-structurally sound condition the product may be in when consumers use it without installing the secondary support strap or install the strap incorrectly.
ASTM F2388-18 includes the same provisions proposed in the NPR. The only minor difference is that where the NPR used the term “secondary support straps or bars,” ASTM F2388-18 uses “secondary support components.” The meaning of these terms is the same, and these requirements are appropriate to provide greater product stability.
ASTM F2388-16, the NPR, and ASTM F2388-18 do not require baby changing products to include restraint systems. However, to ensure that restraints function effectively if provided, in the NPR, the Commission proposed to require testing of restraint systems. The proposed test required any restraint provided with a baby changing product to be secured on a CAMI dummy and pulled in four directions anticipated during normal use with a 30 pound force. To pass this performance standard, straps and buckles were required not to break or separate from baby changing products more than 1 inch from their initial adjustment positions.
ASTM F2388-18 includes the same restraint system testing requirements as those proposed in the NPR. Accordingly, these requirements are appropriate to reduce the hazards associated with ineffective restraints.
In the NPR, the Commission proposed more stringent warning label content and format requirements than those in ASTM F2388-16. With respect to content, the NPR proposed to require on-product warning labels specifically addressing fall hazards, proper securement of attachable changing products, and the suffocation hazard if babies sleep on a changing product. With respect to form, the NPR proposed to include form requirements for warnings, to increase the likelihood that consumers would notice, read, and follow the warnings. The requirements for warning format proposed in the NPR were drawn from the Ad Hoc TG recommendations, which were under development at the time.
ASTM F2388-18 includes labeling requirements that are the same as those proposed in the NPR. ASTM F2388-18 includes some minimal modifications that do not notably alter the requirements. For example, ASTM F2388-16 and the NPR specified that changing accessories sold with non-full-size cribs and play yards were exempt from the requirement to mark manufacturer and manufacturing date information on the product and retail package because they were subject to another ASTM standard with similar requirements. ASTM F2388-18 extends this exemption to accessories sold with full-size cribs, as well. This does not reduce the stringency of the requirement because full-size cribs are also subject to another ASTM standard that addresses this information. As another example, ASTM F2388-18 includes more example figures of warnings than the NPR provided, which clarify the meaning of some requirements and provide examples of additional combinations of warning statements. Additionally, ASTM F2388-18 includes a note, explaining what “address” means in the requirement that product warnings “address” specified information. The NPR also required warnings to “address” specific information, but did not explicitly define that term. This explanatory note is useful and including it aligns with the Ad Hoc TG recommendations.
In the NPR, the Commission proposed more stringent requirements for instructional literature, including format requirements consistent with those for on-product warnings, a requirement that instructions be in English (at a minimum), and that additional labels must not contradict the meaning of required information. Additionally, the Commission proposed to include a note in the regulatory text, referencing ANSI Z535.6,
The instructional literature requirements in ASTM F2388-18 are consistent with those in the NPR, with minor adjustments to align with the Ad Hoc TG recommendations. For example, where the NPR required warnings in instructions to align with the on-product warning format requirements generally, ASTM F2388-18 includes an equivalent requirement, but exempts warnings in instructions from distinctiveness and color requirements. These requirements are appropriate because they are consistent with the NPR and the Ad Hoc TG recommendations.
CPSC received nine comments in response to the NPR. The comments are available in the docket for this rulemaking, CPSC-2016-0023, at:
The Office of the Federal Register (OFR) has regulations regarding incorporation by reference. 1 CFR part 51. These regulations require the preamble to a final rule to summarize the material and discuss the ways in which the material the agency incorporates by reference is reasonably available to interested persons, and how interested parties can obtain the material. 1 CFR 51.5(b). In accordance with the OFR regulations, this section summarizes ASTM F2388-18, and describes how interested parties may obtain a copy of the standard.
ASTM F2388-18 contains requirements concerning:
Section 1235.2(a) of the final rule requires baby changing products to comply with ASTM F2388-18 and incorporates the standard by reference. Section VII of this preamble describes the OFR requirements for incorporating material by reference. In accordance with those requirements, section VII summarizes ASTM F2388-18, explains how the standard is reasonably available to interested parties, and how interested parties may obtain a copy of the standard.
The final rule also amends 16 CFR part 1112 to add a new § 1112.15(b)(45) that lists 16 CFR part 1235,
The Administrative Procedure Act (5 U.S.C. 551-559) generally requires that agencies set an effective date for a final rule that is at least 30 days after the
This rule contains information collection requirements that are subject to public comment and Office of Management and Budget (OMB) review under the Paperwork Reduction Act of 1995 (PRA; 44 U.S.C. 3501-3521). Under the PRA, CPSC must estimate the “burden” associated with each “collection of information.” 44 U.S.C. 3506(c).
In this rule, section 9 of ASTM F2388-18 contains labeling requirements that meet the definition of “collection of information” in the PRA. 44 U.S.C. 3502(3). In addition, section 10 of ASTM F2388-18 requires instructions to be provided with baby changing products; however, CPSC believes this requirement can be excluded from the PRA burden estimate. OMB allows agencies to exclude from the PRA burden estimate any “time, effort, and financial resources necessary to comply with a collection of information that would be incurred by persons in the normal course of their activities,” if the disclosure activities required to comply are “usual and customary.” 5 CFR 1320.3(b)(2). Because baby changing products generally require use and assembly instructions, and CPSC is not aware of baby changing products that generally require instructions but lack them, CPSC believes that providing instructions with baby changing products is “usual and customary.” For this reason, the burden estimate includes only the labeling requirements.
The preamble to the NPR discussed the information collection burden of the proposed rule and requested comments on the accuracy of CPSC's estimates. 81 FR 66893 to 66894. CPSC did not receive any comments about the information collection burden of the proposed rule. However, the information collection burden has changed since the NPR because CPSC staff has identified 120 baby changing product suppliers (102 domestic firms, 17 foreign firms, and 1 firm of unknown location), rather than the 85 firms identified in the NPR, that it estimates will be subject to the information collection burden. Accordingly, the estimated burden of this collection of information is as follows:
The estimated reporting burden is based on CPSC staff's expectation that all 120 baby changing product suppliers known to CPSC will need to modify their labels to comply with the final rule. CPSC staff estimates that it will take about 1 hour per model to make these modifications and, based on staff's evaluation of product lines, that each supplier has an average of 6 models of baby changing products. Consequently, CPSC estimates that the burden associated with the labeling requirements is: 120 entities × 1 hour per model × 6 models per entity = 720 hours. CPSC staff estimates that the hourly compensation for the time required to create and update labels is $34.21 (U.S. Bureau of Labor Statistics, “Employer Costs for Employee Compensation,” Sept. 2017, Table 9, total compensation for all sales and office workers in goods-producing private industries:
As the PRA requires, CPSC has submitted the information collection requirements of this final rule to OMB. 44 U.S.C. 3507(d). OMB has assigned control number 3041-0175 to this information collection.
The Regulatory Flexibility Act (RFA; 5 U.S.C. 601-612) requires agencies to consider the potential economic impact
• The need for and objectives of the rule;
• significant issues raised in public comments about the initial regulatory flexibility analysis (IRFA), a response to comments from the Chief Counsel for Advocacy of the SBA, the agency's assessment of the comments, and any changes made to the rule as a result of the comments;
• the description and estimated number of small entities that will be subject to the rule;
• the reporting, recordkeeping, and other compliance requirements of the rule, as well as the small entities that would be subject to those requirements, and the types of skills necessary to prepare the reports or records;
• steps the agency took to minimize the significant economic impact on small entities; and
• the factual, policy, and legal reasons the agency selected the alternative in the final rule, and why it rejected other significant alternatives.
Based on an assessment by CPSC's Directorate for Economic Analysis staff, CPSC cannot certify that this rule will not have a significant economic impact on a substantial number of small entities. As a result, staff has prepared a FRFA. This section summarizes the FRFA for this final rule. The complete FRFA is available as part of CPSC staff's briefing package at:
CPSC did not receive any comments specifically addressing the IRFA that accompanied the proposed rule or from the Chief Counsel for Advocacy of SBA. However, CPSC received comments about the effective date of the final rule, which are relevant to the FRFA insofar as they address the costs associated with the rule. These comments are discussed in section VI.F. of this preamble. After considering these comments, and the potential economic impact of the rule on small firms, the Commission is extending the effective date for the final rule to 1 year, rather than the proposed 6 months. CPSC believes that this longer effective date will reduce the economic impact of the rule on firms, some of which may not be aware of the ASTM standard or this rulemaking, by reducing the potential for a lapse in production or imports while bringing products into compliance with the rule, and spreading the costs of compliance over a longer period.
CPSC staff identified 120 firms that supply baby changing products to the U.S. market, consisting of 102 domestic firms, 17 foreign firms, and 1 firm for which staff could not determine the location. Of the 102 domestic firms, 84 are small entities, according to SBA's standards, and 18 are large. Of the 84 small domestic entities, 61 are manufacturers, and 23 are importers or wholesalers. It is possible that there are additional baby changing product suppliers in the U.S. market that staff has not identified.
Sections V and VII of this preamble describe the requirements in the final rule, which incorporates by reference ASTM F2388-18. In addition, the final rule amends the regulations regarding third party conformity assessment bodies to include the safety standard for baby changing products in the list of NORs.
For the FRFA, staff limited its analysis to the 84 small domestic firms staff identified as supplying baby changing products to the U.S. market because SBA guidelines and definitions apply to domestic entities. In assessing whether a rule will have a significant economic impact on small entities, staff generally considers impacts “significant” if they exceed 1 percent of a firm's revenue. This section provides details about staff's assessment of the economic impact of the final rule on small domestic entities. To summarize, staff believes that it is unlikely that the final rule will have a significant economic impact on 22 of the 61 small manufacturers and 10 of the 23 small importers and wholesalers, all of which already comply with a version of the ASTM standard. Of the remaining firms, which do not already comply with the voluntary standard, staff does not expect the final rule to have a significant economic impact on 13 of the 39 small manufacturers and 3 of the 13 small importers and wholesalers because most of these firms supply products that staff does not expect will require changes to conform to the rule. Staff could not rule out a significant economic impact on the remaining 26 small manufacturers and 10 small importers and wholesalers.
At the time staff prepared the FRFA, 22 of the 61 small manufacturers reported that their baby changing products complied with the then-current ASTM standard. Staff believes that firms that report complying with the voluntary standard will continue to comply with the standard as it evolves, as part of an established business practice. Staff does not expect the final rule to have a significant economic impact on any of these 22 firms because ASTM F2388-18 was published well before the effective date of this rule. Staff expects third party testing costs to be minimal because these firms already test their products for compliance with the voluntary standard.
The remaining 39 small manufacturers produce baby changing products that do not comply with the voluntary standard. Seven of these firms manufacture only wooden changing trays that are sold separately from furniture, which are subject to few requirements other than side height, labeling, and instructions. Staff does not expect changes to warnings, instructions, or side heights to create significant costs. An additional 12 firms manufacture only contoured changing pads, which are also subject to minimal requirements, primarily including barrier and retention requirements, labels, and instructions. Staff believes that firms will not have to modify most of these changing pads to meet these requirements, but it is possible that a few firms would need to modify their products to meet the barrier and retention requirements. These modifications could be costly because firms would need new molds for foam products. For purposes of the FRFA, staff assumed that two firms would need to modify their contoured changing pads to comply with the final rule.
The remaining 20 firms manufacture a variety of changing products. Firms staff interviewed before the Commission issued the NPR indicated that the cost of completely redesigning a product could range from $25,000 to $200,000, depending on the type of changing product. It is likely that the final rule will have a significant impact on nine of these firms (and possibly one more) based on their revenue levels; it is unlikely the rule will have a significant economic impact on three of these firms, based on their revenues; and staff
Staff believes that third party testing costs are not likely to have a significant economic impact on 21 of the 39 small domestic noncompliant manufacturers, but could exceed 1 percent of revenues for the remaining 18 firms, with varying degrees of likelihood. Staff also believes that third party testing costs could result in significant economic impacts for 7 of the 20 small domestic noncompliant manufacturers that are not likely to experience significant economic impacts from the requirements in ASTM F2388-18.
At the time staff prepared the FRFA, 10 of the 23 small importers and wholesalers reported that their baby changing products complied with the then-current ASTM standard. Staff considered the economic impact to importers and wholesalers together because both rely on outside firms to supply the products they distribute to the U.S. market. Like small, compliant manufacturers, staff expects that these importers and wholesalers will comply with ASTM F2388-18 before the effective date of the final rule. Therefore, staff does not expect the final rule to have a significant economic impact on any of these firms. Likewise, staff expects third party testing costs to be minimal because costs would be limited to the difference between the cost of current testing regimes and third party testing costs.
The remaining 13 small importers and wholesalers supply baby changing products that do not comply with the voluntary standard. The economic impact of the rule on these importers and wholesalers depends on the extent of the changes needed for their products to comply with the rule and the response of their suppliers. Staff generally cannot determine this information for importers and wholesalers that do not comply with the voluntary standard.
Nevertheless, staff anticipates that the rule could have a significant economic impact on some of these firms. Staff estimates that the rule will not have a significant economic impact on one importer that supplies only wooden changing trays. The rule also may not have a significant economic impact on two importers and one wholesaler that provide only contoured changing pads. However, one of these firms may need to redesign its product, which would have a significant economic impact on the firm. Each of these firms has wide enough product lines that it could stop supplying changing products, although the impact of that on revenue is unclear.
Of the remaining six importers and three wholesalers, four firms have low enough revenues that they are likely to experience a significant economic impact, regardless of how their suppliers respond, as their suppliers are not likely to absorb any of the costs and finding alternative suppliers can be costly. Three of these firms may be able to stop supplying changing products, but it is not clear what impact this would have on their revenues. Staff does not have revenue information for the remaining five firms. As a result, staff cannot rule out the possibility that the rule will have a significant economic impact on these five firms. However, one of these firms appears to be tied to its suppliers, who may absorb some of the costs, and another firm has a wide enough product line that it could stop supplying changing products.
Staff believes that third party testing could result in significant costs for three of the firms that import noncompliant baby changing products. For two of these firms, testing costs could exceed 1 percent of gross revenue if the firm tests only one unit per model. A third firm would need to test about three units per model before testing costs would exceed 1 percent of its gross revenue. Staff did not have access to revenue data for seven of the small noncompliant importers and wholesalers to determine the potential economic impact of the rule.
Section 14 of the Consumer Product Safety Act (CPSA; 15 U.S.C. 2051-2089) requires all children's products that are subject to a children's product safety rule to be tested by a third party conformity assessment body (
In the IRFA for this rule, staff anticipated that the accreditation requirements would not have a significant economic impact on a substantial number of small laboratories because: (1) The rule imposed requirements only on laboratories that intended to provide third party testing services; (2) laboratories would assume the costs only if they anticipated receiving sufficient revenue from the testing to justify accepting the requirements as a business decision; and (3) most laboratories would already have accreditation to test for conformance to other juvenile product standards, thereby limiting the costs to adding the baby changing product standard to their scope of accreditation. CPSC has not received any information to date that contradicts this assessment. Therefore, staff believes that the NOR for the baby changing product standard will not have a significant economic impact on a substantial number of small entities.
In response to comments, the Commission is providing a 1 year effective date, rather than the proposed 6 months. This should reduce the economic impact of the rule for small entities. Setting a later effective date reduces the likelihood of a lapse in production or imports if firms cannot comply with the standard or obtain third party testing within the time provided. In addition, a later effective date spreads the costs of compliance over a longer period, reducing annual costs and the present value of total costs.
CPSC's regulations list categories of agency actions that “normally have little or no potential for affecting the human environment.” 16 CFR 1021.5(c). Such actions qualify as “categorical exclusions” under the National Environmental Policy Act (42 U.S.C. 4321-4370m-12), which do not require an environmental assessment or environmental impact statement. One categorical exclusion listed in CPSC's regulations is for rules or safety standards that “provide design or performance requirements for products.” 16 CFR 1021.5(c)(1). Because the final rule for baby changing products creates design or performance requirements, the rule falls within the categorical exclusion.
Under section 26(a) of the CPSA, no state or political subdivision of a state may establish or continue in effect a requirement dealing with the same risk of injury as a federal consumer product safety standard under the CPSA unless the state requirement is identical to the federal standard. 15 U.S.C. 2075(a). However, states or political subdivisions of states may apply to CPSC for an exemption, allowing them to establish or continue such a requirement if the state requirement “provides a significantly higher degree of protection from [the] risk of injury” and “does not
Section 104 of the CPSIA requires the Commission to issue consumer product safety standards for durable infant or toddler products. As such, consumer product safety standards that the Commission creates under CPSIA section 104 are covered by the preemption provision in the CPSA. As a result, the preemption provision in section 26 of the CPSA applies to the mandatory safety standard for baby changing products.
Section 14(a) of the CPSA requires the manufacturer or private labeler of a children's product that is subject to a children's product safety rule to certify that, based on a third party conformity assessment body's testing, the product complies with the applicable children's product safety rule. 15 U.S.C. 2063(a)(2)(A), 2063(a)(2)(B). Section 14(a) also requires the Commission to publish an NOR for a third party conformity assessment body (
On March 12, 2013, the Commission published a final rule in the
Testing laboratories that apply for CPSC acceptance to test baby changing products for compliance with the new baby changing product rule would have to meet the requirements in part 1112. When a laboratory meets the requirements of a CPSC-accepted third party conformity assessment body, the laboratory can apply to CPSC to include 16 CFR part 1235,
As the RFA requires, CPSC staff conducted a FRFA for the rulemaking in which the Commission adopted part 1112. 78 FR 15836, 15855 (Mar. 12, 2013). To summarize, the FRFA concluded that the accreditation requirements would not have a significant economic impact on a substantial number of small laboratories because no requirements were imposed on laboratories that did not intend to provide third party testing services. The only laboratories CPSC expected to provide such services were those that anticipated receiving sufficient revenue from the mandated testing to justify accepting the requirements as a business decision.
By the same reasoning, adding an NOR for the baby changing product standard to part 1112 will not have a significant economic impact on small test laboratories. A relatively small number of laboratories in the United States have applied for accreditation to test for conformance to existing juvenile product standards. Accordingly, CPSC expects that only a few laboratories will seek accreditation to test for compliance with the baby changing product standard. Of those that seek accreditation, CPSC expects that most will have already been accredited to test for conformance to other juvenile product standards. The only costs to those laboratories will be the cost of adding the baby changing product standard to their scopes of accreditation. For these reasons, CPSC certifies that amending 16 CFR part 1112 to include an NOR for the baby changing products standard will not have a significant economic impact on a substantial number of small entities.
As section 104(d) of the CPSIA requires, regulations in 16 CFR part 1130 require manufacturers of durable infant or toddler products to provide registration forms with each product, maintain the contact information consumers submit on these forms, and mark manufacturer and model information on products. Section 1130.2(a)(14) lists “changing tables” as one of the products subject to the registration card requirements. However, “changing tables” is no longer used as the general term to encompass all baby changing products that are subject to ASTM F2388-18 and this final rule, and this term may create confusion since it is only one type of baby changing product. Because all of the baby changing products subject to this rule are “durable infant or toddler products,” section 104(d) of the CPSIA requires the registration card requirements to apply to all of these products.
Accordingly, the Commission anticipates issuing a notice proposing to amend 16 CFR part 1130 to clarify that “changing tables” include all changing products identified in ASTM F2388-18, which includes changing tables, contoured changing pads, changing table accessories, and add-on changing units.
Administrative practice and procedure, Audit, Consumer protection, Reporting and recordkeeping requirements, Third-party conformity assessment body.
Consumer protection, Imports, Incorporation by reference, Infants and children, Labeling, Law enforcement, Toys.
For the reasons discussed in the preamble, the Commission amends 16 CFR chapter II as follows:
Pub. L. 110-314, section 3, 122 Stat. 3016, 3017 (2008); 15 U.S.C. 2063.
(b) * * *
(45) 16 CFR part 1235, Safety Standard for Baby Changing Products.
Sec. 104, Pub. L. 110-314, 122 Stat. 3016 (August 14, 2008); Pub. L. 112-28, 125 Stat. 273 (August 12, 2011).
This part establishes a consumer product safety standard for baby changing products.
Each baby changing product shall comply with all applicable provisions of ASTM F2388-18,
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for navigable waters within a 280-foot radius of the launch site located at Dobbins Landing, Erie, PA. This safety zone is intended to restrict vessels from portions of Lake Erie during City of Erie Fourth of July fireworks display. This temporary safety zone is necessary to protect mariners and vessels from the navigational hazards associated with a fireworks display. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port Buffalo.
This rule is effective from 9:45 p.m. until 10:45 p.m. on July 3, 2018.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email LT Michael Collet, Chief Waterways Management Division, U.S. Coast Guard; telephone 716-843-9322, email
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the event sponsor did not submit notice to the Coast Guard with sufficient time remaining before the event to publish an NPRM. Delaying the effective date of this rule to wait for a comment period to run would be impracticable and contrary to the public interest by inhibiting the Coast Guard's ability to protect spectators and vessels form the hazards associated with a fireworks display.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Buffalo (COTP) has determined that a fireworks display presents significant risks to the public safety and property. Such hazards include premature and accidental detonations, dangerous projectiles, and falling or burning debris. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the fireworks display takes place.
This rule establishes a safety zone on July 3, 2018, from 9:45 p.m. until 10:45 p.m. The safety zone will encompass all waters of Lake Erie, Erie, NY contained within 280-foot radius of: 42°08′17.13″ N, 080°05′30.17″ W.
Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Buffalo or his designated on-scene representative. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
This regulatory action determination is based on the conclusion that this rule is not a significant regulatory action. 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 relatively short time. Also, the safety zone has been designed to allow vessels to transit around it. Thus, restrictions on vessel movement within that particular
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 rule will 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 V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule establishes a temporary safety zone. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port Buffalo or his designated on-scene representative.
(3) The “on-scene representative” of the Captain of the Port Buffalo is any Coast Guard commissioned, warrant or petty officer who has been designated by the Captain of the Port Buffalo to act on his behalf.
(4) Vessel operators desiring to enter or operate within the safety zone must contact the Captain of the Port Buffalo or his on-scene representative to obtain permission to do so. The Captain of the Port Buffalo or his on-scene
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for navigable waters on the Buffalo Outer Harbor, Buffalo, NY. This safety zone is intended to restrict vessels from portions of the Buffalo Outer Harbor during the Officer Lehner Memorial Vintage Regatta. This temporary safety zone is necessary to protect mariners and vessels from the navigational hazards associated with this regatta. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port Buffalo.
This rule is effective from 9:45 a.m. until 4:15 p.m. on July 1, 2018.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email LT Michael Collet, Chief of Waterways Management, U.S. Coast Guard Sector Buffalo; telephone 716-843-9322, email
On December 27, 2017, the Buffalo Vintage Boat Racing Association and BR Guest Inc., notified the Coast Guard that it will be conducting a regatta on July 1, 2018, from 10:00 a.m. until 4:00 p.m. on the Buffalo Outer Harbor. In response, on April 25, 2018, the Coast Guard published a notice of proposed rulemaking (NPRM) titled Officer Lehner Memorial Vintage Regatta; Buffalo Outer Harbor, Buffalo, NY (83 FR 17962, April 25, 2018). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to this regatta. During the comment period that ended May 25, 2018, we received no relevant comments.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Buffalo (COTP) has determined the Officer Lehner Memorial Vintage Regatta presents significant risks to the public safety and property. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the regatta takes place.
As noted above, we received no relevant comments on our NPRM published April 25, 2018. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.
This rule establishes a safety zone on July 1, 2018 from 9:45 a.m. until 4:15 p.m. The safety zone will encompass all navigable waters at the start point at position 42°52′04″ N, 078°53′03″ W, then South to 42°51′07″ N, 078°52′09″ W (NAD 83) on the Outer Harbor in Buffalo, NY. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled 10:00 a.m. to 4:00 p.m. regatta.
Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Buffalo or his designated on-scene representative. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
This regulatory action determination is based on the conclusion that this rule is not a significant regular action. Vessel traffic will be able to safely transit around this safety zone, which impacts a small designated area of the Buffalo Outer Harbor, by transiting a short distance in Lake Erie. The safety zone will also have built in times where vessels will be able to transit through the regatta area during event breaks. Moreover, the Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule will 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 rule will 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 V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule establishes a temporary safety zone. It is categorically excluded from further review under paragraph L60 (a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) This safety zone is closed to all vessel traffic, except as may be permitted by the COTP or his designated on-scene representative.
(3) The “on-scene representative” of the COTP is any Coast Guard commissioned, warrant or petty officer who has been designated by the COTP to act on his behalf.
(4) Vessel operators desiring to enter or operate within the safety zone must contact the COTP Buffalo or his on-scene representative to obtain permission to do so. The COTP or his on-scene representative may be contacted via VHF Channel 16 or at (716) 843-9322. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the COTP or his on-scene representative.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for navigable waters within a 280-foot radius of the launch site at the R.W. Sidley Facility, Ashtabula, OH. This safety zone is intended to restrict vessels from portions of the Ashtabula River during the Wine and Walleye Festival fireworks display. This temporary safety zone is necessary to protect mariners and vessels from the navigational hazards associated with a fireworks display. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port Sector Buffalo.
This rule is effective from 9:45 p.m. until 11:15 p.m. on July 28, 2018.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email LT Ryan Junod, Chief of Waterways Management, U.S. Coast Guard Marine Safety Unit Cleveland; telephone 216-937-0124, email
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the event sponsor did not submit notice to the Coast Guard with sufficient time remaining before the event to publish an NPRM. Delaying the effective date of this rule to wait for a comment period to run would be impracticable and contrary to the public interest by inhibiting the Coast Guard's ability to protect spectators and vessels from the hazards associated with a fireworks display.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Buffalo (COTP) has determined that fireworks display presents significant risks to the public safety and property. Such hazards include premature and accidental detonations, dangerous projectiles, and falling or burning debris. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the fireworks display takes place.
This rule establishes a safety zone on July 28, 2018, from 9:45 p.m. until 11:15 p.m. The safety zone will encompass all waters of the Ashtabula River, Ashtabula, OH contained within 280-foot radius of: 41°54′06″ N, 080°47′49″ W.
Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Buffalo or his designated on-scene representative. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
This regulatory action determination is based on the conclusion that this rule is not a significant regulatory action. 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 relatively short time. Also, the safety zone has been designed to allow vessels to transit around it. Thus, restrictions on vessel movement within that particular area are expected to be minimal. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port.
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 rule will 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 V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule establishes a temporary safety zone. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port Buffalo or his designated on-scene representative.
(3) The “on-scene representative” of the Captain of the Port Buffalo is any Coast Guard commissioned, warrant or petty officer who has been designated by the Captain of the Port Buffalo to act on his behalf.
(4) Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port Buffalo or his on-scene representative to obtain permission to do so. The Captain of the Port Buffalo or his 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 Buffalo, or his on-scene representative.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for certain navigable waters of the
This rule is effective from 8:45 p.m. through 10 p.m. on June 30, 2018.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email Lieutenant Commander Howard Vacco, Sector New Orleans, U.S. Coast Guard; telephone 504-365-2281, email
On April 4, 2018, AFX Pro, LLC, notified the Coast Guard that it would be conducting a fireworks display from 10 p.m. through 10:45 p.m. on June 30, 2018, for a wedding celebration. The fireworks are to be launched from a barge in the Mississippi River at the approximate mile marker (MM) 94.5 above Head of Passes near Algiers Point, New Orleans, LA. In response, on April 17, 2018, the Coast Guard published a notice of proposed rulemaking (NPRM) titled Safety Zone; Lower Mississippi River, New Orleans, LA (83 FR 16817). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to this fireworks display. During the comment period that ended May 17, 2018, we received one comment.
The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Sector New Orleans (COTP) has determined that potential hazards associated with the fireworks to be used in this June 30, 2018 display will be a safety concern for anyone within a one-mile section of the river. The purpose of this rule is to ensure safety of persons, vessels, and the marine environment before, during, and after the scheduled event.
As noted above, we received one comment on our NPRM published April 17, 2018. The comment was unrelated to the substance of this rule. Therefore, no changes were made to the regulatory text of the final rule based on the comment.
However, on April 18, 2018, AFX Pro, LLC notified the Coast Guard that the fireworks display would begin at 9 p.m. instead of 9.45 p.m. and end at 10 p.m. instead of 11 p.m., as we originally published in the NPRM. Therefore, the regulatory text of this rule updates the effective period in the NPRM to 8:45 p.m. through 10 p.m.
This rule establishes a temporary safety zone from 8:45 p.m. through 10 p.m. on June 30, 2018. The safety zone will cover all navigable waters of the Mississippi River above Head of Passes between mile markers (MM) 94 and 95. The duration of the zone is intended to ensure the safety of persons, vessels, and the marine environment before, during, and after the scheduled fireworks display. No vessel or person is permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard assigned to units under the operational control of USCG Sector New Orleans. Vessels requiring entry into this safety zone must request permission from the COTP or a designated representative. They may be contacted on VHF-FM Channel 16 or 67 or by telephone at (504) 365-2200. Persons and vessels permitted to enter this safety zone must transit at their slowest safe speed and comply with all lawful directions issued by the COTP or a designated representative. The COTP or a designated representative will inform the public through Broadcast Notices to Mariners of any changes in the planned schedule.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
This regulatory action determination is based on the size and duration of the temporary safety zone. This temporary safety zone is for only one hour and fifteen minutes on a one-mile section of the river. Moreover, the Coast Guard will issue a Broadcast Notice to Mariners (BNM) via VHF-FM marine channel 16 about the zone, and the rule allows 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 received no comments from the Small Business Administration on this rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will 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 rule would not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting one hour and fifteen minutes that will prohibit entry between mile marker 94 and mile marker 95 on the Lower Mississippi River above Head of Passes. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) Vessels requiring entry into this safety zone must request permission from the COTP or a designated representative. They may be contacted on VHF-FM Channel 16 or 67 or by telephone at (504) 365-2200.
(3) Persons and vessels permitted to enter this safety zone must transit at their slowest safe speed and comply with all lawful directions issued by the COTP or the designated representative.
(d)
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for navigable waters within a 560-foot radius of the launch site located at Cahoon Park, Bay Village, OH. This safety zone is intended to restrict vessels from a portion of Lake Erie during the Bay Village Independence Day fireworks display. This temporary safety zone is necessary to protect mariners and vessels from the navigational hazards associated with a fireworks display. Entry of vessels or
This rule is effective from 9:45 p.m. through 10:45 p.m. on July 4, 2018.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email LT Ryan Junod, Chief of Waterways Management, U.S. Coast Guard Marine Safety Unit Cleveland; telephone 216-937-0124, email
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA)(5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause find that those procedures are “impracticable, unnecessary, or contrary to public interest.” On April 19, 2018, the Captain of the Port (COTP) Buffalo published a notice of proposed rulemaking (NPRM), Docket Number USCG-2017-1112, to make temporary safety zones for annual events a final rule. This event was included in the NPRM. Its purpose was to mitigate potential threats to personnel, vessels, and the marine environment in the navigable waters within the specified safety zones. The NPRM addressed these concerns, and invited the public to comment during the comment period, which ended on May 21, 2018. As such, it is unnecessary to publish an NPRM for this temporary rule because the public had opportunity to comment on it and no comments were received concerning this event.
Under 5 U.S.C 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Buffalo (COTP) has determined that a fireworks display presents significant risks to the public safety and property. Such hazards include premature and accidental detonations, dangerous projectiles, and falling or burning debris. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the fireworks display takes place.
This rule establishes a safety zone on July 4, 2018, from 9:45 p.m. through 10:45 p.m. The safety zone will encompass all waters of Lake Erie, Bay Village, OH contained within 560-foot radius of: 41°29′23.9″ N, 081°55′44.5″ W.
Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Buffalo or his designated on-scene representative. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
This regulatory action determination is based on the conclusion that this rule is not a significant regulatory action. 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 relatively short time. Also, the safety zone has been designed to allow vessels to transit around it. Thus, restrictions on vessel movement within that particular area are expected to be minimal. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port.
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 rule will 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 V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule establishes a temporary safety zone. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port Buffalo or his designated on-scene representative.
(3) The “on-scene representative” of the Captain of the Port Buffalo is any Coast Guard commissioned, warrant or petty officer who has been designated by the Captain of the Port Buffalo to act on his behalf.
(4) Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port Buffalo or his on-scene representative to obtain permission to do so. The Captain of the Port Buffalo or his 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 Buffalo, or his on-scene representative.
Environmental Protection Agency (EPA).
Interim final rule.
With this interim final rule Environmental Protection Agency (EPA) is amending the Water Infrastructure Finance and Innovation Act (WIFIA) regulations to clarify the process for, and conditions under which, a recipient of WIFIA credit assistance can include costs incurred, and the value of integral in-kind contributions made, before receipt of assistance in the calculation of total eligible costs, and can be reimbursed for certain of those costs by WIFIA loan proceeds. This interim final rule pertains to a matter involving a federal loan and loan guarantee program and is therefore exempt from the rulemaking requirements of the Administrative Procedure Act. As such, EPA is issuing this rule as interim final.
This rule is effective on June 26, 2018. Comments must be received on or before August 27, 2018.
Submit your comments, identified by Docket ID No. EPA-HQ-OW-2016-0569, at
Jordan Dorfman, Water Infrastructure Division, Office of Wastewater Management, Mail Code 4201C, Environmental Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC, 20460; telephone number: (202) 564-0614; email address:
This action only applies to entities seeking credit assistance under the WIFIA program for the development and construction of a water infrastructure project. EPA has promulgated regulations to implement this program. A list of eligible entities and eligible projects can be found at 33 U.S.C. 3904 and 3905 and the Interim Final Rule at 40 CFR 35.10005.
• Identify the document by docket ID number and other identifying information (subject heading,
• Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
• Describe any assumptions and provide any technical information and/or data that you used.
• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
• Provide specific examples to illustrate your concerns and suggest alternatives.
• Explain your views as clearly as possible.
• Make sure to submit your comments by the comment period deadline identified.
Section 5008(c)(2) of the Water Infrastructure Improvements for the Nation Act, Public Law 114-322, added section 5029(b)(10) (33 U.S.C. 3908(b)(10)) to the WIFIA authorizing legislation. This section requires that any eligible project costs incurred, and the value of any integral in-kind contributions made, before receipt of assistance be credited toward the 51 percent of project costs to be provided by sources of funding other than a WIFIA loan. 33 U.S.C. 3908(b)(10). This section provides WIFIA borrowers the opportunity to include costs incurred prior to receipt of assistance and the value of integral in-kind contributions made before receipt of assistance, in the calculation of total eligible costs in order to calculate the size of the loan. However, it does not address what costs can be reimbursed. The size of the project is important in determining the amount of funding that may be awarded to the WIFIA borrower (“size of the loan”) because the statute, at 33 U.S.C. 3908(b)(2)(A), limits the size of the loan to 49 percent of the total reasonably anticipated eligible costs for the project. Instead of addressing the reimbursement of costs, 33 U.S.C. 3908(b)(10) uses the term “credited” and directs that certain costs be credited toward a category of costs, the 51 percent to be provided by a non-WIFIA source. Importantly, the statute does not prohibit the use of a WIFIA loan to reimburse eligible costs incurred prior to receipt of assistance. The WIFIA loan can therefore be used to reimburse any eligible cost, whether or not incurred prior to the receipt of assistance, except for the value of in-kind contributions which do not represent out-of-pocket costs to a borrower and are not costs for which a borrower would typically seek reimbursement or payment.
For these reasons, EPA is clarifying current regulations by adding to 40 CFR 35.10010(c) the clause “value of any integral in-kind contributions made” to allow these costs to be included in the calculation of eligible project costs and by changing “prior to a project sponsor's submission of an application for credit assistance” to “before receipt of credit assistance” to ensure that all such costs and integral in-kind contributions are included. EPA is also adding the clause, “such costs, excluding the value of any integral in-kind contributions, are payable from the proceeds of the WIFIA credit instrument” to ensure that such costs may be reimbursed from WIFIA loan proceeds.
Crediting prior costs and the value of integral in-kind contributions to the project increases the size of the project and, by extension, may increase the size of the WIFIA loan. For example, if a borrower has incurred $110 million in costs prior to the receipt of assistance, and anticipates incurring $90 million in costs after receipt of assistance, the size of the project would be $200 million. Looking at 33 U.S.C. 3908(b)(2)(A) in isolation, EPA could potentially fund up to 49 percent of that $200 million, or $98 million. However, by further directing that the costs incurred and contributions made prior to receipt of assistance be credited toward the 51 percent of project costs to be provided by sources of funding other than WIFIA, 3908(b)(10) serves to limit the size of the loan if the borrower has completed a substantial portion of the overall project. In this example project, the size of the loan would be limited to $90 million because the $110 million of costs incurred prior to receipt of assistance must be credited to the 51 percent category of costs to be provided by non-WIFIA sources of funding, leaving only $90 million to be funded by WIFIA.
Costs and in-kind contributions must be directly related to the development or execution of the project including, for example, preliminary design, right-of-way acquisition, National Environmental Policy Act (NEPA) compliance related costs, and construction related costs. The WIFIA program retains the right to ask for appropriate documentation as evidence of such costs and in-kind contributions for sizing of the WIFIA loan and, in the
In addition, 40 CFR 35.10010(c) is amended by removing “[i]n addition, applicants shall not include application charges or any other expenses associated with the application process (such as charges associated with obtaining the required preliminary rating opinion letter) among the eligible project costs.” This sentence is redundant because 40 CFR 35.10005 provides a definition of eligible project costs from which the determination of eligibility of a cost can be determined. It causes confusion because it implies that fees charged by the WIFIA program cannot be included as an eligible project cost even though they are specifically allowed to be financed as part of a WIFIA loan by statute at 33 U.S.C. 3908(b)(7)(B). Furthermore, EPA has determined that the cost of obtaining rating opinion letters is eligible under 33 U.S.C. 3906(4) which states that “capitalized interest necessary to meet market requirements, reasonably required reserve funds, capital issuance expenses, and other carrying costs during construction” are eligible costs.
This interim final rule is issued under the authority of 33 U.S.C. 3908(b)(10) and 3911.
This action is not a significant regulatory action.
This rule is not an E.O. 13771 regulatory action because this rule is not significant under E.O. 12866.
This action does not impose an information collection burden under the PRA because this rule merely establishes the process for, and conditions under which, a recipient of WIFIA credit assistance can include costs incurred, and the value of integral in-kind contributions made, before receipt of assistance in the calculation of total eligible costs, and can be reimbursed for certain of those costs by WIFIA loan proceeds.
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden or otherwise has a positive economic effect on the small entities subject to the rule. With this interim final rule, the EPA is amending the WIFIA regulations to clarify the process for, and conditions under which, a recipient of WIFIA credit assistance can include costs incurred, and the value of integral in-kind contributions made, before receipt of assistance in the calculation of total eligible costs, and can be reimbursed for certain of those costs by WIFIA loan proceeds. This interim final rule does not impose costs on small entities applying for a WIFIA loan. I have therefore concluded that this action will have no net regulatory burden for all directly regulated small entities.
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. The action imposes no enforceable duty on any state, local, or tribal governments or the private sector.
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.
This action does not have tribal implications as specified in Executive Order 13175. While a tribal government, or a consortium of tribal governments may apply for WIFIA credit assistance, this action does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because environmental health or safety risks are not addressed by this action.
This action is not a “significant energy action” because it is not likely to have a significant adverse effect on the supply, distribution or use of energy. This rulemaking simply establishes the process for, and conditions under which, a recipient of WIFIA credit assistance can include costs incurred, and the value of integral in-kind contributions made, before receipt of assistance in the calculation of total eligible costs, and can be reimbursed for certain of those costs by WIFIA loan proceeds.
This rulemaking does not involve technical standards.
This action is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994) because it does not establish an environmental health or safety standard.
Each project obtaining assistance under this program is required to adhere to the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321-4370). This rulemaking simply establishes the process for, and conditions under which, a recipient of WIFIA credit assistance can include costs incurred, and the value of integral in-kind contributions made, before receipt of assistance in the calculation of total eligible costs, and can be reimbursed for certain of those costs by WIFIA loan proceeds; therefore, by itself, this rulemaking will not have any effect on the quality of the environment.
Environmental protection, Reporting and recordkeeping requirements, and Water finance.
For the reasons set forth in the preamble, 40 CFR part 35 is amended as follows:
42 U.S.C. 7401
(c) Costs incurred, and the value of any integral in-kind contributions made, before receipt of credit assistance may be considered in calculating eligible project costs only upon approval of the Administrator. Such costs and integral in-kind contributions must be directly related to the development or execution of the project and must be eligible project costs as defined in § 35.10005. In addition, such costs, excluding the value of any integral in-kind contributions, are payable from the proceeds of the WIFIA credit instrument and shall be considered incurred costs for purposes of paragraph (f) of this section. Capitalized interest on the WIFIA credit instrument is not eligible for calculating eligible project costs.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is taking final action to fully approve the State Implementation Plan (SIP) revision submitted by the State of Montana on October 14, 2016. Montana's October 14, 2016 submittal revises their prevention of significant deterioration (PSD) regulations. This action is being taken under section 110 of the Clean Air Act (CAA) (Act).
This final rule is effective on July 26, 2018.
The EPA has established a docket for this action under Docket ID No. EPA-R08-OAR-2018-0136. All documents in the docket are listed on the
Kevin Leone, Air Program, U.S. Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6227,
The EPA is taking final action to approve a revision to Montana's PSD regulations as submitted by the State of Montana on October 14, 2016. We are taking final action to approve the following revision to Administrative Rules of Montana (ARM) 17.8.818(7)(a)(iii): Removing the phrase “averaged over a 24-hour period.”
We provided a detailed background in our proposed rulemaking, published on April 27, 2018. See 83 FR 18494. We invited comment on all aspects of our proposal and provided a 30-day comment period. The comment period ended on May 29, 2018.
In this action, we are responding to the comments we received and taking final rulemaking action on the State's October 14, 2016 submittal.
We received two comments during the public comment period. After reviewing the comments, the EPA has determined that the comments are outside the scope of our proposed action or fail to identify any material issue necessitating a response.
We are taking final action to approve changes to Montana's SIP—in particular the revisions to ARM 17.8.818(7)(a)(iii), which removes the phrase “averaged over a 24-hour period”—as submitted on October 14, 2016. We are taking final action to approve this change, as it is consistent with the CAA and the EPA regulations as follows:
1. CAA section 110(a)(2)(C), which requires each state plan to include “a program to provide for . . . the regulation of the modification and construction of any stationary source within the areas covered by the plan as necessary to assure that [the NAAQS] are achieved, including a permit program as required in parts C and D of this subchapter”;
2. CAA section 110(a)(2)(A), requires that SIPs contain enforceable emissions limitations and other control measures. Under section CAA section 110(a)(2), the enforceability requirement in section 110(a)(2)(A) applies to all plans submitted by a state. Montana's regulations in ARM 17.8 create enforceable obligations for sources;
3. CAA section 110(i) (with certain limited exceptions) prohibits states from modifying SIP requirements for stationary sources except through the SIP revision process. As described in our proposed rulemaking, Montana fulfilled this requirement;
4. CAA section 110(l), provides that the EPA cannot approve a SIP revision that interferes with any applicable requirement of the Act. The revisions to ARM 17.8.818 would not interfere with sections 110(a)(2) and 110(i) of the Act, as they are in compliance with current federal regulations;
5. CAA section 161, which requires a SIP to contain emission limitations to prevent significant deterioration of air quality in regions designated as attainment or unclassifiable; and
6. Montana's SIP revision complies with the requirements of 40 CFR 51.166 as the plan imposes the regulatory requirements on individual sources, as required by the regulatory provisions.
In this action, the EPA is taking final action 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 taking final action to incorporate by reference a change to the State of Montana's SIP removing “averaged over a 24-hour period” from ARM 17.8.818(7)(a)(iii). The EPA has made, and will continue to make, these materials generally available through
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provision of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state actions, provided that they meet the criteria of the CAA. Accordingly, this action merely finalizes approval of state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Is not expected to be an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866;
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and,
• Is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994) because it does not establish an environmental health or safety standard.
In addition, this final rule is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
40 CFR part 52 is amended to read as follows:
42 U.S.C. 7401
(c) * * *
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is taking final action to approve a revision to the South Carolina State Implementation Plan (SIP). The revision makes a modification to the definition of “volatile organic compounds” (VOC). EPA is approving the SIP revision submitted by the State of South Carolina, through the South Carolina Department of Health and Environmental Control (DHEC) on September 5, 2017, because the State has demonstrated that these changes are consistent with the Clean Air Act (CAA or Act).
This rule will be effective July 26, 2018.
EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2017-0557. All documents in the docket are listed on the
Richard Wong, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia 30303-8960. The telephone number is (404) 562-8726. Mr. Wong can be reached via electronic mail at
On November 29, 2004 (69 FR 69298), EPA issued a final rule revising the definition of VOC at 40 CFR 51.100(s) by adding tertiary butyl acetate (or t-Butyl acetate or TBAC) to the list of compounds that are considered to be negligibly reactive and excluded from the definition of VOC. Additionally, on February 25, 2016 (81 FR 9339), EPA issued a final rule further revising the definition of VOC at 40 CFR 51.100(s) by removing the recordkeeping, emissions reporting, photochemical dispersion modeling, and inventory requirements for t-Butyl acetate. EPA removed these requirements in part because there was no evidence that TBAC was being used at levels that cause concern for ozone formation and because the data that had been collected under these requirements had proven to be of limited utility in judging the cumulative impacts of exempted compounds.
On February 15, 2018 (83 FR 6822), EPA published a notice of proposed rulemaking (NPRM) for changes to the South Carolina SIP, submitted by the South Carolina DHEC on September 5, 2017. The submission revises South Carolina Regulation 61-62.1—
With regard to health risks, EPA acknowledges the comment regarding the health effects associated with TBAC and is continuing to take steps to assess potential risks associated with this compound. In the 2016 EPA rule, EPA discussed the efforts surrounding any future determinations about the health risks associated with TBAC, including noting that data collected through the recordkeeping and reporting requirements did not appear relevant to any such future determinations and that EPA was assessing the health risks from TBAC through its Integrated Risk Information System. This effort is ongoing, and we refer the Commenter to EPA's previous 2016 rulemaking (81 FR 9339, 9341) for more information regarding health risks.
In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of South Carolina Regulation 61-62.1, Section I—“Definitions,” effective August 25, 2017, which revises definitions applicable to the SIP. EPA has made, and will continue to make, these materials generally available through
For the reasons discussed above, EPA is approving the aforementioned change to the South Carolina SIP, submitted on September 5, 2017, because it is consistent with the CAA and federal regulations.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations.
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this final action for the State of South Carolina does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because it does not have substantial direct effects on an Indian Tribe. The Catawba Indian Nation Reservation is located within the boundary of York County, South Carolina. Pursuant to the Catawba Indian Claims Settlement Act, S.C. Code Ann. 27-16-120, “all state and local environmental laws and regulations apply to the [Catawba Indian Nation] and Reservation and are fully enforceable by all relevant state and local agencies and authorities.” EPA notes this action will not impose substantial direct costs on Tribal governments or preempt Tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 27, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(c) * * *
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is taking final action to approve State Implementation Plan (SIP) revisions submitted by the State of South Dakota on October 4, 2017 related to South Dakota's Air Pollution Control Program. The October 4, 2017 submittal revises certain definitions and dates of incorporation by reference and contains new, amended and renumbered rules. In this rulemaking, we are taking final action on all portions of the October 4, 2017 submittal, except for those portions of the submittal which do not belong in the SIP. This action is being taken under section 110 of the Clean Air Act (CAA).
This final rule is effective on July 26, 2018.
The EPA has established a docket for this action under Docket ID No. EPA-R08-OAR-2018-0148. All documents in the docket are listed on the
Kevin Leone, Air Program, U.S. Environmental Protection Agency, Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6227,
The EPA is taking final action to approve all revisions as submitted by the State of South Dakota on October 4, 2017, with the exception of the revisions that we are not acting on, as outlined in section II.A. of our proposed rulemaking published on April 27, 2018 (83 FR 18496).
We provided a detailed explanation of the bases for our proposed approval in our April 27, 2018 rulemaking, which will not be restated here. See 83 FR 18496. We invited comment on all aspects of our proposal and provided a 30-day comment period. The comment period ended on May 29, 2018.
In this action, we are responding to the comments we received and taking final rulemaking action on the rules from the State's October 4, 2017, submittal.
The changes we are taking final action to approve are consistent with the CAA and EPA regulations. Specifically:
1. CAA section 110(a)(2)(C), requires each state plan to include “a program to provide for . . . the regulation of the modification and construction of any stationary source within the areas covered by the plan as necessary to assure that the [NAAQS] are achieved, including a permit program as required in parts C and D of this subchapter.”
2. CAA section 110(a)(2)(A), requires that SIPs contain enforceable emissions limitations and other control measures. Under section CAA section 110(a)(2), the enforceability requirement in section 110(a)(2)(A) applies to all plans submitted by a state. Chapter 6, Section 13 creates enforceable obligations for sources by removing phrases such as “the plan shall provide” and “the plan may provide.”
In addition, the CAA (section 110(a)(2)(C)) and 40 CFR 51.160 requires states to have legally enforceable procedures to prevent construction or modification of a source if it would violate any SIP control strategies or interfere with attainment or maintenance of the National Ambient Air Quality Standards (NAAQS). Such minor NSR programs are for pollutants from stationary sources that do not require Prevention of Significant Deterioration (PSD) or nonattainment new source review (NNSR) permits. States may customize the requirements of the minor NSR program as long as their program meets minimum requirements.
Section 110(l) of the CAA states: “[e]ach revision to an implementation plan submitted by a State under this Act shall be adopted by such State after reasonable notice and public hearing. The Administrator shall not approve a revision to a plan if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in section 171), or any other applicable requirement of this chapter.” South Dakota's new revisions to ARSD 74:36 will not interfere with attainment, reasonable further progress (RFP), or
We received three comments during the public comment period. The comments were not related to the EPA's proposed rulemaking for South Dakota's permitting program changes which was published on April 27, 2018. As such, we are not providing a response to the comments.
As outlined in our proposed rulemaking, the EPA finds that the addition of new, revised and removed rules to ARSD 74:36 will not interfere with attainment or maintenance of any of the NAAQS in the State of South Dakota and would not interfere with any other applicable requirement of the Act or the EPA regulations; and thus, are approvable under CAA section 110(l). Therefore, we are taking final action to approve South Dakota's revisions as submitted on October 4, 2017.
Specifically, we are taking final action to approve the following revisions:
In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the State of South Dakota's revisions to its state implementation plan as described in section IV. of this preamble. The EPA has made, and will continue to make, these materials generally available through
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state actions, provided that they meet the criteria of the CAA. Accordingly, this action merely approves some state law provisions as meeting federal requirements; this action does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP does not apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 27, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See CAA section 307(b)(2).)
Environmental protection, Air pollution control, Incorporation by
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(c) * * *
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes tolerances for residues of fluroxypyr in or on teff forage, teff grain, teff hay, and teff straw. Interregional Research Project Number 4 (IR-4) requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).
This regulation is effective June 26, 2018. Objections and requests for hearings must be received on or before August 27, 2018, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2017-0225, is available at
Michael Goodis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2017-0225 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before August 27, 2018. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2017-0225, by one of the following methods:
•
•
•
In the
Based upon review of the data supporting the petition, EPA has changed the numerical expression of the proposed tolerance values in order to conform to current Agency policy on significant figures.
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . . .”
Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for fluroxypyr including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with fluroxypyr follows.
EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.
The active ingredient used in formulating end-use herbicide products is fluroxypyr 1-methylheptyl ester. However, since the ester form has been shown to rapidly hydrolyze to the acid form, the residues of fluroxypyr 1-methylheptyl ester along with its fluroxypyr acid metabolite (free and conjugated), are collectively expressed as “fluroxypyr” and are therefore regulated together for tolerance enforcement. In terms of toxicity, the ester and acid forms are considered the same.
Fluroxypyr has low acute toxicity by the oral and dermal routes of exposure and moderate to mild acute toxicity by the inhalation route of exposure, based on lethality studies. Fluroxypyr is not a dermal sensitizer, nor is it irritating to the skin; however, it is a mild eye irritant.
The kidney is the target organ for fluroxypyr following oral exposure to rats, mice, and dogs. In the rat, increased kidney weight, nephrotoxicity, and death were observed in both sexes in the 90-day feeding study, and increased kidney weight and microscopic kidney lesions were observed in both sexes in the chronic study. Increased kidney weight was also observed in maternal rats in the developmental toxicity study, and kidney effects (deaths due to renal failure; increased kidney weight, and microscopic kidney lesions) were observed in both sexes in the 2-generation reproduction study in rats. Although microscopic kidney lesions were observed in dogs in the 28-day feeding study, no kidney effects or other treatment related toxicity were seen in the chronic feeding study in dogs at the same doses used in the 28-day study. Microscopic kidney lesions were observed in mice following long-term exposure.
There was no evidence of increased susceptibility (quantitative/qualitative) following in utero exposure in rats and rabbits, or following pre and/or postnatal exposure in rats. Neither developmental toxicity nor reproductive toxicity was observed in rats. In rabbits, developmental toxicity was not observed following exposure to dose levels that resulted in maternal death; however, abortions were observed in rabbits following exposure to fluroxypyr at the limit dose. There was no evidence of neurotoxicity or neuropathology in any of the studies. An immunotoxicity study in rats found no indication of immunotoxicity. Fluroxypyr is classified “not likely to be carcinogenic to humans” due to lack of evidence to suggest carcinogenicity in the database, and there is no concern for its mutagenicity potential.
Specific information on the studies received and the nature of the adverse effects caused by fluroxypyr as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at
Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe
A summary of the toxicological endpoints for fluroxypyr used for human risk assessment is discussed in Unit III.B. of the final rule published in the
1.
i.
ii.
iii.
iv.
2.
Based on the Tier 1 Rice Model and Screening Concentration in Ground Water (SCI-GROW) models, the estimated drinking water concentrations (EDWCs) of fluroxypyr for chronic exposures are estimated to be 540 parts per billion (ppb) for surface water and 0.055 ppb for ground water.
Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For the chronic dietary risk assessment, the water concentration value of 540 ppb was used to assess the contribution to drinking water.
3.
Fluroxypyr is currently registered for the following uses that could result in residential exposures: Residential turfgrass, golf courses, parks and sports fields. Residential handler exposure was not assessed because all the labels require the use of personal-protective equipment (PPE) and are not intended for application by homeowners.
For post-application exposure, although adults and children performing physical activities on treated turf (
Young children 1 to <2 years old may receive incidental oral post-application exposure to fluroxypyr from treated turf. The post-application exposures for children playing on treated turf resulting in incidental oral exposure as a result of mouthing behaviors were assessed.
Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at
4.
EPA has not found fluroxypyr to share a common mechanism of toxicity with any other substances, and fluroxypyr does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that fluroxypyr does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at
1.
2.
Fluroxypyr is neither a developmental nor a reproductive toxicant in rats. Fluroxypyr has been evaluated for potential developmental effects in the
3.
i. The toxicity database for fluroxypyr is complete.
ii. There is no indication that fluroxypyr is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.
iii. There is no evidence that fluroxypyr results in increased susceptibility in in utero rats or rabbits in the prenatal developmental studies or in young rats in the 2-generation reproduction study.
iv. There are no residual uncertainties identified in the exposure databases. The chronic dietary food exposure assessment utilizes tolerance-level residue estimates and assumes 100 PCT for all commodities. This assessment will not underestimate exposure/risk. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to fluroxypyr in drinking water. EPA used similarly conservative assumptions to assess post-application exposure of children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by fluroxypyr.
EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.
1.
2.
3.
Fluroxypyr is currently registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to fluroxypyr.
Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in an aggregate MOE of 2,500 for children 1-2 years old. Because EPA's level of concern for fluroxypyr is a MOE of 100 or below, this MOE is not of concern.
4.
An intermediate-term adverse effect was identified; however, fluroxypyr is not registered for any use patterns that would result in intermediate-term residential exposure. Intermediate-term risk is assessed based on intermediate-term residential exposure plus chronic dietary exposure. Because there is no intermediate-term residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the POD used to assess intermediate-term risk), no further assessment of intermediate-term risk is necessary, and EPA relies on the chronic dietary risk assessment for evaluating intermediate-term risk for fluroxypyr.
5.
6.
Adequate GC/ECD (gas chromatography/electron-capture detection) analytical methods are available to enforce the proposed plant tolerances. The available methods for plant commodities involve extraction of fluroxypyr residues with acetone, partitioning with hexane, purification using a florisil column, and analysis of residues by GC/ECD. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address:
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.
The Codex has not established a MRL for fluroxypyr on teff.
Therefore, tolerances are established for the combined residues of fluroxypyr 1-methylheptyl ester [1-methylheptyl ((4-amino-3,5-dichloro-6-fluoro-2-pyridinyl)oxy)acetate] and its metabolite fluroxypyr [((4-amino-3,5-dichloro-6-fluoro-2-pyridinyl)oxy)acetic acid] in or on teff, forage at 12 ppm; teff, grain at 0.50 ppm; teff, hay at 20 ppm; and teff, straw at 12 ppm.
This action establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
(a) * * *
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is taking direct final action to withdraw from EPA regulation and management one designated ocean dredged material disposal site, the Grays Harbor Eight Mile Site, located near the mouth of Grays Harbor, Washington. This action is pursuant to the Marine Protection, Research, and Sanctuaries Act, as amended. The disposal site was designated by the EPA for a specific one-time use in 1990. The Grays Harbor Eight Mile Site fulfilled its intended purpose in 1990 as a single-use disposal site, and monitoring indicates that there will be no unacceptable adverse impacts to the marine environment once the EPA relinquishes management of the site. Five other open-water dredged material disposal sites remain in close proximity to the mouth of Grays Harbor. These sites remain available for use for the disposal of suitable dredged material and are not affected by this withdrawal.
This rule is effective on September 24, 2018 without further notice, unless the EPA receives adverse comment by July 26, 2018. If the EPA receives adverse comment, the Agency will publish a timely withdrawal in the
Submit your comments, identified by Docket ID No. [EPA-R10-OW-2018-0284; FRL-9979-31—Region 10], at
Bridgette Lohrman, Office of Environmental Review and Assessment, U.S. Environmental Protection Agency, Region 10, Oregon Operations Office, 805 SW Broadway, Suite 500, Portland, OR 97205; (503) 326-4006,
The EPA is publishing this rule without a prior proposed rule because we view this as a noncontroversial action and anticipate no adverse comment. In 1990, the EPA designated the Grays Harbor Eight Mile Site for the single purpose of serving as an ocean dredged material disposal site (ODMDS) for dredged material from the deepening of the Grays Harbor Federal Navigation Channel by the United States Army Corps of Engineers, Seattle District (USACE). The disposal site served this purpose in 1990, and the EPA is now taking the administrative action of withdrawing the site from regulation and relinquishing future management of the site. The site has not been used for disposal of dredged material since 1990 because such an action would require the EPA to re-designate the disposal site for a changed purpose. The EPA has not received any requests from the dredging community to use this site since 1990. Five other open-water dredged material disposal/placement sites remain in close proximity to the mouth of Grays Harbor. These five sites remain available for use, and are not affected by this withdrawal. The ability of the USACE, the Port of Grays Harbor, and other interested parties to find suitable dredged material disposal options will not be changed by this action. Post-disposal monitoring at the Grays Harbor Eight Mile Site shows that the site does not have now and will not have unacceptable adverse effects on the marine environment into the future.
In 1990, the EPA designated the Grays Harbor Eight Mile Site to be used for a single purpose, to receive dredged material from the deepening of the Grays Harbor Federal Navigation Channel in 1990. The site has served its intended purpose and has not been available for use since 1990. If an interested party wanted to use the Grays Harbor Eight Mile Site for the ocean disposal of dredged material, the EPA would need to administratively withdraw the site, designate the site with the new purpose, and provide for public comment. Thus, the current action to remove this ODMDS from EPA regulation and management does not affect any person seeking an open-water location to dispose of suitable dredged material. In addition, post-disposal monitoring at the Grays Harbor Eight Mile Site, conducted by the EPA and the USACE, demonstrates that the monitoring requirements set forth in the Site Management and Monitoring Plan (SMMP) of 1990 have been met, and that the EPA relinquishing management of the site will not cause an unacceptable adverse impact to the marine environment. For any questions regarding the applicability of this action to a particular person or entity, please refer to the contact person listed in the preceding
EPA Region 10 designated both the Grays Harbor Eight Mile Site and the Southwest Navigation, or 3.9-Mile Site, on July 5, 1990, for the disposal of dredged material removed during the deepening of the Grays Harbor Federal Navigation Channel by the USACE in Grays Harbor, Washington. While the Southwest Navigation Site was designated for indefinite use, the Grays Harbor Eight Mile Site was designated for the single purpose of accommodating materials from the Federal navigation channel project, which was expected to occur over a two-to-three-year period beginning in 1990. The USACE disposed of 2.8 million cubic yards of dredged material at the Grays Harbor Eight Mile Site in 1990, and the site has not been used for the ocean disposal of dredged material since that time.
The Grays Harbor Eight Mile Site is approximately 7.1 nautical miles (8 statute miles) offshore and west/northwest of the entrance to Grays Harbor (Figure 1). The Site is circular, with a radius of 0.40 nautical miles on a central coordinate of 46°57′ N and 124°20.06′ W. The site covers an area of approximately 0.5 square nautical miles. Water depths at the Grays Harbor Eight Mile Site range from 140 to 160 feet. The disposal site is characterized as being located on offshore relict gravel deposits, which contain no significant benthic fish or invertebrate communities.
In the final rule (55 FR 27634, July 5, 1990) designating the Grays Harbor Eight Mile Site, the EPA stated: “EPA intends to de-designate the site after dumping at the site has been completed and monitoring indicates that the material has stabilized.” This action stated that de-designation would occur within the five years following completion of disposal and monitoring activities. The USACE conducted two post-disposal surveys of the ODMDS in 1991 and 1992 in accordance with the SMMP of 1990. The results of those two surveys did not satisfy all requirements of the SMMP. Additionally, the chemical analysis of the sediments at the disposal site at that time provided conclusive data documenting the presence of dioxins/furans and other contaminants at the Grays Harbor Eight Mile Site. Dioxin concentrations at the disposal site ranged from 0.49 to 1.88 [parts per trillion (pptr) dry weight TEQ (toxicity equivalent)]. These concentrations were not considered a risk to the marine environment at that time, and as a point of comparison, are well below the current marine screening level of 4 pptr dry weight TEQ, used for screening the suitability of open-water disposal of dredged material in Puget Sound today. The remote sensing data were inconclusive about the disposal mound height and areal extent. These two parameters were identified in the Grays Harbor Eight Mile Site designation documents and SMMP as indicators of stabilization. The EPA determined that additional data were warranted to assess whether the disposed material from the Grays Harbor Navigation Channel Deepening Project had stabilized.
The EPA conducted a survey of the Grays Harbor Eight Mile Site on July 19, 2016 to assess the physical attributes of the site in preparation for formal withdrawal of the disposal site from EPA regulation and management. The main objective of the survey was to conduct a high-resolution multi-beam echo sounder survey to assess the bathymetry and surficial geology within and around the disposal site. The survey focused on characterizing sediments in and around the Grays Harbor Eight Mile Site to determine whether dredged material had spread beyond the site boundaries or created a mound that could impact navigation. The survey area was rectangular, containing the ODMDS and a 500-foot buffer area.
The 2016 survey revealed a disposal mound, ranging 1 to 7 feet above ambient seafloor elevations, within the ODMDS. This mound confirmed that dredged material was disposed within the ODMDS boundaries in 1990. The survey also revealed the appearance of dredged material slightly outside the northeast portion of the ODMDS. This is likely the result of movement of sediment by near-bottom currents on the seafloor after disposal was completed. The Grays Harbor Eight Mile SMMP predicted a mound on the seafloor of 10 to 15 feet from the disposal. Since the observed mound was only 1 to 7 feet high, it is likely that the seafloor currents have suspended the disposed material and redeposited it, either off the center of the mound or beyond the boundaries of the ODMDS, over time. This redistribution of disposed material from the original mound has not caused mounding of significance beyond the disposal site boundaries, based on the bathymetric survey results.
The seafloor substrate within the Grays Harbor Eight Mile Site is a mix of unconsolidated to consolidated sediments, likely ranging from mud and silts to coarse sand. The 2016 bathymetric survey indicated that the disposal mound within the ODMDS consists of softer, probably fine-grained sediments. At the peak of this mound, the sediments appear to be coarser, which may be an indication of seafloor scour or fine-grained material not settling on the seafloor but rather staying re-suspended in the water column. The grain size within the
This action is an administrative procedure to formally remove the Grays Harbor Eight Mile Site from regulation (40 CFR 228) and EPA management. The EPA will continue to manage the Grays Harbor Southwest Navigation Site, located 3.9 nautical miles from the mouth of Grays Harbor. The Grays Harbor Eight Mile Site that will be removed from regulation and EPA management is a circle with radius 0.40 statute miles, centered at: 46°57′ N, 124°20.06′ W, based upon the North American Datum of 1927.
Section 102 of the National Environmental Policy Act of 1969, as amended (NEPA), 42 U.S.C. 4321 to 4370f, requires Federal agencies to prepare an Environmental Impact Statement for major federal actions significantly affecting the quality of the human environment. NEPA does not apply to this action because the courts have exempted the EPA's actions under the MPRSA from the procedural requirements of NEPA through the functional equivalence doctrine. The EPA has, by policy, determined that where the preparation of NEPA documents for certain EPA regulatory actions, including action under the MPRSA, is appropriate, the EPA will prepare an environmental review document. The EPA's “Notice of Policy and Procedures for Voluntary Preparation of NEPA Documents” (63 FR 58045, October 29, 1998), sets out both the policy and procedures the EPA uses when preparing such environmental review documents. The EPA has determined that no environmental review document is necessary for withdrawal of the Grays Harbor Eight Mile Site.
The EPA has found no evidence that the disposal of dredged material has affected the physical, chemical, or biological attributes of the Site which would impact Essential Fish Habitat (EFH) under Section 305(b) of the Magnuson-Stevens Act, as amended (MSA), 16 U.S.C. 1855(b)(2), nor affect marine mammals protected under the Marine Mammal Protection Act of 1972, as amended (MMPA), 16 U.S.C. 1361 to 1389.
The Coastal Zone Management Act, as amended (CZMA), 16 U.S.C. 1451 to 1465, requires Federal agencies to determine whether their actions will be consistent to the maximum extent practicable with the enforceable policies of approved state programs. The EPA's withdrawal of the Grays Harbor Eight Mile Site from regulation will have no effect on the State of Washington's coastal zone because the disposal site is approximately four nautical miles seaward of the State's territorial sea and the EPA found no evidence that the disposal of dredged material has impacted the biological community, navigation safety, or ocean use inside or outside the disposal site.
The Endangered Species Act, as amended (ESA), 16 U.S.C. 1531 to 1544, requires Federal agencies to consult with the National Marine Fisheries Service and the U.S. Fish and Wildlife Service to ensure that any action authorized, funded, or carried out by the Federal agency is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of any critical habitat. The withdrawal from regulation of the Grays Harbor Eight Mile Site will have no effect on listed or threatened species or on any critical habitat. The post-disposal monitoring conducted by EPA and the USACE indicates that the site will have no physical, chemical, or biological impacts to benthic marine species.
The National Historic Preservation Act, as amended (NHPA), 16 U.S.C. 470 to 470a-2, requires Federal agencies to take into account the effect of their actions on districts, sites, buildings, structures, or objects, included in, or eligible for inclusion in the National Register. This site withdrawal will not affect any historic properties. The withdrawal of the Grays Harbor Eight Mile Site from EPA regulation means that management of the site by the EPA will be relinquished.
This rule withdraws one designated ocean dredged material disposal site pursuant to Section 102 of the MPRSA and 40 CFR 228.11. This action complies with applicable executive orders and statutory provisions as follows:
This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).
This action does not impose an information collection burden under the Paperwork Reduction Act (PRA). The EPA does not reasonably anticipate collection of information from ten or more people based on the lack of use of the site since 1990. Consequently, the direct final action is not subject to the PRA.
This action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (RFA). This action will not impose any requirements on small entities. The RFA, as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA), 5 U.S.C. 601
This action does not contain any unfunded mandate as described in the Unfunded Mandates Reform Act (UMRA), 2 U.S.C. 1531-1538, and does not significantly affect small governments. The action imposes no new enforceable duty on any state, local or tribal governments or the private sector.
This action does not have federalism implications. It does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among various levels of government.
This action does not have tribal implications as specified in Executive Order 13175, because the withdrawal from EPA regulation of the Grays Harbor Eight Mile Site will not have a direct effect on 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. Although Executive Order 13175 does not apply to this action, the EPA consulted with tribal officials in the development of this action, particularly as it relates to potential impacts to tribal trust resources and tribal operations within the Quinault Indian Nation's Usual and Accustomed Area. The Quinault Indian Nation responded to EPA's request for Tribal Consultation on April 5, 2018, stating this action does not require government-to-government consultation.
This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. This action's health and risk assessments are contained in Section 3. Background, a. History of Disposal Sites near Grays Harbor, Washington.
This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.
This rulemaking does not involve technical standards.
The EPA believes that this action 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 5. Statutory and Executive Order Reviews, f.
This action is subject to the Congressional Review Act (CRA), and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).
Environmental protection, Water pollution control.
This action is issued under the authority of Section 102 of the Marine Protection, Research and Sanctuaries Act, as amended, 33 U.S.C. 1401, 1411, 1412.
For the reasons set out in the preamble, the EPA amends title 40, chapter I, subchapter H of the Code of Federal Regulations as follows:
33 U.S.C. 1412 and 1418.
Federal Communications Commission.
Final rule; announcement of effective date.
In this document, the Federal Communications Commission (Commission) announces that the Office of Management and Budget (OMB) has approved, for a period of three years, the information collection associated with the Commission's Service Rules Governing Narrowband Operations in the 769-775/799-805 MHz Bands Order on Reconsideration (
The amendments to 47 CFR 2.1033(c)(20) and 90.548(c) published at 81 FR 66830, September 29, 2016, are effective July 26, 2018.
John Evanoff, Policy and Licensing Division, Public Safety and Homeland Bureau, at (202) 418-0848, or email:
This document announces that, on March 13, 2017, OMB approved, for a period of three years, the information collection requirements relating to the 700 MHz interoperability testing rules contained in the Commission's
To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to
As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received final OMB approval on March 13, 2017, for the information collection requirements contained in the modifications to the Commission's rules in 47 CFR parts 2 and 90.
Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.
No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Number is 3060-0057.
The foregoing notice is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, and 44 U.S.C. 3507.
The total annual reporting burdens and costs for the respondents are as follows:
In general, an applicant's submission is as follows: (a) FCC Form 731 includes approximately two pages covering the demographic and equipment identification information; and (b) applicants must supply additional documentation and other information, as described above, demonstrating conformance with FCC Rules, which may range from 100-1,000 pages. The supplemental information is essential to control potential interference to radio communications, which the FCC may use, as is necessary, to investigate complaints of harmful interference. In response to new technologies and in allocating spectrum, the Commission may establish new technical operating standards: (a) RF equipment manufacturers must meet the new standards to receive an equipment authorization, and (b) RF equipment manufacturers must still comply with the Commission's requirements in FCC Form 731 and demonstrate compliance as required by 47 CFR part 2 of FCC Rules. Thus, this information collection applies to a variety of RF equipment: (a) That is currently manufactured, (b) that may be manufactured in the future, and
On August, 26, 2016, the Federal Communications Commission released an Order on Reconsideration, FCC 16-111, PS Docket No. 13-87 that modified Part 2 and Part 90 of the Rules for equipment approval and Private Land Mobile Radio Services. The amended rule requires all Wireless Communications Equipment Manufacturers who manufacture 700 MHz narrowband equipment capable of operating on the interoperability channels to demonstrate compliance with the Commission's Interoperability Technical Standards in 90.548. The
The Commission also modified Section 90.548(c) of the Commission's rules to provide that transceivers capable of operating on the interoperability channels listed in 47 CFR 90.531(b)(1) shall not be marketed or sold until the transceiver has previously been certified for interoperability by the Compliance Assessment Program (CAP) administered by the U.S. Department of Homeland Security; provided, however, that this requirement is suspended if the CAP is discontinued. Submission of a 700 MHz narrowband radio for certification will constitute a representation by the manufacturer that the radio will be shown, by testing, to be interoperable across vendors before it is marketed or sold. In the alternative, manufacturers may employ their own protocol for verifying compliance with Project 25 standards and determining that their product is interoperable among vendors. In the event that field experience reveals that a transceiver is not interoperable, the Commission may require the manufacturer thereof to provide evidence of compliance with 47 CFR 90.548.
To effectively implement the provisions of the new Rules, no modifications to the existing FCC Form 731 Application for Equipment Authorization are required. The changes are intended to simplify the filing process, ensure equipment complies with Project 25 standards and is interoperable across vendors. The following specific methods are proposed to ensure compliance with Section 90.548 and simplify filing processes for equipment manufacturers:
(1) The
(2) In the event that field experience reveals that a transceiver is not interoperable, the Commission may require the manufacturer thereof to provide evidence of compliance with § 90.548.
Federal Highway Administration (FHWA), U.S. Department of Transportation (DOT).
Advance notice of proposed rulemaking (ANPRM).
The FHWA has announced that the Indefinite Delivery and Indefinite Quantity (ID/IQ) method of contracting, including job order contracts, for low-cost construction contracts will be allowed, without FHWA approval, under certain circumstances. This advance notice of proposed rulemaking seeks comment on how FHWA may further expand this contracting method on a permanent basis.
Comments must be received on or before August 27, 2018. Late comments will be considered to the extent practicable.
You may submit comments, identified by the document number at the top of this document, by any of the following methods:
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For questions about this ANPRM, please contact Mr. John Huyer, FHWA Office of Program Administration, (651) 291-6111, or via email at
On May 2, 2018,
The ID/IQ contracts are a method of contracting that allows an indefinite quantity of services for a fixed time. They are used in the Federal Government when agencies cannot determine, above a specified minimum, the precise quantities of supplies or services that the Government will require during the contract period. For construction ID/IQ contracts, contractors bid unit prices for estimated quantities of standard work items, and task orders are used to define the location and quantities for specific work. The ID/IQ contracts may be awarded to the lowest responsive bidder based on an invitation for bids or the best-value proposer based on responses to Requests for Proposals. Contracting agencies use other names for these types of contracts, including on-call contracts, area-wide contracts, continuing contracts, push-button contracts, and task order contracts. Job Order Contracts (JOCs) are a form of ID/IQ contracts that utilize a construction task catalogue with pre-priced work item descriptions and where contractors bid “mark-up rates.” The contract is awarded to the lowest responsive bidder determined by their rates.
Although ID/IQ contracts have been specifically authorized in the Federal procurement process (48 CFR 16.5) and for the contracting of architecture and engineering (A/E) services in the Federal-aid highway program (FAHP) (23 CFR part 172), the FAHP authorization and procurement laws for construction do not address the possible use of ID/IQ contracts. The FAHP construction procurement statute, 23 U.S.C. 112(b)(1), requires contracts to be awarded by a competitive bidding process to the lowest responsive bidder (traditional design-bid-build project delivery method based upon the premise of a 100 percent-complete design and a well-defined scope of work). The ID/IQ contracts are awarded based upon a general, but not completely defined, scope of work for a geographic area and limited time period (but not specific locations, designs, or quantities) and are often awarded based upon specific evaluation criteria.
The FHWA has used its authority in 23 U.S.C. 502(b)(1) to test the use of ID/IQ contracts for the construction of FAHP projects through the SEP-14 Program for innovative contracting techniques. Under the SEP-14 Program, contracting agencies interested in testing an innovative contracting technique submit project-specific (or programmatic) work plans to FHWA for
From 2007 to the present, FHWA, State departments of transportation (State DOTs), and Local Public Agencies (LPAs) through the State DOTs have experimented with the use of ID/IQ contracts and JOCs for construction. The FHWA has approved the use of this contracting method under SEP-14 for 16 different State DOTs and 6 LPAs. Evaluation reports indicate that JOCs and ID/IQ contracts allow for cost-effective contracting for small value contracts and preventive maintenance programs. Specifically, the reports indicate that these contracts eliminate the need for contracting agencies to advertise and award numerous small contracts and provide contracting agencies with wide flexibility in programming and addressing preventive maintenance needs.
Having evaluated the use of JOCs and ID/IQ contracts for construction in the FAHP for over a decade, FHWA has now determined that they are suitable for operationalization. This is consistent with Senate report language accompanying fiscal years 2017 and 2018 appropriations to operationalize JOCs. S. Rept. No. 114-243, 43 (April 21, 2016); S. Rept. No. 115-138, 52 (July 27, 2017). The approach is also consistent with the Department of Justice's Office of Legal Counsel (OLC) opinion regarding competition and contracting requirements.
The FHWA is proceeding with two phases to operationalize ID/IQ contracts and JOCs for construction in the FAHP. The first phase is the issuance of an FHWA Notice on how FHWA will allow ID/IQ contracts and JOCs for construction without the need for project-specific work plans from contracting agencies. The FHWA published a
Amendments to the construction and approval regulations are necessary in order to allow the contracting technique on a permanent basis. To assist the Agency in this effort, FHWA seeks public comments on the following questions:
1. Would it be appropriate to allow notice and award of the base ID/IQ contract or JOC prior to approval of plans, specifications and estimates, environmental review, and right-of-way clearances, but require these prior to the issuance of individual tasks?
2. Would the allowance of time extensions be appropriate? What should be the minimum time extension length? What should be the maximum time extension length?
3. Is the $2,000,000 per year limitation appropriate? Should this figure be indexed? If so, how?
4. Should FHWA consider allowing ID/IQ contracts using best value considerations? What criteria (for example, past performance, quality, timeliness) should be considered for best value determinations?
5. Should multiple award ID/IQ contracts be allowed? If so, what conditions or criteria should be used for awarding work orders?
6. What contract term/extension limits should be allowed? Should “on-ramp” procedures be used to allow new contractors to be considered for the award pool after the initial award and “off-ramp” procedures be used to discontinue the use of contractors who are not performing satisfactorily?
7. What procedures should be in place to ensure fairness and transparency in the selection and implementation of multiple-award ID/IQ contracts?
8. What change conditions clause would be appropriate for ID/IQ contracts and JOCs? What would be an appropriate clause for significant changes in the character of work?
9. How should the contracting agencies address the estimates required under 23 CFR 635.115? Would the estimate quantities be the minimum value provided under the contract, the estimate for the base contract, or the estimated maximum value under the contract including contract extensions?
10. How would the 30 percent self-performance requirement in 23 CFR 635.116(a) apply to ID/IQ contracts and JOCs? How would it be enforced given the nature of the task orders?
11. How should authorizations to proceed with work be given for individual task orders?
12. What costs, benefits, and cost-savings would result from allowing this contracting technique on a permanent basis? Please submit data that would help FHWA quantify cost-effectiveness, as well as quantifiable cost-savings associated with advertising and awarding small contracts and increasing flexibility in programming, and any other efficiencies that may result from the operationalization of this contracting method.
13. Are there any other aspects related to the use of ID/IQ contracts or JOC for construction in the FAHP that FHWA should consider?
The FHWA will consider all responses and comments and take them into account in the development of a notice of proposed rulemaking (NPRM) on this subject.
All comments received before the close of business on the comment closing date indicated above will be considered and will be available for examination in the docket at the above address. Comments received after the comment closing date will be filed in the docket and will be considered to the extent practicable. In addition to late comments, FHWA also will continue to file relevant information in the docket as it becomes available after the comment period closing date, and interested persons should continue to examine the docket for new material. An NPRM may be published at any time after close of the comment period.
The FHWA has preliminarily determined that this action would not be a significant regulatory action within the meaning of Executive Order (E.O.)
Based upon the information received in response to this ANPRM, FHWA intends to carefully consider the costs and benefits associated with this rulemaking. Accordingly, comments, information, and data are solicited on the economic impact of any proposed recommendation.
This ANPRM is not a regulatory action under Executive Order 13771.
In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. 601-612), and based upon the information received in response to this ANPRM, FHWA will evaluate the effects of any action proposed on small entities. This action merely seeks information regarding the use of the ID/IQ method of contracting, including JOCs, for low-cost construction contracts. Therefore, FHWA is unable to certify at this time whether or not it will have a significant impact on a substantial number of small entities.
Because of the preliminary nature of this document and lack of necessary information on costs, FHWA is unable to evaluate the effects of the potential regulatory changes in regard to imposing a Federal mandate involving expenditure by State, local, and Indian Tribal governments, in the aggregate, or by the private sector, of $151.1 million or more in any one year (2 U.S.C. 1532). Nevertheless, FHWA will evaluate any regulatory action that might be proposed in subsequent stages of this rulemaking to assess the effects on State, local, and Indian Tribal governments and the private sector.
The FHWA will evaluate any rule that may be proposed in response to comments received to ensure that such action meets applicable standards in section 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
The FHWA will evaluate any rule that may be proposed in response to comments received to ensure that such action meets the requirements of E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks. The Agency does not, however, anticipate that any such rule would be economically significant or would present an environmental risk to health or safety that may disproportionately affect children.
The FHWA will evaluate any rule that may be proposed in response to comments received to ensure that any such rule will not affect a taking of private property or otherwise have taking implications under E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
The FHWA will analyze any action that might be proposed in accordance with the principles and criteria contained in E.O. 13132, and FHWA anticipates that any action contemplated will not have sufficient federalism implications to warrant the preparation of a federalism assessment. The FHWA also anticipates that any action taken will not preempt any State law or State regulation or affect the States' ability to discharge traditional State governmental functions. We encourage commenters to consider these issues.
The FHWA will analyze any proposal under E.O. 13175, dated November 6, 2000. The FHWA preliminarily believes that any proposal will not have substantial direct effects on one or more Indian Tribes, will not impose substantial direct compliance costs on Indian Tribal governments, and will not preempt Tribal law. Therefore, a Tribal summary impact statement may not be required.
Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing E.O. 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct, sponsor, or require through regulations. Any action that might be contemplated in subsequent phases of this proceeding will be analyzed for the purpose of the PRA for its impact upon information collection. The FHWA would be required to submit any proposed collections of information to OMB for review and approval at the time the NPRM is issued, and, accordingly, seeks public comments. Interested parties are invited to send comments regarding any aspect of any proposed information collection requirements, including, but not limited to: (1) Whether the collection of information would be necessary for the performance of the functions of FHWA, including whether the information would have practical utility; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the collection of information; and (4) ways to minimize the collection burden without reducing the quality of the information collected.
The FHWA will analyze any action that might be proposed for the purposes of the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321-4347) to assess whether there would be any effect on the quality of the environment.
The FHWA will analyze any proposed action under E.O. 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use, to assess whether there would be any adverse effect on the supply, distribution, or use of energy.
A regulation identification 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 April and October of each year. The RIN contained in the heading of this document can be used to cross-reference this section with the Unified Agenda.
Grant programs—transportation, Highways and roads, Reporting and recordkeeping requirements.
23 U.S.C. 112 and 502; 23 CFR 635.
Internal Revenue Service (IRS), Treasury.
Notification of a public hearing on notice of proposed rulemaking.
This document provides a notification of public hearing on proposed regulations relating to section 7602(a) of the Internal Revenue Code relating to administrative proceedings.
The public hearing is being held on Tuesday, July 31, 2018, at 10:00 a.m. The IRS must receive outlines of the topics to be discussed at the public hearing by Thursday, July 19, 2018.
The public hearing is being held in the IRS Auditorium, Internal Revenue Service Building, 1111 Constitution Avenue NW, Washington, DC 20224. Due to building security procedures, visitors must enter at the Constitution Avenue entrance. In addition, all visitors must present a valid photo identification to enter the building.
Send Submissions to CC:PA:LPD:PR (REG-132434-17), Room 5205, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered Monday through Friday to CC:PA:LPD:PR (REG-132434-17), Couriers Desk, Internal Revenue Service, 1111 Constitution Avenue NW, Washington, DC 20224 or sent electronically via the Federal eRulemaking Portal at
Concerning the proposed regulations, William V. Spatz (202) 317-5461; concerning submissions of comments, the hearing and/or to be placed on the building access list to attend the hearing Regina Johnson at (202) 317-6901 (not toll-free numbers).
The subject of the public hearing is the notice of proposed rulemaking (REG-132434-17) that was published in the
The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments at the hearing that submitted written comments by June 26, 2018, must submit an outline of the topics to be addressed and the amount of time to be devoted to each topic by Thursday, July 19, 2018.
A period of 10 minutes is allotted to each person for presenting oral comments. After the deadline for receiving outlines has passed, the IRS will prepare an agenda containing the schedule of speakers. Copies of the agenda will be made available, free of charge, at the hearing or by contacting the Publications and Regulations Branch at (202) 317-6901 (not a toll-free number).
Because of access restrictions, the IRS will not admit visitors beyond the immediate entrance area more than 30 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the
Mine Safety and Health Administration, Labor.
Request for information.
Mining safety could be substantially improved by preventing accidents that involve mobile equipment at surface coal mines and metal and nonmetal mines and belt conveyors at surface and underground mines. The Mine Safety and Health Administration (MSHA) is taking a number of actions related to mobile equipment and belt conveyors to improve miners' safety, including providing technical assistance, conducting awareness campaigns, and developing best practices and training materials. MSHA is also considering the role of engineering controls that would increase the use of seatbelts, enhance equipment operators' ability to see all areas near the machine, warn equipment operators of potential collision hazards, prevent equipment operators from driving over a highwall or dump point, and help prevent entanglement hazards related to working near moving or re-energized belt conveyors. MSHA is seeking information and data on engineering controls that could reduce the risk of accidents and improve miner safety. MSHA is also seeking suggestions from stakeholders on: Best practices, training materials, policies and procedures, innovative technologies, and any other information they may have to improve safety in and around mobile equipment, and working near and around belt conveyors.
MSHA will hold stakeholder meetings to provide the mining community an opportunity to discuss and share information about the issues raised in this notice. A separate notice announcing stakeholder meetings will be published in the
Comments must be received or postmarked by midnight Eastern Daylight Time on December 24, 2018.
Comments must be identified with “RIN 1219-AB91” and may be sent to MSHA by any of the following methods:
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Sheila A. McConnell, Director, Office of Standards, Regulations, and Variances, MSHA, at
Mobile equipment used at surface coal mines, surface metal and nonmetal mines, and the surface areas of underground mines is a broad category that includes bulldozers, front end loaders, service trucks, skid steers, haul trucks, and many other types of vehicles and equipment. Accidents involving mobile equipment have historically accounted for a large number of the fatalities in mining, especially in metal and nonmetal mines. In 2017, for example, nearly 40 percent of the 28 mining fatalities and more than 30 percent of injuries involved mobile equipment.
Since 2007, 61 miners have been killed in accidents involving mobile equipment. MSHA conducted an investigation of all of these accidents. MSHA determined that contributing factors in many of these accidents included: (1) No seatbelt, seatbelt not used, or inadequate seatbelts; (2) larger vehicles striking smaller vehicles; and (3) equipment operators' difficulty in detecting the edges of highwalls or dump points, causing equipment to fall from substantial heights.
MSHA has preliminarily determined that mobile equipment operators are more likely to survive rollover and tipping accidents when they are wearing a seatbelt. MSHA examined 38 fatal accidents that occurred since 2007 involving mobile equipment in which the deceased was not wearing a seatbelt. MSHA determined that 35 of the victims (92 percent) might have survived had they been wearing a seatbelt. The Agency believes that engineering controls could increase the use of seatbelts by equipment operators. For example, engineering control devices could ensure that mobile equipment operators use a seatbelt by affecting equipment operation in the event the operator does not fasten the seatbelt.
Other engineering controls could increase equipment seatbelt use without impeding or halting machine operation. These controls include high-visibility seatbelt materials and warning devices, such as warning lights and audible warning signals, that remind the equipment operator to fasten the seatbelt. Some warning signals stop after a period of time; others continue until the seatbelt is fastened. Additional engineering controls could promote seatbelt usage by making equipment operation impractical or uncomfortable, or by notifying mine management if the seatbelt is not used (or not used properly).
There are areas around mobile equipment in which the equipment operator cannot see other miners, equipment, or structures (
Autonomous mining systems may also have the potential to improve miner safety. Autonomous mining systems, which are controlled remotely, do not require an on-board operator, thereby removing the miner from hazardous situations. In addition, autonomous mining systems are equipped with GPS technology and use enhanced safety features, such as collision avoidance systems, which can indicate the location of other nearby equipment and miners, thereby reducing striking accidents and fatalities.
Since 2007, there have been 20 fatal accidents in surface coal and metal and nonmetal mines involving bulldozer operators and haul truck drivers who traveled over the edge of the highwall or dump point. Systems that integrate technologies such as GPS, radar, and radio frequency identification tagging could help equipment operators better identify the edges of highwalls or dump points. Other practices, such as ground markers and aerial markers, also could help equipment operators identify their locations relative to the edges of highwalls or dump points when pushing or dumping material. Devices that provide visual, audible, or other signals could also warn equipment operators of hazards surrounding their locations.
Since 2007, there have been 17 fatalities related to working near or around belt conveyors, of which 76 percent were related to miners becoming entangled in belt drives, belt rollers, and discharge points. Factors that contribute to entanglement hazards include inadequate or missing guards, inadequate or an insufficient number of crossovers in strategic locations, and/or inappropriate lock out/tag out procedures. Systems that can sense a miner's presence in hazardous locations; ensure that machine guards are properly secured in place; and/or ensure machines are properly locked out and tagged out during maintenance would reduce fatalities.
MSHA is requesting information from the mining community regarding the types of engineering controls available, how to implement such engineering controls, and how these controls could be used in mobile equipment and belt conveyors to reduce accidents, fatalities and injuries. When responding—
• Address your comments to the topic and question number. For example, the response to questions regarding seatbelts, Question 1, would be identified as “A.1”.
• Please provide sufficient detail in your responses to enable adequate Agency review and consideration. Where possible, include specific
• Please identify the relevant information on which you rely. Include experiences, data models, calculations, studies and articles, and standard professional practices.
• Please provide specific information on the technological and economic feasibility of the engineering and administrative controls included in this notice, as well as any additional controls or practices which you may suggest.
MSHA invites comment in response to the questions below as well as on issues related specifically to the impact on small mines.
Seat belt interlocks are engineering controls that prevent or otherwise affect equipment operation. MSHA is particularly interested in engineering controls that affect equipment operation when the seatbelt is not properly fastened.
1. What are the advantages, disadvantages, and costs associated with a seatbelt interlock system?
2. Are seatbelt interlock systems available that could be retrofitted, and if so, onto which types of machines and how? What are the costs associated with retrofitting machines with these systems?
3. Are some types of mobile equipment unsuited for use with seatbelt interlock systems, and if so, which machines and why?
4. Reliability is the ability of a system to perform repeatedly with the same result. Please provide information on how to determine the reliability of seatbelt interlock systems.
Some engineering controls encourage and promote seatbelt use without directly preventing or affecting equipment operation. These engineering controls include audible and visual warning devices, such as lights and buzzers/bells that remind equipment operators to fasten their seatbelts.
5. What are the advantages, disadvantages, and costs associated with these warning devices?
MSHA is also interested in collision warning systems and collision avoidance systems that may help prevent accidents by decreasing equipment blind areas and reducing collisions. These systems detect obstacles and provide the equipment operators with information about their location. The installation of the systems would likely need to be customized to account for variations in height, articulation, and other equipment design features. Such systems would likely also need to have the capability to adjust to mining conditions and environments such as road conditions, weather, and traffic patterns. They would also need to be designed and installed to minimize distractions such as nuisance alarms and unnecessary stops, and to be compatible with other technologies, such as GPS, radar, radio frequency identification tagging, electromagnetic systems, cameras, peer-to-peer networks, and path prediction technologies.
6. What are the advantages, disadvantages, and costs associated with collision warning systems and collision avoidance systems?
7. Please provide information on how collision warning systems and collision avoidance systems can protect miners,
8. What types of mobile equipment can, and should, be equipped with collision warning and collision avoidance systems? For example, systems that work well on haul trucks may not work well on other mobile equipment; certain types of equipment may be more likely to be used near smaller vehicles; or some types of equipment may have larger blind areas.
9. Collision warning systems and collision avoidance systems may require multiple technologies that combine positioning/location, obstacle detection, path prediction, peer-to-peer communication, or alarm functions. What combination of technologies would be most effective in surface mining conditions? Please provide your rationale.
10. Please describe situations, if any, in which it would be appropriate to use a collision warning system rather than a collision avoidance system.
11. Please describe any differences between a surface coal environment and a surface metal and nonmetal environment that would influence your response to the questions above.
Various technologies, such as GPS, can be used to provide equipment operators better information regarding their location in relation to the edge of highwalls or dump points. Other mechanisms, such as ground markers and aerial markers, also could help equipment operators identify their location when pushing or dumping material.
12. Which technologies or systems can prevent highwall and dump point overtravel? Please describe the advantages, disadvantages, and costs associated with these technologies or systems.
13. Many surface mines use GPS on equipment for tracking, dispatching, and positioning. How can these systems be used to provide equipment operators better information on their location with respect to highwall or dump points?
14. What are the advantages, disadvantages, and costs associated with ground and aerial markers?
15. Please identify the types of autonomous mobile equipment in use at surface mines.
16. Please describe the advantages and disadvantages associated with autonomous mobile equipment.
17. Please provide information related to any experience with testing or implementing autonomous mobile equipment, including costs and benefits.
18. What technologies are available that could provide additional protections from accidents related to working near or around belt conveyors? Can these technologies be used in surface and underground mines?
19. Please provide information related to any experience with testing or implementing systems that sense a miner's presence in hazardous locations; ensure that machine guards are properly secured in place; and/or ensure machines are properly locked out and tagged out during maintenance. Please also include information and data on the costs and benefits associated with these systems.
20. Please provide suggestions on how training can increase seatbelt use and improve equipment operators' awareness of hazards at the mine site.
21. Please provide suggestions on how training can ensure that miners lock and tag conveyor belts before performing maintenance work.
MSHA requests comment on the costs, benefits, and the technological and economic feasibility of suggested engineering controls to improve miners' safety. Your answers to these questions will help MSHA evaluate options and determine an appropriate course of action.
22. Please provide any data or information that may be useful to
30 U.S.C. 811, 813(h).
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish a temporary moving safety zone during the Swim Around Charleston, a swimming race occurring on the Wando River, the Cooper River, Charleston Harbor, and the Ashley River, in Charleston, South Carolina. The temporary moving safety zone is necessary to protect swimmers, participant vessels, spectators, and the general public during the event. Persons and vessels would be prohibited from entering the safety zone unless authorized by the Captain of the Port Charleston or a designated representative. We invite your comments on this proposed rulemaking.
Comments and related material must be received by the Coast Guard on or before July 26, 2018.
You may submit comments identified by docket number USCG-2018-0598 using the Federal eRulemaking Portal at
If you have questions about this proposed rulemaking, call or email Lieutenant Justin Heck, Sector Charleston Office of Waterways Management, Coast Guard; telephone (843) 740-3184, email
On April 9, 2018, Kathleen Wilson notified the Coast Guard that she will be sponsoring the Swim Around Charleston on September 16, 2018 and would impact waters of the Wando River, Cooper River, Charleston Harbor, and Ashley River, in Charleston, South Carolina. The legal basis for the proposed rule is the Coast Guard's authority to establish a safety zone is 33 U.S.C. 1231. The purpose of the proposed rule is to ensure safety of life on the navigable waters of the Wando River, Cooper River, Charleston Harbor, and Ashley River, in Charleston, South Carolina during Swim Around Charleston.
The COTP proposes to establish a temporary safety zone on the waters of the Wando River, Cooper River, Charleston Harbor, and Ashley River, in Charleston, South Carolina during Swim Around Charleston from 7:45 a.m. to 2 p.m. on September 16, 2018. Approximately 100 swimmers are anticipated to participate in the race. Persons and vessels desiring to enter, transit through, anchor in, or remain within the regulated area may contact the COTP by telephone at (843) 740-7050, or a designated representative via VHF radio on channel 16, to request authorization. If authorization to enter, transit through, anchor in, or remain within the regulated area is granted, all persons and vessels receiving such authorization must comply with the instructions of the COTP or a designated representative. The COTP will provide notice of the safety zone by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.
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 these statutes and Executive Orders and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
This regulatory action determination is based on: (1) The safety zone would be enforced for only seven hours; (2) the safety zone would move with the participant vessels so that once the swimmers clear a portion of the waterway, the safety zone would no longer be enforced in that portion of the waterway; (3) although persons and vessels would not be able to enter or transit through the safety zone without authorization from the COTP or a designated representative, they would be able to operate in the surrounding area during the enforcement period; (4) persons and vessels would still be able to enter or transit through the safety zone if authorized by the COTP or a designated representative; and (5) the COTP would provide advance notification of the safety zone to the local maritime community by Local Notice to Mariners and Broadcast Notice to Mariners.
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.
We have considered the impact of this proposed rule on small entities. This rule may affect the following entities, some of which may be small entities: The owner or operators of vessels intending to enter, transit through, anchor in, or remain within the regulated area during the enforcement period. For the reasons stated in section IV.A. above, this proposed rule would not have a significant economic impact on a substantial number of small entities.
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 involves a safety zone lasting less than seven hours that would prohibit entry within the safety zone. Normally such actions are categorically excluded from further review under paragraph L 60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A preliminary Record of Environmental Consideration supporting this determination is available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments received will be posted without change to
Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping 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) Persons and vessels desiring to enter, transit through, anchor in, or remain within the regulated area may contact the COTP by telephone at (843) 740-7050, or a designated representative via VHF radio on channel 16, to request authorization. If authorization to enter, transit through, anchor in, or remain within the regulated area is granted, all persons and vessels receiving such authorization must comply with the instructions of the COTP or a designated representative.
(3) The Coast Guard will provide notice of the regulated area by Marine Safety Information Bulletins, Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.
(d)
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish a temporary safety zone for certain waters of Lake Erie during the USA Triathlon National Championships. This action is necessary to provide for the safety of life on these navigable waters near Edgewater Park, Cleveland, OH, during the swim events during the multiple triathlons over the course of three days. This proposed rulemaking would prohibit persons and vessels from being in the safety zone unless authorized by the Captain of the Port Buffalo or a designated representative. We invite your comments on this proposed rulemaking.
Comments and related material must be received by the Coast Guard on or before July 26, 2018.
You may submit comments identified by docket number USCG-2018-0427 using the Federal eRulemaking Portal at
If you have questions about this proposed rulemaking, call or email LT Michael Collet, Chief of Waterways Management, U.S. Coast Guard Sector Buffalo; telephone 716-843-9322, email
On November 29, 2017, USA Triathlon notified the Coast Guard that it will be conducting the USA Triathlon Age Group National Championships from 10:00 a.m. to 1:30 p.m. on August 10, 2018, from 5:00 a.m. to 5:30 p.m. on August 11, 2018, and from 5:00 a.m. to 12:00 p.m. on August 12, 2018. The swim portion of the multiple triathlon events will be held off Edgewater Park in Lake Erie, Cleveland, OH. Hazards from swim events include participants swimming in an area that has a high amount of recreational traffic and interfering with vessels intending to operate in that location, as well as swimming within approaches to public and private marinas. The Captain of the Port Buffalo (COTP) has determined that potential hazards associated with the swim events would be a safety concern for anyone intending to participate in this event or for vessels that operate in their vicinity.
The purpose of this rulemaking is to ensure the safety of the event participants and transiting vessels on specified waters of Lake Erie before, during and after the scheduled event. The Coast Guard proposes this rulemaking under authority in 33 U.S.C. 1231.
The COTP proposes to establish a temporary safety zone from 10:00 a.m. to 1:30 p.m. on August 10, 2018, from 5:00 a.m. to 5:30 p.m. on August 11, 2018, and from 5:00 a.m. to 12:00 p.m. on August 12, 2018. The safety zone will cover all navigable waters of Lake Erie, off of Edgewater Park, Cleveland OH, inside an area starting on shore at position 41°29′16″ N, 081°44′49″ W then Northwest to 41°29′34″ N, 081°45′02″ W then Northeast to 41°29′43″ N, 081°44′31″ W, then Southeast back to shore at position 41°29′28″ N, 081°44′22″ (NAD 83). The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the schedule events over the course of the three days. No vessel or person would be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The regulatory text we are proposing appears at the end of this document.
We developed this proposed rule after considering numerous statutes and Executive Orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive Orders and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. Moreover, the Coast Guard would issue
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 M16475.1D, 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 involve a safety zone lasting three days that would prohibit entry within all waters of Lake Erie, off of Edgewater Park, Cleveland, OH, inside an area starting on shore at position 41°29′16″ N, 081°44′49″ W then Northwest to 41°29′34″ N, 081°45′02″ W then Northeast to 41°29′43″ N, 081°44′31″ W, then Southeast back to shore at position 41°29′28″ N, 081°44′22″ (NAD 83). Normally such actions are categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev.01. A preliminary Record of Environmental Consideration supporting this determination is available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments received will be posted without change to
Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping 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 Buffalo or his designated on-scene representative.
(3) The “on-scene representative” of the Captain of the Port Buffalo is any Coast Guard commissioned, warrant or petty officer who has been designated by the Captain of the Port Buffalo to act on his behalf.
(4) Vessel operators desiring to enter or operate within the safety zone must contact the Captain of the Port Buffalo or his on-scene representative to obtain permission to do so. The Captain of the Port Buffalo or his on-scene representative may be contacted via VHF Channel 16.
Environmental Protection Agency.
Proposed rule.
The Environmental Protection Agency is proposing to approve a revision to the New York State Implementation Plan concerning sulfur-in-fuel limits. The intended effect of this revision is to add a regulatory mechanism for meeting the existing obligations related to regional haze. The SIP revision consists of amendments to Title 6 of the New York Codes, Rules and Regulations Subpart 225-1, “Fuel Composition and Use—Sulfur Limitations” and Section 200.1, “Definitions” and, also removes an obsolete provision from the Code of Federal Regulations related to facility specific sulfur-in-fuel limits.
Comments must be received on or before July 26, 2018.
Submit your comments, identified by Docket ID number EPA-R02-OAR-2016-0414, at
Kirk J. Wieber, Air Programs Branch, Environmental Protection Agency, 290 Broadway, 25th Floor, New York, New York 10007-1866, (212) 637-3381, or by email at
The Environmental Protection Agency (EPA) proposes to approve New York's State Implementation Plan (SIP) submittal consisting of revisions to Title 6 of the New York Codes, Rules and Regulations (6 NYCRR) Section 200.1, “Definitions,” which adds a definition for waste oil. EPA proposes to approve, with limitations, Subpart 225-1, “Fuel Composition and Use—Sulfur Limitations,” as contributing to attainment of the National Ambient Air Quality Standards (NAAQS) for particulate matter less than or equal to 2.5 microns in diameter (PM
Pursuant to 40 CFR part 51, the EPA also is proposing to remove a section from 40 CFR 52.1675 which lists sulfur limitations for various facilities in New York. EPA has determined that these limitations have expired and/or refer to sources which have been shut down. That determination was reflected in EPA's reformatting exercise that ensured that all revisions to the New York State SIPs are accurately reflected in 40 CFR part 52, including 40 CFR 52.1670(d), “EPA approved State source-specific requirements.” 76 FR 41705 (July 15, 2011). In addition, the sulfur-in-fuel rule proposed for approval here requires the use of lower sulfur fuel, with lower sulfur concentrations than the limits listed in 40 CFR 52.1675. The EPA is therefore removing the existing sulfur limitations in 40 CFR 52.1675 as they are superfluous and obsolete.
On June 12, 2013, New York State Department of Environmental Conservation (NYSDEC) submitted to the EPA the proposed revisions to Section 200.1 and Subpart 225-1 and supplemental materials, including documentation of the comment period and public hearings, and NYSDEC's responses to public comments. These materials are in the EPA's docket for this proposal.
The EPA is proposing to approve Section 200.1, which includes New York's new definition for “waste oil” at 6 NYCRR 200.1(cw). This definition is relevant to Subpart 225-1 and is consistent with similar definitions of waste oil recognized by EPA.
NYSDEC also revised 6 NYCRR 200.9, Table 1, updating the list of federal regulations referenced in the amended Subpart 225-1. In a separate rulemaking action, the EPA approved a SIP submittal from New York, dated October 12, 2011 and revised on July 25, 2016, of Section 200.9, Table 1. 81 FR 95049 (Dec. 27, 2016). That approval included the revisions to Section 200.9, Table 1, referenced in NYSDEC's June 12, 2013 submittal. We therefore have already acted on the revision to Section 200.9, Table 1, which references the amended Subpart 225-1, and we are not taking action here.
New York relied on ECL section 19-0325, limiting sulfur concentrations in fuel oil, in its Regional Haze SIP and the EPA approved it as part of New York's emissions reduction plan to make reasonable progress toward reducing widespread visibility impairment. 77 FR 51915. By submitting this revision to Subpart 225-1 to the EPA for SIP approval, New York is adding a regulatory mechanism for implementing the reduced sulfur-in-fuel limits in ECL-19-0325 and the Regional Haze SIP. The EPA proposes to approve these revisions to strengthen the New York's SIP.
Section 225-1.2 provides the sulfur-in-fuel limitations and are identified below.
Owners and/or operators of any stationary combustion installation that fires solid fuels are limited to the firing of solid fuel with a sulfur content listed in the table below on or after July 1, 2014:
Owners and/or operators of any stationary combustion installation that fires residual oil are limited to the firing of residual oil with a sulfur content listed in the table below on or after July 1, 2014:
Owners and/or operators of any stationary combustion installation that fires residual oil are limited to the purchase of residual oil with a sulfur content listed in the table below on or after July 1, 2014, and are limited to the firing of residual oil with a sulfur content listed in the table below on or after July 1, 2016:
Owners and/or operators of commercial, industrial, or residential emission sources that fire number two heating oil on or after July 1, 2012 are limited to the purchase of number two heating oil with 0.0015 percent sulfur by weight or less.
Owners and/or operators of a stationary combustion installation that fires distillate oil other than number two heating oil are limited to the purchase of distillate oil with 0.0015 percent sulfur by weight or less on or after July 1, 2014.
Owners and/or operators of any stationary combustion installation that fires distillate oil including number two heating oil are limited to the firing of distillate oil with 0.0015 percent sulfur by weight or less on or after July 1, 2016.
Owners and/or operators of any stationary combustion installation that fires waste oil on or after July 1, 2014 are limited to the firing of waste oil with 0.75 percent sulfur by weight or less.
6 NYCRR Sections 225-1.3 and 225-1.4 include provisions allowing for exceptions or variances from the sulfur-in-fuel limits set forth in ECL 19-0325 and Section 225-1.2.
Section 225-1.3 addresses exceptions to fuel limitations due to fuel shortage. It provides that NYSDEC may issue an order granting a temporary exception based on an insufficient supply of conforming fuel, provided the decision is certified by the New York State Energy Research and Development Authority. The exception cannot exceed 45 days, unless the department permits a public hearing, after which the extension can be granted for up to one year. Section 225-1.3(e) recognizes that, pursuant to New York State Energy Law 5-117, any provisions of Section 225-1.3 may be preempted if the Governor declares that a fuel-supply emergency exists or is impending.
Section 225-1.4 allows for fuel mixture or equivalent emission rate variances. Fuels with sulfur content greater than that allowed by Section 225-1.2 may be fired when the facility owner can demonstrate that sulfur dioxide emissions do not exceed the value for S calculated using the following equation:
Fuel mixtures and equivalent emission rate variances only apply to processes or stationary combustion installations. Compliance will be based on the total heat input from all fuels fired, including gaseous fuels. Any process or stationary combustion installation owner who chooses to fire a fuel mixture is subject to the emission and fuel monitoring requirements of Section 225-1.5.
In the initial approval of Part 225 into the SIP, the EPA indicated that variances adopted by the State pursuant to sections 225.2(b) and (c), 225.3, and 225.5(c) are federally enforceable only if approved by the EPA as SIP revisions. 46 FR 55690, 55693 (Nov. 12, 1981). The provisions of 225.2(b) and (c), 225.3, and 225.5(c), although now renumbered in revised Subpart 225-1, are substantively unchanged. Therefore, EPA's condition, that variances adopted pursuant to these conditions are federally enforceable only if approved by the EPA as SIP revisions, remains in effect. 81 FR 23167, 23171 (April 20, 2016); 40 CFR part 52.1670.
The EPA proposes to approve New York's Subpart 225-1 submittal, provided that, consistent with prior approvals of Part 225, any exception or variance must to be submitted to the EPA as a source-specific SIP revision and is not federally enforceable until approved by EPA.
40 CFR 52.1675 includes a list of special limitations of sulfur-in-fuels, adopted in the 1980s, for a variety of sources. EPA has determined that either these limits have expired or the sources have shut down. 47 FR 7662 (2/22/82); letter from NYSDEC, dated March 25, 2011, confirming the shut-down of Lovett Generating Station (a copy is in the docket for this action). EPA's determination was reflected in the reformatting exercise that ensured that all revisions to the New York State SIP are accurately reflected in 40 CFR part 52, including 40 CFR 52.1670(d), “EPA approved State source-specific requirements.” 76 FR 41705 (July 15, 2011). 40 CFR 52.1670(d) identifies all source-specific requirements still effective in New York State. The EPA is proposing to remove the provisions listed below from 40 CFR 52.1675 as superfluous and obsolete.
List of special limitations from 40 CFR 52.1675(d), (f) and (g) that the EPA proposes to remove:
The EPA also proposes to revise 40 CFR 52.1675(e) to conform with the new nomenclature in New York's revised Subpart 225-1, and for it to read as follows:
The removed sections of 40 CFR 52.1675: (d), (f) and (g), will be labeled as reserved.
The EPA proposes to approve the revisions to New York's Title 6 of the New York Codes, Rules and Regulations Subpart 225-1, “Fuel Composition and Use—Sulfur Limitations” and Section 200.1, “Definitions,” both effective on April 5, 2013, into New York's SIP as strengthening enforcement of the State's air pollution control regulations.
In addition, EPA has determined that the source-specific limits in the New York's SIP at 40 CFR 52.1675(d), (f) and (g) have either expired or the affected sources have shut down and that the 52.1675 requirements are therefore superfluous and obsolete. The EPA is proposing to remove the source-specific limits from 52.1675(d), (f) and (g). The EPA also proposes to revise 40 CFR 52.1675(e) to conform with the new nomenclature in New York's revised Subpart 225-1.
In this rule, we are proposing to include in a final rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, we are proposing to incorporate by reference the provisions described above in Section IV. Proposed Action.
EPA has made, and will continue to make, these documents generally available electronically through
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175, because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law. Thus, Executive Order 13175 does not apply to this action.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
Pursuant to the Federal Clean Air Act (CAA or the Act), the Environmental Protection Agency (EPA) is proposing approval of revisions to the Texas State Implementation Plan (SIP) addressing volatile organic compounds (VOC) revised rules and the State's reasonably available control technology (RACT) analyses for VOC and nitrogen oxides (NO
Written comments must be received on or before July 26, 2018.
Submit your comments, identified by Docket No. EPA-R06-OAR-2017-0055, at
Robert M. Todd, 214-665-2156,
Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA.
Volatile Organic Compounds (VOC) and Oxides of Nitrogen (NO
For a Moderate, Serious, or Severe area a major stationary source is one that emits, or has the potential to emit, 100, 50, or 25 tons per year (tpy) or more of VOCs or NO
On March 27, 2008, the EPA revised the primary and secondary Ozone (O
The HGB area, which consists of Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller Counties in Texas, is currently designated as nonattainment for the 2008 8-hour ozone NAAQS with a “moderate” classification (81 FR 90207, December 14, 2016). Originally the HGB area was classified as “marginal” (77 FR 30088 and 77 FR 30160, May 21, 2012).
On December 29, 2016 Texas submitted its SIP demonstration that RACT for sources of VOC and NO
In TCEQ's December 29, 2016 SIP, Table F-1 titled “
We are proposing to
TCEQ found that the VOC storage tank category was partially controlled and evaluated whether additional controls would be feasible and economical. They revised the storage tank rules to add more controls to meet RACT. TCEQ also identified a Vegetable Oil Manufacturing Operations source emitting VOCs in a quantity greater than the major source definition required under the previous NAAQS standard for the HGB area. TCEQ's analysis showed that the source met control recommendations listed in an earlier CTG document for the Vegetable Oil Manufacturing Operations source category and therefore met RACT. We are proposing to fully approve the submitted rules as part of the SIP to assist in achieving the 2008 ozone NAAQS and finding the revised storage tank rules meet VOC RACT for the HGB area. Below, we discuss in more detail our proposed approval of the storage tank rule revisions and the vegetable oil manufacturing processing source as meeting RACT. Please see the Technical Support Document (TSD) for additional information.
Texas in its DFW RACT analyses for the 2008 ozone standard, found that the storage tank source category was partially controlled and additional controls were feasible and economical. We recently approved storage tank rule revisions as meeting the RACT requirement for the 2008 ozone NAAQS in the DFW area.
The adopted rule revisions address RACT for both CTG and non-CTG major VOC storage tanks in the HGB area. We propose to approve the Texas submitted revisions, as described in detail in the TSD to this proposal, to the storage tank rule for the HGB area as part of the SIP and as meeting RACT for the HGB area for the 2008 8-hour NAAQS.
In the Texas submittal, the State identified a vegetable oil manufacturing operation category in the HGB area as a major source.
During the public comment period for the attainment demonstration, the state did receive a suggestion that it include the October, 2016 Oil and Natural Gas CTG
States are not required to adopt RACT limits for source categories for which no major sources exist in a nonattainment area and can submit a negative declaration to that effect. The negative declaration would need to assert that there are no major CTG sources in the area, and the accompanying analysis would need to support that conclusion. Texas has reviewed its emission inventory and determined that its previous negative declarations for fiberglass boat manufacturing materials, surface coating for flat wood paneling, letterpress printing, automobile and light-duty truck assembly coating, and rubber tire manufacturing submitted as part of its HGB Area VOC RACT SIP for the 1997 ozone NAAQS are still applicable (79 FR 21144, April 15, 2014). We also are unaware of any sources in these CTG source categories in the area and therefore we propose to approve these negative declarations. See Table F-2 titled “
Under CAA section 182(f) RACT is required for major sources of NOx. For NO
In 2013, EPA determined that NO
In our implementation rule for the 2008 ozone NAAQS we made clear we believed that, in some cases, new RACT determinations would “result in the same or similar control technology as the RACT determinations made for the 1-hour or 1997 standards.” This is because the fundamental control techniques, as described in the CTG and ACT documents, are still applicable. Following this line of reasoning, Texas determined the existing Chapter 117 NO
Texas noted their review of NO
CAA section 110(l) requires that a SIP revision submitted to EPA be adopted after reasonable notice and public hearing. Section 110(l) also requires that we not approve a SIP revision if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the CAA.
The TCEQ provided copies of the Public Notice of proposed changes to Chapter 115 (Control of VOC Emissions), including the text published in the Texas Register and local newspapers. The TCEQ also held a public hearing on the revisions to Chapter 115 on October 24, 2016 in Houston, Texas. (More information on the public comments the state received is available in the TSD to this proposal.)
The only change in control requirements in these revisions are the additional controls for VOC storage tanks. The remainder of the revisions provide an evaluation that with new controls on VOC storage tanks, existing controls on NO
We are proposing to approve revisions to the Texas SIP addressing the 2008 ozone NAAQS and the RACT requirements for sources in the HGB area. Specifically, we are proposing to: (1) Find previous VOC and NO
In this action, the EPA is proposing to include in a final rule regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference revisions to the Texas regulations as described in the Proposed Action section above. The EPA has made, and will continue to make, these documents generally available electronically through
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the proposed rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule; notice of intent.
Environmental Protection Agency (EPA) Region 7 is issuing a Notice of Intent to Delete 101 residential parcels of the Omaha Lead Superfund site located in Omaha, Nebraska, from the National Priorities List (NPL) and requests public comments on this proposed action. The NPL, promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), as amended, is
This partial deletion pertains to 101 residential parcels. The remaining parcels will remain on the NPL and are not being considered for deletion as part of this action.
Comments must be received on or before July 26, 2018.
Submit your comments, identified by Docket ID no. EPA-HQ-SFUND-2003-0010, by one of the following methods:
•
•
•
•
• For additional submission methods, please contact the person identified in the
All documents in the docket are listed in the
The Omaha public libraries also have computer resources available to assist the public. The W Dale Clark Library, located at 215 S 15th Street, Omaha, NE 68102 is centrally located within the site boundary.
Elizabeth Hagenmaier, Remedial Project Manager, Environmental Protection Agency, Region 7, SUPR/LMSE, 11201 Renner Boulevard, Lenexa, KS 66219, telephone (913) 551-7939, email:
Throughout this document “we,” “us,” or “our” refer to EPA. This section provides additional information by addressing the following:
EPA Region 7 is proposing to delete 101 residential parcels of the Omaha Lead Superfund site, from the NPL and is requesting public comment on this proposed action. The table of 101 Properties Proposed for the Third Partial Deletion of Properties from the Omaha Lead Superfund site 2018 (EPA-HQ-SFUND-2003-0010-1900) identifies specific properties included for this proposed partial deletion. The location of the 101 properties are shown on Figure 1 “2018 Partial Deletion Omaha Lead Site” (EPA-HQ-SFUND-2003-0010-1895). The NPL constitutes appendix B of 40 CFR part 300, which is the NCP, which EPA promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, or CERLA as amended. EPA maintains the NPL as those sites that appear to present a significant risk to public health, welfare, or the environment. Sites on the NPL may be the subject of remedial actions financed by the Hazardous Substance Superfund, or Fund. This partial deletion of the Omaha Lead Superfund site is proposed in accordance with 40 CFR 300.425(e) and is consistent with the Notice of Policy Change: Partial Deletion of Sites Listed on the National Priorities List and 60 FR 55466 (November 1, 1995). As described in 300.425(e)(3) of the NCP, a portion of a site deleted from the NPL remains eligible for Fund-financed remedial action if future conditions warrant such actions.
EPA will accept comments on the proposal to partially delete this site for
Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses procedures that EPA is using for this action. Section IV discusses the 101 residential parcels of the Omaha Lead Superfund site and demonstrates how they meet the deletion criteria.
The NCP establishes the criteria that EPA uses to delete sites from the NPL. In accordance with 40 CFR 300.425(e), sites may be deleted from the NPL where no further response is appropriate. In making such a determination pursuant to 40 CFR 300.425(e), EPA will consider, in consultation with the state, whether any of the following criteria have been met:
i. Responsible parties or other persons have implemented all appropriate response actions required;
ii. all appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or
iii. the remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, the taking of remedial measures is not appropriate.
Pursuant to CERCLA section 121(c) and the NCP, EPA conducts five-year reviews to ensure the continued protectiveness of remedial actions where hazardous substances, pollutants, or contaminants remain at a site above levels that allow for unlimited use and unrestricted exposure. EPA conducts such five-year reviews even if a site is deleted from the NPL. EPA may initiate further action to ensure continued protectiveness at a deleted site if new information becomes available that indicates it is appropriate. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system.
The following procedures apply to deletion of the 101 residential parcels of the Site:
(1) EPA consulted with the state before developing this Notice of Intent for Partial Deletion.
(2) EPA has provided the state 30 working days for review of this action prior to this publication.
(3) In accordance with the criteria discussed above, EPA has determined that no further response is appropriate.
(4) The state of Nebraska, through the Nebraska Department of Environmental Quality, has concurred with the deletion of the 101 residential parcels of the Omaha Lead Superfund site, from the NPL.
(5) Concurrently, with the publication of this Notice of Intent for Partial Deletion in the
(6) The EPA placed copies of documents supporting the proposed partial deletion in the deletion docket, and made these items available for public inspection and copying at the site information repositories identified above.
If comments are received within the 30-day comment period on this document, EPA will evaluate and respond appropriately to the comments before making a final decision to delete the 101 residential parcels. If necessary, EPA will prepare a Responsiveness Summary to address any significant public comments received. After the public comment period, if EPA determines it is still appropriate to delete the 101 residential parcels of the Omaha Lead Superfund site, the Regional Administrator will publish a final Notice of Partial Deletion in the
Deletion of a portion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a portion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions, should future conditions warrant such actions.
The following information provides EPA's rationale for deleting the 101 residential parcels of the Omaha Lead Superfund site from the NPL, as previously identified.
The Omaha Lead Superfund site, or OLS, [CERCLIS ID #NESFN0703481]) includes surface soils present at residential properties, child-care centers, and other residential-type properties in the city of Omaha, Douglas County, Nebraska. The properties were contaminated as a result of deposition of aerial emissions from historic lead smelting and refining operations. The OLS encompasses the eastern portion of the greater metropolitan area in Omaha, Nebraska. The site extends from the Douglas-Sarpy County line on the south, north to Read Street and from the Missouri River on the east to 56th Street on the west. The site is centered around downtown Omaha, Nebraska, where two former lead-processing facilities operated. American Smelting and Refining Company, Inc., or ASARCO, operated a lead refinery at 500 Douglas Street in Omaha, Nebraska, for over 120 years. Aaron Ferer & Sons Company, and later Gould Electronics, Inc., operated a lead battery recycling plant located at 555 Farnam Street. Both ASARCO and Aaron Ferer/Gould facilities released lead-containing particulates into the atmosphere from their smokestacks. The lead particles were subsequently deposited on surrounding residential properties.
Beginning in 1984, the Douglas County Health Department, or DCHD monitored ambient air quality around the ASARCO facility. This air monitoring routinely measured ambient air lead concentrations in excess of the ambient air standard. Between 1972 and 1998 the DCHD measured the blood lead level in children within the county. The results of the measurements indicated a high incidence of elevated blood lead level in children. Blood lead screening of children living in zip codes located east of 45th Street consistently exceeded 10 micrograms per deciliter (μg/dl) more frequently than children living elsewhere in the county.
In 1998, the Omaha City Council requested assistance from the EPA to address the high incidence of children found with elevated blood lead levels by the DCHD. In 1999, the EPA initiated an investigation into the lead contamination under the authority of CERCLA. On April 30, 2003, the OLS was listed on the NPL (68 FR 23077).
The OLS includes those residential properties where EPA determined through soil sampling that soil lead levels represent an unacceptable risk to human health. Residential properties where soil sampling indicates that lead concentrations in the soil are below a level that represent an unacceptable risk
The residential properties proposed for deletion from the NPL site were cleaned up under both CERCLA removal and remedial authority. Regardless of the authority used for the remediation of yards, the cleanup levels for soils for all the properties proposed for deletion were the same.
The initial EPA response was conducted under CERCLA removal authority. Due to the size of the site and the very large number of individual properties, it was necessary to prioritize sites for cleanup. The prioritization was based on factors such as the elevated blood level of children at each property and the lead concentration in the soil at each property. The result was a series of action levels that reflected the priority of categories of sites. Consequently, the action level for the site changed over time from 2,500 mg/kg to 400 mg/kg, as the highest priority sites were cleaned up first. The cleanup level was established using the Integrated Exposure Uptake Biokinetic, or IEUBK model to determine the concentration to which the lead is cleaned up at each property within the site. The cleanup level for the OLS is 400 mg/kg of lead in the soil. The cleanup level of 400 mg/kg was selected to allow for unlimited use and unrestricted exposure. The cleanup level has not changed, and all properties, regardless of the action level, were cleaned up to 400 mg/kg.
Beginning in March 1999, the EPA began collecting soil samples from properties that provided licensed child daycare services. The initial removal action dated August 2, 1999, consisted of excavation and replacement of contaminated soil where the lead concentration exceeded the action levels identified in the Action Memorandum. Response actions were implemented at properties that met either of the following criteria:
• A child seven years of age or younger (0 to 84 months) residing at the property was identified with an elevated blood level, or EBL exceeding 15 μg/dl (this EBL was reduced to 10 μg/dl in August 2001) and a soil sample collected from a non-foundation quadrant exhibited lead concentrations greater than 400 mg/kg, or
• A property was a used as a child-care facility and a soil sample collected from a non-foundation quadrant exhibited a lead concentration greater than 400 mg/kg.
On August 22, 2002, EPA initiated a second removal action. This second removal action included all other residential type properties where the maximum non-foundation soil lead concentration exceeded an action level of 2,500 mg/kg. The 2002 Action Memorandum explicitly identifies the possibility of lead-based paint as a potential contributor to lead contamination of soils within thirty inches of the foundation of a painted structure. Due to the potential contribution of deteriorating lead-based paint near the foundations of structures, a lead concentration greater than 400 mg/kg in the soil in the drip zone (areas near structure foundations) was not, in itself, sufficient to trigger soil removal. However, if a soil sample from any mid-yard quadrant exceeded the action level, soil was removed from all areas of the property exceeding the 400 mg/kg cleanup level, including the drip zone. In November 2003, EPA amended the second removal action to reduce the action level to 1,200 mg/kg. In March 2004, EPA amended the second removal action to combine the two removal actions. In March 2005, EPA amended the removal action to reduce the action level from 1,200 mg/kg to 800 mg/kg.
At properties determined to be eligible for response under either of the Action Memoranda soil with lead concentrations greater than the cleanup level was excavated and replaced with clean soil and the excavated areas were revegetated.
Beginning with the construction season of 2005, the scope of the removal action was expanded to address the requirements of the 2004 Interim ROD to include: (1) Stabilization of deteriorating exterior lead-based paint at properties where the continued effectiveness of the soil remediation was threatened; (2) response to interior dust at properties where interior dust lead levels exceeded applicable criteria; (3) public health education; and (4) participation in a comprehensive remedy with other agencies and organizations that addresses all identified lead hazards in the Omaha community.
As part of the RI/FS EPA developed a Human Health Risk Assessment, or HHRA for the site using site-specific information collected during the OLS Remedial Investigation. Lead was identified as the primary contaminant of concern. The HHRA also identified arsenic as a potential contaminant of concern, but arsenic was eliminated based on its relatively low overall risk to residents and lack of connection to the release from the industrial sources being addressed by this Superfund action.
The risk assessment for lead focused on young children under the age of seven (0 to 84 months) who are site residents. Young children are most susceptible to lead exposure because they have higher contact rates with soil or dust, absorb lead more readily than adults, and are more sensitive to the adverse effects of lead than are older children and adults. The effect of greatest concern in children is impairment of the nervous system, including learning deficits, reduced intelligence, and adverse effects on behavior. The IEUBK model for lead in children was used to evaluate the risks posed to young children (0 to 84 months) resulting from the lead contamination at the site. Because lead does not have a nationally-approved reference dose (RfD), cancer slope factor, or other accepted toxicological factor which can be used to assess risk, standard risk assessment methods cannot be used to evaluate the health risks associated with lead contamination. The modeling results determined that there was an unacceptable risk to young children from exposure to soils above 400 mg/kg.
In October 2008, EPA released a draft Final Remedial Investigation. Based on the 2008 data set, EPA established the boundary of the Final Focus Area for the Site. The Final Focus Area is generally bounded by Read Street to the north, 56th Street to the west, Harrison Street (Sarpy County line) to the south, and the Missouri River to the east, and encompasses 17,280 acres (27.0 square miles). By the time the Final Remedial Investigation was completed, EPA had collected soil samples from 37,076 residential properties, including 34,565 properties within the Final Focus Area's boundary. In total, 34.2 percent of properties sampled through completion of the 2008 RI had at least one mid-yard sample with a soil lead level exceeding
EPA completed the Final Record of Decision, or ROD for the OLS in May 2009. The Remedial Action Objective is to reduce the risk of exposure of young children to lead such that an individual child, or group of similarly exposed children, have no greater than a 5 percent chance of having a blood-lead concentration exceeding 10 μg/dl. The selected remedy includes the following components:
Each of these components is described below.
Excavation of soils was accomplished using lightweight excavation equipment and hand tools in the portions of the yard where the concentration of lead in the surface soil exceeded 400 mg/kg. Excavation continued in all quadrants, play zones, and drip zone areas exceeding 400 mg/kg lead until the residual lead concentration measured at the exposed surface of the excavation was less than 400 mg/kg in the upper foot, or less than 1,200 mg/kg at depths greater than one foot. Typically, soil excavation depths were between six and ten inches in depth. Soils in garden areas were excavated until reaching a residual concentration of less than 400 mg/kg in the upper two feet measured from the original surface, or less than 1,200 mg/kg at depths greater than two feet.
After confirmation sampling verified that cleanup goals were achieved, the excavated areas were backfilled with clean soil to original grade and sod was placed over the remediated areas.
EPA's remediation contractors stockpiled contaminated soil in staging areas, collected samples, and subsequently transported soil to an off-site subtitle D solid waste disposal landfill for use as daily cover and/or disposal.
EPA used the lead-based paint assessment protocol, presented in the Final Lead-Based Paint Recontamination Study Report prepared for the OLS, to determine eligibility for exterior lead-based paint stabilization at those properties where soil lead concentrations exceeded 400 mg/kg. At those properties where the exterior lead-based paint assessment identified a threat from deteriorating paint to the continued protectiveness of the soil remedy, the owner of the property was offered stabilization of painted surfaces on structures located on the property. Exterior lead-based paint stabilization is not mandatory and was provided to those qualifying property owners who chose to have their exterior paint stabilized. Removal of loose and flaking lead-based paint was performed using lead-safe practices as described in EPA's Renovate, Repair and Painting Rule. The practices include wet scraping, and collection of paint chips using plastic sheeting. Scraped areas were primed and all previously painted surfaces had two coats of paint applied.
As part of the final remedy, residents at eligible properties are provided the opportunity to have interior dust sampled. The interior dust response is not mandatory, and the resident may choose to decline. If the property owner agrees, EPA collects samples of dust from interior surfaces. The analytical data is provided to the resident/tenant in a letter and the letter informs them whether any HUD criteria are exceeded. The DCHD conducts follow up activities at any residence where the concentration of lead in the interior dust levels exceed the HUD criteria. For those residences that qualify and where the resident agrees, the residents are provided with a high-efficiency household vacuum cleaner, training on the maintenance and the importance of proper usage of the vacuum, and education on mitigation of household lead hazards. The DCHD also provides training and education regarding the need to mitigate interior dust.
Exterior lead-based paint stabilization and interior dust response were conducted retroactively at properties where soil cleanups were performed under CERCLA removal authority, as well as to properties addressed under CERCLA remedial authority.
There are a number of identified lead hazards within the OLS, not all of which are connected to the contaminant source of the OLS. To better address all potential lead sources within the OLS, a health education program was developed and continues to be implemented to increase public awareness and mitigate exposure. An active educational program continues in cooperation with agencies and organizations that include ATSDR, the Nebraska Department of Health and Human Services, or NDHHS, DCHD, local non-governmental organizations, and other interested parties. The following, although not an exhaustive list, indicate the types of educational activities provided at the Site:
• Support for in-home assessments for children identified with elevated blood lead levels.
• Development and implementation of lead poisoning prevention curriculum in schools.
• Support for efforts to increase community-wide blood lead monitoring.
• Physicians' education for diagnosis, treatment, and surveillance of lead exposure.
• Operation of Public Information Centers to distribute information, and respond to questions about the EPA response activities and lead hazards in the community.
• Use of mass media (television, radio, internet, print media, etc.) to distribute health education messages.
• Development and distribution of informational tools such as fact sheets, brochures, refrigerator magnets, etc., to inform the public about lead hazards and measures that can be taken to avoid or eliminate exposure.
The Omaha Lead Registry, (available at
EPA worked extensively with the Omaha community through a variety of communication vehicles including, but not limited to: Local speaking engagements, participation in citizens' groups and city council meetings, local public access television, public service
EPA has been performing outreach to Omaha citizens, elected officials, school officials, health officials, the media, nonprofit groups, and others since becoming involved in the project in an effort to convey information about the hazards of lead poisoning, particularly the ways that lead affects the health of children. The EPA participated in numerous formal and informal meetings to explain EPA's role and commitment in Omaha, convey information about the Superfund process, and provide general information about the site and lead contamination. EPA responds to inquiries on a daily basis regarding the site and individual property owner's sampling results.
In January 2004, a Community Advisory Group, or CAG was formed for the OLS site. A CAG is a committee, task force, or board made up of residents affected by a Superfund site. They provided a public forum where representatives with diverse community interests could present and discuss their needs and concerns related to the site and the cleanup process. The CAG was discontinued after the last meeting was held in October 2011. A new group, Child Lead Poisoning Prevention Group, formed. The first meeting of the Child Lead Poisoning Group was held at City Hall in May 2012. The Group is no longer active.
EPA completed the first Five-Year Review for the site in September 2014. Five-Year Reviews for the site are statutory. The triggering action for the Five-Year Review is the completion of the Final Record of Decision for Operable Unit 2, completed in May 2009.
The protectiveness of the remedy was deferred in the Five-Year Review because the remedy had not been completed at all of the properties within the site boundary. However, cleanup activities at the 101 residential parcels included in this partial deletion action are complete and protective of human health. There are no issues or recommendations in the Five-Year Review related to these 101 residential parcels proposed for deletion.
The next Five-Year Review will be completed in 2019.
EPA Region 7 completed the EPA lead portion of the remedial action on December 29, 2015. The city of Omaha and the DCHD will be performing the remaining field work. As of December 29, 2015, EPA collected soil samples from 42,047 properties. There are 489 remaining properties to be sampled. The EPA has obtained access to collect samples from 163 of the 489 properties.
Based on the soil sampling results, 14,019 properties were eligible for soil remediation. The EPA remediated lead contaminated soil at 13,090 properties (93 percent) of the properties that were eligible for remediation. There are approximately 929 remaining properties that are eligible for soil remediation. The EPA obtained access to remediate fifty-one of the remaining properties.
The EPA tested 12,057 properties for the presence of lead-based paint, or LBP. 6,782 properties qualify for LBP stabilization. The EPA completed LBP stabilization on 6,249,(92 percent) of the eligible properties.
The EPA collected dust samples from 3,933 properties consisting of 4,477 residences for lead contaminated dust. These numbers reflect the fact that some of the properties are multi-residence properties.
EPA completed Cooperative Agreements with the city of Omaha and the DCHD that provide funds to allow these local government agencies to continue efforts to obtain access to the remaining properties and conduct sampling and remediation activities at those properties where they obtain access.
In accordance with 40 CFR 300.425(e), Region 7 of the EPA finds that the 101 residential parcels of the Omaha Lead Superfund site (the subject of this deletion) meet the substantive criteria for deletion from the NPL. EPA has consulted with and has the concurrence of the state of Nebraska. All responsible parties or other persons have implemented all appropriate response actions required. All appropriate Fund-financed response under CERCLA was implemented, and no further response action by responsible parties is appropriate.
The implemented remedy at the 101 residential parcels have achieved the degree of cleanup specified in the ROD for all pathways of exposure. All selected remedial action objectives and associated cleanup levels are consistent with agency policy and guidance. No further Superfund response is needed to protect human health and the environment.
Environmental Protection, Air Pollution Control, Chemicals, Hazardous waste, Hazardous substances, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.
33 U.S.C. 1321(d); 42 U.S.C. 9601-9657; E.O. 13626, 77 FR 56749, 3 CFR, 2013 Comp., p. 306; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 Comp., p. 193.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Proposed rule.
DoD, GSA, and NASA are proposing to amend the Federal Acquisition Regulation (FAR) to implement sections of the National Defense Authorization Act for Fiscal Year 2017 to expand special emergency procurement authorities for acquisitions of supplies or services that facilitate defense against or recovery from cyber attack, provide international disaster assistance under the Foreign Assistance Act of 1961, or support response to an emergency or major disaster under the
Interested parties should submit written comments to the Regulatory Secretariat Division at one of the addresses shown below on or before August 27, 2018 to be considered in the formation of the final rule.
Submit comments in response to FAR Case 2017-009 by any of the following methods:
•
•
Ms. Camara Francis, Procurement Analyst, at 202-550-0935 for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202-501-4755. Please cite “FAR Case 2017-009”.
The purpose of this proposed rule is to implement sections 816 and 1641 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2017 (Pub. L. 114-328). Sections 816 and 1641 modify 41 U.S.C. 1903, Special Emergency Procurement Authority. The revisions to 41 U.S.C. 1903 establish special emergency procurement authorities to allow for higher micro-purchase and simplified acquisition thresholds for acquisitions of supplies or services that facilitate defense against or recovery from cyber attack; support a request from the Secretary of State or the Administrator of the United States Agency for International Development to facilitate provision of international disaster assistance pursuant to 22 U.S.C. 2292
This proposed rule provides for the following:
1. Definitions.
At FAR 2.101, definitions of “emergency” and “major” disaster” were added to explain two of the new circumstances that can trigger the new emergency procurement authorities. The Defense Acquisition Regulations Council and the Civilian Agency Acquisition Council (the Councils) did not add a definition of “cyber attack” because there was no statutory definition, and the Councils did not want to limit the authority of the head of the agency to determine what constituted a cyber attack that should trigger the new authorities. There was also no statutory definition of “international disaster assistance”; however, the reference to 22 U.S.C. 2292
Under the micro-purchase threshold, paragraph (3), and simplified acquisition threshold, paragraph (1), new language was added to include the expanded special emergency procurement authorities.
2. The new circumstances that allow exercise of the special emergency procurement authorities were added to the relevant provisions that govern the micro-purchase threshold at FAR 13.201(g)(1) and the simplified acquisition procedures for certain commercial items at FAR 13.500(c). However, only the new circumstance of acquiring supplies or services to facilitate defense against or recovery from a cyber attack was added at FAR 12.102(f)(1), because acquisitions of supplies or services under the other new circumstances are not to be treated as an acquisition of commercial items.
3. FAR part 18 provides a summary of emergency acquisition flexibilities throughout the FAR, so the changes in parts 2, 12, and 13 are reflected in conforming changes to part 18.
4. Other conforming changes.
• Cyber attack was added to the policy on market research at FAR 10.001. This section already addresses market research in furtherance of disaster or emergency relief activities.
• At FAR subpart 26.2, Disaster or Emergency Assistance Activities, a new paragraph (b) was added at FAR 26.202 to clarify the link between the Stafford Act and the increased micro-purchase and simplified acquisition thresholds.
Prior to enactment of the NDAA for FY 2017, for acquisitions of supplies or services that are to be used to support a contingency operation, or to facilitate defense against or recovery from nuclear, biological, chemical, or radiological attack, agencies had the authority, as provided in FAR part 13, to utilize the higher micro-purchase threshold (MPT) of $20,000 in lieu of $3,500 in the case of any contract to be awarded and performed, or purchase to be made, inside the United States; and $30,000 in the case of any contract to be awarded and performed, or purchase to be made, outside the United States (except for acquisitions of construction subject to 40 U.S.C. chapter 31, subchapter IV, Wage Rate requirements (Construction)). Additionally, prior to the enactment of the NDAA for FY 2017, agencies had the authority, as provided in FAR part 13, to utilize the higher simplified acquisition threshold (SAT) of $750,000 in lieu of $150,000 for any contract to be awarded and performed, or purchase to be made, inside the United States; and $1.5 million for any contract to be awarded and performed, or purchase to be made, outside the United States; and utilize the higher threshold of $13 million in lieu of $7 million for use of simplified acquisition procedures (SAP) for the acquisition of commercial items (including acquisitions treated as acquisitions of commercial items to facilitate defense against or recovery from nuclear, biological, chemical or radiological attack).
This proposed rule expands the use of the special emergency procurement authorities to apply to acquisitions of supplies or services that facilitate defense against or recovery from a cyber attack; support a request from the Secretary of State or the Administrator of the United States Agency for International Development to facilitate provision of international disaster assistance pursuant to 22 U.S.C. 2292
DoD, GSA, and NASA have performed a regulatory cost analysis on this proposed rule. The following is a summary of the estimated public and Government cost savings, which are
This rule will impact all businesses that submit offers in response to Federal solicitations issued for acquisitions below the MPT and SAT, if the solicitation is for an estimated value that falls within the range between the basic MPT or SAT and the higher threshold now authorized, thereby reducing the requirements imposed on the offerors when responding to the solicitation.
The estimated annualized public savings, using a discount rate of 7 percent is $1,327,836 (approximately $677,506 to other than small businesses and $650,330 to small business), with a present value savings of $18,969,086.
To access the full Regulatory Cost Analysis for this rule, go to the Federal eRulemaking Portal at
DoD, GSA, and NASA welcome comments on both the methodology and the analysis during the public comment period for this rule.
This rule does not add any new solicitation provisions or clauses, or impact any existing provisions or clauses.
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is a significant regulatory action and, therefore, was subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
This rule is considered to be an E.O. 13771 deregulatory action. Details on the estimated cost savings can be found in Section III of this preamble.
DoD, GSA, and NASA do not expect this rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act codified at 5 U.S.C. 601
This rule implements sections 816 and 1641 of the National Defense Authorization Act for Fiscal Year 2017 (Pub. L. 114-328), which amend 41 U.S.C. 1903.
This rule expands special emergency procurement authorities for acquisitions of supplies or services that—
• Facilitate defense against or recovery from a cyber attack;
• Provide international disaster assistance under the Foreign Assistance Act of 1961; or
• Support response to an emergency or major disaster under the Robert T. Stafford Disaster Relief and Emergency Assistance Act.
The legal authority for this rule is sections 816 and 1641 of the National Defense Authorization Act for Fiscal Year 2017 (Pub. L. 114-328), which amend 41 U.S.C. 1903.
Based on an average of contract actions reported in the Federal Procurement Data System for fiscal years 2014-2016, this rule applies to less than 100 small entities that submit offers in response to solicitations for the acquisition of supplies or services—
• Between $3,500 and $20,000 or between $150,000 and $750,000, to support response to emergencies or major disasters in the U.S.;
• Between $3,500 and $30,000 or between $150,000 and $1.5 million, to provide international disaster assistance under the Foreign Assistance Act of 1961; and
• Between $150,000 and $750,000 to facilitate defense against or recovery from cyber attacks.
This rule reduces compliance requirements on small entities, resulting in estimated savings to affected small entities of approximately $650,330 in the first year. The professional skill-sets previously required before these threshold increases were mid-level journeyman.
This rule reduces burdens on small entities, based on statutorily increased special emergency procurement authority. There are no alternatives consistent with the statute that would further reduce burdens on small entities.
The Regulatory Secretariat Division has submitted a copy of the IRFA to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the Regulatory Secretariat Division. DoD, GSA, and NASA invite comments from small business concerns and other interested parties on the expected impact of this rule on small entities.
DoD, GSA, and NASA will also consider comments from small entities concerning the existing regulations affected by this rule consistent with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (FAR Case 2017-009) in correspondence.
This proposed rule does not contain any information collection requirements that would require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
Government procurement.
Therefore, DoD, GSA, and NASA are proposing to amend 48 CFR parts 2, 10, 12, 13, 18, and 26 as set forth below:
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113.
The additions and revisions read as follows:
(b) * * *
(2) * * *
(3) For acquisitions of supplies or services that, as determined by the head of the agency, are to be used to support a contingency operation; to facilitate defense against or recovery from cyber, nuclear, biological, chemical or radiological attack; to support a request from the Secretary of State or the Administrator of the United States Agency for International Development to facilitate provision of international disaster assistance pursuant to 22 U.S.C. 2292
(i) $20,000 in the case of any contract to be awarded and performed, or purchase to be made, inside the United States; and
(ii) $30,000 in the case of any contract to be awarded and performed, or purchase to be made, outside the United States.
(1) Acquisitions of supplies or services that, as determined by the head of the agency, are to be used to support a contingency operation; to facilitate defense against or recovery from cyber, nuclear, biological, chemical, or radiological attack; to support a request from the Secretary of State or the Administrator of the United States Agency for International Development to facilitate provision of international disaster assistance pursuant to 22 U.S.C. 2292
(i) $750,000 for any contract to be awarded and performed, or purchase to be made, inside the United States; and
(ii) $1.5 million for any contract to be awarded and performed, or purchase to be made, outside the United States; and
(g)(1) For acquisitions of supplies or services that, as determined by the head of the agency, are to be used to support a contingency operation; to facilitate defense against or recovery from cyber, nuclear, biological, chemical, or radiological attack; to support a request from the Secretary of State or the Administrator of the United States Agency for International Development to facilitate provision of international disaster assistance pursuant to 22 U.S.C. 2292
(i) $20,000 in the case of any contract to be awarded and performed, or purchase to be made, inside the United States; and
(ii) $30,000 in the case of any contract to be awarded and performed, or purchase to be made, outside the United States.
(2) Purchases using this authority must have a clear and direct relationship to the support of a contingency operation; or the defense against or recovery from cyber, nuclear, biological, chemical, or radiological attack; international disaster assistance; or an emergency or major disaster.
(c) * * *
(1) The acquisition is for commercial items that, as determined by the head of the agency, are to be used in support of a contingency operation; to facilitate the defense against or recovery from cyber, nuclear, biological, chemical, or radiological attack; to support a request from the Secretary of State or the Administrator of the United States Agency for International Development to facilitate provision of international disaster assistance; or to support response to an emergency or major disaster; or
The revision and addition read as follows:
(b) To facilitate the defense against or recovery from cyber, nuclear, biological, chemical, or radiological attack against the United States;
(c) In support of a request from the Secretary of State or the Administrator of the United States Agency for International Development to facilitate the provision of international disaster assistance; or
(a)
(b)
(c)
(d)
(b) When using the authority under the Stafford Act, see the definitions of “micro-purchase threshold” and “simplified acquisition threshold” in 2.101 for the authority to use an increased micro-purchase threshold and simplified acquisition threshold.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are required regarding (1) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments regarding this information collection received by July 26, 2018 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725 17th Street NW, Washington, DC 20502. Commenters are encouraged to submit their comments to OMB via email to:
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding (1) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments regarding this information collection received by July 26, 2018 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725 17th Street NW, Washington, DC 20502. Commenters are encouraged to submit their comments to OMB via email to:
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Animal and Plant Health Inspection Service, USDA.
Notice.
We are advising the public that the Animal and Plant Health Inspection Service is making available for public comment a draft plant pest risk assessment (PPRA) and draft environmental assessment (EA) for canola designated as event B0050-027, which has been genetically engineered to accumulate the long chain omega-3 fatty acid known as docosahexaenoic acid in seed. We are making the draft PPRA and draft EA available for public review and comment.
We will consider all comments that we receive on or before July 26, 2018.
You may submit comments by either of the following methods:
•
•
Supporting documents for this petition and any comments we receive on this docket may be viewed at
Supporting documents for this petition are also available on the APHIS website at
Dr. John Turner, Director, Environmental Risk Analysis Programs, Biotechnology Regulatory Services, APHIS, 4700 River Road, Unit 147, Riverdale, MD 20737-1236; (301) 851-3954, email:
Under the authority of the plant pest provisions of the Plant Protection Act (7 U.S.C. 7701
The regulations in § 340.6(a) provide that any person may submit a petition to the Animal and Plant Health Inspection Service (APHIS) seeking a determination that an article should not be regulated under 7 CFR part 340. APHIS received a petition (APHIS Petition Number 17-236-01p) from Nuseed Americas Inc. (Nuseed) of Breckenridge, MN, seeking a determination of nonregulated status of canola (
According to our process
After public comments are received on a completed petition, APHIS evaluates those comments and then provides a second opportunity for public involvement in our decisionmaking process. According to our public review process (see footnote 1), the second opportunity for public involvement follows one of two approaches, as described below.
If APHIS decides, based on its review of the petition and its evaluation and analysis of comments received during the 60-day public comment period on the petition, that the petition involves a GE organism that raises no substantive new issues, APHIS will follow Approach 1 for public involvement. Under Approach 1, APHIS announces in the
If APHIS decides, based on its review of the petition and its evaluation and analysis of comments received during the 60-day public comment period on the petition, that the petition involves a GE organism that raises substantive new issues, APHIS will follow Approach 2. Under Approach 2, APHIS first solicits written comments from the public on a draft EA and draft PPRA for a 30-day comment period through the publication of a
As part of our decisionmaking process regarding a GE organism's regulatory status, APHIS prepares a PPRA to assess the plant pest risk of the article. APHIS also prepares the appropriate environmental documentation—either an EA or an environmental impact statement—in accordance with NEPA, to provide the Agency and the public with a review and analysis of any potential environmental impacts that may result if the petition request is approved.
APHIS has prepared a draft PPRA and has concluded that canola designated as event B0050-027, which has been genetically engineered to accumulate the long chain omega-3 fatty acid known as docosahexaenoic acid (DHA) in seed, is unlikely to pose a plant pest risk. In section 403 of the Plant Protection Act, “plant pest” is defined as any living stage of any of the following that can directly or indirectly injure, cause damage to, or cause disease in any plant or plant product: A protozoan, a nonhuman animal, a parasitic plant, a bacterium, a fungus, a virus or viroid, an infectious agent or other pathogen, or any article similar to or allied with any of the foregoing.
APHIS has also prepared a draft EA in which we present two alternatives based on our analysis of data submitted by Nuseed, a review of other scientific data, field tests conducted under APHIS oversight, and comments received on the petition. APHIS is considering the following alternatives: (1) Take no action,
The draft EA was prepared in accordance with (1) NEPA, as amended (42 U.S.C. 4321
In accordance with our process for soliciting public input when considering petitions for determinations of nonregulated status for GE organisms, we are publishing this notice to inform the public that APHIS will accept written comments on our draft EA and our draft PPRA regarding the petition for a determination of nonregulated status from interested or affected persons for a period of 30 days from the date of this notice. Copies of the draft EA and the draft PPRA, as well as the previously published petition, are available as indicated under
After the 30-day comment period closes, APHIS will review and evaluate any information received during the comment period and any other relevant information. After reviewing and evaluating the comments on the draft EA and the draft PPRA and other information, APHIS will revise the PPRA as necessary and prepare a final EA. Based on the final EA, APHIS will prepare a NEPA decision document (either a FONSI or a notice of intent to prepare an environmental impact statement). If a FONSI is reached, APHIS will furnish a response to the petitioner, either approving or denying the petition. APHIS will also publish a notice in the
7 U.S.C. 7701-7772 and 7781-7786; 31 U.S.C. 9701; 7 CFR 2.22, 2.80, and 371.3.
Architectural and Transportation Barriers Compliance Board.
Notice and request for comments.
The Architectural and Transportation Barriers Compliance Board (Access Board or Board), as part of its continuing efforts to reduce public burden and maximize the utility of government information, invites the public and other Federal agencies to comment on a proposed, new information collection, as required by the Paperwork Reduction Act of 1995 (PRA). With this notice, the Access Board solicits comments on its proposal to survey adult wheelchair users to gather data on their wheelchair seat heights and related demographics. Following review of comments received in response to this 60-day notice, the Access Board intends to submit a request to the Office of Management and Budget for approval of this information collection.
Submit Comments by August 27, 2018.
You may submit comments by any one of the following methods:
•
•
•
•
Wendy Marshall, Attorney Advisor, U.S. Access Board, 1331 F Street NW, Suite 1000, Washington, DC 20004-1111. Telephone: (202) 272-0043; Email address:
Under the PRA and its implementing regulations, Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each “collection of information” they conduct or sponsor. See 44 U.S.C. 3501-3520; 5 CFR part 1320. “Collection of Information,” within the meaning of the PRA, includes agency-sponsored surveys that pose identical questions to ten or more persons, regardless of whether responses are mandatory or voluntary.
In January 2017, the Access Board issued a final rule that established accessibility standards for medical diagnostic equipment (MDE) used by health care providers—such as, examination tables, examination chairs, weight scales, mammography equipment, and other imaging equipment—to ensure that such equipment is accessible to, and usable by, persons with disabilities. 82 FR 2810.
Among other things, the MDE Standards establish accessibility criteria relating to the height and adjustability of transfer surfaces on medical diagnostic equipment. Diagnostic equipment used by patients in supine, prone, side-lying or seated positions generally must have height-adjustable transfer surfaces with at least six specified positions: A low transfer height position (at 17-19 inches), A high transfer height position (at 25 inches), and four intermediate positions (separated by at least 1 inch).
Notably, as stated in the preamble to the final rule, the 17-to-19-inch height range for the low transfer height position is intended to be an interim standard only.
Therefore, in the final rule, the Access Board declined to specify a single minimum-low-height requirement in the MDE Standards, explaining that “there is insufficient data on the extent to which and how many individuals would benefit from a transfer height lower than 19 inches.”
The Access Board is authorized under section 510 of the Rehabilitation Act to develop (and periodically revise, as needed) minimum technical criteria for accessible medical diagnostic equipment used in healthcare settings.
In keeping with its statutory responsibilities under the Rehabilitation Act, the Access Board intends to conduct a national survey of adult wheelchair users to gather data on the seat height of their respective wheelchairs, as well as related demographic information. Data from this survey will be used to help inform the Board's subsequent rulemaking to update the MDE Standards through establishment of a minimum low transfer height position for medical diagnostic equipment. Additionally, the data and other information garnered from this survey will give the agency a better understanding of the adult, wheelchair-using population in the United States, and, thereby, aid our efforts to promote accessibility throughout American society and provide leadership in accessible design. To our knowledge, no published research or statistical compilations exist that examine adult wheelchair users' respective seat heights on a nationally-representative basis. The Access Board's wheelchair seat height survey aims to address this knowledge and statistical gap.
The Access Board has contracted with the Center for Inclusive Design and Environmental Access (IDeA Center) at the State University of New York at Buffalo to administer this wheelchair seat height survey and analyze the resulting data. The survey instrument is designed to capture the compressed seat height of each respondent's wheelchair, as well as basic demographic information about each respondent (
The survey instrument will be distributed primarily via electronic mail, with an embedded link to a web-based survey. (Email and/or regular mail will be used to follow-up with individuals who have not completed the survey.) Targeted field studies may also be employed, as needed, to supplement the pool of survey respondents. Electronic invitations to participate in the survey will be sent to approximately 20,000 self-identified wheelchair users around the country using email addresses from a commercial database. Participation in the survey will be completely voluntary, and individuals may complete the survey at their own convenience. All survey responses will be anonymous.
The Access Board estimates that it will take respondents approximately 15 minutes to complete the brief, one-time survey instrument. This estimate includes the needed for reviewing survey instructions, locating a measuring device and helper/assistant, measuring seat height, and completing the survey instrument. We project that about 2,000 individuals will submit responses to this survey. Total estimated annual burden hours for this survey is, therefore, 500 hours (.25 hours × 2,000).
The Access Board seeks comment on any aspect of its proposed wheelchair seat height survey, including: (a) The necessity of this survey to the Access Board's performance; (b) the accuracy of our burden estimates; (c) methods of minimizing this burden without reducing the quality of the collected data; and (d) suggestions to enhance the quality, utility, or clarity of the survey instrument. All relevant comments submitted to the Access Board will be summarized and included in our request for OMB approval of this information collection, as required under the PRA.
July 11, 2018, 1:00 p.m. EDT.
U.S. Chemical Safety Board, 1750 Pennsylvania Ave. NW, Suite 910, Washington, DC 20006.
Open to the public.
The Chemical Safety and Hazard Investigation Board (CSB) will convene a public meeting on Wednesday, July 11, 2018 at 1:00 p.m. EDT in Washington, DC, at the CSB offices located at 1750 Pennsylvania Avenue NW, Suite 910. The Board will discuss open investigations, the status of audits from the Office of the Inspector General, financial and organizational updates, and a review of the agency's action plan. New business will include the release of the 2018-2021 Human Capital Plan.
The meeting is free and open to the public. If you require a translator or interpreter, please notify the individual listed below as the
A conference call line will be provided for those who cannot attend in person. Please use the following dial-in number to join the conference:
The CSB is an independent federal agency charged with investigating incidents and hazards that result, or may result, in the catastrophic release of extremely hazardous substances. The agency's Board Members are appointed by the President and confirmed by the Senate. CSB investigations look into all aspects of chemical accidents and hazards, including physical causes such as equipment failure as well as inadequacies in regulations, industry standards, and safety management systems.
The time provided for public statements will depend upon the number of people who wish to speak. Speakers should assume that their
Amy McCormick Driver, at
International Trade Administration, Global Markets, U.S. Department of Commerce.
On April 6, 2018, the Department of Commerce Acting Chief Financial Officer and Assistant Secretary for Administration renewed the charter for the United States Investment Advisory Council (Council) for a two-year period, ending April 5, 2020. The Council is a federal advisory committee under the Federal Advisory Committee Act.
All applications for immediate consideration for appointment must be received by 5:00 p.m. Eastern Daylight Time (EDT) on Friday, July 27, 2018. After that date, applications will be accepted under this notice for a period of up to two years from the deadline to fill any vacancies that may arise.
Please submit applications by email to
Steven Meyers, Designated Federal Officer, SelectUSA, Room 30032, 1401 Constitution Avenue NW, Washington, DC 20230, telephone: 202-482-2612 email:
The United States Investment Advisory Council (Council) was established by the Secretary of Commerce (Secretary) pursuant to duties imposed by 15 U.S.C. 1512 upon the Department and in compliance with the Federal Advisory Committee Act (FACA), as amended, 5 U.S.C. App.
The Council functions solely as an advisory committee in accordance with the provisions of FACA. In particular, the Council advises the Secretary on government policies and programs that affect foreign direct investment (FDI), identifies and recommends programs and policies to help the United States attract and retain FDI, and recommends ways to support the United States in remaining the world's preeminent destination for FDI. The Council acts as a liaison among the stakeholders represented by the membership and provides a forum for the stakeholders on current and emerging issues regarding FDI.
The Council reports to the Secretary of Commerce on its activities and recommendations regarding FDI. In creating its reports, the Council is to survey and evaluate the investment and investment-facilitating activities of stakeholders, identify and examine specific problems facing potential foreign investors, and examine the needs of stakeholders to inform the Council's efforts. The Council is to recommend specific solutions to the problems and needs that it identifies.
Each member is to be appointed for a term of two years and serves at the pleasure of the Secretary. The Secretary may at his/her discretion reappoint any member to an additional term or terms, provided that the member proves to work effectively on the Council and his/her knowledge and advice is still needed.
The Council consists of no more than twenty members appointed by the Secretary. Members are to represent companies and organizations investing, seeking to invest, seeking foreign investors, or facilitating investment across many sectors, including but not limited to:
• U.S.-incorporated companies that are majority-owned by foreign companies or by a foreign individual or individuals, or that generate significant foreign direct investment (
• Companies or entities whose business includes FDI-related activities or the facilitation of FDI; and
• Economic development organizations and other U.S. governmental and non-governmental organizations and associations whose missions or activities include the promotion or facilitation of FDI.
Members are selected based on their ability to carry out the objectives of the Council, in accordance with applicable Department of Commerce guidelines, in a manner that ensures that the Council is balanced in terms of points of view, industry subsector, organization type, geography of the source and the destination of the FDI, and company size. Members are to represent a broad range of products and services and be drawn from large, medium, and small enterprises, private-sector organizations involved in investment, and other investment-related entities including non-governmental organizations, associations, and economic development organizations.
In selecting members, priority may be given to the selection of executives,
The Secretary designates a Chair and Vice Chair from among the members. The Council will meet a minimum of two times a year, to the extent practical, with additional meetings called at the discretion of the Secretary or his/her designee. Meetings will be held in Washington, DC or elsewhere in the United States, or by teleconference, as feasible. Members are expected to attend a majority of Council meetings.
To be considered for membership, submit the following information by 5:00 p.m. EDT on Friday, July 27, 2018 to the email address listed in the
1. Name and title of the individual requesting consideration.
2. A sponsor letter from the applicant on the sponsoring entity's letterhead containing a brief statement of why the applicant should be considered for membership on the Council. This sponsor letter should also address the applicant's experience and leadership related to foreign direct investment.
3. The applicant's personal resume and short bio (less than 300 words).
4. An affirmative statement that the applicant meets all eligibility criteria, including an affirmative statement that the applicant is not required to register as a foreign agent under the Foreign Agents Registration Act of 1938, as amended.
5. Information regarding the ownership and control of the sponsoring entity, including the stock holdings as appropriate.
6. The sponsoring entity's size, place of incorporation, product or service line, major markets in which the entity operates, and the entity's export or import experience.
7. A profile of the entity's foreign direct investment activities, including investment activities, investment plans, investment-facilitation activities, or other foreign direct investment activities.
8. Brief statement describing how the applicant will contribute to the work of the Council based on his or her unique experience and perspective (not to exceed 100 words).
9. All relevant contact information, including mailing address, fax, email, phone number, and support staff information where relevant.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On April 16, 2018, the Department of Commerce (Commerce) published a notice of initiation of an administrative review of the antidumping duty order on small diameter graphite electrodes from the People's Republic of China (China). Based on the timely withdrawal of the requests for review of certain companies, we are now rescinding this administrative review for the period February 1, 2017, through January 31, 2018, with respect to 191 companies.
Applicable June 26, 2018.
Dennis McClure or John Anwesen, AD/CVD Operations, Office VIII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-5973 or (202) 482-0131, respectively.
On February 26, 2009, Commerce published in the
On February 28, 2018, Tokai Carbon GE LLC (the petitioner)
Pursuant to 19 CFR 351.213(d)(1), Commerce will rescind an administrative review, in whole or in part, if the party that requested the review withdraws its request within 90 days of the publication of the notice of initiation of the requested review. In this case, the petitioner timely withdrew its review request, in part, by the 90-day deadline, and no other party requested an administrative review of the antidumping duty order for the companies for which the petitioner withdrew its review request. Therefore, we are rescinding the administrative review of the antidumping duty order on small diameter graphite electrodes from China for the period February 1, 2017, through January 31, 2018, with respect to the 191 companies for which all review requests were withdrawn. The review will continue only with respect to the remaining company Fushun Jinly Petrochemical Carbon Co., Ltd,
Commerce will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries. For the companies for which this review is rescinded, antidumping duties shall be assessed on the subject merchandise 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). Commerce intends to issue appropriate assessment instructions to CBP 15 days after publication of this notice in the
This notice serves as a final reminder to importers 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
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), 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 is a sanctionable violation.
This notice is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.213(d)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Based on Worthington Industries and Manchester Tank & Equipment Co.'s (the petitioners) withdrawal of the antidumping duty (AD) petition on steel propane cylinders from Taiwan, we are terminating the less-than-fair-value (LTFV) investigation.
Applicable June 26, 2018.
Laurel LaCivita, AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone (202) 482-4243.
On May 22, 2018, Commerce received AD petitions concerning imports of steel propane cylinders from China, Taiwan and Thailand, filed on behalf of the petitioners.
In accordance with section 734(a)(1)(A) of the Act and 19 CFR 351.207(b)(1), upon the petitioners' withdrawal of the Taiwan petition, we are terminating the LTFV investigation of steel propane cylinders from Taiwan.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Applicable June 26, 2018.
Stephanie Berger at (202) 482-2483 (People's Republic of China (China)) and Laurel LaCivita at (202) 482-4243 (Thailand), AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230.
On February 20, 2018, the Department of Commerce (Commerce) initiated less-than-fair-value (LTFV) investigations of imports of rubber bands from China, Sri Lanka, and Thailand.
Section 733(b)(1)(A) of the Tariff Act of 1930, as amended (the Act), requires Commerce to issue the preliminary determination in an LTFV investigation within 140 days after the date on which Commerce initiated the investigation. However, section 733(c)(1) of the Act permits Commerce to postpone the preliminary determination until no later than 190 days after the date on which Commerce initiated the investigation if: (A) The petitioner makes a timely request for a postponement; or (B) Commerce concludes that the parties concerned are cooperating, that the investigation is extraordinarily complicated, and that additional time is necessary to make a preliminary determination. Under 19 CFR 351.205(e), the petitioner must submit a request for postponement 25 days or more before the scheduled date of the preliminary determination and must state the reasons for the request. Commerce will grant the request unless it finds compelling reasons to deny the request.
On June 11, 2018, Alliance Rubber Co. (the petitioner) submitted timely requests pursuant to section 703(c)(1)(A) of the Act and 19 CFR 351.205(e) to postpone the preliminary determinations in these LTFV investigations.
For the reasons stated above and because there are no compelling reasons to deny the petitioner's request, Commerce, in accordance with section 733(c)(1)(A) of the Act, is postponing the deadline for the preliminary determinations by 50 days (
This notice is issued and published pursuant to section 733(c)(2) of the Act and 19 CFR 351.205(f)(1).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; Issuance of an incidental harassment authorization.
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued an incidental harassment authorization (IHA) to the Alaska Department of Transportation and Public Facilities (ADOT&PF) to incidentally harass, by Level B harassment only, marine mammals during construction activities associated with a city dock and ferry terminal improvement project in Tenakee Springs, Alaska.
This Authorization is applicable from June 1, 2019 through May 31, 2020.
Jonathan Molineaux, 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 online at:
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
An authorization for incidental takings shall be granted if NMFS finds that the taking shall have a negligible impact on the species or stock(s), shall not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth.
NMFS has defined “negligible impact” in 50 CFR 216.103 as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.
The MMPA states that the term “take” means to harass, hunt, capture, kill or attempt to harass, hunt, capture, or kill any marine mammal.
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
On October 23, 2017, NMFS received a request from ADOT&PF for an IHA to take marine mammals incidental to conducting improvements at the Tenakee Springs city dock and ferry terminal, in Tenakee Springs, Alaska. The application was considered adequate and complete on January 30, 2018. ADOT&PF's request is for take of seven species of marine mammals by Level B harassment only. Neither ADOT&PF nor NMFS expect mortality to result from this activity and, therefore, an IHA is appropriate. The planned activity is not expected to exceed one year, hence, we do not expect subsequent MMPA IHAs to be issued for this particular activity.
The ADOT&PF plans to make improvements to the Tenakee Springs Ferry Terminal located in Tenakee Springs, Alaska, on Chichigof Island in southeast Alaska (Figure 1-1 of the application). The facility is a multi-function dock and active ferry terminal located in the center of town (see Figure 1-2 and Figure 1-3 in application). The project's activities that have the potential to take marine mammals include vibratory and impact pile driving, drilling operations for pile installation (down-hole hammer), and vibratory pile removal.
The purpose of the project is to replace the existing, aging mooring and transfer structures nearing the end of their operational life due to corrosion and wear with modern facilities that provide improved operations for Alaska Marine Highway System (AMHS) ferry vessels, as well as freight and fueling operators, servicing the community of Tenakee Springs. Planned improvements include the installation of new shore side facilities and marine structures and the renovation of existing structures. This shall accommodate cargo and baggage handling, vessel mooring, passenger and vehicle access gangways, and re-establish existing electrical and fuel systems. Improvements shall enhance public safety and security.
In-water project construction activities shall begin no sooner than June 1, 2019. Pile installation and removal is expected to be completed in 93 working days within a 4-month window beginning sometime after June 1, 2019. Pile installation shall be intermittent and staggered depending on weather, construction and mechanical delays, marine mammal shutdowns, and other potential delays and logistical constraints. Given the possibility of schedule delays and other unforeseen circumstances, an IHA is being requested for a full year, from June 1, 2019 through May 31, 2020.
A detailed description of the planned activities is provided in the proposed IHA for this action found in the following
A notice of NMFS's proposal to issue an IHA was published in the
Sections 3 and 4 of the application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history, of the potentially affected species. Additional information regarding population trends and threats may be found in NMFS Stock Assessment Reports (SAR;
The effect of stressors associated with the specified activities (
NMFS described potential impacts to marine mammal habitat in detail in our
This section provides an estimate of the number of incidental takes for authorization through this IHA, which shall inform both NMFS' consideration of whether the number of takes is “small” and the negligible impact determination.
Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
Authorized takes are expected to be by Level B harassment only, in the form of disruption of behavioral patterns for individual marine mammals resulting from exposure to pile driving and drilling. Based on the nature of the activity and the anticipated effectiveness of the mitigation measures (
Described in the most basic way, we estimate take by considering: (1) Acoustic thresholds above which NMFS believes the best available science indicates marine mammals shall be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that shall be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and, (4) and the number of days of activities. Below, we describe these components in more detail and present the take estimate.
NMFS has developed acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals shall be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur PTS of some degree (equated to Level A harassment).
ADOT&PF's activity includes the use of continuous (vibratory pile driving and drilling) and impulsive (impact pile driving) sources, and therefore the 120 and 160 dB re 1 μPa (rms) thresholds are applicable.
These thresholds were developed by compiling and synthesizing the best available science and soliciting input multiple times from both the public and peer reviewers to inform the final product, and are provided in Table 2 below. The references, analysis, and methodology used in the development of the thresholds are described in NMFS' 2016 Technical Guidance, which may be accessed at:
Although ADOT&PF's construction activity includes the use of impulsive (impact pile driving) and non-impulsive (vibratory pile driving and drilling) sources, the shutdown zones set by the applicant are large enough to ensure Level A harassment will be prevented. The Level A harassment zones for the project are illustrated in Table 4. The highest Level A harassment zones shown (176 meters for high-frequency cetaceans and 148 meters for low-frequency cetaceans) are less than the total distance of the largest shutdown zone (200 meters for high- and low-frequency cetaceans). To assure the largest shutdown zone can be fully monitored, protected species observers (PSOs) shall be positioned in the possible best vantage points during all piling/drilling activities to guarantee a shutdown if a high- and/or low-frequency cetacean approaches or enters the 200-meter shutdown zone. These measures are described in full detail below in the Mitigation and Monitoring Sections.
Here, we describe operational and environmental parameters of the activity that feeds into identifying the area ensonified above the acoustic thresholds.
The sound field in the project area is the existing background noise plus additional construction noise from the project. Marine mammals are expected to be affected via sound generated by the primary components of the project,
• The relatively shallow waters in the project area (Taylor
• Land forms around Tenakee Springs that shall block the noise from spreading; and
• Vessel traffic and other commercial and industrial activities in the project area that contribute to elevated background noise levels.
In order to calculate distances to the Level A and Level B sound thresholds for piles of various sizes being used in this project, NMFS used acoustic monitoring data from other locations (see Table 3). Note that piles of differing sizes have different sound source levels.
Empirical data from recent ADOT&PF sound source verification (SSV) studies at Ketchikan, Kodiak, and Auke Bay, Alaska were used to estimate sound source levels (SSLs) for vibratory, impact, and drilling installations of 30-inch steel pipe piles (MacGillivray
For vibratory driving of 24-inch steel piles, data from two Navy project locations in the state of Washington were reviewed. These include data from proxy sound source values at Navy installations in Puget Sound (Navy, 2015) and along the waterfront at Naval Base Kitsap (NBK), Bangor (Navy 2012). After assessing these two sources, ADOT&PF selected an average source level of 161 dB rms, which NMFS concurs with as an appropriate sound source. In addition, for a fourth project at NBK, Bangor, construction crews drove 16-inch hollow steel piles with measured levels similar to those for the 24-inch piles. Therefore, NMFS elects to use 161 dB rms as a source level for vibratory driving of 18-inch and 16-inch steel piles.
For vibratory driving of 14-inch steel and timber piles and 12.75-inch steel piles, ADOT&PF suggested a source level of 155 dB rms, which NMFS also concurs with. This source level was derived from summary data pertaining to vibratory driving of 18-inch steel piles in Kake, Alaska (MacGillivray 2015).
In their application, ADOT&PF derived source levels for impact driving of 30-inch steel piles by averaging the individual mean values associated with impact driving of the same size and type from Ketchikan (Warner and Austin 2016a). Mean values from Ketchikan were the most conservative dataset for 30-inch impact pile driving in Southeast Alaska. The average mean value from this dataset was 194.7 dB rms and 180.8 dB sound exposure level (SEL).
For 24-inch impact pile driving, NMFS used data from a Navy (2015) study of proxy sound source values for use at Puget Sound military installations. The Navy study recommended a value of 193 dB rms and 181 dB SEL, which was derived from data generated by impact driving of 24-inch steel piles at the Bainbridge Island Ferry Terminal Preservation project and the Friday Harbor Restoration Ferry Terminal project. NMFS found this estimated source level to be appropriate.
For impact driving of 20-, 18-, and 14-inch steel piles, ADOT&PF used source levels of 186.6 dB, 158 dB, and 158 dB respectively. These source levels were derived from Caltrans SSV studies at the Stockton Wastewater Treatment Plant (20-inch) and Caltrans SSV studies at Prichard Lake Pumping Plant in Sacramento, CA (18- and 14-inch) (Caltrans 2015). In regards to the drilling activities, a source level of 165 dB for all pile types originated from ADOT&PF SSV studies for piling operations in Kodiak, Alaska (Warner and Austin 2016b).
The formula below is used to calculate underwater sound propagation. Transmission loss (TL) is the decrease in acoustic intensity as an acoustic pressure wave propagates out from a source. TL parameters vary with frequency, temperature, sea conditions, current, source and receiver depth, water depth, water chemistry, and bottom composition and topography. The general formula for underwater TL is:
NMFS typically recommends a default practical spreading loss of 15 dB per tenfold increase in distance. ADOT&PF analyzed the available underwater acoustic data utilizing this metric.
When NMFS' Technical Guidance (2016) was published, in recognition of the fact that ensonified area/volume could be more technically challenging to predict because of the duration component in the new thresholds, NMFS developed a User Spreadsheet that includes tools to help predict a simple isopleth that can be used in conjunction with marine mammal density or occurrence to help predict takes. We note that because of some of the assumptions included in the methods used for these tools, we anticipate that isopleths produced are typically going to be overestimates of some degree, which shall result in some degree of overestimate of Level A take. However, these tools offer the best way to predict appropriate isopleths when more sophisticated 3D modeling methods are not available, and NMFS continues to develop ways to quantitatively refine these tools, and shall qualitatively address the output where appropriate. For stationary sources such as pile driving and drilling, NMFS' User Spreadsheet predicts the closest distance at which, if a marine mammal remained at that distance the whole duration of the activity, it shall not incur PTS. Inputs used in the User Spreadsheet and the resulting isopleths are reported in Tables 3 and 4.
Pulse duration from the SSV studies described above are unknown. However, all necessary parameters were available for the SEL
To derive Level A harassment isopleths associated with impact driving 30-inch steel piles, ADOT&PF utilized a single strike SEL of 180.8 dB and assumed 30 strikes per pile for 1 to 3 piles per day. For 24-inch and 20-inch steel piles, ADOT&PF used a single strike SEL of 181 dB SEL and 175.5 SEL respectively, also assuming 30 strikes at a rate of 1 to 3 piles per day. To calculate Level A harassment isopleths associated with impact piling 18-inch and 14-inch steel/timber piles, a source level (rms sound pressure level (SPL)) of 158 dB was used with a pulse duration of .05 seconds.
To calculate Level A harassment for vibratory driving of 30-inch piles, ADOT&PF utilized a source level (rms SPL) of 165 dB and assumed 45 minutes of driving per day. For installing 24, 20, and 18-inch piles, ADOT&PF used a source level of 161 dB and assumed up to 45 minutes of driving per day. For removal of 18 and 16-inch piles, ADOT&PF assumed use of 18-inch piles and used the same source level of 161 dB for up to 45 minutes. Level A harassment for the installation/removal of piles 14-inches and under in diameter used a source level of 155 dB rms and assumed 2.5 hours of driving/removal a day. In regards to Level A for drilling, a source level of 165 dB rms was used for all pile types with varying levels of activity for each pile type (see Tables 1 & 2 of the FR Notice (83 FR 12152; March 20, 2018) for information on drilling duration and max number of piles drilled each day). Results for all Level A isopleths are shown in Table 4. Isopleths for Level B harassment associated with impact (160 dB) and vibratory harassment (120 dB) were also calculated and are included in Table 4.
It is important to note that the actual area ensonified by pile driving activities is constrained by local topography relative to the total threshold radius (particularly for the Level B ensonified zones). The actual ensonified area was determined using a straight line-of-sight projection from the anticipated pile driving locations. Overall, Level A harassment zones for impact installation are relatively small because of the few strikes required to proof the piles. The maximum aquatic areas ensonified within the Level A harassment isopleths do not exceed 0.1 square kilometer (km
In this section we provide the information about the presence, density, or group dynamics of marine mammals that shall inform the take calculations. Potential exposures to impact and vibratory pile driving noise for each threshold were estimated using local marine mammal density datasets where available and local observational data. As previously stated, only Level B take shall be considered for this action as Level A take shall be avoided via mitigation (
Steller sea lion abundance in the project area is highly seasonal in nature with sea lions being most active between October and March (Figure 4-2). Level B exposure estimates are conservatively based on the average winter (October to March) abundance of 140 sea lions at the Tenakee Cannery haulout, which is 8.9 km away from the project site (Jemison, 2017, unpublished data). However, it is unlikely that the entire Steller sea lion population from the Tenakee Cannery haulout shall forage to the west near the Tenakee Springs ferry terminal. Additionally, Steller sea lions do not generally forage every day, but tend to forage every 1-2 days and return to haulouts to rest between foraging trips (Merrick and
To assign take to the eastern distinct population segment (eDPS) and western DPS (wDPS) stocks of Steller sea lions, data from researchers at NMFS' Alaska Fisheries Science Center were used. Researchers at NMFS' Alaska Fisheries Science Center state that roughly 17.8 percent of Steller sea lions at the Tenakee Cannery Point haulout are members of the wDPS whereas 82.2 percent are from the eDPS (L. Fritz, pers. comm; L. Fritz, unpublished data). Therefore, it is estimated that only 1,159 takes (17.8 percent of 6,510) have the potential to occur for wDPS Steller sea lions and 5,351 (82.2 percent of 6,510) takes have the potential to occur for eDPS Steller sea lions. In addition, since there is only an average of 140 Steller sea lions located at the Tenakee Cannery haulout, it is predicted that only 115 (82.2 percent of 140) individuals from the eDPS and 25 (17.8 percent of 140) individuals from the wDPS have the potential to be harassed.
Harbor seals are non-migratory; therefore, the exposure estimates are not dependent on season. We anticipate Level B harbor seal take to be relatively high, given the presence of three established haulouts within the largest (10 km) Level B harassment zone of the project site. The best available abundance estimate for Tenakee Inlet is 259 individual harbor seals (London, J., pers. comm.).
The number of harbor seals that could potentially be exposed to elevated sound levels for the project was estimated by calculating density * area * number of days of activity. The total density of harbor seals in Tenakee inlet is approximately 1.11 animals per km
Harbor porpoises are non-migratory; therefore, our exposure estimates are not dependent on season. Harbor porpoise surveys conducted in southeast Alaska during the summers of 1991-1993, 2006, 2007, and 2010-2012 included Chatham Strait (near the action area). The average density estimate for all survey years in Chatham Strait was 0.013 harbor porpoise per square km (Dahlheim
Dall's porpoise are non-migratory; therefore, our exposure estimates are not dependent on season. Based on anecdotal evidence citing rare occurrences of the species in the action area, we anticipate approximately one observation of a Dall's porpoise pod in the Level B harassment zone each week during construction (Lewis, S., pers. comm.). Based on an average pod size of 3.7 (Wade
Local marine mammal experts indicate that approximately one killer whale pod is observed in Tenakee Inlet each month, year-round (Lewis, S., pers. comm.). It is assumed that all three killer whale stocks are equally likely to occur in the area because no data exist on relative abundance of the three stocks in Tenakee Inlet. The exposure estimate is conservatively based on a resident pod size, which has been quantified and is known to be a larger than other stocks. Resident killer whales occur in a mean group size of 19.3 during the fall in southeast Alaska (Dahlheim
Humpback whales are present in Tenakee Inlet year-round. Local experts indicate that as many as 12 humpback whales are present on some days from spring through fall, with lower numbers during the winter (S. Lewis and M. Dahlheim, pers. comm.). We conservatively estimate that half of those, or six individuals on average, could be exposed to Level B harassment during each day of pile installation and removal, therefore: 6 humpback whales per day * 93 days of exposure = 558 potential exposures. Each of these exposures will result in Level B take only, as Level A take is neither requested nor authorized due to shutdown measures.
Minke whales may be present in Tenakee Inlet year-round. Their abundance throughout southeast Alaska is very low, and anecdotal reports have not included minke whales near the project area. However, minke whales are distributed throughout a wide variety of habitats and could occur near the project area. Therefore, we conservatively estimate that one minke whale could be exposed to Level B harassment each month during construction or a total of three minke whales during the 93-day construction period. Each of these exposures will result in Level B take only, as Level A take is neither requested nor authorized due to shutdown measures.
In order to issue an IHA under Section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating
In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully consider two primary factors:
(1) 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, and their habitat. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure shall be effective if implemented (probability of accomplishing the mitigating result if implemented as planned) the likelihood of effective implementation (probability implemented as planned), and;
(2) The practicability of the measures for applicant implementation, which may consider such things as cost, impact on operations.
In addition to the measures described later in this section, ADOT&PF shall employ the following standard mitigation measures:
• Conduct briefings between construction supervisors and crews and the marine mammal monitoring team prior to the start of all pile driving activity, and when new personnel join the work, to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures;
• For in-water heavy machinery work other than pile driving (
• Work may only occur during daylight hours, when visual monitoring of marine mammals can be conducted;
• For those marine mammals for which Level B take has not been requested, in-water pile installation/removal and drilling shall shut down immediately when the animals are sighted;
• If Level B take reaches the authorized limit for an authorized species, pile installation shall be stopped as these species approach the Level B zone to avoid additional take of them.
The following measures shall apply to ADOT&PFs mitigation requirements:
In order to issue an IHA for an activity, Section 101(a)(5)(D) of the MMPA states that NMFS must set forth requirements pertaining to the monitoring and reporting of such taking. The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that shall result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the action area. Effective reporting is critical both for compliance as well as ensuring that the most value is obtained from the required monitoring.
Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following:
• Occurrence of marine mammal species or stocks in the area in which take is anticipated (
• Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (
• Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors;
• How anticipated responses to stressors impact either: (1) long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks;
• Effects on marine mammal habitat (
• Mitigation and monitoring effectiveness.
Monitoring shall be conducted 30 minutes before, during, and 30 minutes after pile driving and removal activities. In addition, observers shall record all incidents of marine mammal occurrence, regardless of distance from activity, and shall document any behavioral reactions in concert with distance from piles being driven or removed. Pile driving activities include the time to install or remove a single pile or series of piles, as long as the time elapsed between uses of the pile driving equipment is no more than thirty minutes.
PSOs shall be land-based observers. A primary PSO shall be placed at the terminal where pile driving shall occur. A second observer shall range the uplands on foot or by ATV via Tenakee Ave., and go from Grave Point east of the harbor up and west of the project site to get a full view of the Level A zone and as much of the Level B zone as possible. PSOs shall scan the waters using binoculars, and/or spotting scopes, and shall use a handheld GPS or range-finder device to verify the distance to each sighting from the project site. All PSOs shall be trained in marine mammal identification and behaviors and are required to have no other project-related tasks while conducting monitoring. In addition, monitoring shall be conducted by qualified observers, who shall be placed at the best vantage point(s) practicable to monitor for marine mammals and implement shutdown/delay procedures when applicable by calling for the shutdown to the hammer operator. Qualified observers are trained and/or experienced professionals, with the following minimum qualifications:
• Visual acuity in both eyes (correction is permissible) sufficient for discernment of moving targets at the water's surface with ability to estimate target size and distance; use of binoculars may be necessary to correctly identify the target.
• Independent observers (
• Observers must have their CVs/resumes submitted to and approved by NMFS
• Advanced education in biological science or related field (
higher).Observers may substitute education or training for experience.
• Experience and ability to conduct field observations and collect data according to assigned protocols (this may include academic experience).
• At least one observer must have prior experience working as an observer.
• Experience or training in the field identification of marine mammals, including the identification of behaviors.
• Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations.
• Writing skills sufficient to prepare a report of observations including but not limited to the number and species of marine mammals observed; dates and times when in-water construction activities were conducted; dates and times when in-water construction activities were suspended to avoid potential incidental injury from construction sound of marine mammals observed within a defined shutdown zone; and marine mammal behavior.
• Ability to communicate orally, by radio or in person, with project personnel to provide real-time information on marine mammals observed in the area as necessary.
A draft marine mammal monitoring report shall be submitted to NMFS within 90 days after the completion of pile driving and removal activities. It shall include an overall description of work completed, a narrative regarding marine mammal sightings, and associated PSO data sheets. Specifically, the report must include:
• Date and time that monitored activity begins or ends;
• Construction activities occurring during each observation period;
• Weather parameters (
• Water conditions (
• Species, numbers, and, if possible, sex and age class of marine mammals;
• Description of any observable marine mammal behavior patterns, including bearing and direction of travel and distance from pile driving activity;
• Distance from pile driving activities to marine mammals and distance from the marine mammals to the observation point;
• Locations of all marine mammal observations; and
• Other human activity in the area.
If no comments are received from NMFS within 30 days, the draft final report shall constitute the final report. If comments are received, a final report addressing NMFS comments must be submitted within 30 days after receipt of comments.
In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by the IHA, such as an injury, serious injury or mortality, ADOT&PF shall immediately cease the specified activities and report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, and the Alaska Regional Stranding Coordinator. The report shall include the following information:
• Description of the incident;
• Environmental conditions (
• Description of all marine mammal observations in the 24 hours preceding the incident;
• Species identification or description of the animal(s) involved;
• Fate of the animal(s); and
• Photographs or video footage of the animal(s) (if equipment is available).
Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS shall work with ADOT&PF to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. ADOT&PF shall not be able to resume their activities until notified by NMFS via letter, email, or telephone.
In the event that ADOT&PF discovers an injured or dead marine mammal, and the lead PSO determines that the cause of the injury or death is unknown and the death is relatively recent (
In the event that ADOT&PF discovers an injured or dead marine mammal and the lead PSO determines that the injury or death is not associated with or related to the activities authorized in the IHA (
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 adverse effects on annual rates of recruitment or survival (
As stated in the mitigation section, shutdown zones equal to or exceeding Level A isopleths shown in Table 4 shall be implemented, and in this case, Level A take is not anticipated nor authorized. Behavioral responses of marine mammals to pile driving and removal at the ferry terminal, if any, are expected to be mild and temporary. Marine mammals within the Level B harassment zone may not show any visual cues they are disturbed by activities (as noted during modification to the Kodiak Ferry Dock) or could become alert, avoid the area, leave the area, or display other mild responses that are not observable such as changes in vocalization patterns. Given the short duration of noise-generating activities per day and that pile driving, removal, and drilling shall occur for 93 days, any harassment shall be temporary. In addition, the project was designed with relatively small-diameter piles, which shall avoid the elevated noise impacts associated with larger piles. In addition, there are no known biologically important areas near the project zone that shall be moderately or significantly impacted by the construction activities. The region of Tenakee Inlet where the project shall take place is located in a developed area with regular marine vessel traffic. Although there is a harbor seal haulout approximately one km south of the project site, it shall not be located within the project's Level B zone.
In summary and as described above, the following factors primarily support our determination that the impacts resulting from this activity are not expected to adversely affect the species or stock through effects on annual rates of recruitment or survival:
• No mortality is anticipated or authorized.
• There are no known biologically important areas within the project area.
• ADOT&PF shall implement mitigation measures such as vibratory driving piles to the maximum extent practicable, soft-starts, and shut downs.
• Monitoring reports from similar work in Alaska have documented little to no effect on individuals of the same species impacted by the specified activities.
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 monitoring and mitigation measures, NMFS finds that the total marine mammal take from the activity shall
As noted above, only small numbers of incidental take may be authorized under Section 101(a)(5)(D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities.
Overall, ADOT&PF proposes 15,566 total Level B takes of these marine mammals. Table 7 below shows take as a percent of population for each of the species listed above.
Table 7 presents the number of animals that could be exposed to received noise levels causing Level B harassment for the work at the Tenakee Springs Ferry Terminal. Our analysis shows that less than 25 percent of each affected stock could be taken by harassment. Therefore, the numbers of animals authorized to be taken for all species shall be considered small relative to the relevant stocks or populations even if each estimated taking occurred to a new individual—an extremely unlikely scenario. For harbor porpoise, the abundance estimates used in the percentage of population were taken from inland Southeast Alaska waters. These abundance estimates have not been corrected for g(0) and are likely conservative, therefore it is expected for the percentage of population that shall be taken to be overestimated. In addition, high percentage totals for northern resident (20.7 percent) and western transient (24.7 percent) killer whales were based on the possibility that all 60 takes for killer whales shall occur for each stock, which is a highly unlikely scenario.
Based on the analysis contained herein of the activity (including the mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS finds that small numbers of marine mammals shall be taken relative to the population size of the affected species or stocks.
There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks shall not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes. The project is not known to occur in an important subsistence hunting area. It is a developed area with regular marine vessel traffic. However, ADOT&PF plans to provide advanced public notice of construction activities to reduce construction impacts on local residents, ferry travelers, adjacent businesses, and other users of the Tenakee Springs ferry terminal and nearby areas. This shall include notification to local Alaska Native tribes that may have members who hunt marine mammals for subsistence. Of the marine mammals considered in this IHA application, only harbor seals are known to be used for subsistence in the project area. If any tribes express concerns regarding project impacts to subsistence hunting of marine mammals, further communication between shall take place, including provision of any project information, and clarification of any mitigation and minimization measures that may reduce potential impacts to marine mammals.
Based on the description of the specified activity, the measures described to minimize adverse effects on the availability of marine mammals for subsistence purposes, and the mitigation and monitoring measures, NMFS has determined that there shall not be an unmitigable adverse impact on subsistence uses from ADOT&PF's activities.
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 U.S.C. 1531
NMFS Alaska Region issued a Biological Opinion to NMFS Office of Protected Resources which concluded the city dock and improvement project is not likely to jeopardize the continued existence of WDPS Steller sea lions or Mexico DPS humpback whales or adversely modify critical habitat because none exists within the action area.
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
As a result of these determinations, we have issued an IHA to ADOT&PF for conducting the described construction activities related to city dock and ferry terminal improvements from June 1, 2019 through May 31, 2020 provided the previously described mitigation, monitoring, and reporting requirements are incorporated.
National Oceanic and Atmospheric Administration, U.S. Department of Commerce, and Environmental Protection Agency.
Notice of Intent to find that Georgia has satisfied all conditions of approval on its coastal nonpoint pollution control program.
The National Oceanic and Atmospheric Administration (NOAA) and Environmental Protection Agency (EPA) (the federal agencies) invite public comment on the agencies' proposed finding that Georgia has satisfied all conditions on the 2002 approval of the State's coastal nonpoint pollution control program (coastal nonpoint program). The Coastal Zone Act Reauthorization Amendments (CZARA) directs states and territories with coastal zone management programs previously approved under Section 306 of the Coastal Zone Management Act to develop and implement coastal nonpoint programs, which must be submitted to the federal agencies for approval. Prior to making such a finding, NOAA and EPA invite public input on the federal agencies' reasoning for this proposed finding.
Individuals or organizations wishing to submit comments on the proposed findings document should do so by July 26, 2018.
Comments can be made by email to:
Copies of the proposed Findings Document may be found on NOAA's Coastal Nonpoint Pollution Control Program website at
Section 6217(a) of the Coastal Zone Act Reauthorization Amendments (CZARA), 16 U.S.C. 1455b(a), requires that each state (or territory) with a coastal zone management program previously approved under section 306 of the Coastal Zone Management Act must prepare and submit to the federal agencies a coastal nonpoint pollution control program for approval. Georgia originally submitted its program to the federal agencies for approval in December 1999. The federal agencies provided public notice of and invited public comment on their proposal to approve, with conditions, the Georgia program (66 FR 49643). The federal agencies approved the program by letter dated June 4, 2002, subject to the conditions specified in the letter (67 FR 38471). The federal agencies propose to find, and invite public comment on the proposed findings, that Georgia has now fully satisfied all conditions of the earlier approval of its coastal nonpoint program.
Over time, Georgia has made changes to its program in order to satisfy the identified conditions. As explained in the proposed findings document, the federal agencies have determined that Georgia has fully met all conditions originally placed on its program. The proposed findings document describes how the State program has satisfied the conditions.
The proposed findings document for Georgia's program as well as information on the Coastal Nonpoint Program in general is available for download on the NOAA website at
Commodity Futures Trading Commission.
Notice of meeting.
The Commodity Futures Trading Commission (CFTC) announces that on July 12, 2018, from 10:00 a.m. to 4:00 p.m., the Market Risk Advisory Committee (MRAC) will hold a public meeting in the Conference Center at the CFTC's Washington, DC, headquarters. At this meeting, the MRAC will discuss: The Committee's priorities and agenda, current initiatives to reform the London Interbank Offered Rate (LIBOR), including the development and adoption of alternative interest rate benchmarks, and the effect of such reform on the derivatives markets.
The meeting will be held on July 12, 2018, from 10:00 a.m. to 4:00 p.m. Members of the public who wish to submit written statements in connection with the meeting should submit them by July 19, 2018.
The meeting will take place in the Conference Center at the CFTC's headquarters, Three Lafayette Centre, 1155 21st Street NW, Washington, DC 20581. You may submit public comments, identified by “Market Risk Advisory Committee,” by any of the following methods:
•
•
•
Any statements submitted in connection with the committee meeting will be made available to the public, including publication on the CFTC website,
Alicia L. Lewis, MRAC Designated Federal Officer, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW, Washington, DC 20581; (202) 418-5862.
The meeting will be open to the public with seating on a first-come, first-served basis. Members of the public may also listen to the meeting by telephone by calling a domestic toll-free telephone or international toll or toll-free number to connect to a live, listen-only audio feed. Call-in participants should be prepared to provide their first name, last name, and affiliation.
The meeting agenda may change to accommodate other MRAC priorities. For agenda updates, please visit the MRAC committee site at:
After the meeting, a transcript of the meeting will be published through a link on the CFTC's website,
5 U.S.C. app. 2, sec. 10(a)(2).
Corporation for National and Community Service.
Request for preliminary public input; Notification of listening sessions; Correction.
The Corporation for National and Community Service published a Notice in the
Neill Minish, Special Initiatives Advisor, Corporation for National and Community Service, 250 E Street SW, Washington, DC 20525. Phone: 202-606-6664. Email:
In the
2. June 26, 2018, New Orleans, LA.
Department of the Army, DoD.
Notice of Federal Advisory Committee Meeting.
The Department of the Army is publishing this notice to announce that the following Federal Advisory Committee meeting of the Advisory Committee on Arlington National Cemetery will take place. The meeting is open to the public. For more information about the Committee, please visit:
The Committee will meet on Thursday, July 26, 2018 from 9:00 a.m. to 4:00 p.m.
Arlington National Cemetery Welcome Center, Arlington National Cemetery, Arlington, VA 22211.
Mr. Timothy Keating; Alternate Designated Federal Officer for the Committee, in writing at Arlington National Cemetery, Arlington VA 22211, or by email at
This meeting is being held under the provisions of the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.140 and 102-3.150.
Department of the Army, DoD.
ACTION: Notice of Federal Advisory Committee Meeting.
The Department of Defense is publishing this notice to announce that the following Federal Advisory Committee meeting of the Board on Coastal Engineering Research will take place.
The Board on Coastal Engineering Research will meet from 8:00 a.m. to 12:00 p.m. on August 7, 2018 and reconvene from 8:00 a.m. to 5:00 p.m. on August 8, 2018. The Executive Session of the Board will convene from 8:00 a.m. to 12:00 p.m. on August 9, 2018.
All sessions will be held at the Marriott Providence Downtown Hotel Marquis Ballroom, 1 Orms St. Providence, RI 02904. All sessions, including the Executive Session are open to the public. For more information about the Board, please visit
COL Bryan S. Green, US Army, (601) 634-2513 (Voice), (601) 634-2818 (Facsimile),
This meeting is being held under the provisions of the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.140 and 102-3.150. The Board on Coastal Engineering Research provides broad policy guidance and reviews plans for the conduct of research and the development of research projects in consonance with the needs of the coastal engineering field and the objectives of the U.S. Army Chief of Engineers.
On Wednesday morning, August 8, 2018, the Board will reconvene to discuss Coastal Research Supporting Social & Ecological Needs. Presentations will include: Research on Long-Term Natural Geomorphologic Evolution of Barrier Islands & Estuaries in Absence of Humans; Ecological Metrics; Predicting the Transport, Transformation and Fate of Sediment and Particle-Bound Nutrients and Contaminates; Research on Coastal Water Quality Addressing the Sources, Transformation, Transport, and Ecology of Biocolloid; Reducing Risk and Improving Resiliency to the Impacts of Climate Variability; Northeast Sediment Sources and Needs; and Conveyance of Risk from Storms and Social Implications of Impacts. The Wednesday afternoon session continues with the State of Knowledge and Research Direction's panel. Presentations include: Triggers in Rising Seas and Community Flooding; Research Roadmap on Natural and Nature-Based Features; Ecological Modeling and Prediction Uncertainty; Climate Change and Adaptation Planning for Ports; and Urban Flood Prediction: Current Capabilities and Challenges. The Board will meet in Executive Session to discuss ongoing initiatives and future actions on Thursday morning, August 9, 2018.
Oral participation by the public is scheduled for 4:00 p.m. on Wednesday, August 8, 2018. The Marriott Providence Downtown Hotel is fully handicap accessible. For additional information about public access procedures, please contact COL Bryan S. Green, the Board's DFO, at the email address or telephone number listed in the
Department of the Army, DoD.
Announcement of competition.
Under the provisions of applicable laws and regulations, the Assistant Secretary of the Army for Acquisition, Logistics and Technology (ASA(ALT)) is announcing the Army Expeditionary Technology Search—xTechSearch Prize Competition—for the Army to enhance engagements with the entrepreneurial funded community, small businesses, and other non-traditional defense partners. The xTechSearch program will provide an opportunity for businesses to pitch novel technology solutions, either a new application for an existing technology or an entirely new technology concept, to the Army.
1. July 11, 2018. Deadline for submission of White Paper with xTechSearch Cover Letter registration form.
2. July 30-August 31, 2018. Semifinalists—Up to 125 participants brief xTechSearch panels.
3. October 8-10, 2018. Up to 25 finalists featured at the Association of the United States Army Annual Meeting and Exposition in Washington, DC.
4. April 2019. Capstone Demonstration with Senior Army Leadership.
Proposal submissions should be emailed to
Ms. Jennifer Smith, Deputy Director for Laboratory Management ASA(ALT) Office of the Deputy Assistant Secretary of the Army, Research and Technology, (703) 697-0685.
Eligibility: The entities allowed to participate in this competition are small businesses as defined in 13 CFR part 121. To qualify, the participating entity must fall within the size standard by North American Industry Classification System code 541713, 541714, and 541715.
There may be only one submission per business. In addition, each entity:
• Shall provide registration information in the xTechSearch Cover Letter registration form;
• Shall be incorporated in and maintain a primary place of business in the United States;
• Shall perform the work in the United States.
• May not be a Federal entity or Federal employee acting within the scope of their employment.
Registered participants shall be required to agree to assume any and all risks and waive claims against the Federal Government and its related entities, except in the case of willful misconduct, for any injury, death, damage, or loss of property, revenue, or profits, whether direct, indirect, or consequential, arising from their participation in a prize competition, whether the injury, death, damage, or loss arises through negligence or otherwise.
Participants shall be required to obtain liability insurance or demonstrate financial responsibility, in amounts determined by the Army, for claims by—
• Third parties for death, bodily injury, or property damage, or loss resulting from an activity carried out in connection with participation in a prize competition, with the Federal Government named as an additional insured under the registered participant's insurance policy and registered participants agreeing to indemnify the Federal Government against third party claims for damages arising from or related to prize competition activities; and
• Federal Government for damage or loss to Government property resulting from such an activity.
Prizes will be offered under 15 U.S.C. Section 3719 (Prize competitions).
• The total prize pool is $1.95M.
• All interested eligible contestants will submit a xTechSearch Cover Letter registration form with a White Paper, of no greater than 1000 words, describing the novel technology concept, innovative application concept, and integration with the Army's modernization priorities and outlining their knowledge, skills, capabilities, and approach for this challenge. Contestants' concept papers will be reviewed by a panel of subject matter experts and judges who will select semifinalists who will be awarded a prize of $1000 and be invited to the Phase II xTechSearch Technology Pitch Forums.
• Concept White Papers will be ranked based on the novelty of the proposed technology to revolutionizing and modernizing the Army. Each white paper must include the following:
• Concept White Paper Scoring Criteria:
• Up to one hundred twenty five (125) selected contestant semi-finalists will be invited to complete an in-person Technology pitch to a panel of Army and Department of Defense subject matter experts and judges at one of five selected locations across the United States.
• xTechSearch Technology Pitches will be ranked based on the novelty of the proposed technology to revolutionizing and modernizing the Army. Finalists will be selected based on the propensity of the technology to revolutionize Army missions, solve an Army capability gap, and catalyze with Army assets. Each technology pitch must include a proposal to demonstrate proof-of-concept for the technologies within 6 months.
• Up to twenty-five (25) finalists selected by the judge panel will receive a prize of $5000 and be invited to display an exhibit and make a formal public oral presentation of their proposal at the 2018 AUSA Annual Meeting Innovators' Corner in Washington, DC.
• Scoring Criteria:
• Up to twenty-five (25) xTechSearch finalists will be featured at Innovators' Corner at the 2018 AUSA Annual Meeting and Exposition, 8-10 October 2018 in Washington, DC.
• Finalists will provide a display and a presentation on their submission in an Army-sponsored exhibit space and engage with Department of Defense (DoD) customers, industry partners, and academia.
• Up to twelve (12) Phase III prize winners will be announced, four (4) each day. Phase III prize winners will be awarded prizes of $125,000 and 6 months to demonstrate proof-of-concept for their xTechSearch technology, to be demonstrated at an xTechSearch Finale Demonstration.
• Each Phase III winner will demonstrate proof-of-concept for their technology solution to senior DoD, Government, and industry leadership. The winner of the Finale Demonstration will be awarded a prize of $200,000.
15 U.S.C. Section 3719; Pub. L. 96-480, Section 24, as added Pub. L. 111-358, title I, Section 105a, Jan. 4, 2011 Stat. 3989
Office of the Assistant Secretary of Defense for Health Agency, DoD.
Information collection notice.
In compliance with the
Consideration will be given to all comments received by August 27, 2018.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Defense Health Agency, TRICARE Health Plan, Policy and Benefits, 8111 Gatehouse Road, Falls Church, VA, 22042, Ms. Vonda Lawson or call (703) 275-6221.
The respondents to this information collection are TRICARE beneficiaries which include active duty service members, retirees, family members, and others. The DD-2642 is used by beneficiaries to file for reimbursement of out-of-pocket costs paid to providers and suppliers for authorized health care services or supplies. The information collected by the DD-2642 also aids TRICARE in determining beneficiary eligibility, health insurance liability and to certify the beneficiary has received the medical care as indicated. Respondents may obtain the DD-2642 by various methods. The DD-2642 may be completed online via the TRICARE website, tricare.mil. Additionally, respondents may print the form from the TRICARE website or the Department of Defense forms web page,
Office of the Under Secretary of Defense for Personnel and Readiness, DoD.
30-Day information collection notice.
The Department of Defense has submitted to OMB for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by July 26, 2018.
Comments and recommendations on the proposed information collection should be emailed to Ms. Jasmeet Seehra, DoD Desk Officer, at
Fred Licari, 571-372-0493, or
You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:
Requests for copies of the information collection proposal should be sent to Mr. Licari at
Office of the Under Secretary of Defense for Personnel and Readiness, DoD.
Information collection notice.
In compliance with the
Consideration will be given to all comments received by August 27, 2018.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to DoD Sexual Assault Prevention and Response Office, 4800 Mark Center Drive, Suite 07G21, Alexandria, VA 22350, Darlene Sullivan, or call (571) 372-7867.
It is DoD policy to establish a culture free of sexual assault by providing an environment of prevention, education and training, response capability, victim support, reporting procedures, and accountability that enhances the safety and well-being of all persons covered by the regulation.
Department of the Navy, DoD.
Notice of Intent to Grant License.
The Department of the Navy hereby gives notice of its intent to grant to OLLI Technology Corporation dba Tanka a partially exclusive license to practice the Government-owned inventions described in the following U.S. Patents: U.S. Patent No. 8,023,760 titled “System and method for enhancing low-visibility imagery,” U.S. Patent No. 8,116,522 titled “Ship detection system and method from overhead images,” U.S. Patent No. 8,149,245 titled “Adaptive linear contrast method for enhancement of low-visibility imagery,” U.S. Patent No. 8,170,272 titled “Method for classifying vessels using features extracted from overhead imagery,” U.S. Patent No. 8,411,969 titled “Method for fusing overhead imagery with automatic vessel reporting systems,” U.S. Patent No. 8,422,738 titled “Adaptive automated synthetic aperture radar ship detection method with false alarm mitigation,” U.S. Patent No. 8,437,509 titled “System and method for inferring vessel speed from overhead images,” U.S. Patent No. 8,731,237 titled “Automatic asset detection for disaster relief using satellite imagery,” U.S. Patent No. 8,958,602 titled “System and method for tracking maritime domain targets from video data,” U.S. Patent No. 9,305,214 titled “Systems and methods for real-time horizon detection in images,” U.S. Patent No. 9,349,170 titled “Single image contrast enhancement method using the adaptive wiener filter,” and U.S. Patent No. 9,355,439 titled “Joint contrast enhancement and turbulence mitigation method,” as well as any re-issue.
Anyone wishing to object to the grant of this license has fifteen (15) days from the publication date of this notice to file written objections along with supporting evidence, if any.
Written objections are to be filed with the Office of Research and
Mr. Paul Herbert, 619-553-5118,
Federal Student Aid (FSA), Department of Education (ED).
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 July 26, 2018.
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 Ian Foss, 202-377-3681.
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.
National Center for Education Statistics (NCES), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995, ED is proposing a revision of an existing information collection.
Interested persons are invited to submit comments on or before July 26, 2018.
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 Kashka Kubzdela, 202-245-7377 or email
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
Office of Elementary and Secondary Education, Department of Education.
Notice.
The Department of Education is issuing a notice inviting applications for new awards for fiscal year (FY) 2018 for the Indian Education Discretionary Grants Programs—Demonstration Grants for Indian Children program, Catalog of Federal Domestic Assistance (CFDA) number 84.299A.
For the addresses for obtaining and submitting an application, please refer to our Common Instructions for Applicants to Department of Education Discretionary Grant Programs, published in the
Tara Ramsey, U.S. Department of Education, 400 Maryland Avenue SW, Room 3W203, Washington, DC 20202. Telephone: (202) 260-3774. Email:
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
Recognizing the importance of Tribes to the education of Native youth, NYCP
Because educational choice is a promising option to expand access to high-quality education and improve college- and career-readiness for Native youth, this competition also includes the Secretary's Final Supplemental Priority 1 to empower families and individuals to choose a high-quality education. For this competition, the Department is particularly interested in community-led approaches to educational choice, such as the expansion of existing charter schools, the use of supplemental Education Scholarship Accounts, and course choice.
This priority is:
A native youth community project is—
(1) Focused on a defined local geographic area;
(2) Centered on the goal of ensuring that Indian students are prepared for college and careers;
(3) Informed by evidence, which could be either a needs assessment conducted within the last three years or other data analysis, on—
(i) The greatest barriers, both in and out of school, to the readiness of local Indian students for college and careers;
(ii) Opportunities in the local community to support Indian students; and
(iii) Existing local policies, programs, practices, service providers, and funding sources;
(4) Focused on one or more barriers or opportunities with a community-based strategy or strategies and measurable objectives;
(5) Designed and implemented through a partnership of various entities, which—
(i) Must include—
(A) One or more Tribes or their Tribal education agencies; and
(B) One or more BIE-funded schools, one or more local educational agencies (LEAs), or both; and
(ii) May include other optional entities, including community-based organizations, national nonprofit organizations, and Alaska regional corporations; and
(6) Led by an entity that—
(i) Is eligible for a grant under the Demonstration Grants for Indian Children program; and
(ii) Demonstrates, or partners with an entity that demonstrates, the capacity to improve outcomes that are relevant to the project focus through experience with programs funded through other sources.
These priorities are:
Competitive Preference Priority One (zero or two points).
Projects that include an LEA that is eligible under the Small Rural School Achievement (SRSA) or Rural and Low-Income School (RLIS) program, or a BIE-funded school that is located in an area designated by the U.S. Census Bureau with a locale code of 42 or 43.
Although all NYCP grantees are required to have an eligible Indian Tribe or its Tribal education agency (TEA) as a partner, we award three points to an application in which the lead partner is an eligible Indian Tribe or its TEA, an Indian organization (as defined in this notice), or a Tribal college or university (as defined in section 316(b) of the Higher Education Act of 1965, as amended (HEA)).
Applications that meet one of the following criteria—
(a) Designed to serve a local community within a federally designated Promise Zone; or
(b) Submitted by a partnership or consortium in which the lead applicant or one of its partners has received a grant in the last four years under one or more of the following grant programs:
(1) State Tribal Education Partnership (section 6132 of the Elementary and Secondary Education Act of 1965, as amended (ESEA)).
(2) Alaska Native Education Program (ESEA sections 6301-6306).
(3) Promise Neighborhoods (ESEA sections 4623-4624).
As a participant in the Promise Zone Initiative, the Department is cooperating with the Department of Housing and Urban Development (HUD), the Department of Agriculture (USDA), and nine other Federal agencies to support comprehensive revitalization efforts in 22 high-poverty urban, rural, and Tribal communities across the country. Each application for NYCP funds that is accompanied by a Certification of Consistency with Promise Zone Goals and Implementation (HUD Form 50153) signed by an authorized representative of the lead organization of a Promise Zone designated by HUD or USDA will receive two points, under competitive preference priority 3(a). An application for NYCP grant funds that is not accompanied by a signed certification (HUD Form 50153) will not receive points under competitive preference priority 3(a), but may still be eligible to receive points under competitive preference priority 3(b) if it received one of the grants listed. To view the list of designated Promise Zones and lead organizations please go to
An application will not receive points for both (a) and (b) under competitive preference priority 3.
Projects that are designed to address increasing access to educational choice (as defined in this notice) for students who are Indians, as defined in section 6151 of the ESEA.
(1) Public educational programs or courses including those offered by traditional public schools, public charter schools, public magnet schools, public online education providers, or other public education providers; or
(2) Private or home-based educational programs or courses including those offered by private schools, private online providers, private tutoring providers, community or faith-based organizations, or other private education providers.
(1) Demonstrates a statistically significant effect on improving student outcomes or other relevant outcomes based on—
(a) Strong evidence from at least 1 well-designed and well-implemented experimental study;
(b) Moderate evidence from at least 1 well-designed and well-implemented quasi-experimental study; or
(c) Promising evidence from at least 1 well-designed and well-implemented correlational study with statistical controls for selection bias; or
(2)(a) Demonstrates a rationale based on high-quality research findings or positive evaluation that such activity, strategy, or intervention is likely to improve student outcomes or other relevant outcomes; and
(b) Includes ongoing efforts to examine the effects of such activity, strategy, or intervention.
(1) Is legally established—
(a) By Tribal or inter-Tribal charter or in accordance with State or Tribal law; and
(b) With appropriate constitution, by-laws, or articles of incorporation;
(2) Includes in its purposes the promotion of the education of Indians;
(3) Is controlled by a governing board, the majority of which is Indian;
(4) If located on an Indian reservation, operates with the sanction or by charter of the governing body of that reservation;
(5) Is neither an organization or subdivision of, nor under the direct control of, any institution of higher education; and
(6) Is not an agency of State or local government.
(a) A description of the defined geographic area to be served by the project.
(b) Evidence, based on either a needs assessment conducted within the last three years or other data analysis, of—
(1) The greatest barriers, both in and out of school, to the readiness of local Indian students for college and careers;
(2) Opportunities in the local community to support Indian students; and
(3) Existing local policies, programs, practices, service providers, and funding sources.
(c) A project design and management plan that—
(1) Addresses one or more barriers or opportunities towards the goal of ensuring that Indian students are prepared for college and careers, as identified in the local needs assessment or other data analysis; and
(2) Uses a community-based strategy (or strategies), and measureable objectives for that strategy (or strategies) that can be used to measure progress toward the goal.
(d) A copy of an agreement signed by the required partners in the proposed project, identifying the responsibilities of each partner in the proposed project. Signatories to the agreement must include at least one Tribe or its TEA and at least one LEA or BIE-funded school, as described in the absolute priority above. Letters of support do not meet the requirement for a signed partnership agreement.
(e) Evidence that the applicant or one of its partners has demonstrated the capacity to improve outcomes that are relevant to the project focus through experience with programs funded through other sources.
(f) A description of how Indian Tribes and parents and family of Indian children have been, and will be, involved in developing and implementing the proposed activities.
(g) Information demonstrating that the proposed project is an evidence-based program, where applicable, which may include an existing evidence-based program that has been modified to be culturally appropriate for Indian students. Applicants that believe the evidence-based requirement is not applicable to their project must give an explanation in the application of why it is not applicable.
(h) A description of how the applicant will continue the proposed activities once the grant period is over.
(i) For projects that plan to use the grant funding for early childhood or kindergarten programs, evidence that the program is effective in preparing young children to make sufficient academic growth by the end of grade 3.
Applications that do not include the required documents to demonstrate eligibility or other program requirements will likely be rejected or deemed ineligible for review.
(a) Awards that are primarily for the benefit of Indians are subject to the provisions of section 7(b) of the Indian Self-Determination and Education Assistance Act (Pub. L. 93-638). That section requires that, to the greatest extent feasible, a grantee—
(1) Give to Indians preferences and opportunities for training and employment in connection with the administration of the grant; and
(2) Give to Indian organizations and to Indian-owned economic enterprises, as defined in section 3 of the Indian Financing Act of 1974 (25 U.S.C. 1452(e)), preference in the award of contracts in connection with the administration of the grant.
(b) For purposes of this section, an Indian is a member of any federally recognized Indian Tribe.
The regulations in 34 CFR part 79 apply to all applicants except federally recognized Indian Tribes.
The regulations in 34 CFR part 86 apply to institutions of higher education only.
Contingent upon the availability of funds and the quality of applications, we may make additional awards in subsequent years from the list of unfunded applications from this competition.
The Department is not bound by any estimates in this notice.
1.
The absolute priority for NYCP requires that an applicant be a member of a partnership that includes at least one Tribe or its TEA and at least one LEA or BIE-funded school. We will reject applications that do not include at least these two types of partners.
Including as a partner an Indian organization or Tribal college or university does not satisfy the requirement, under the absolute priority, of including the Tribe itself as one of the partners. A Tribe may designate another entity to apply on its behalf only if the entity submits as part of its application a Tribal resolution authorizing the designation for the purpose of applying for and administering this Demonstration grant.
Applicants applying as an Indian organization must demonstrate that the entity meets the definition of “Indian organization.”
2.
3.
1.
2.
Because we plan to make successful applications available to the public, you may wish to request confidentiality of business information.
Consistent with Executive Order 12600, please designate in your application any information that you believe is exempt from disclosure under Exemption 4. In the appropriate Appendix section of your application, under “Other Attachment Form,” please list the page number or numbers on which we can find this information. For additional information please see 34 CFR 5.11(c).
3.
4.
5.
• A page is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.
• Use a font that is 12 point or larger but no smaller than 10 pitch (characters per inch).
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial.
The recommended page limit does not apply to the cover sheet; the budget section, including the budget narrative justification; the consortium agreement or partnership agreement; the assurances and certifications; or the abstract, the resumes, the bibliography, or other required attachments.
6.
(a) Applicant's name, mailing address, and phone number;
(b) Contact person's name and email address;
(c) The defined local geographic area to be served by the project;
(d) Name(s) of partnering LEA(s) or BIE-funded school(s);
(e) Name(s) of partnering Tribe(s) or TEA(s); and
(f) If appropriate, names of other partnering organizations.
Applicants that do not submit a notice of intent to apply may still apply for funding; applicants that do submit a notice of intent to apply are not bound to apply or bound by the information provided.
1.
a.
(i) The greatest barriers both in and out of school to the readiness of local Indian students for college and careers;
(ii) Opportunities in the local community to support Indian students; and
(iii) Existing local policies, programs, practices, service providers, and funding sources.
b.
(i) (Up to 4 points) The extent to which the project is focused on a defined local geographic area.
(ii) (Up to 6 points) The extent to which the proposed project is evidence-based, where applicable, which may include an existing evidence-based program that has been modified to be culturally appropriate for Indian students.
(iii) (Up to 7 points) The extent to which the goals, objectives, and outcomes to be achieved by the proposed project are clearly specified and measurable.
(iv) (Up to 8 points) The extent to which the design of the proposed project is appropriate to, and will successfully address, the needs of the target population or other identified needs.
(v) (Up to 5 points) The extent to which the services to be provided by the proposed project involve the collaboration of appropriate partners for maximizing the effectiveness of project services.
c.
(i) (Up to 6 points) The extent to which the applicant, or one of its partners, demonstrates capacity to improve outcomes that are relevant to the project focus through experience with programs funded through other sources.
(ii) (Up to 2 points) The qualifications, including relevant training and experience, of key project personnel.
(iii) (Up to 2 points) The qualifications, including relevant training and experience, of the project director or principal investigator.
Please note that section 7(b) of the Indian Self-Determination and Education Assistance Act requires that to the greatest extent feasible, a grantee must give to Indians preference and opportunities in connection with the administration of the grant, and give Indian organizations and Indian-owned economic enterprises, as defined in section 3 of the Indian Financing Act of 1974 (25 U.S.C. 1452(e)), preference in the award of contracts in connection with the administration of the grant.
d.
(i) (Up to 5 points) The relevance and demonstrated commitment of each partner in the proposed project to the implementation and success of the project.
(ii) (Up to 5 points) The extent to which the costs are reasonable in relation to the number of persons to be served and to the anticipated results and benefits.
e.
(i) (Up to 15 points) The adequacy of the management plan to achieve the objectives of the proposed project on time and within budget, including clearly defined responsibilities, timelines, and milestones for accomplishing project tasks.
(ii) (Up to 5 points) The extent to which Indian Tribes and parents and families of Indian children have been, and will be, involved in developing and implementing the proposed activities.
(iii) (Up to 5 points) The extent to which the proposed project is designed to build capacity and yield results that will extend beyond the period of Federal financial assistance.
f.
(i) (Up to 7 points) The extent to which the methods of evaluation will provide performance feedback and permit periodic assessment of progress toward achieving intended outcomes.
(ii) (Up to 3 points) The extent to which the evaluation will provide guidance about effective strategies suitable for replication or testing in other settings.
2.
In addition, in making a competitive grant award, the Secretary also requires various assurances including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department of Education (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
3.
4.
Please note that, if the total value of your currently active grants, cooperative agreements, and procurement contracts from the Federal Government exceeds $10,000,000, the reporting requirements in 2 CFR part 200, Appendix XII, require you to report certain integrity information to FAPIIS semiannually. Please review the requirements in 2 CFR part 200, Appendix XII, if this grant plus all the other Federal funds you receive exceed $10,000,000.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
4.
(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multiyear award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
(c) Under 34 CFR 75.250(b), the Secretary may provide a grantee with additional funding for data collection analysis and reporting. In this case the Secretary establishes a data collection period.
5.
(1) The percentage of the annual measurable objectives, as described in the application, that are met by grantees; and
(2) The percentage of grantees that report a significant increase in community collaborative efforts that promote college and career readiness of Indian children.
These measures constitute the Department's indicators of success for this program. Consequently, we advise an applicant for a grant under this program to give careful consideration to these measures in developing the proposed project and identifying the method of evaluation. Each grantee will be required to provide, in its annual performance and final reports, data about its progress in meeting these measures.
6.
In making a continuation award, the Secretary also considers whether the grantee is operating in compliance with the assurances in its approved application, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
You may also access documents of the Department published in the
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 revision of an existing information collection.
Interested persons are invited to submit comments on or before July 26, 2018.
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 Kimberly Smith, 202-453-6459.
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.
Office of Innovation and Improvement (OII), Department of Education (ED).
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 July 26, 2018.
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 Justis Tuia, 202-453-6654.
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
Office of Science, Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Basic Energy Sciences Advisory Committee (BESAC). The Federal Advisory Committee Act requires that public notice of these meetings be announced in the
Thursday, July 12, 2018, 9:00 a.m. to 5:00 p.m. Friday, July 13, 2018 8:00, a.m. to 12:00 noon.
Bethesda North Marriott Hotel and Conference Center, 5701 Marinelli Drive, Rockville, MD 20852.
Katie Runkles, Office of Basic Energy Sciences, U.S. Department of Energy, Germantown Building, 1000 Independence Avenue SW, Washington, DC 20585; Telephone: (301) 903-6529.
U.S. Department of Energy.
Notice and request for comments.
The Department of Energy (DOE) has submitted an information collection request to the OMB for extension under the provisions of the Paperwork Reduction Act of 1995. The information collection package requests a three-year extension of “Industrial Relations,” OMB Control Number 1910-0600. This proposed collection covers major Departmental Contractor Human Resource Information necessary for contract management, administration, and cost control.
Comments regarding this proposed information collection must be received on or before July 26, 2018. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, please advise the Desk Officer for the Department of Energy of your intention to make a submission as soon as possible.
Written comments should be sent to the OMB Desk Officer, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, 735 17th Street NW, Room 10102, Washington, DC 20503 and to Alesia Gant, U.S. Department of Energy, 1000 Independence Avenue SW, Washington, DC 20585-1615, or by email at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Alesia Gant at the address listed above.
This information collection request contains:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
42 U.S.C. 7256; 48 CFR 970.0370-1.
U.S. Energy Information Administration (EIA), U.S. Department of Energy (DOE).
Notice.
EIA submitted an information collection request for extension as required by the Paperwork Reduction Act of 1995. The information collection requests a three-year extension with changes to Form EIA-63C,
EIA must receive all comments on this proposed information collection no later than July 26, 2018. If you anticipate any difficulties in submitting your comments by the deadline, contact the DOE Desk Officer at 202-395-0710.
Written comments should be sent to:
Requests for additional information or copies of the information collection instrument and instructions, should be directed to Connor Murphy at 202-287-5982, or by email
This information collection request contains:
(1)
(2)
(3)
(4)
(4a)
EIA also removed the requirement to report quantity, characteristics, inventory, and revenue data on compressed fuel logs, bricks and briquettes from on questions 3.3, 3.4 and 4.1.
Finally, the due date for annual respondents (small biomass fuel manufacturers having a capacity of less than 10,000 tons per year or planned facilities) to report is changed from February 1 to June 1 to coincide with the industry's off-season and ease their reporting burden during the heating season which is their busiest time of the year. Respondents that need to file annually will only need to report limited data in Parts 1 and 2 of the form;
(5)
(6)
(7)
(8)
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 on June 15, 2018, American Municipal Power, Inc. submitted an application for approval of revenue requirement for reactive power service in MISO.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
On June 1, 2018, FreedomWorks, LLC, filed an application for a preliminary permit, pursuant to section 4(f) of the Federal Power Act (FPA), proposing to study the feasibility of the Mt. Storm Pumped Storage Hydro Project to be located near Bismarck in Grant County, West Virginia. The sole purpose of a preliminary permit, if issued, is to grant the permit holder priority to file a license application during the permit term. A preliminary permit does not authorize the permit holder to perform any land-disturbing activities or otherwise enter upon lands or waters owned by others without the owners' express permission.
The proposed project would consist of the following: (1) An existing Mt. Storm Lake as an upper reservoir with a surface area of 1,200 acres and a storage capacity of 44,000 acre-feet at a surface elevation of approximately 3,200 feet above mean sea level (msl); (2) as many as two new lower reservoirs with a combined surface area of 690 acres and a combined storage capacity of 12,000 acre-feet at a surface elevation of 2,350 to 2,425 feet msl created through construction of new semi-circular dams and/or dikes; (3) as many as eight new 10,000-foot-long, 4-foot-diameter penstocks connecting the upper reservoir and lower reservoir; (4) two new 300-foot-long, 50-foot-wide, 25-foot-high powerhouses containing four turbine-generator units with a total rated capacity of 1,000 megawatts; (5) a new transmission line connecting the powerhouse to a nearby electric grid
Deadline for filing comments, motions to intervene, competing applications (without notices of intent), or notices of intent to file competing applications: 60 days from the issuance of this notice. Competing applications and notices of intent must meet the requirements of 18 CFR 4.36.
The Commission strongly encourages electronic filing. Please file comments, motions to intervene, notices of intent, and competing applications using the Commission's eFiling system at
More information about this project, including a copy of the application, can be viewed or printed on the “eLibrary” link of the Commission's website at
Take notice that on June 19, 2018, American Municipal Power, Inc. submitted a filing of proposed cost-based revenue requirement for the provision of Reactive Supply and Voltage Control from Generation or Other Sources Service under Schedule 2 of the Midwest Independent Transmission System Operator, Inc. Open Access Transmission Tariff.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that 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, nterventions, protests, service, and qualifying facilities filings can be found at:
Take notice that on June 19, 2018, Michael D. Herrin, submitted for filing an, application for authority to hold interlocking positions, pursuant to section 305(b) of the Federal Power Act, 16 U.S.C. 825d(b) and section 45.8 of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure, 18 CFR part 45.8 (2018).
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
With respect to an order issued by the Commission in the above-captioned docket,
Exceptions to this designation as non-decisional are:
On May 17, 2018, Peak Hour Power, LLC, filed an application for a preliminary permit, pursuant to section 4(f) of the Federal Power Act (FPA), proposing to study the feasibility of the Silver Creek Pumped Storage Project to be located on Silver Creek Reservoir in Schuylkill County, Pennsylvania. The sole purpose of a preliminary permit, if issued, is to grant the permit holder priority to file a license application during the permit term. A preliminary permit does not authorize the permit holder to perform any land-disturbing activities or otherwise enter upon lands or waters owned by others without the owners' express permission.
The proposed project would consist of the following: (1) A new 8,000-foot-long, 125- to 175-foot-high roller-compacted concrete or rock-filled semi-circular dam and/or dike forming an upper reservoir having a surface area of 150 acres and a total storage capacity between approximately 8,000 and 10,000 acre-feet at a normal maximum water surface elevation between approximately 1,650 and 1,750 feet above mean sea level (msl); (2) a lower reservoir encompassing the existing Silver Creek Reservoir and neighboring abandoned mines land and having a surface area of 100 acres and a total storage capacity of 10,000 acre-feet at a normal maximum water surface elevation between 1,200 and 1,300 feet msl; (3) a 3,000-foot-long tunnel connecting the upper and lower reservoirs; (4) a powerhouse containing two turbine units with a total rated capacity of 250 megawatts; (5) a 2-mile-long transmission line connecting to an existing 230-kilovolt (kV) line or a 4000-foot-long transmission line connecting to an existing 69-kV line; and (6) appurtenant facilities. Possible initial fill water would come from local inflow, including groundwater. The proposed project would have an annual generation of 784,750 megawatt-hours.
Deadline for filing comments, motions to intervene, competing applications (without notices of intent), or notices of intent to file competing applications: 60 days from the issuance of this notice. Competing applications and notices of intent must meet the requirements of 18 CFR 4.36.
The Commission strongly encourages electronic filing. Please file comments, motions to intervene, notices of intent, and competing applications using the Commission's eFiling system at
More information about this project, including a copy of the application, can be viewed or printed on the “eLibrary” link of the Commission's website at
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report 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:
Environmental Protection Agency (EPA).
Notice of final Order on Petitions for objection to Clean Air Act title V operating permit.
The Environmental Protection Agency (EPA) Administrator signed an Order dated May 29, 2018 denying a Petition dated December 29, 2016 and a Petition dated August 10, 2017 from the Louisiana Environmental Action Network and the Sierra Club (collectively, the Petitions and Petitioners, respectively). The Petitions requested that the EPA object to the Clean Air Act (CAA) title V operating permit 1560-00292-V1 issued on June 30, 2017 by the Louisiana Department of Environmental Quality (LDEQ) to South Louisiana Methanol, L.P. (SLM) for its Methanol Plant located in St. James, St. James Parish, Louisiana.
The EPA requests that you contact the individual listed in the
Brad Toups, EPA Region 6, by phone (214) 665-7258, or email at
The CAA affords the EPA a 45-day period to review and object to, as appropriate, operating permits proposed by state permitting authorities under title V of the CAA. Section 505(b)(2) of the CAA authorizes any person to petition the EPA Administrator to object to a title V operating permit within 60 days after the expiration of the EPA's 45-day review period if the EPA has not objected on its own initiative. Petitions must be based only on objections to the permit that were raised with reasonable specificity during the public comment period provided by the state, unless the petitioner demonstrates that it was impracticable to raise these issues during the comment period or unless the grounds for the issues arose after this period.
EPA received a first petition from the Petitioners on December 29, 2016 and a second petition from the same Petitioners on August 10, 2017 for the operating permit issued on June 30, 2017 to SLM for its Methanol Facility located in St. James Parish, Louisiana. The Petitioners requested that the Administrator object to the proposed operating permit issued by the LDEQ to SLM based on eight primary claims in the Petition. The claims are described in detail in Section IV of the Order. In summary, the issues raised include: Matters properly addressable through preconstruction permit requirements, such as the establishment of proper preconstruction emission limits and standards (various claims, introduction to Order Section IV); claims concerning the failure to require Best Available Control Technology (Claim IV); claims of permit condition unenforceability (Claim V); claims of unenforceability of emissions limits that apply to the boiler (Claim V.A), the Reformer Vent (Claim V.B), the flare (Claim V.D), the crude methanol tank (Claim V.E), the cooling towers (Claim V. G), from miscellaneous fired sources (Claim V.F), including CO
Sections 307(b) and 505(b)(2) of the CAA provide that a petitioner may request judicial review of those portions of an order that deny issues in a petition. Any petition for review shall be filed in the United States Court of Appeals for the appropriate circuit no later than August 27, 2018.
Environmental Protection Agency (EPA).
Notice.
The Brownfields Utilization, Investment, and Local Development (BUILD) Act was enacted on March 23, 2018 as part of the Consolidated Appropriations Act, 2018. The BUILD Act reauthorized the Environmental Protection Agency's (EPA's) Brownfields Program, and made amendments to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), as amended by the 2002 Small Business Liability Relief and Brownfields Revitalization Act. These amendments affect brownfields grants, ownership and liability provisions, and State & Tribal Response Programs. The Environmental Protection Agency (EPA) is developing policy and guidance to implement the BUILD Act amendments. As part of this process, the EPA is soliciting comment on three provisions in the BUILD Act: The authority to increase the per-site cleanup grant amounts to $500,000, the new multi-purpose grant authority, and the new small community assistance grant authority.
Comments will be accepted through July 10, 2018.
Please send any comments to
Rachel Lentz, U.S. EPA, (202) 566-2745,
Publication of this notice will start a two-week comment period for stakeholders to respond to the questions included in this notice. Comments will be accepted through July 10, 2018. EPA expects to develop policy on these three grant programs and incorporate them into the Agency's guidelines for the FY 2019 brownfields grant cycle.
The Brownfields Utilization, Investment, and Local Development (BUILD) Act was enacted on March 23, 2018 as part of the Consolidated Appropriations Act, 2018. The BUILD Act reauthorized the EPA's Brownfields Program, and made amendments to CERCLA, as amended by the 2002 Small Business Liability Relief and Brownfields Revitalization Act. These amendments affect brownfields grants, ownership and liability provisions, and State & Tribal Response Programs. The EPA is developing policy and guidance to implement the BUILD Act. As part of that process, the EPA is soliciting comment on three provisions in the BUILD Act: The authority to increase the per site cleanup grant amounts to $500,000, the new multi-purpose grant authority, and the new small community assistance grant authority.
The BUILD Act amended CERCLA Section 104(k)(3)(A)(ii) to increase the ceiling for brownfields cleanup grant funding from $200,000 to $500,000 per site; eligible entities can request a waiver up to $650,000 per site, based on the anticipated level of contamination, size, or ownership status of the site. The applicant must own the site to expend any resources on cleanup at the site. The Agency's primary concern is one of community access to brownfields cleanup funds. Increasing the amount of single cleanup grants will most likely decrease the total number of grants that may be awarded in any given fiscal year, therefore decreasing the number of brownfield sites cleaned-up and communities served, particularly when annual appropriations remain level or decrease.
Given these parameters, the Agency is interested in receiving comments from communities and other stakeholders on the following considerations:
1. If a community receives a $500,000 cleanup grant, how likely is it that the community could meet the 20 percent cost share statutory requirement (CERCLA 104(k)(10)(B)(iii))? How would communities meet the 20 percent cost share requirement? Do stakeholders support a higher per grant funding amount, with cost share requirement of less than 20 percent, even if the result is fewer communities will receive brownfields cleanup grants?
2. In your community's experience, how long does the average brownfield cleanup take to complete? Please provide information on the average length of time, including from the time of state review and approval of a clean-up plan to the time when the brownfield site is ready for reuse. What are the barriers your community experiences in getting a brownfield site cleaned up and ready for reuse?
The BUILD Act established a new Multipurpose Brownfield Grant program. Under this new authority, EPA may provide a maximum of $1 million in funding per grant to an eligible entity to inventory, characterize, assess, plan for or remediate one or more brownfield sites within a target area. The statute requires that a Multipurpose Grant recipient own the brownfields property prior to expending grant resources to remediate the property. The grant funding may be made available to a grant recipient for a maximum of five years. While the EPA has authority to award multipurpose grants up to $1,000,000, the EPA is considering piloting the grants at no more than $700,000.
Given these parameters, the Agency is interested in receiving comments from communities and other stakeholders on the following considerations:
1. Do communities most need funding for brownfields inventory, planning, site assessment or site remediation activities?
2. Do communities typically have in place an “overall plan for revitalization of the one or more brownfields within the proposed area in which the multipurpose grant will be used” or would they most likely need to create this plan using multipurpose grant funds?
3. What is a reasonable number of accomplishments (
4. What complications and barriers will affect a grant recipient's ability to achieve these accomplishments?
The BUILD Act added a new authority for the EPA to make grants to states and tribes to provide training, technical assistance or research assistance to support a small or disadvantaged community up to $20,000 per community. Site specific assessment and cleanup activities are not allowable expenditures under this grant authority. The EPA is developing further guidance on (1) the types of activities that are eligible expenses (including examples of such activities) and (2) the evaluation criteria that the EPA will use for evaluating and selecting proposals.
Accordingly, the EPA is soliciting comment on the following issues:
1. The EPA anticipates that state and tribes may provide the following activities to small and disadvantaged communities under this grant: Brownfields outreach and education, technical support, economic or market analyses to support the identification of reuse options for a brownfield site, the implementation or use of the EPA's Land Revitalization tools, and preparation of a needs assessment for developing a Tribal Response Program. What other types of activities should be considered as eligible expenditures under this grant program?
2. The EPA plans to include the following evaluation criteria for proposals submitted under this grant program: Description of the target community, description/purpose of the proposed project, expected outcomes, description of key activities, what entity will be conducting the activities (
Environmental Protection Agency (EPA).
Notice; call for information.
The U.S. Environmental Protection Agency (EPA), Office of Air Quality Planning and Standards (OAQPS), is soliciting information to facilitate the Clean Air Scientific Advisory Committee's (CASAC) consideration of any adverse public health, welfare, social, economic, or energy effects which may result from various strategies for attainment and maintenance of national ambient air quality standards (NAAQS).
All comments and information submitted in response to this call for information should be received by the EPA by October 24, 2018.
Submit your comments and related information, identified by Docket ID No. EPA-HQ-OAR-2018-0365, to the Federal eRulemaking Portal:
Ms. Robin Langdon, Office of Air Quality Planning and Standards (Mail Code C-439-02), U.S. Environmental Protection Agency, Research Triangle Park, NC 27711; telephone number: 919-541-5695; fax number 919-541-0804; or email:
Sections 109(d)(2)(A) and (B) of the Clean Air Act (CAA or the Act) require appointment of an independent scientific review committee that is charged with periodically reviewing the existing air quality criteria and NAAQS and recommending any new standards and revisions of existing criteria and standards as may be appropriate. Since the early 1980s, the requirement for an independent scientific review committee has been fulfilled by the CASAC.
Sections 109(d)(2)(C)(i)-(iii) of the Act additionally require the independent scientific review committee to advise the EPA Administrator of areas in which additional knowledge is required to appraise the adequacy and basis of existing, new, or revised NAAQS; describe the research efforts necessary to provide the required information; and advise the EPA Administrator on the relative contribution to air pollution concentrations of natural as well as anthropogenic activity. Section 109(d)(2)(C)(iv) of the Act further requires the independent scientific review committee to “advise the EPA Administrator of any adverse public health, welfare, social, economic, or energy effects which may result from various strategies for attainment and maintenance of such” NAAQS. As noted in the Administrator's May 9, 2018, memorandum, “Back-to-Basics Process for Reviewing National Ambient Air Quality Standards,”
To facilitate the CASAC's consideration of such effects, the EPA requests interested parties to submit information on any adverse public health, welfare, social, economic, or energy effects which may result from various strategies for attainment and maintenance of existing, new, or revised NAAQS for consideration by the CASAC.
Interested parties are encouraged to identify all relevant information, with a particular emphasis on peer-reviewed research studies that have been published or accepted for publication and other analyses in the following categories: Assessments of the impacts of various types of strategies for attainment and maintenance of NAAQS, including requirements for stationary sources, area sources, and/or mobile sources of emissions; evaluations of the effects of permitting requirements, both new source review and prevention of significant deterioration requirements, on economic growth and other relevant effects listed; examinations of the potential impacts of nonattainment status, including the effects on overall economic growth and employment; and evaluations of potential impacts on public health, public welfare, energy production and consumption, and other social effects of interest.
The EPA also seeks information on inter-pollutant trade-offs from strategies to attain and maintain existing, new or revised NAAQS, and information on distributional effects, including changes in exposures and risk, resulting from alternate attainment strategies for NAAQS, as well as other information related to adverse public health, welfare, social, economic, or energy effects that may result from attainment of existing, new or revised NAAQS. Some aspects of this information may also be relevant to the EPA's review of the air quality criteria, which section 108(a)(2) of the Act describes as reflecting “the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects on public health or welfare which may be expected from the presence of such pollutant in the ambient air, in varying quantities.” Section 109(d)(1) of the Act requires that the EPA review these criteria periodically. To ensure this statutory requirement is met for ozone and other photochemical oxidants, elsewhere in today's
Submit information, identified by Docket ID No. EPA-HQ-OAR-2018-0365, to the Federal eRulemaking Portal:
When submitting comments, remember to:
• Identify the action by docket number and other identifying information (subject heading,
• Describe any assumptions and provide any technical information and/or data that you used.
• Provide specific examples to illustrate your concerns, and suggest alternatives.
• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
• Make sure to submit your comments by the comment period deadline identified.
When considering submitting CBI, do not submit this information to the EPA through
Environmental Protection Agency (EPA).
Notice; call for information.
The U.S. Environmental Protection Agency (EPA) is announcing that the Office of Air Quality Planning and Standards (OAQPS) and the Office of Research and Development's National Center for Environmental Assessment (NCEA) are preparing an Integrated Review Plan (IRP) and an Integrated Science Assessment (ISA) as part of the review of the air quality criteria and the National Ambient Air Quality Standards (NAAQS) for ozone (O
All communications and information submitted in response to this call for information should be received by the EPA by August 27, 2018.
Submit your comments and related information, identified by Docket ID No. EPA-HQ-ORD-2018- 0274 to the
For information regarding the IRP, contact Dr. Deirdre L. Murphy, OAQPS,
Section 108(a) of the Clean Air Act (CAA or the Act) directs the Administrator to identify and list certain air pollutants and then issue “air quality criteria” for those pollutants. The air quality criteria are to “accurately reflect the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects on public health or welfare which may be expected from the presence of such pollutants in the ambient air . . . .” CAA section 108(a)(2). Under section 109 of the Act, EPA is then to establish NAAQS for each pollutant for which EPA has issued criteria. Section 109(d)(1) of the Act requires periodic review and, if appropriate, revision of existing air quality criteria to reflect advances in scientific knowledge on the effects of the pollutant on public health and welfare. Under the same provision, EPA is also to periodically review and, if appropriate, revise the NAAQS, based on the revised air quality criteria.
Section 109(d)(2) of the Act requires appointment of an independent scientific review committee that is to periodically review the existing air quality criteria and NAAQS and to recommend any new standards and revisions of existing criteria and standards as may be appropriate. Since the early 1980s, the requirement for an independent scientific review committee has been fulfilled by the Clean Air Scientific Advisory Committee (CASAC). Section 109(d)(2)(C) of the Act additionally requires the independent scientific review committee to advise the EPA Administrator of areas in which additional knowledge is required to appraise the adequacy and basis of existing, new, or revised NAAQS; describe the research efforts necessary to provide the required information; advise the EPA Administrator on the relative contribution to air pollution concentrations of natural as well as anthropogenic activity; and, advise the EPA Administrator of any adverse public health, welfare, social, economic, or energy effects which may result from various strategies for attainment and maintenance of such NAAQS. To ensure this final statutory requirement is fully met, elsewhere in today's
In its periodic review of the air quality criteria, the EPA reviews the currently available scientific information and prepares an ISA. The ISA and other key documents prepared in the review receive independent and expert scientific review by the CASAC.
Photochemical oxidants, including O
The EPA will consult with the CASAC on the IRP and will also solicit comments from the public. As the review proceeds, the EPA will also request CASAC review of, and provide an opportunity for public comment on, other draft documents prepared for the review, which generally include the ISA, a risk/exposure assessment (REA), as warranted, and a policy assessment (PA). The EPA intends to provide the CASAC with a standardized set of key charge questions to consider in providing advice to the Administrator throughout the entire review, supplementing these questions with more detailed requests as necessary. More information on the updated process for the forthcoming ozone NAAQS review, including statutory, standardized charge questions, is contained in the Administrator's May 9 2018 memorandum, “Back-to-Basics Process for Reviewing National Ambient Air Quality Standards.”
The ISA will build on the scientific assessment for the last review,
Submit your comments and related information, identified by Docket ID No. EPA-HQ-ORD-2018-0274 to the
When submitting comments, remember to:
• Identify the action by docket number and other identifying information (subject heading,
• Describe any assumptions and provide any technical information and/or data that you used.
• Provide specific examples to illustrate your concerns, and suggest alternatives.
• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
• Make sure to submit your comments by the comment period deadline identified.
When considering submitting CBI, do not submit this information to the EPA through
Environmental Protection Agency (EPA).
Notice of public comment period.
The Environmental Protection Agency (EPA) is announcing a public comment period for the draft document titled, “Second External Review Draft Integrated Science Assessment for Oxides of Nitrogen, Oxides of Sulfur, and Particulate Matter—Ecological Criteria” (EPA/600/R-18/097). The draft document was prepared by the National Center for Environmental Assessment (NCEA) within EPA's Office of Research and Development (ORD) as part of the review of the secondary (welfare-based) National Ambient Air Quality Standards (NAAQS) for oxides of nitrogen, oxides of sulfur, and particulate matter. The Integrated Science Assessment (ISA), in conjunction with additional technical and policy assessments, provides the scientific basis for EPA's decisions on the adequacy of the current NAAQS and the appropriateness of possible alternative standards. On January 28, 2016, EPA released a separate ISA as part of an independent review for the primary (health-based) NAAQS for oxides of nitrogen (EPA/600/R-15/068).
EPA is releasing this draft document to seek review by the Clean Air Scientific Advisory Committee (CASAC) and the public (meeting date and location to be specified in a separate
The public comment period begins on June 26, 2018 and ends on September 4, 2018. Comments must be received on or before September 4, 2018.
The “Second External Review Draft Integrated Science Assessment for Oxides of Nitrogen, Oxides of Sulfur, and Particulate Matter—Ecological Criteria” will be available primarily via the internet on EPA's Integrated Science Assessment home page at
For information on the public comment period, contact the ORD Docket at the EPA Headquarters Docket Center; phone: 202-566-1752; fax: 202-566-9744; or email:
For technical information, contact Dr. Tara Greaver, NCEA; phone: 919-541-2435; fax: 919-541-1818; or email:
Section 108(a) of the Clean Air Act directs the Administrator to identify certain pollutants which, among other things, “cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare” and to issue air quality criteria for them. These air quality criteria are to “accurately reflect the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects on public health or welfare which may be expected from the presence of [a] pollutant in the ambient air . . .” Under section 109 of the Act, EPA is then to establish NAAQS for each pollutant for which EPA has issued criteria. Section 109(d) of the Act subsequently requires periodic review and, if appropriate, revision of existing air quality criteria to reflect advances in scientific knowledge on the effects of the pollutant on public health or welfare. EPA is also required to review and, if appropriate, revise the NAAQS (for more information on the NAAQS review process, see
Oxides of nitrogen, oxides of sulfur, and particulate matter are three of six criteria pollutants for which EPA has established NAAQS. Periodically, EPA reviews the scientific basis for these standards by preparing an ISA (formerly called an Air Quality Criteria Document). The ISA, in conjunction with additional technical and policy assessments, provides the scientific basis for EPA's decisions on the adequacy of the current NAAQS and the appropriateness of possible alternative standards. The Clean Air Scientific Advisory Committee (CASAC), an independent science advisory committee whose review and advisory functions are mandated by Section 109(d)(2) of the Clean Air Act, is charged (among other things) with independent scientific review of the EPA's air quality criteria.
On August 21, 2013 (78 FR 53452), EPA formally initiated its current review of the air quality criteria for the ecological effects of oxides of nitrogen and oxides of sulfur, and the associated secondary (welfare-based) NAAQS, requesting the submission of recent scientific information on specified topics. Similarly, on December 3, 2014 (79 FR 71764), EPA formally initiated its current review of the air quality criteria for the particulate matter NAAQS. EPA conducted two workshops—the first on March 4 to 6, 2014 for oxides of nitrogen and oxides of sulfur (79 FR 8644, February 13, 2014), and the second on February 11, 2015 (79 FR 71764, December 3, 2014) for particulate matter—to gather input from invited scientific experts, both internal and external to EPA, as well as from the public, regarding key science and policy issues relevant to the review of the these secondary NAAQS. Teleconference workshops with invited scientific experts, both internal and external to EPA, were held on August 25, 26, and 27, 2015 (80 FR 48316, August 12, 2015) and June 13, 2016 (81 FR 89262, May 11, 2016), to discuss initial draft materials prepared in the development of the draft ISA.
These science and policy issues were incorporated into EPA's “Draft Integrated Review Plan for the Secondary National Ambient Air Quality Standard for Oxides of Nitrogen and Oxides of Sulfur” as well as the “Integrated Review Plan for the National Ambient Air Quality Standards for Particulate Matter.” The Draft Integrated Review Plan (IRP) for oxides of nitrogen and oxides of sulfur was available for public comment (80 FR 69220, Monday, November 9, 2015) and discussion by the CASAC via publicly accessible teleconference consultation (80 FR 65223, February 10, 2016). The Draft IRP for particulate matter was available for public comment (81 FR 2297, April 19, 2016) and discussion by the CASAC via publicly accessible teleconference consultation (81 FR 13362, March 14, 2016) prior to release of the final document (81 FR 87933, December 6, 2016). The “First External Review Draft Integrated Science Assessment for Oxides of Nitrogen, Oxides of Sulfur, and Particulate Matter—Ecological Criteria” was available for public comment (82 FR 15703, March 30, 2017) and discussed by CASAC and the public (82 FR 15701, March 30, 2017).
The “Second External Review Draft Integrated Science Assessment for Oxides of Nitrogen, Oxides of Sulfur, and Particulate Matter—Ecological Criteria” will be discussed at a public meeting for review by CASAC and the public. In addition to the public comment period announced in this notice, the public will have an opportunity to address the CASAC. A separate
Submit your comments, identified by Docket ID No. EPA-HQ-ORD-2013-0620 and Docket ID No. EPA-HQ-OAR-2014-0128, by one of the following method 2nds:
•
•
•
•
•
The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The phone number for the Public Reading Room is 202-566-1744. Deliveries are only accepted during the docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. If you provide comments by mail or hand delivery, please submit three copies of the comments. For attachments, provide an index, number pages consecutively with the comments, and submit an unbound original and three copies.
Federal Deposit Insurance Corporation (FDIC).
Notice of open meeting.
In accordance with the Federal Advisory Committee Act, notice is hereby given of a meeting of the FDIC Advisory Committee on Community Banking, which will be held in Washington, DC. The Advisory Committee will provide advice and recommendations on a broad range of policy issues that have particular impact on small community banks throughout the United States and the local communities they serve, with a focus on rural areas.
Wednesday, July 11, 2018, from 9:00 a.m. to 3:00 p.m.
The meeting will be held in the FDIC Board Room on the sixth floor of the FDIC Building located at 550 17th Street NW, Washington, DC.
Requests for further information concerning the meeting may be directed to Mr. Robert E. Feldman, Committee Management Officer of the FDIC, at (202) 898-7043.
The Commission hereby gives notice of the filing of the following agreement under the Shipping Act of 1984. Interested parties may submit comments on the agreement to the Secretary, Federal Maritime Commission, Washington, DC 20573, within twelve days of the date this notice appears in the
In general, OTIP initiates the certification process when it receives a notice from DHS that DHS has granted a foreign victim of trafficking CP or T nonimmigrant status, or has determined an application for T nonimmigrant status is bona fide. To issue HHS Certification Letters, it is necessary for OTIP to collect information from a victim, or a victim's representative, such as an attorney, case manager, or law enforcement victim specialist, including an address to send the HHS Certification Letter.
OTIP will ask if the victim is in need of case management services and the current location (city, state) of the victim, and refer the victim to an appropriate service provider in his or her area, if requested. OTIP will also ask about the victim's primary language and urgent concerns, such as medical care or housing, and transmit this information to the service provider with the victim's consent.
Finally, OTIP reports information on victim certification to provide to Congress in an annual report on U.S. Government activities to combat trafficking that is prepared by the U.S. Department of Justice. Congress requires HHS and other appropriate Federal agencies to report information on the number of persons who received benefits or other services under subsections (b) and (f) of section 7105 of Title 22 of the U.S. Code in connection with programs or activities funded or administered by HHS. HHS may include in these annual reports additional aggregate information that it collects about the victims when assisting each victim to obtain HHS Certification.
OTIP developed the form to facilitate the submission of consistent information and improve program reporting. The trafficking victim or his or her representative may submit the completed form, which we recommend be done via password-protected email or encryption, to OTIP for the purpose of issuing a Certification Letter. OTIP will store this information in OTIP's secure database for no longer than 10 years, at which time it will be destroyed, unless required for business use by HHS. Other details maintained in the victim's file may include OTIP staff actions, referrals, and notes regarding the victim's interest in receiving services. Maintaining victim records within OTIP's database will ensure efficient service delivery for victims, allow OTIP staff to track victims' progress toward certification, verify eligibility for benefits, and organize information for reporting aggregate data to Congress.
Comments and questions about the information collection described above should be directed to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for ACF, Office of Management and Budget, Paperwork Reduction Project, 725 17th Street NW,
Food and Drug Administration, HHS.
Notice; establishment of a public docket; request for comments.
The Food and Drug Administration (FDA) announces a forthcoming public advisory committee meeting of the Antimicrobial Drugs Advisory Committee. The general function of the committee is to provide advice and recommendations to FDA on regulatory issues. The meeting will be open to the public. FDA is establishing a docket for public comment on this document.
The meeting will be held on July 12, 2018, from 8:30 a.m. to 4 p.m.
FDA White Oak Campus, 10903 New Hampshire Ave., Bldg. 31 Conference Center, the Great Room (Rm. 1503), Silver Spring, MD 20993-0002. Answers to commonly asked questions including information regarding special accommodations due to a disability, visitor parking, and transportation may be accessed at:
FDA is establishing a docket for public comment on this meeting. The docket number is FDA-2018-N-1073. The docket will close on July 11, 2018. Submit either electronic or written comments on this public meeting by July 11, 2018. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before July 11, 2018. The
Comments received on or before July 2, 2018, will be provided to the committee. Comments received after that date will be taken into consideration by FDA.
You may submit comments as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” FDA will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Kalyani Bhatt, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 31, Rm. 2417, Silver Spring, MD 20993-0002, 301-796-9001, Fax: 301-847-8533, email:
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its website prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's website after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that FDA is not responsible for providing access to electrical outlets.
For press inquiries, please contact the Office of Media Affairs at
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with disabilities. If you require accommodations due to a disability, please contact Kalyani Bhatt (see
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our website at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Food and Drug Administration, HHS.
Notice; establishment of a public docket; request for comments.
The Food and Drug Administration (FDA) announces a forthcoming public advisory committee meeting of the Antimicrobial Drugs Advisory Committee. The general function of the committee is to provide advice and recommendations to FDA on regulatory issues. The meeting will be open to the public. FDA is establishing a docket for public comment on this document.
The meeting will be held on July 26, 2018, from 8:30 a.m. to 4 p.m.
FDA White Oak Campus, 10903 New Hampshire Ave., Bldg. 31 Conference Center, the Great Room (Rm. 1503), Silver Spring, MD 20993-0002. Answers to commonly asked questions including information regarding special accommodations due to a disability, visitor parking, and transportation may be accessed at:
FDA is establishing a docket for public comment on this meeting. The docket number is FDA-2018-N-1073. The docket will close on July 25, 2018. Submit either electronic or written comments on this public meeting by July 25, 2018. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before July 25, 2018. The
Comments received on or before July 12, 2018, will be provided to the committee. Comments received after that date will be taken into consideration by FDA.
You may submit comments as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” FDA will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Kalyani Bhatt, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 31, Rm. 2417, Silver Spring, MD 20993-0002, 301-796-9001, Fax: 301-847-8533, email:
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its website prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's website after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that FDA is not responsible for providing access to electrical outlets.
For press inquiries, please contact the Office of Media Affairs at
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with disabilities. If you require accommodations due to a disability, please contact Kalyani Bhatt (see
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our website at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Fax written comments on the collection of information by July 26, 2018.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, Fax: 202-395-7285, or emailed to
Domini Bean, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-5733,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
This information collection supports the above captioned Agency guidance and implementation of the Biosimilar User Fee Amendments of 2017 (BsUFA II). Under BsUFA II, FDA's authority is extended to collect user fees from fiscal years 2018-2022 and includes a number of technical revisions that affect what fees and how fees are collected. Fees authorized by this legislation help fund the review process for biosimilar biological product applications and play an important role in expediting the review and approval process.
We have developed the guidance document entitled “Assessing User Fees Under the Biosimilar User Fee Amendments of 2017” to assist industry in understanding when these fees are incurred and the process by which applicants can submit payments. The guidance also provides information on the consequences of failing to pay BsUFA II fees, as well as processes for submitting reconsideration and appeal requests. The guidance document is available on our website at:
In the
We estimate the burden of the information collection as follows:
Our estimate is based on the number of Biosimilars User Fee submissions we have received since establishing the program.
Health Resources and Services Administration (HRSA), Department of Health and Human Services (HHS).
Notice.
HRSA is publishing this notice of petitions received under the National Vaccine Injury Compensation Program (the Program), as required by the Public Health Service (PHS) Act, as amended. While the Secretary of HHS is named as the respondent in all proceedings brought by the filing of petitions for compensation under the Program, the United States Court of Federal Claims is charged by statute with responsibility for considering and acting upon the petitions.
For information about requirements for filing petitions and the Program in general, contact Lisa L. Reyes, Clerk of Court, United States Court of Federal
The Program provides a system of no-fault compensation for certain individuals who have been injured by specified childhood vaccines. Subtitle 2 of Title XXI of the PHS Act, 42 U.S.C. 300aa-10
A petition may be filed with respect to injuries, disabilities, illnesses, conditions, and deaths resulting from vaccines described in the Vaccine Injury Table (the table) set forth at 42 CFR 100.3. This table lists for each covered childhood vaccine the conditions that may lead to compensation and, for each condition, the time period for occurrence of the first symptom or manifestation of onset or of significant aggravation after vaccine administration. Compensation may also be awarded for conditions not listed in the table and for conditions that are manifested outside the time periods specified in the table, but only if the petitioner shows that the condition was caused by one of the listed vaccines.
Section 2112(b)(2) of the PHS Act, 42 U.S.C. 300aa-12(b)(2), requires that “[w]ithin 30 days after the Secretary receives service of any petition filed under section 2111 the Secretary shall publish notice of such petition in the
Section 2112(b)(2) also provides that the special master “shall afford all interested persons an opportunity to submit relevant, written information” relating to the following:
1. The existence of evidence “that there is not a preponderance of the evidence that the illness, disability, injury, condition, or death described in the petition is due to factors unrelated to the administration of the vaccine described in the petition,” and
2. Any allegation in a petition that the petitioner either:
a. “[S]ustained, or had significantly aggravated, any illness, disability, injury, or condition not set forth in the Vaccine Injury Table but which was caused by” one of the vaccines referred to in the table, or
b. “[S]ustained, or had significantly aggravated, any illness, disability, injury, or condition set forth in the Vaccine Injury Table the first symptom or manifestation of the onset or significant aggravation of which did not occur within the time period set forth in the table but which was caused by a vaccine” referred to in the table.
In accordance with Section 2112(b)(2), all interested persons may submit written information relevant to the issues described above in the case of the petitions listed below. Any person choosing to do so should file an original and three (3) copies of the information with the Clerk of the U.S. Court of Federal Claims at the address listed above (under the heading
Health Resources and Services Administration (HRSA), Department of Health and Human Services.
Final response.
HRSA published a notice in the
Additional information about the CHGME is available at
Malena Crawford, Project Officer, Children's Hospitals Graduate Medical Education Payment Program, Division of Medicine and Dentistry, HRSA at
The CHGME statute was amended in 2013. The amendments permit up to 25 percent of the total amount appropriated annually in excess of $245 million, but not to exceed $7,000,000, to provide payments to newly qualified hospitals, as defined in section 340E(h) of the Public Health Service Act. The statute additionally states that the Secretary may establish a quality bonus system for CHGME hospitals using any remaining funds after payments are made to newly qualified hospitals. In FY 2018, Congress appropriated $315 million to the CHGME Program. Of this, approximately $4 million in payments were made to newly qualified hospitals. If funding levels and mechanisms remain constant in FY 2019, it is estimated that approximately $3 million may be available annually for the CHGME QBS.
On October 16, 2017, through a
HRSA carefully reviewed the comments received and used them to guide the development of the FY 2019 CHGME QBS and to inform future iterations of the CHGME QBS. Final guidance for the FY 2019 CHGME QBS will be published in the FY 2019 CHGME Notice of Funding Opportunity (NOFO).
HRSA received 17 responses to the request for comments. Thirteen commenters are current CHGME hospitals and four are state/national associations. Comments are summarized below.
Nearly all commenters supported establishing the CHGME QBS to recognize and reward quality training programs for residents supported by the CHGME program and agreed with the approach to recognize engagement in initiatives geared towards transforming pediatric health care to improve access, quality, and cost effectiveness. However, many commenters questioned whether there was enough information about these initiatives to establish a baseline, draw comparisons between children's hospitals, and make judgements about relative performance. Several suggested the proposed approach could be enhanced by starting with documentation of transformation activities in which residents are involved. Specifically, one commenter recommended “that HRSA work to identify current residents' engagement in quality initiatives and how residents can further engage on broader based initiatives before transitioning the Quality Bonus Program to other criteria in FY 2020 and beyond.” A few commenters also requested that HRSA offer more clear and specific goals for the multi-step implementation of the QBS.
After considering feedback from stakeholders, the revised goal of the QBS will be to recognize hospitals for quality improvement & GME transformation efforts in high priority focus areas and build standards to increase engagement and involvement of residents in broader initiatives. HRSA will implement a baseline phase for CHGME QBS in FY 2019. Information collected during this baseline phase will be used to establish QBS standards for implementation in FY 2021. In order to qualify for the QBS payment, CHGME awardees must submit documentation in the FY 2019 reconciliation application describing the hospital's initiatives, resident curriculum, and direct resident involvement in the following areas: Integrated care models, telehealth/HIT, population health, social determinants of health, and additional initiatives to improve access
Many commenters recommended expanding the list of initiatives that would qualify for the QBS and mentioned a number of other initiatives that children's hospitals are currently involved in, which included national and regional non-federal collaboratives. One commenter recommended recognizing initiatives that address pediatric health disparities (
Several commenters recommended that HRSA start by compiling a list of the quality improvement and transformation efforts that residents currently engage in to identify focus areas for increased engagement and involvement. A few commenters expressed concerns that resident engagement in these initiatives may be limited due to training requirements that require rotating to a variety of clinical sites and normal resident turnover in training programs that typically last between 3-5 years.
HRSA considered the commenters' recommendations for qualifying initiatives for FY 2019 and has revised the FY 2019 QBS qualification requirements taking into consideration the comments received. As mentioned above, in order to qualify for the FY 2019 QBS payment, CHGME awardees must submit documentation in the FY 2019 reconciliation application describing the hospital's initiatives, resident curriculum, and direct resident involvement in the following areas: integrated care models, telehealth/HIT, population health, social determinants of health, and additional initiatives to improve access and quality of care to rural/underserved communities. In all areas, CHGME awardees will be required to highlight initiatives aimed at improving access and quality of care to rural and/or underserved communities. More details will be included in the FY 2019 CHGME NOFO.
Several commenters recommended focusing the QBS measures and metrics on the CHGME program and its goals, including measures regarding the quality of resident training. Commenters offered a number of potential measures and metrics that ranged from residency training characteristics, graduate outcomes, clinical learning environment outcomes, and health care transformation activities. One commenter recommended developing measures and metrics to evaluate how well training programs prepare graduates to improve the quality of care provided to local communities and integrate quality improvement into their clinical practice. They also recommended that quality measures could evaluate the quality of training settings, including commitment to caring for underserved populations, and impact on addressing healthcare problems in the community.
A few commenters recommended that HRSA more critically evaluate future QBS measures and metrics. Specifically, one commenter stated that they were “particularly concerned about the proposed plans for FY 2020. Currently, there are no “off the shelf” measures that can be used to determine the quality of training programs. We recommend a thorough stakeholder process be convened with pediatric experts and CHGME hospitals to outline the best path forward.”
A number of commenters cautioned that it is hard to tie patient outcomes to resident training. A few other commenters discouraged using graduate outcomes as a QBS measure, suggesting that hospitals are unable to control the specialty choices and future practice locations of residents. Several commenters also cautioned against using metrics relating to hospital outcomes which could not be directly tied to training. They recommended only using measures that were within a hospital's control. The following chart highlights other suggested measures and metrics from commenters:
Commenters also identified existing sets of measure that could be reviewed to identify potential candidates for use in the QBS such as the American Board of Family Medicine's (ABFM) Certification Survey Questionnaire, the ABFM's National Family Medicine Residency Graduate Follow-up Survey, the Children's Hospital Association approved activities such as Solutions for Patient Safety, the American College of Surgeons' Pediatric National Surgical Quality Improvement Program, and the Accreditation Council for Graduate Medical Education's (ACGME) milestones and measures.
HRSA appreciates the recommendations for potential QBS measures and metrics and recognizes the concerns regarding appropriate measures and metrics expressed by the commenters. HRSA will be reviewing all the sets of measures that were identified, as well as individual measure that were suggested for potential incorporation into the next phase of the QBS. Following the initial baseline phase of the QBS as detailed above in Qualifying Initiatives for the FY 2019 QBS response section, HRSA plans to conduct an environmental scan of GME quality measures, analyze the data collected during the baseline year, develop quality measures for GME programs in the above areas, and manage an organized stakeholder engagement process on potential QBS
Most commenters agreed with the tiered payment method but highlighted the importance of clearly messaging that funding tiers are not indicative of different levels of quality or engagement for the first phase of the CHGME QBS. One commenter offered, “the bonus payments would have a more significant effect in transforming the quality of CHGME programs if the payments were funded at a level larger than $3 million and were in excess of current program funding.”
HRSA will continue to message clearly that the FY 2019 CHGME QBS payment tiers are not reflective of the quality of the initiatives. The payment tiers were developed taking into account the size of the training programs and CHGME payments typically awarded. In future years, once the data sources were better developed HRSA would work to develop a payment structure that takes into account both the size of the program and quality. As noted earlier, the amount of funding available for the QBS is provided for in statute and the $3 million funding amount is an estimation, assuming funding levels and mechanisms remain constant.
For FY 2019, QBS payments will be disbursed with the CHGME FY 2019 reconciliation payments. CHGME hospitals that submit the required documentation with the FY 2019 reconciliation application will receive a portion of the available funds for the CHGME QBS payment. Amounts will be distributed according to a three-tiered payment structure detailed in the
HRSA expects that future quality measures will likely be a combination of both quantitative and qualitative measures, where payment will be directly linked to the level of achievement of an individual hospital. We will continue to seek additional input from stakeholders and experts on the appropriate measures and metrics for future iterations of the CHGME QBS.
Several commenters indicated that HRSA already collects quite a bit of information through the annual report and recommended that HRSA build on its existing reporting requirements to minimize reporting burden. These commenters suggested that new reporting requirements would add an administrative burden and deter maximum participation in the QBS. One commenter questioned whether HRSA would publicly share the QBS data.
HRSA agrees that participation in the QBS should not be overly burdensome and will work to create reasonable documentation requirements. HRSA acknowledges that it is already collecting some quality-related data in the annual CHGME performance measures and is developing ways to improve these fields. In addition, as part of the further development of the QBS, HRSA will be reviewing the different sets of data that children's hospitals already report to identify if any of the measures could be used as part of the QBS. A long-term goal would be to have transparency regarding the QBS data and HRSA will make sure to include that topic in stakeholder discussions. Any new data collection form(s) that are developed will require Office and Management and Budget (OMB) approval. Stakeholders will be able to provide public comments on any new data collection form(s) developed.
Half of commenters recommended a longer timeline to phase in the full FY 2020 and beyond QBS proposed framework, in order to ensure a thorough stakeholder engagement process in which pediatric experts are adequately involved in establishing metrics and measures, identifying quality outcomes, and evaluating QBS standards.
HRSA recognizes concerns about the QBS implementation timeline. We understand that there are many important factors that must be taken into account when implementing the QBS, and each requires thorough and well-informed consideration. In addition, QBS-related data collection must align with existing reporting and payment schedules for the CHGME Payment Program. The first phase of the CHGME QBS is planned to start in FY 2019, and we have taken into consideration feedback collected through this FRN. The data collected during the FY 2019 QBS will give HRSA an indication of the current experiences across our children's hospitals so that we can establish reasonable parameters and measures moving forward. In addition, HRSA is examining using existing reporting requirements to establish components of the QBS for FY 2020 and beyond. HRSA will continue collaborating with stakeholders and experts to inform future phases and measures for the CHGME QBS. As new QBS measures will affect a fiscal year payment, any updates or changes will be included in that year's NOFO.
HRSA appreciates the comments and recommendations received and has used them to guide the development of the FY 2019 CHGME QBS and inform future iterations of the CHGME QBS. Final guidance for the FY 2019 CHGME QBS will be published in the FY 2019 CHGME NOFO. If you have questions or concerns about comments that were not addressed in this notice, please contact
Health Resources and Services Administration (HRSA), Department of Health and Human Services.
Notice.
In compliance with the Paperwork Reduction Act of 1995, HRSA has submitted an Information Collection Request (ICR) to the Office of Management and Budget (OMB) for review and approval. The ICR is for reinstatement with change of a previously approved information collection, assigned OMB control number 0915-0290, which expired on March 31, 2015. Comments submitted during the first public review of this ICR will be provided to OMB. OMB will accept further comments from the public during the review and approval period.
Comments on this ICR should be received no later than July 26, 2018.
Submit your comments, including the ICR Title, to the desk officer for HRSA, either by email to
To request a copy of the clearance requests submitted to OMB for review, email Lisa Wright-Solomon, the HRSA Information Collection Clearance Officer at
(1) HRSA is increasing the ability to produce more precise results by targeting 10,000 completed surveys (increased from 3,250 in 2012). This increase will allow for a more accurate and robust analysis of the attitudes and donation practices of important subgroups such as Americans over the age of 50 and various minority populations. Although the precision of the results from the survey will increase, the respondent burden will be reduced, and survey completion costs will be lower resulting in a cost neutral change.
(2) HRSA is streamlining the data collection process to minimize respondent burden. Of the 10,000 targeted completed surveys, 8,000 will be completed online by a nationally representative web panel composed of Americans over the age of 18 who have already agreed to participate in a survey. Web panels target a representative section of a population used by other approved surveys. HRSA will complete the remaining 2,000 surveys by telephone. In 2012, all 3,250 surveys were conducted by telephone and respondents were contacted using random-digit dialing, a process that yielded a low response rate. Contacting respondents by telephone will remain a part of the survey protocol to compare current data to the 2012 data. However, for this survey, identification of a sample of adults over the age of 18 for a telephone survey will be from a national list of home addresses. Before contact, those selected for the telephone survey will receive a mailed pre-notification letter with information about the survey. This mailing will improve survey cooperation and reduce the number of people contacted for the survey. Additionally, it is more time and cost effective to take the survey online than taking the survey by phone as the average response will be 0.1 hour shorter, and the cost of an online survey can range $3-$4 per survey compared to $50-$100 for a high-quality phone survey.
(3) To improve the relevance of the data collected and in response to the comments received during the 60-day public comment period, HRSA revised the instrument to add, remove, or edit a few questions. Example changes include removing certain questions that were only relevant for a random-digit-dialing sample design, editing certain questions to add clarity, and adding questions to highlight emerging topics such as receiving organ donation information through a hand-held device or mobile apps.
Health Resources and Services Administration (HRSA), Department of Health and Human Services.
Notice.
In compliance with the requirement for opportunity for public comment on proposed data collection projects of the Paperwork Reduction Act of 1995, HRSA announces plans to submit an Information Collection Request (ICR), described below, to the Office of Management and Budget (OMB). Prior to submitting the ICR to OMB, HRSA seeks comments from the public regarding the burden estimate, below, or any other aspect of the ICR.
Comments on this ICR must be received no later than August 27, 2018.
Submit your comments to
To request more information on the proposed project or to obtain a copy of the data collection plans and draft instruments, email
When submitting comments or requesting information, please include the information request collection title for reference.
HRSA is considering several changes for 2019 UDS data collection:
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HRSA specifically requests comments on: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, 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, notice is hereby given of the following meetings of the NHLBI Special Emphasis Panel.
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 contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications and 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, notice is hereby given of a meeting of the National Human Genome Research Institute.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the ZAT1 PJ (01) meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, 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, 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, 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, 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 ZAT1 VS (11) meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Federal Emergency Management Agency, DHS.
Notice.
Flood hazard determinations, which may include additions or modifications of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or regulatory floodways on the Flood Insurance Rate Maps (FIRMs) and where applicable, in the supporting Flood Insurance Study (FIS) reports have been made final for the communities listed in the table below.
The FIRM and FIS report are the basis of the floodplain management measures that a community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the Federal Emergency Management Agency's (FEMA's) National Flood Insurance Program (NFIP). In addition, the FIRM and FIS report are used by insurance agents and others to calculate appropriate flood insurance premium rates for buildings and the contents of those buildings.
The date of September 28, 2018 has been established for the FIRM and, where applicable, the supporting FIS report showing the new or modified flood hazard information for each community.
The FIRM, and if applicable, the FIS report containing the final flood hazard information for each community is available for inspection at the respective Community Map Repository address listed in the tables below and will be available online through the FEMA Map Service Center at
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
The Federal Emergency Management Agency (FEMA) makes the final determinations
This final notice is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.
Interested lessees and owners of real property are encouraged to review the new or revised FIRM and FIS report available at the address cited below for each community or online through the FEMA Map Service Center at
The flood hazard determinations are made final in the watersheds and/or communities listed in the table below.
Federal Emergency Management Agency, DHS.
Notice.
Flood hazard determinations, which may include additions or modifications of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or regulatory floodways on the Flood Insurance Rate Maps (FIRMs) and where applicable, in the supporting Flood Insurance Study (FIS) reports have been made final for the communities listed in the table below.
The FIRM and FIS report are the basis of the floodplain management measures that a community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the Federal Emergency Management Agency's (FEMA's) National Flood Insurance Program (NFIP). In addition, the FIRM and FIS report are used by insurance agents and others to calculate appropriate flood insurance premium rates for buildings and the contents of those buildings.
The date of August 28, 2018 has been established for the FIRM and, where applicable, the supporting FIS report showing the new or modified flood hazard information for each community.
The FIRM, and if applicable, the FIS report containing the final flood hazard information for each community is available for inspection at the respective Community Map Repository address listed in the tables below and will be available online through the FEMA Map Service Center at
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the new or modified flood hazard information for each community listed. Notification of these changes has been published in newspapers of local circulation and 90 days have elapsed since that publication. The Deputy Associate Administrator for Insurance and Mitigation has resolved any appeals resulting from this notification.
This final notice is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.
Interested lessees and owners of real property are encouraged to review the new or revised FIRM and FIS report available at the address cited below for each community or online through the FEMA Map Service Center at
The flood hazard determinations are made final in the watersheds and/or communities listed in the table below.
Federal Emergency Management Agency, DHS.
Notice.
This notice lists communities where the addition or modification of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or the regulatory floodway (hereinafter referred to as flood hazard determinations), as shown on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports, prepared by the Federal Emergency Management Agency (FEMA) for each community, is appropriate because of new scientific or technical data. The FIRM, and where applicable, portions of the FIS report, have been revised to reflect these flood hazard determinations through issuance of a Letter of Map Revision (LOMR), in accordance with Federal Regulations. The LOMR will be used by insurance agents and others to calculate appropriate flood insurance premium rates for new buildings and the contents of those buildings. For rating purposes, the currently effective community number is shown in the table below and must be used for all new policies and renewals.
These flood hazard determinations will be finalized on the dates listed in the table below and revise the FIRM panels and FIS report in effect prior to this determination for the listed communities.
From the date of the second publication of notification of these changes in a newspaper of local circulation, any person has 90 days in which to request through the community that the Deputy Associate Administrator for Insurance and Mitigation reconsider the changes. The flood hazard determination information may be changed during the 90-day period.
The affected communities are listed in the table below. Revised flood hazard information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Submit comments and/or appeals to the Chief Executive Officer of the community as listed in the table below.
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
The specific flood hazard determinations are not described for each community in this notice. However, the online location and local community map repository address where the flood hazard determination information is available for inspection is provided.
Any request for reconsideration of flood hazard determinations must be submitted to the Chief Executive Officer of the community as listed in the table below.
The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
These flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. The flood hazard determinations are in accordance with 44 CFR 65.4.
The affected communities are listed in the following table. Flood hazard determination information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
U.S. Citizenship and Immigration Services, Department of Homeland Security.
30-Day notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) will be submitting 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. The purpose of this notice is to allow an additional 30 days for public comments.
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until July 26, 2018.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, must be directed to the OMB USCIS Desk Officer via email at
You may wish to consider limiting the amount of personal information that you provide in any voluntary submission you make. For additional information please read the Privacy Act notice that is available via the link in the footer of
USCIS, Office of Policy and Strategy, Regulatory Coordination Division, Samantha Deshommes, Chief, 20 Massachusetts Avenue NW, Washington, DC 20529-2140, Telephone number (202) 272-8377 (This is not a toll-free number; comments are not accepted via telephone message.). Please note contact information provided here is solely for questions regarding this notice. It is not for individual case status inquiries. Applicants seeking information about the status of their individual cases can check Case Status Online, available at the USCIS website at
The information collection notice was previously published in the
You may access the information collection instrument with instructions, or additional information by visiting the Federal eRulemaking Portal site at:
(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,
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U.S. Citizenship and Immigration Services, Department of Homeland Security.
60-Day notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration (USCIS) invites the general public and other Federal agencies to comment upon this proposed extension of a currently approved collection of information. In accordance with the Paperwork Reduction Act (PRA) of 1995, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days until August 27, 2018.
All submissions received must include the OMB Control Number 1615-0099 in the body of the letter, the agency name and Docket ID USCIS-2006-0059. To avoid duplicate submissions, please use only
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(2)
USCIS, Office of Policy and Strategy, Regulatory Coordination Division, Samantha Deshommes, Chief, 20 Massachusetts Avenue NW, Washington, DC 20529-2140, telephone number 202-272-8377 (This is not a toll-free number. Comments are not accepted via telephone message). Please note contact information provided here is solely for questions regarding this notice. It is not for individual case status inquiries. Applicants seeking information about the status of their individual cases can check Case Status Online, available at the USCIS website at
You may access the information collection instrument with instructions, or additional information by visiting the Federal eRulemaking Portal site at:
Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(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,
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U.S. Citizenship and Immigration Services, Department of Homeland Security.
30-Day notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) will be submitting 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. The purpose of this notice is to allow an additional 30 days for public comments.
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until July 26, 2018.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, must be directed to the OMB USCIS Desk Officer via email at
You may wish to consider limiting the amount of personal information that you provide in any voluntary submission you make. For additional information please read the Privacy Act notice that is available via the link in the footer of
USCIS, Office of Policy and Strategy, Regulatory Coordination Division, Samantha Deshommes, Chief, 20 Massachusetts Avenue NW, Washington, DC 20529-2140, Telephone number (202) 272-8377 (This is not a toll-free number; comments are not accepted via telephone message.). Please note contact information provided here is solely for questions regarding this notice. It is not for individual case status inquiries. Applicants seeking information about the status of their individual cases can check Case Status Online, available at the USCIS website at
The information collection notice was previously published in the
You may access the information collection instrument with instructions, or additional information by visiting the Federal eRulemaking Portal site at:
(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,
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(2)
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Office of the Chief Information Officer, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202-395-5806, Email:
Anna P. Guido, Reports Management Officer, QMAC, Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410; email Anna P. Guido at
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
The
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) 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) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Office of Community Planning and Development, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW, Room 4176, Washington, DC 20410-5000; telephone 202-402-3400 (this is not a toll-free number) or email at
James R. Castle, Community Planning and Development Specialist, CPD/OBGA/DRSI, Department of Housing and Urban Development, 451 7th Street SW, Room 7272, Washington, DC 20410; email James R. Castle at
Copies of available documents submitted to OMB may be obtained from Ms. Pollard.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) 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) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Office of the Chief Information Officer, HUD.
Notice.
HUD has submitted the proposed information collection requirement described below to the Office of Management and Budget (OMB) for review, in accordance with the Paperwork Reduction Act (PRA). The purpose of this notice is to allow for an additional 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202-395-5806, Email:
Colette Pollard, Reports Management Officer, QMAC, Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410, email
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A. The previous PRA
One commenter suggested HUD merge the
One commenter suggested HUD's Office of Multifamily Housing Production (Multifamily Housing) eliminate the Report portion of the document consistent with the LEAN/232 Healthcare program, and that to have the two programs with different closing requirements is arbitrary and capricious. HUD declines to accept this suggested change and comment. The risks associated with the two programs are different, thus it is not arbitrary and capricious for the two programs to have different requirements. Here, HUD has determined that the Report is necessary because it calls attention to important property characteristics, allowing HUD staff to more efficiently address the findings to protect HUD's interests. With the recent improvements to the form, HUD believes the burden estimate is realistic.
One commenter suggested changes concerning evidence of foreign qualification of entities within the organizational structure, as set out in Section I. HUD agreed with the comment and added an instruction to the HUD-91725M-INST to “include foreign qualification when Borrower has qualified the entity voluntarily or such qualification is required by state law or HUD Program Obligations.”
HUD disagreed with a comment that Section 1, paragraph S (Residual Receipts Note/Surplus Cash Note) should be deleted or moved because of new paragraph W for private secondary financing. HUD has determined that there may be instances where there is only a Surplus Cash Note.
Regarding Section 1, paragraph MM (Additional Transaction Documents), one commenter noted that the change to include all documents related to the loan closing could result in disclosure of certain due diligence certifications and documents that HUD does not allow lenders to recite in the lender certification documents. HUD agreed with the comment and modified the HUD-91725M-INST to limit paragraph MM to “all loan documents related to the FHA closing that will be delivered at closing that are not otherwise listed in the form Opinion . . .”
HUD agreed with a comment to modify the language in opinion 4 concerning authorization related to controlling entities within the borrower's organizational hierarchy “whose authorization is required.” HUD rejected a comment to delete opinion 9 because Multifamily Housing does in fact permit trusts as borrower entities per the MAP Guide.
One commenter stated that the addition of “Supporting Documents” in opinion 11 is a change in policy, and that it results in HUD asking for an opinion about whether LIHTC documents prevail over the bond documents or vice versa. HUD disagreed with this comment as the concept of “Supporting Documents” is not new to the form. Further, neither “Primary Loan Documents” nor “Supporting Loan Documents” include the secondary financing documents, Source Documents, or tax credit documents in paragraphs T-W of Section I. Consequently, HUD is not asking for an opinion about which of these documents would control over the others in the event there is a conflict. HUD disagreed with a similar comment about the addition of “Supporting Documents” in opinion 12 for the same reason.
One commenter objected to the required disclosure of litigation threatened in writing in confirmation (g) of Section IV. HUD determined such disclosure is necessary because HUD is aware of situations where threatened litigation resulted in actual of filing of litigation. Further, HUD is adding the requirement in the 91725-INST that litigation threatened in writing must not only be identified, but a detailed explanation and risk assessment must be provided.
One commenter noted that the Section 7 certification that there is no default under the
HUD agreed to a suggestion from one commenter to revise the signature block in the HUD-91725M to reflect signature by an attorney or law firm, which HUD points out is currently allowed in the
HUD made several changes to the 91725M-INST that resulted from
Two commenters objected to the requirement that paragraphs Y (Zoning) and GG (Utility Letters) be dated within 120 days of closing as being too inflexible. HUD agreed with the comment and revised the instructions to reflect that the timeframe for the documentation will vary depending on the circumstances and specific facts of a given transaction, keeping in mind that HUD is interested in receiving recent documentation. Notwithstanding, the date of documentation must not be more than one year prior to closing.
One commenter stated that the instruction for Section I, paragraph a, seems to indicate all organizational documents up the chain of the borrower must be included in the
HUD made a correction to the instructions for paragraph T (Public Entity Agreement) of Section I to establish that the term not only covers agreements between a borrower and a public entity, but also any agreement which binds the project, regardless of whether the current borrower is a signatory.
One commenter suggested HUD add bracketed options for different possible defined terms for the parties and documents. HUD rejected this suggestion because the different possible names are too numerous, and there is already flexibility to allow the underlying terms from the lease to be incorporated into the defined terms of the
HUD disagreed with a comment to add Native American tribal lands as a public entity eligible for waiver of the HUD option to purchase in Section 7. HUD Multifamily Housing will consider such requests on a case-by-case basis in Headquarters due to the unique and complex laws and requirements governing Native American tribal land.
One commenter requested clarification of lender's cure and foreclosure rights under Section 11. HUD rejected this comment as it appeared to confuse lender's rights under the
Another comment requested HUD add a finite term to the cure period in Section 11. HUD disagreed with the comment because the time required to cure will vary depending on the circumstances. Consequently, HUD has determined that reasonableness is the appropriate standard where the lender or HUD are reasonably and diligently pursuing a cure of a Ground Lease Event of Default.
One commenter suggested the recent addition of the limitation on borrowers' repayment to 75% of cumulative Surplus Cash in Section 2 should not be in this document but rather in the
One commenter requested HUD add “except upon the prior written approval of HUD” to the end of Section 8 to allow for the sale or assignment of the
HUD added bracketed language in Section 9 to accommodate the policy to allow for compounding of interest in certain LIHTC transactions.
HUD agreed with several commenters that Section 3(b) needed further clarification to allow for an exception to the general rule that the subordinate loan may not mature before the FHA-insured loan for forgivable loans. HUD rejected a comment that the HUD-required language in Section 3 should not be required when the subordinate loan is forgivable, as these protections are still needed for forgivable loans in the event the borrower defaults under a forgivable loan and the subordinate lender seeks repayment.
HUD added language in Section 3(c) that payments due under borrowers' subordinate loans are limited to 75% of cumulative Surplus Cash, consistent with MAP Guide policy and the
A commenter asked that Section 10 be revised to allow for automatic re-subordination of the subordinate lien for Sections 223(a)(7) and 223(f) refinancings; HUD declined to make this change as the form already requires
One commenter requested HUD add the schedule/exhibits of senior and subordinate loan documents to the signature page. HUD agreed with this comment and made the corresponding revision.
HUD accepted several editorial and other non-substantive corrections suggested by commenters and shown in the redline comparison published in connection with this 30-day notice.
In response to a comment, HUD added language in Section B.2. to accommodate situations where certain Firm Commitment conditions cannot be satisfied until after initial closing. HUD further revised language in Section B.4 to clarify the Firm Commitment should not be attached to the
One commenter objected to references to the reserve for replacement amount and related exhibit in Section C.4; HUD disagreed the references could lead to an inconsistency but changed the language to reference the Firm Commitment instead of the
One commenter asked HUD to modify Section E.10 to allow for inclusion of an exhibit describing delayed permits and approvals to be obtained at a later date, but the commenter did not provide a rationale for the requested modification. HUD therefore declined to accept this change. Concerning lenders' due diligence in Section E.10 in ensuring all required permits and approvals have been obtained, HUD agreed with several commenters that the prohibition against relying on the
One commenter suggested that HUD add the Lender's Assurance of Permanent Financing to the
HUD did not receive comments on this document but decided to make a needed technical correction to add language in Section 4(c) to ensure compliance with 24 CFR 200.54.
HUD agreed to make several non-substantive editorial changes to improve the document in response to several comments and as shown in the redline comparison published in connection with this 30-day notice.
HUD declined a request to remove the requirement in Article 2.C. for the lender to sign the plans and specifications as this is a MAP Guide requirement that HUD has decided to maintain. HUD agreed to a proposed change in Article 3.A to set the start date for work within fourteen days of the date of the
One commenter requested HUD modify the liquidated damages provision in Article 3(E) to allow borrowers to recoup soft costs. HUD declined to revise its policy that soft costs not be allowed in the calculation of liquidated damages. Another commenter asked about the Identity of Interest Amendment referenced within the form. HUD has determined that this form should not have been removed from the MAP Guide Appendices as it is still required when applicable. The MAP Guide will be revised to again include this document in the appendices.
One commenter noted that the bracketed language in Section 4.E is confusing because Section 2.A.8 does not include the incentive payment addendum as a construction document in identity of interest cases, but Section 4.E requires the addendum for identity of interest cases. HUD agrees with this comment and has revised Section 2.A.8 (re-numbered as Section 2.A.7) accordingly.
HUD agreed with one comment that the owner as opposed to the contractor is sometimes responsible for paying for the building permits and as-built survey and made corresponding changes in Article 7.A and 7.C to allow for this possibility.
No public comments were submitted for this form, but HUD determined that several technical corrections were needed. HUD revised Section 3 to use the already-defined term “Obligees” rather than separately listing Borrower and Lender as “Obligees.” This change is consistent with the first paragraph of the form and with Section 2 of the form
HUD accepted several editorial and other non-substantive corrections suggested by commenters and shown in the redline comparison published in connection with this 30-day notice.
One commenter requested HUD revise the language in Section I.A.7 to qualify lender's certification about completion of borrower's repairs “Based on the Repair Certification of Borrower . . . .” or “to the best of lender's knowledge and information . . . .” This change is unnecessary as the entire section is qualified by the best of lender's knowledge. HUD rejected a similar comment with respect to the new No Material Adverse Change certification in Section I.A.14 given that the entire section is qualified by the best of lender's knowledge. Further, this new provision was explicitly identified in the 60-day notice as new, rather than a clarification of the form, as the commenter suggested.
Regarding the 50% holdback for cash-out refinances in Section 223(f) and addressed in Section I.B.1 of the form, HUD declined to change its policy at this time to allow for an alternative percentage.
One commenter objected to the reference to the reserve for replacement amount and exhibit in Section I.B.5. HUD disagreed the reference could lead to an inconsistency and notes that the provision references the Firm Commitment instead of the
Regarding the list of fees and charges of lender in Section I.C.3, HUD disagreed with a request to reference the Certified Closing Statement instead of a separate list, as HUD wants this
One commenter asked HUD to modify Section I.C.11 to allow for inclusion of an exhibit describing delayed permits and approvals to be obtained at a later date but did not provide any rationale for the modification. HUD therefore declined to accept the requested modification. Concerning lenders' due diligence in I.C.11 in ensuring all required permits and approvals have been obtained, HUD agreed with several commenters that the prohibition against relying on the
HUD disagreed with a comment concerning Section II.A.1, requesting that the borrower certification about the Certificate of Lender be qualified, because the entire section is already qualified by “knowledge and belief.” HUD further disagreed with the request in II.A.to exclude customary vendor payables not over thirty days old from the list of unpaid obligations, as these items fall outside the scope of the language in most scenarios. One commenter objected to newly added language requiring the borrower to certify to the status of the Mortgaged Property and
One commenter suggested that HUD add the Lender's Assurance of Permanent Financing to the Certificate of Lender; while HUD generally agreed with the comment, HUD decided it would be too difficult to adopt at this time.
One commenter requested HUD revise the definition of “Affiliate” to change “policy” to “actions,” but did not sufficiently identify or explain the commenter's perceived deficiencies with the current definition. HUD therefore declined to make the requested change. As a general matter, HUD believes that the terms “Affiliate” and “Principal” in the context of the
One commenter requested HUD elaborate on the types of assets that can be held by borrowers apart from the Mortgaged Property defined in I.1.s. HUD declined to make changes to this paragraph to incorporate any additional specific examples of permissible non-project funds. As stated in prior FAQs, references to items such as distributed Surplus Cash and permissible loan repayments are themselves examples of potential non-project funds. If a party is uncertain as to how to treat a particular asset after reviewing applicable Program Obligation, such party should contact the Office of Multifamily Housing for guidance.
One commenter requested that HUD improve the definition of Residual Receipts in I.1.dd. HUD declined to make the proposed change to the new definition of Residual Receipts, as it would be inappropriate to describe a method of calculating Residual Receipts in this document because any residual receipts requirements will generally stem from separate HUD programs and source documents (
HUD also received a comment to provide greater clarity to the Section 30 listing of other occupancy and use restrictions. It was not HUD's intent to change policy on what information is to be shown in this Section 30, but rather to clarify the existing policy by making the separate instructions more distinct. Thus, subsection “a” of this revised Section 30 corresponds to the first sentence in the current version of the
HUD received a comment to add alternative language for lenders that are approved for self-administration of the escrow. HUD agreed with this comment and added additional language in Sections 5 and 6 along with a new Exhibit C to reflect transactions where HUD has approved delegation to the lender of administration of the repair escrow.
The remaining changes to the form shown in the redline comparison published in connection with this 30-day notice are HUD-initiated improvements and updates given the expanded levels of work that are permitted in certain 223(f) transactions. HUD added a new Alternative B for Sections 1 and 2 for transactions with Level 2/Level 3 repairs funded with tax credit equity, along with a new Exhibit D to include the tax credit equity pay-in schedule, and that the additional assurance of completion amount may be cash or a letter of credit.
HUD added language in Section 8 to: (a) Clarify that the Latent Defects Deposit is only required when required by the Firm Commitment; (b) clarify that it is calculated on both “critical” and “non-critical” repairs performed before or after closing; and (c) include the amount when a Latent Defects Deposit is required, or to insert “N/A” if it is not required.
Given that the Firm Commitment requires latent defect assurances when the repairs/alterations are greater than $400,000, regardless of when the work is completed, HUD added a new Alternative B in the Recitals to capture the possibility of a Latent Defects Deposit when all work is completed before closing and no deferred repair escrow is required. Further, HUD added an instruction to revise the title of the document and strike paragraphs 1-3 and 5-7 in such situations.
One commenter asked why the
HUD received a comment to add to this document any provisions in the AIA A201 that HUD requires be stricken or modified per the FHA Multifamily Program Closing Guide. HUD declined to make this change. Including the requested change is not practical because the closing documents are renewed every three years, and the AIA A201 document may change prior to or soon after the documents are renewed. HUD has determined that it is more practical to announce changes in policy via the Closing Guide or other HUD directives.
One commenter asked HUD to clarify whether all “Subordinate Loan Documents” referenced in Section 1(p) actually means “all” of such documents. HUD determined no additional clarification is needed, the document clearly states, “include all documents.” HUD added language in Section 3(c)(1) that payments due under borrower subordinate loans are limited to 75% of cumulative Surplus Cash, consistent with MAP Guide policy and the
A commenter asked that Section 10 be revised to allow for automatic re-subordination of the subordinate lien for Sections 223(a)(7) and 223(f) refinancings; HUD declined to make this change as the form already requires automatic subordination of refinancing the FHA-insured senior loan, which includes FHA refinancings. One commenter requested HUD add the schedule/exhibits of senior and subordinate loan documents to the signature page. HUD agreed with this comment and made the corresponding revision.
One commenter requested that Section 14 be revised to not require attachment of special condition certifications. HUD agreed with the comment and removed the requirement to attach the separate certifications. These certifications should be inserted into the body of the document in Section 14.
One commenter asked for additional clarity on the content of Exhibit B. HUD agreed with the comment and added instructions to indicate that form state Addendum provisions do not need to be separately referenced in the Exhibit B specifically if such addenda are otherwise validly attached to and incorporated in the Security Instrument under applicable state law. HUD similarly revised the instruction language in Sections 43 and 49.
Another commenter suggested HUD add as an option “[Leasehold]” where the document covers a leasehold estate. HUD agreed with the suggestion and added the term “Leasehold” as optional bracketed language on the Security Instrument cover, title on page 2, and preamble paragraph. This language is to be inserted for transactions involving a leasehold estate. Note that use of the
One commenter requested additional language to harmonize the
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) 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) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comments in response to these questions. Please note that HUD will not consider any redline/strikeout comparison documents submitted by commenters, as it is far too inefficient for HUD to consolidate and consider comparison versions of each of the documents from numerous interested parties. HUD will only consider proposed changes to the documents listed under Section A that are submitted in narrative and/or bulleted form (preferably in MS Word form), accompanied by a detailed explanation and rationale for each requested change. However, commenters may include in their detailed explanation and rationale the relevant excerpt(s) from the document(s) with redline/strikeouts.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Fish and Wildlife Service, Interior.
Notice of receipt of permit applications.
We, the U.S. Fish and Wildlife Service, invite the public to comment on the following applications to conduct certain activities with endangered species. With some exceptions, the Endangered Species Act (ESA) prohibits activities with listed species unless Federal authorization is acquired that allows such activities. The ESA also requires that we invite public comment before issuing these permits.
We must receive comments by July 26, 2018.
•
•
When submitting comments, please specify the name of the applicant and the permit number at the beginning of your comment. We will post all comments on
Brenda Tapia, (703) 358-2104 (telephone);
You may submit your comments and materials by one of the methods listed under
Please make your requests or comments as specific as possible, confine your comments to issues for which we seek comments in this notice, and explain the basis for your comments. Include sufficient information with your comments to allow us to authenticate any scientific or commercial data you include. The comments and recommendations that will be most useful and likely to influence agency decisions are: (1) Those supported by quantitative information or studies; and (2) those that include citations to, and analyses of, the applicable laws and regulations.
As described in
If you submit a comment via
With some exceptions, the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531
We invite public comment on the following permit applications. Please reference the applicant and the permit number in your comments.
The applicant requests a permit to re-export one live wild giant panda (
The applicant requests a permit to export one live captive-bred black rhinoceros (
If the Service decides to issue permits to any of the applicants listed in this notice, we will publish a notice in the
Bureau of Land Management, Interior.
Notice of official filing.
The plats of survey of the following described lands are scheduled to be officially filed in the Bureau of Land Management (BLM), Colorado State Office, Lakewood, Colorado, 30 calendar days from the date of this publication. The surveys, which were executed at the request of the U.S. Forest Service and the U.S. Department of Justice, are necessary for the management of these lands.
Unless there are protests of this action, the plats described in this notice will be filed on July 26, 2018.
You may submit written protests to the BLM Colorado State Office, Cadastral Survey, 2850 Youngfield Street, Lakewood, CO 80215-7093.
Randy Bloom, Chief Cadastral Surveyor for Colorado, (303) 239-3856;
The plat and field notes of the dependent resurvey and subdivision of section 4 in Township 32 North, Range 5 East, New Mexico Principal Meridian, Colorado, were accepted on May 3, 2018.
The plat, in 4 sheets, incorporating the field notes of the dependent resurvey in Township 4 South, Range 73 West, Sixth Principal Meridian, Colorado, was accepted on May 31, 2018.
The plat, in 5 sheets, incorporating the field notes of the dependent resurvey and survey in Township 4 South, Range 73 West, Sixth Principal Meridian, Colorado, was accepted on June 7, 2018.
The plat and field notes of the dependent resurvey in partially surveyed Township 42 North, Range 1 West, New Mexico Principal Meridian, Colorado, were accepted on June 13, 2018.
A person or party who wishes to protest any of the above surveys must file a written notice of protest within 30 calendar days from the date of this publication at the address listed in the
43 U.S.C. Chap. 3.
United States International Trade Commission.
Notice.
The Commission hereby gives notice of the institution of investigations and commencement of preliminary phase antidumping and countervailing duty investigation Nos. 701-TA-608 and 731-TA-1420 (Preliminary) pursuant to the Tariff Act of 1930 (“the Act”) to determine whether there is a reasonable indication that an industry in the United States is materially injured or threatened with material injury, or the establishment of an industry in the United States is materially retarded, by reason of imports of steel racks from China, provided for in subheadings 9403.20.00 and 7326.90.86 (statistical reporting numbers 9403.20.0080 and 7326.90.8688) of the Harmonized Tariff Schedule of the United States, that are alleged to be sold in the United States at less than fair value and alleged to be subsidized by the Government of China. Unless the Department of Commerce (“Commerce”) extends the time for initiation, the Commission must reach a preliminary determination in antidumping and countervailing duty investigations in 45 days, or in this case by August 6, 2018. The Commission's views must be transmitted to Commerce within five business days thereafter, or by August 13, 2018.
June 20, 2018.
Amelia Shister (202-205-2047), Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
For further information concerning the conduct of these investigations and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A and B (19 CFR part 201), and part 207, subparts A and B (19 CFR part 207).
In accordance with sections 201.16(c) and 207.3 of the rules, each document filed by a party to the investigations must be served on all other parties to the investigations (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has received a complaint entitled
Lisa R. Barton, Secretary to the Commission, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205-2000. The public version of the complaint can be accessed on the Commission's Electronic Document Information System (EDIS) at
General information concerning the Commission may also be obtained by accessing its internet server at United States International Trade Commission (USITC) at
The Commission has received a complaint and a submission pursuant to § 210.8(b) of the Commission's Rules of Practice and Procedure filed on behalf of SnapRays, LLC d/b/a SnapPower on June 20, 2018. The complaint alleges violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain powered cover plates. The complaint names as respondents: Ontel Products Corporation of Fairfield, NJ; Dazone LLC of Ontario, CA; Shenzhen C-Myway of China; E-Zshop4u LLC of Howey in the Hills, FL; Desteny Store of Fort Meyers, FL; Zhongshan Led-Up Co. Ltd. of China; AllTrade Tools LLC of Cypress, CA; Guangzhou Sailu Info Tech. Co., Ltd. of China; NEPCI-Zhejiang New-Epoch Communication Industry Co., Ltd. of China; KCC Industries of Eastvale, CA; Vistek Technology Co., Ltd. of China; Enstant Technology Co. Ltd. of China; and Manufacturers Components Incorporated of Pompano Beach, FL. The complainant requests that the Commission issue a general exclusion order and in the alternative issue a limited exclusion order, cease and desist orders and impose a bond upon respondents' alleged infringing articles during the 60-day Presidential review period pursuant to 19 U.S.C. 1337(j).
Proposed respondents, other interested parties, and members of the public are invited to file comments, not to exceed five (5) pages in length, inclusive of attachments, on any public interest issues raised by the complaint or § 210.8(b) filing. Comments should address whether issuance of the relief specifically requested by the complainant in this investigation would affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
In particular, the Commission is interested in comments that:
(i) Explain how the articles potentially subject to the requested remedial orders are used in the United States;
(ii) identify any public health, safety, or welfare concerns in the United States
(iii) identify like or directly competitive articles that complainant, its licensees, or third parties make in the United States which could replace the subject articles if they were to be excluded;
(iv) indicate whether complainant, complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to the requested exclusion order and/or a cease and desist order within a commercially reasonable time; and
(v) explain how the requested remedial orders would impact United States consumers.
Written submissions must be filed no later than by close of business, eight calendar days after the date of publication of this notice in the
Persons filing written submissions must file the original document electronically on or before the deadlines stated above and submit 8 true paper copies to the Office of the Secretary by noon the next day pursuant to § 210.4(f) of the Commission's Rules of Practice and Procedure (19 CFR 210.4(f)). Submissions should refer to the docket number (“Docket No. 3325) in a prominent place on the cover page and/or the first page. (
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of §§ 201.10 and 210.8(c) of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.8(c)).
By order of the Commission.
Notice is hereby given that, on June 1, 2018, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Pursuant to Section 6(b) of the Act, the identities of the parties to the venture are: FCA USA LLC, Auburn Hills, MI; Ford Motor Company, Dearborn, MI; General Motors LLC, Warren, MI; Hyundai America Technical Center, Inc., Superior Township, MI; Mercedes-Benz Research & Development North America, Ann Arbor, MI; Nissan Technical Center N.A., Farmington Hills, MI; Toyota Motor North America, Plano, Texas; and Volkswagen Group of America, Inc., Auburn Hills, MI.
The general area of ADB Consortium's planned activity is to fund and conduct multiple research projects limited to specific areas with specifically-defined technical goals which the participants believe will speed the development and ultimate consumer access to safe vehicles equipped with Automated Driving Systems (ADS). ADB Consortium's objectives are to gain further knowledge and understanding of ADS-equipped vehicle interactions with public safety through research into common operational use cases.
Notice is hereby given that, on June 8, 2018, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and R Consortium intends to file additional written notifications disclosing all changes in membership.
On September 15, 2015, R Consortium filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on December 21, 2016. A notice was published in the
Federal Bureau of Investigation, Department of Justice.
30-Day notice.
The Department of Justice, Federal Bureau of Investigation, Training Division is 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 Department of Justice encourages public comment and will accept input until July 26, 2018.
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 Kevin R. Furtick, Chief, Evaluation and Assessment Unit, 1234 Range Road, Quantico, VA,
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:
➢ Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Department of Justice, Federal Bureau of Investigation, Training Division, 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;
➢ Evaluate whether and if so how the quality, utility, and clarity of the information to be collected can be enhanced; 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,
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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.
National Archives and Records Administration (NARA).
Notice.
NARA is giving public notice that it has submitted to OMB for approval the information collections described in this notice. We invite you to comment on the proposed information collections pursuant to the Paperwork Reduction Act of 1995.
OMB must receive written comments at the address below on or before July 26, 2018.
Send comments to Mr. Nicholas A. Fraser, desk officer for NARA, by mail to Office of Management and Budget; New Executive Office Building; Washington, DC 20503; fax to 202-395-5167; or by email to
Direct requests for additional information or copies of the proposed information collection and supporting statement to Tamee Fechhelm by phone at 301-837-1694 or by fax at 301-837-0319.
Pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104-13), NARA invites the general public and other Federal agencies to comment on proposed information collections. We published a notice of proposed collection for these information collections on March 19, 2018 (83 FR 13024) and on March 21, 2018 (83 FR 12413) and received no comments. We are therefore submitting these collections to OMB for approval.
In response to this notice, comments and suggestions should address one or more of the following points: (a) Whether the proposed information collection is necessary for NARA to properly perform its functions; (b) NARA's estimate of the burden of the proposed information collection and its
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National Archives and Records Administration (NARA).
Notice.
NARA is giving public notice that it has submitted to OMB for approval the information collections described in this notice. We invite you to comment on the proposed information collections pursuant to the Paperwork Reduction Act of 1995.
OMB must receive written comments at the address below on or before July 26, 2018.
Send comments to Mr. Nicholas A. Fraser, desk officer for NARA, by mail to Office of Management and Budget; New Executive Office Building; Washington, DC 20503; fax to 202-395-5167; or by email to
Direct requests for additional information or copies of the proposed information collection and supporting statement to Tamee Fechhelm by phone at 301-837-1694 or by fax at 301-837-0319.
Pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104-13), NARA invites the general public and other Federal agencies to comment on proposed information collections. We published a notice of proposed collection for these information collections on April 10, 2018 (83 FR 15410), and we received no comments. We are therefore submitting them to OMB for approval.
In response to this notice, comments and suggestions should address one or more of the following points: (a) Whether the proposed information collection is necessary for NARA to properly perform its functions; (b) NARA's estimate of the burden of the proposed information collection and its accuracy; (c) ways NARA could enhance the quality, utility, and clarity of the information it collects; (d) ways NARA could minimize the burden on respondents of collecting the information, including the through information technology; and (e) whether the collection affects small businesses. In this notice, NARA solicits comments concerning the following information collections:
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The National Science Board's Committee on External Engagement (EE), pursuant to NSF regulations (45 CFR part 614), the National Science Foundation Act, as amended (42 U.S.C. 1862n-5), and the Government in the Sunshine Act (5 U.S.C. 552b), hereby gives notice of the scheduling of a teleconference for the transaction of National Science Board business, as follows:
Friday, June 29, 2018, from 3:00-4:00 p.m. EDT.
This meeting will be held by teleconference at the National Science Foundation, 2415 Eisenhower Avenue, Alexandria, VA 22314. An audio link will be available for the public. Members of the public must contact the Board Office to request the public audio link by sending an email to
Open.
Prepare for the July NSB meeting; discuss the recent Community College Innovation Challenge listening session; plan for the next session in South Carolina; and discuss future directions and opportunities for the committee.
Point of contact for this meeting is: Nadine Lymn (
Meeting information and updates may be found at
In accordance with the purposes of Sections 29 and 182b of the Atomic Energy Act (42 U.S.C. 2039, 2232b), the Advisory Committee on Reactor Safeguards (ACRS) will hold meetings on July 11-14, 2018, 11545 Rockville Pike, Rockville, Maryland 20852.
Procedures for the conduct of and participation in ACRS meetings were published in the
Thirty-five hard copies of each presentation or handout should be provided 30 minutes before the meeting. In addition, one electronic copy of each presentation should be emailed to the Cognizant ACRS Staff one day before meeting. If an electronic copy cannot be provided within this timeframe, presenters should provide the Cognizant ACRS Staff with a CD containing each presentation at least 30 minutes before the meeting.
In accordance with Subsection 10(d) of Public Law 92-463 and 5 U.S.C. 552b(c), certain portions of this meeting may be closed, as specifically noted above. Use of still, motion picture, and television cameras during the meeting may be limited to selected portions of the meeting as determined by the Chairman. Electronic recordings will be permitted only during the open portions of the meeting.
ACRS meeting agendas, meeting transcripts, and letter reports are available through the NRC Public Document Room at
Video teleconferencing service is available for observing open sessions of ACRS meetings. Those wishing to use this service should contact Mr. Theron Brown, ACRS Audio Visual Technician (301-415-6702), between 7:30 a.m. and 3:45 p.m. (ET), at least 10 days before the meeting to ensure the availability of this service. Individuals or organizations requesting this service will be responsible for telephone line charges and for providing the equipment and facilities that they use to establish the video teleconferencing link. The availability of video teleconferencing services is not guaranteed.
This notice is late due to the adjustment of accurate meeting topics for APR1400. Specifically, the related Subcommittees which occurred in late May affected the schedule.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Proposed state agreement; request for comment.
By letter dated November 14, 2017, Governor Matthew H. Mead of the State of Wyoming requested that the U.S. Nuclear Regulatory Commission (NRC or Commission) enter into an Agreement with the State of Wyoming as authorized by Section 274b. of the Atomic Energy Act of 1954, as amended (AEA).
Under the proposed Agreement, the Commission would discontinue, and the State of Wyoming would assume, regulatory authority over the management and disposal of byproduct materials as defined in Section 11e.(2) of the AEA and a subcategory of source material associated with uranium or thorium milling within the State. Pursuit to Commission direction, the proposed Agreement would state that the NRC will retain regulatory authority over the American Nuclear Corporation (ANC) license.
As required by Section 274e. of the AEA, the NRC is publishing the proposed Agreement for public comment. The NRC is also publishing the summary of a draft assessment by the NRC staff of the State of Wyoming's regulatory program. Comments are requested on the proposed Agreement, especially its effect on public health and safety. Comments are also requested on the draft staff assessment, the adequacy of the State of Wyoming's program, and the State's program staff, as discussed in this notice.
The proposed Agreement would exempt persons who possess or use byproduct materials as defined in Section 11e.(2) of the AEA and a subcategory of source material involved in the extraction or concentration of uranium or thorium in source material or ores at uranium or thorium milling facilities in the State of Wyoming from portions of the Commission's regulatory
Submit comments by July 26, 2018. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received before this date.
You may submit comments by the following method:
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Stephen Poy, Office of Nuclear Material Safety and Safeguards, telephone: 301-415-7135, email:
Please refer to Docket ID NRC-2018-0104 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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Please include Docket ID NRC-2018-0104 in your comment submission. The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
Since Section 274 of the AEA was added in 1959, the Commission has entered into Agreements with 37 States (Agreement States). The 37 Agreement States currently regulate approximately 16,500 Agreement material licenses, while the NRC regulates approximately 2,800 licenses. Under the proposed Agreement, 14 NRC uranium mill licenses will transfer to the State of Wyoming. The NRC periodically reviews the performance of the Agreement States to assure compliance with the provisions of Section 274.
Section 274e. of the AEA requires that the terms of the proposed Agreement be published in the
(a) Section 274b. of the AEA provides the mechanism for a State to assume regulatory authority from the NRC over certain radioactive materials and activities that involve use of these materials. The radioactive materials, sometimes referred to as “Agreement materials,” are byproduct materials as defined in Sections 11e.(1), 11e.(2), 11e.(3), and 11e.(4) of the AEA; source material as defined in Section 11z. of the AEA; and special nuclear material as defined in Section 11aa. of the AEA, restricted to quantities not sufficient to form a critical mass.
The radioactive materials and activities (which together are usually referred to as the “categories of materials”) that the State of Wyoming requests authority over are the possession and use of byproduct materials as defined in Section 11e.(2) of the AEA and a subcategory of source material involved in the extraction or concentration of uranium or thorium in source material or ores at uranium or thorium milling facilities (source material associated with milling activities).
(b) The proposed Agreement contains articles that
(i) Specify the materials and activities over which authority is transferred;
(ii) Specify the materials and activities over which the Commission will retain regulatory authority;
(iii) Continue the authority of the Commission to safeguard special nuclear material, and restricted data and protect common defense and security;
(iv) Commit the State of Wyoming and the NRC to exchange information as necessary to maintain coordinated and compatible programs;
(v) Provide for the reciprocal recognition of licenses;
(vi) Provide for the suspension or termination of the Agreement; and
(vii) Specify the effective date of the proposed Agreement.
The Commission reserves the option to modify the terms of the proposed Agreement in response to comments, to correct errors, and to make editorial changes. The final text of the proposed Agreement, with the effective date, will be published after the Agreement is approved by the Commission and signed by the NRC Chairman and the Governor of Wyoming.
(c) The regulatory program is authorized by law under the State of
(d) The NRC draft staff assessment finds that the Wyoming Department of Environmental Quality, Land Quality Division, Uranium Recovery Program, is adequate to protect public health and safety and is compatible with the NRC program for the regulation of Agreement materials. Pursuant to Commission direction, the proposed Agreement includes a provision that the State of Wyoming has until the end of the 2019 legislative session to amend Wyoming Statute Section 35-11-2004(c) to be compatible with AEA Section 83b.(1)(A), or the Agreement will terminate without further NRC action. The proposed Agreement also explicitly states that, prior to the requisite amendment of Wyoming Statute Section 35-11-2004(c), the NRC will reject any State of Wyoming request to terminate a license that proposes to bifurcate the ownership of byproduct material and its disposal site between the State and the Federal government. Pursuant to Commission direction, the Agreement contains a provision that requires the State of Wyoming to revise Statute Section 35-11-2004(c) during the next legislative session to be compatible with AEA Section 83b.(1)(A). If the Wyoming Statute Section 35-11-2004(c) is not amended by the end of the 2019 legislative session, the Agreement will terminate.
The NRC staff has examined the State of Wyoming's request for an Agreement with respect to the ability of the State's radiation control program to regulate Agreement materials. The examination was based on the Commission's Policy Statement, “Criteria for Guidance of States and NRC in Discontinuance of NRC Regulatory Authority and Assumption Thereof by States Through Agreement,” (46 FR 7540; January 23, 1981, as amended by Policy Statements published at 46 FR 36969; July 16, 1981, and at 48 FR 33376; July 21, 1983) (Policy Statement), and the Office of Nuclear Material Safety and Safeguards Procedure SA-700, “Processing an Agreement” (available at
(a) Organization and Personnel. These areas were reviewed under Criteria 1, 2, 20, 24, 33, and 34 in the draft staff assessment. The State of Wyoming's proposed Agreement materials program for the regulation of radioactive materials is the Uranium Recovery Program. The Uranium Recovery Program will be located within the existing Land Quality Division of the Wyoming Department of Environmental Quality.
The educational requirements for the Uranium Recovery Program staff members are specified in the State of Wyoming's personnel position descriptions and meet the NRC criteria with respect to formal education or combined education and experience requirements. All current staff members hold a Bachelor of Science Degree or Master's Degree in one of the following subject areas: Environmental science, health physics, nuclear engineering, geology, or ecology. All have training and work experience in radiation protection. Supervisory level staff have at least 5 years of working experience in radiation protection, with most having more than 10 years of experience.
The State of Wyoming performed an analysis of the expected workload under the proposed Agreement. Based on the NRC staff review of the State of Wyoming's analysis, the State has an adequate number of staff to regulate radioactive materials under the terms of the proposed Agreement. The State of Wyoming will employ the equivalent of 7.2 full-time professional and technical staff to support the Uranium Recovery Program.
The State of Wyoming has indicated that the Uranium Recovery Program has an adequate number of trained and qualified staff in place. The State of Wyoming has developed qualification procedures for license reviewers and inspectors that are similar to the NRC's procedures. The Uranium Recovery Program staff is accompanying the NRC staff on inspections of NRC licensees in Wyoming. The Uranium Recovery Program staff is also actively supplementing their experience through direct meetings, discussions, and facility visits with the NRC licensees in the State of Wyoming and through self-study, in-house training, and formal training.
Overall, the NRC staff concluded that the Uranium Recovery Program staff identified by the State of Wyoming to participate in the Agreement materials program has sufficient knowledge and experience in radiation protection, the use of radioactive materials, the standards for the evaluation of applications for licensing, and the techniques of inspecting licensed users of Agreement materials.
(b) Legislation and Regulations. These areas were reviewed under Criteria 1-14, 17, 19, 21, and 23-33 in the draft staff assessment. The Wyoming Statutes Sections 35-11-2001(a) through (c) provide the authority to enter into the Agreement and establish the Wyoming Department of Environmental Quality as the lead agency for the State's Uranium Recovery Program. The Department has the requisite authority to promulgate regulations under Wyoming Statute Section 35-11-2002(b) for protection against radiation. The Wyoming Statutes Sections 35-11-2001 through -2005 also provide the Uranium Recovery Program the authority to issue licenses and orders; conduct inspections; and enforce compliance with regulations, license conditions, and orders. The Wyoming Statute Section 35-11-2003(d) requires licensees to provide access to inspectors.
The Wyoming Statute Section 35-11-2001(e) does not provide the State of Wyoming with authority over independent or commercial laboratories. Under the proposed Agreement, the NRC would retain regulatory authority over laboratory facilities that are not located at facilities licensed under the State of Wyoming's regulatory authority. The State of Wyoming would only regulate laboratory facilities located at uranium or thorium mills. The NRC staff verified that the State of Wyoming adopted the relevant NRC regulations in parts 19, 20, 40, 71, and 150 of title 10 of the
(c) Storage and Disposal. These areas were reviewed under Criteria 8, 9a, 11, 29, 30, 31, and 32 in the draft staff assessment. The State of Wyoming has adopted NRC compatible requirements for the handling and storage of radioactive material. The State of Wyoming has adopted an adequate and compatible set of radiation protection regulations that apply to byproduct material as defined in Section 11e.(2) of the AEA and source material associated with milling activities.
As a result of the class of byproduct material it will be regulating (Section 11e.(2) of the AEA), the State of Wyoming is not required to have regulations compatible to 10 CFR part 61 for waste disposal. Rather, the State of Wyoming is required to have regulations that are compatible with 10 CFR part 40 for the disposal of byproduct material as defined in Section 11e.(2) of the AEA and source material associated with milling activities. The NRC staff confirmed that the State of Wyoming has adopted regulations that are compatible with the NRC regulations in 10 CFR part 40 for the disposal of byproduct material and source material associated with milling activities, which are equivalent to the applicable standards contained in 10 CFR part 61.
These regulations address the general requirements for waste disposal and are applicable to all licensees covered under this proposed Agreement.
The NRC staff identified one portion of the Wyoming Statute that is potentially not compatible with NRC requirements. Section 83b.(1)(A) of the AEA ensures that ownership of the byproduct material itself is inseparable from the site on which it is disposed. Consequently, the State of Wyoming has the option of taking title to the material and its disposal site, but the Uranium Mill Tailings Radiation Control Act (UMTRCA) does not permit a State to bifurcate ownership of the disposed byproduct material and the property rights necessary to ensure its safe disposal. The Wyoming Statute Section 35-11-2004(c), enacted in anticipation of the State of Wyoming's assumption of the NRC's regulatory authority for uranium and thorium milling, could permit the bifurcation of the disposed byproduct material and its disposal site by the State. As discussed in Criterion 30c. of the draft staff assessment, this bifurcation of the land and the disposed byproduct material could conflict with the AEA (as amended by UMTRCA), and Article II.B.2.b. in the proposed Agreement.
Based on Commission direction, the NRC staff concluded that Criterion 30c. is satisfied in the following manner: The Commission could complete the process for the final application package for the Agreement, including publishing the proposed Agreement for comment, by noting that the Commission's finding of compatibility is contingent on the State of Wyoming revising this provision, during the next legislative session, to be compatible with AEA Section 83b.(1)(A). Thus, an Agreement could be executed, but it would include a provision that the State of Wyoming has until the end of the 2019 legislative session to amend Wyoming Statute Section 35-11-2004(c) to be compatible with AEA Section 83b.(1)(A), or the Agreement will terminate without further NRC action. The Agreement would also explicitly state that the NRC will reject any State of Wyoming request to terminate a license that proposes to bifurcate the ownership of byproduct material and its disposal site between the State and the federal government. The NRC staff determined that there is little practical risk that the State of Wyoming's current statutory provisions would result in the bifurcation of the 11e.(2) byproduct material from the land since the NRC is required to review and approve any State-proposed termination of a uranium mill license.
(d) Transportation of Radioactive Material. This area was reviewed under Criteria 10 and 35 in the draft staff assessment. The State of Wyoming has adopted compatible regulations to the NRC regulations in 10 CFR part 71. Part 71 contains the requirements licensees must follow when preparing packages containing radioactive material for transport.
Part 71 also contains requirements related to the licensing of packaging for use in transporting radioactive materials.
(e) Recordkeeping and Incident Reporting. These areas were reviewed under Criteria 1, 11, and 35 in the draft staff assessment. The State of Wyoming has adopted compatible regulations to the sections of the NRC regulations that specify requirements for licensees to keep records and to report incidents or accidents involving the State's regulated Agreement materials.
(f) Evaluation of License Applications. This area was reviewed under Criteria 1, 7, 8, 9a, 13, 14, 20, 23, 25, and 29-35 in the draft staff assessment. The State of Wyoming has adopted compatible regulations to the NRC regulations that specify the requirements a person must meet to get a license to possess or use radioactive materials. The State of Wyoming has also developed a licensing procedure manual, along with accompanying regulatory guides, which are adapted from similar NRC documents and contain guidance for the program staff when evaluating license applications.
(g) Inspections and Enforcement. These areas were reviewed under Criteria 1, 16, 18, 19, 23, 35, and 36 in the draft staff assessment. The State of Wyoming has adopted a schedule providing for the inspection of licensees as frequently as, or more frequently than, the inspection schedule used by the NRC. The State of Wyoming's Uranium Recovery Program has adopted procedures for the conduct of inspections, reporting of inspection findings, and reporting inspection results to the licensees. Additionally, the State of Wyoming has also adopted procedures for the enforcement of regulatory requirements.
(h) Regulatory Administration. This area was reviewed under Criterion 23 in the draft staff assessment. The State of Wyoming is bound by requirements specified in its State law for rulemaking, issuing licenses, and taking enforcement actions. The State of Wyoming has also adopted administrative procedures to assure fair and impartial treatment of license applicants. The State of Wyoming law prescribes standards of ethical conduct for State employees.
(i) Cooperation with Other Agencies. This area was reviewed under Criteria 25, 26, and 27 in the draft staff assessment. The State of Wyoming law provides for the recognition of existing NRC and Agreement State licenses and the State has a process in place for the transition of active NRC licenses. Upon the effective date of the Agreement, all active uranium recovery NRC licenses issued to facilities in the State of Wyoming, with the exception of the ANC license, will be recognized as Wyoming Department of Environmental Quality licenses.
The State of Wyoming also provides for “timely renewal.” This provision affords the continuance of licenses for which an application for renewal has been filed more than 30 days prior to the date of expiration of the license. NRC licenses transferred while in timely renewal are included under the continuation provision.
The State of Wyoming regulations, in Chapter 4, Section 6(d), provide exemptions from the State's requirements for the NRC and the U.S.
There are six UMTRCA Title II sites in the State of Wyoming (ADAMS Accession No. ML16300A294) undergoing decommissioning. These sites are: (1) Anadarko Bear Creek, Powder River Basin; (2) Pathfinder, Lucky Mc, Gas Hills; (3) Umetco Minerals Corporation, Gas Hills; (4) Western Nuclear Inc., Split Rock, Jeffrey City; (5) Exxon Mobile, Highlands, Converse County; and (6) ANC, Gas Hills.
The State of Wyoming indicated it was opposed to assuming regulatory authority over the ANC site because the licensee is insolvent. To address the State of Wyoming's proposed exclusion of the ANC site from the proposed Agreement, the NRC staff provided SECY-17-0081 “Status and Resolution of Issues Associated with the Transfer of Six Decommissioning Uranium Mill Sites to the State of Wyoming” (ADAMS Accession No. ML17087A355) to the Commission. In SRM-SECY-17-0081 (ADAMS Accession No. ML17277A783), the Commission approved the NRC staff's recommendation for the NRC to retain regulatory authority over the ANC site and stated that the Commission's retention of the ANC site “is not a change to the Commission's current Agreement State policy, but is instead an exception to that policy based on case-specific facts.” Article II.A.14. of the proposed Agreement specifies that the Commission retains regulatory authority over the ANC license.
With regard to the five other decommissioning UMTRCA sites, the NRC staff has developed a draft Memorandum of Understanding (MOU) between the NRC and the State of Wyoming as a separate document from the proposed Agreement. The objective of the MOU is to delineate specific actions that the NRC and the State of Wyoming would take to verify completion of the decommissioning of these sites. The MOU has been drafted and the NRC staff is currently working with the State of Wyoming to delineate how license termination will be addressed for each of the five sites. An assessment of the decommissioning status of the five UMTRCA sites and the activities that need to be completed prior to license termination (ADAMS Accession No. ML17040A501) has been completed. Once the MOU is completed and signed by both the NRC and the State of Wyoming, it will be published in the
Section 274d. of the AEA provides that the Commission shall enter into an Agreement under Section 274b. with any State if:
(a) The Governor of the State certifies that the State has a program for the control of radiation hazards adequate to protect public health and safety with respect to the Agreement materials within the State and that the State desires to assume regulatory responsibility for the Agreement materials; and
(b) The Commission finds that the State program is in accordance with the requirements of Subsection 274o. and in all other respects compatible with the Commission's program for the regulation of materials, and that the State program is adequate to protect public health and safety with respect to the materials covered by the proposed Agreement.
The NRC staff has reviewed the proposed Agreement, the certification of Wyoming Governor Mead, and the supporting information provided by the Uranium Recovery Program of the Wyoming Department of Environmental Quality and Wyoming's Office of the Attorney General. Based upon this review, the NRC staff concludes that the State of Wyoming Uranium Recovery Program satisfies the Section 274d. criteria as well as the criteria in the Commission's Policy Statement “Criteria for Guidance of States and NRC in Discontinuance of NRC Regulatory Authority and Assumption Thereof by States Through Agreement.” As noted above, the proposed Agreement includes a provision that the State of Wyoming has until the end of the 2019 legislative session to amend Wyoming Statute Section 35-11-2004(c) to be compatible with AEA Section 83b.(1)(A) or the Agreement will terminate without further NRC action. The proposed Agreement also explicitly states that the NRC will reject any State of Wyoming request to terminate a license that proposes to bifurcate the ownership of byproduct material and its disposal site between the State and the Federal government. Pursuant to Commission direction, the NRC staff finding of compatibility is contingent on the State of Wyoming revising Wyoming Statute Section 35-11-2004(c) during the next legislative session to be compatible with AEA Section 83b.(1)(A). The proposed State of Wyoming program to regulate Agreement materials, as comprised of statutes, regulations, procedures, and staffing is compatible with the Commission's program and is adequate to protect public health and safety with respect to the materials covered by the proposed Agreement. Therefore, the proposed Agreement meets the requirements of Section 274 of the AEA.
For the Nuclear Regulatory Commission.
WHEREAS, The United States Nuclear Regulatory Commission (hereinafter referred to as “the Commission”) is authorized under Section 274 of the Atomic Energy Act of 1954, as amended, 42 U.S.C. Section 2011
WHEREAS, The Governor of the State of Wyoming is authorized under Wyoming Statute Section 35-11-2001 to enter into this Agreement with the Commission; and,
WHEREAS, The Governor of the State of Wyoming certified on November 14,
WHEREAS, The Commission found on
WHEREAS, The State and the Commission recognize the desirability and importance of cooperation between the Commission and the State in the formulation of standards for protection against hazards of radiation and in assuring that State and Commission programs for protection against hazards of radiation will be coordinated and compatible; and,
WHEREAS, the Commission and the State recognize the desirability of the reciprocal recognition of licenses, and of the granting of limited exemptions from licensing of those materials subject to this Agreement; and,
WHEREAS, This Agreement is entered into pursuant to the Act;
NOW, THEREFORE, It is hereby agreed between the Commission and the Governor of the State of Wyoming acting on behalf of the State as follows:
Subject to the exceptions provided in Articles II, IV, and V, the Commission shall discontinue, as of the effective date of this Agreement, the regulatory authority of the Commission in the State under Chapters, 7, and 8, and Section 161 of the Act with respect to the following materials:
A. Byproduct material as defined in Section 11e.(2) of the Act; and,
B. Source material involved in the extraction or concentration of uranium or thorium in source material or ores at uranium or thorium milling facilities (hereinafter referred to as “source material associated with milling activities”).
A. This Agreement does not provide for the discontinuance of any authority, and the Commission shall retain authority and responsibility, with respect to:
1. Byproduct material as defined in Section 11e.(1) of the Act;
2. Byproduct material as defined in Section 11e.(3) of the Act;
3. Byproduct material as defined in Section 11e.(4) of the Act;
4. Source material except for source material as defined in Article I.B. of this Agreement;
5. Special nuclear material;
6. The regulation of the land disposal of byproduct, source, or special nuclear material received from other persons, excluding 11e.(2) byproduct material or source material described in Article I.A. and B. of this Agreement;
7. The evaluation of radiation safety information on sealed sources or devices containing byproduct, source, or special nuclear material and the registration of the sealed sources or devices for distribution, as provided for in regulations or orders of the Commission;
8. The regulation of the construction and operation of any production or utilization facility or any uranium enrichment facility;
9. The regulation of the export from or import into the United States of byproduct, source, or special nuclear material, or of any production or utilization facility;
10. The regulation of the disposal into the ocean or sea of byproduct, source, or special nuclear material waste as defined in the regulations or orders of the Commission;
11. The regulation of the disposal of such other byproduct, source, or special nuclear material as the Commission from time to time determines by regulation or order should, because of the hazards or potential hazards thereof, not to be so disposed without a license from the Commission;
12. The regulation of activities not exempt from Commission regulation as stated in 10 CFR part 150;
13. The regulation of laboratory facilities that are not located at facilities licensed under the authority relinquished under Article I.A. and B. of this Agreement; and,
14. Notwithstanding this Agreement, the Commission shall retain regulatory authority over the American Nuclear Corporation license.
B. Notwithstanding this Agreement, the Commission retains the following authorities pertaining to byproduct material as defined in Section 11e.(2) of the Act:
1. Prior to the termination of a State license for such byproduct material, or for any activity that results in the production of such material, the Commission shall have made a determination that all applicable standards and requirements pertaining to such material have been met.
2. The Commission reserves the authority to establish minimum standards governing reclamation, long-term surveillance or maintenance, and ownership of such byproduct material and of land used as its disposal site for such material. Such reserved authority includes:
a. The authority to establish terms and conditions as the Commission determines necessary to assure that, prior to termination of any license for such byproduct material, or for any activity that results in the production of such material, the licensee shall comply with decontamination, decommissioning, and reclamation standards prescribed by the Commission and with ownership requirements for such material and its disposal site;
b. The authority to require that prior to termination of any license for such byproduct material or for any activity that results in the production of such material, title to such byproduct material and its disposal site be transferred to the United States or the State at the option of the State (provided such option is exercised prior to termination of the license);
c. The authority to permit use of the surface or subsurface estates, or both, of the land transferred to the United States or a State pursuant to paragraph 2.b. in this section in a manner consistent with the provisions of the Uranium Mill Tailings Radiation Control Act of 1978, provided that the Commission determines that such use would not endanger public health, safety, welfare, or the environment;
d. The authority to require, in the case of a license for any activity that produces such byproduct material (which license was in effect on November 8, 1981), transfer of land and material pursuant to paragraph 2.b. in this section taking into consideration the status of such material and land and interests therein and the ability of the licensee to transfer title and custody thereof to the United States or a State;
e. The authority to require the Secretary of the United States Department of Energy, other Federal agency, or State, whichever has custody of such byproduct material and its disposal site, to undertake such monitoring, maintenance, and emergency measures as are necessary to protect public health and safety and other actions as the Commission deems necessary; and,
f. The authority to enter into arrangements as may be appropriate to assure Federal long-term surveillance or maintenance of such byproduct material and its disposal site on land held in trust by the United States for any Indian Tribe or land owned by an Indian Tribe
3. The Commission retains the authority to reject any State request to terminate a license that proposes to bifurcate the ownership of 11e.(2) byproduct material and its disposal site between the State and the Federal government. Upon passage of a revised Wyoming Statute Section 35-11-2004(c) that the NRC finds compatible with Section 83b.(1)(A) of the Act, this paragraph expires and is no longer part of this Agreement.
The Commission will cooperate with the State and other Agreement States in the formulation of standards and regulatory programs of the State and the Commission for protection against hazards of radiation and to assure that Commission and State programs for protection against hazards of radiation will be coordinated and compatible. The State agrees to cooperate with the Commission and other Agreement States in the formulation of standards and regulatory programs of the State and the Commission for protection against hazards of radiation and to assure that the State's program will continue to be compatible with the program of the Commission for the regulation of materials covered by this Agreement.
A. The Commission, upon its own initiative after reasonable notice and opportunity for hearing to the State or upon request of the Governor of the State, may terminate or suspend all or part of this agreement and reassert the licensing and regulatory authority vested in it under the Act if the Commission finds that (1) such termination or suspension is required to protect public health and safety, or (2) the State has not complied with one or more of the requirements of Section 274 of the Act.
1. This Agreement will terminate without further NRC action if the State does not amend Wyoming Statute Section 35-11-2004(c) to be compatible with Section 83b.(1)(A) of the Act by the end of the 2019 Wyoming legislative session. Upon passage of a revised Wyoming Statute Section 35-11-2004(c) that the NRC finds compatible with Section 83b.(1)(A) of the Act, this paragraph expires and is no longer part of the Agreement.
B. The Commission may also, pursuant to Section 274j. of the Act, temporarily suspend all or part of this agreement if, in the judgment of the Commission, an emergency situation exists requiring immediate action to protect public health and safety and the State has failed to take necessary steps. The Commission shall periodically review actions taken by the State under this Agreement to ensure compliance with Section 274 of the Act, which requires a State program to be adequate to protect public health and safety with respect to the materials covered by this Agreement and to be compatible with the Commission's program.
A. The total amount of funds the State collects for such purposes shall be transferred to the United States if custody of such material and its disposal site is transferred to the United States upon termination of the State license for such material or any activity that results in the production of such material. Such funds include, but are not limited to, sums collected for long-term surveillance or maintenance. Such funds do not, however, include monies held as surety where no default has occurred and the reclamation or other bonded activity has been performed; and,
B. Such surety or other financial requirements must be sufficient to ensure compliance with those standards established by the Commission pertaining to bonds, sureties, and financial arrangements to ensure adequate reclamation and long-term management of such byproduct material and its disposal site.
Done at [location] this [date] day of [month], 2018.
For the Nuclear Regulatory Commission.
Done at [location] this [date] day of [month], 2018.
For the State of Wyoming.
Nuclear Regulatory Commission.
License amendment application; withdrawal by applicant.
The U.S. Nuclear Regulatory Commission (NRC) has granted the request of NextEra Energy Duane Arnold, LLC (NextEra) to withdraw its application dated August 31, 2017, for a proposed amendment to Duane Arnold Energy Center (DAEC), Facility Operating License No. DPR-49. The proposed amendment would have modified the licensing basis by the addition of a license condition to allow for the implementation of the NRC's regulations on “Risk-Informed Categorization and Treatment of Structures, Systems, and Components (SSCs) for Nuclear Power Reactors.”
June 26, 2018.
Please refer to Docket ID NRC-2018-0123 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods:
•
•
•
Mahesh Chawla, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-8371, email:
The NRC has granted the request of NextEra Energy Duane Arnold, LLC (NextEra) to withdraw its August 31, 2017 (ADAMS Accession No. ML17243A469), application for proposed amendment to Duane Arnold Energy Center (DAEC), Facility Operating License No. DPR-49, located in Linn County, Iowa.
The proposed amendment would have modified the licensing basis by the addition of a license condition to allow for the implementation of the provisions of section 50.69 of title 10 of the
The Commission had previously issued a notice of consideration of issuance of amendment published in the
For further details with respect to this action, see the application for amendment dated August 31, 2017, and the licensee's letter dated June 12, 2018, which withdrew the application for license amendment.
For the Nuclear Regulatory Commission.
Weeks of June 25, July 2, 9, 16, 23, 30, 2018.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
There are no meetings scheduled for the week of June 25, 2018.
There are no meetings scheduled for the week of July 2, 2018.
There are no meetings scheduled for the week of July 9, 2018.
There are no meetings scheduled for the week of July 16, 2018.
There are no meetings scheduled for the week of July 23, 2018.
There are no meetings scheduled for the week of July 30, 2018.
The schedule for Commission meetings is subject to change on short notice. For more information or to verify the status of meetings, contact Denise McGovern at 301-415-0681 or via email at
The NRC Commission Meeting Schedule can be found on the internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (
Members of the public may request to receive this information electronically. If you would like to be added to the distribution, please contact the Nuclear Regulatory Commission, Office of the Secretary, Washington, DC 20555 (301-415-1969), or you may email
Overseas Private Investment Corporation (OPIC).
Notice and request for comments.
Under the provisions of the Paperwork Reduction Act, agencies are
The proposed changes to OPIC-248 modify existing questions to collect sex-disaggregated information, and add and modify questions to collect additional information related to OPIC's impact on women in order to better measure OPIC's impact on women's economic empowerment.
Comments must be received by July 26, 2018.
Mail all comments and requests for copies of the subject form to OPIC's Agency Submitting Officer: James Bobbitt, Overseas Private Investment Corporation, 1100 New York Avenue NW, Washington, DC 20527. See
OPIC Agency Submitting Officer: James Bobbitt, (202) 336-8558.
OPIC received comments in response to the sixty (60) day notice published in
Overseas Private Investment Corporation (OPIC).
Notice and request for comments.
Under the provisions of the Paperwork Reduction Act, agencies are required to publish a Notice in the
The proposed changes to OPIC-162 modify existing questions to collect sex-disaggregated information, and add and modify questions to collect additional information related to OPIC's impact on women in order to better measure OPIC's impact on women's economic empowerment.
Comments must be received within thirty (30) calendar days of publication of this Notice.
Mail all comments and requests for copies of the subject form to OPIC's Agency Submitting Officer: James Bobbitt, Overseas Private Investment Corporation, 1100 New York Avenue NW, Washington, DC 20527. See
OPIC Agency Submitting Officer: James Bobbitt, (202) 336-8558.
OPIC received comments in response to the sixty (60) day notice published in
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Elizabeth Reed, 202-268-3179.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on June 21, 2018, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Elizabeth Reed, 202-268-3179.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on June 21, 2018, it filed with the Postal Regulatory Commission a
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Form 1-U (17 CFR 239.93) is used to file current event reports by Tier 2 issuers under Regulation A, an exemption from registration under the Securities Act of 1933 (15 U.S.C 77a
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
The public may view the background documentation for this information collection at the following website,
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Form 1-Z (17 CFR 239.94) is used to report terminated or completed offerings or to suspend the duty to file ongoing reports under Regulation A, an exemption from registration under the Securities Act of 1933 (15 U.S.C 77a
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
The public may view the background documentation for this information
On April 23, 2018, Cboe BZX Exchange, Inc. (“Exchange” or “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 the proposed rule change. 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.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Regulation A (17 CFR 230.251 through 230.263) provides an exemption from registration under the Securities Act of 1933 (15 U.S.C. 77a
An agency may conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
The public may view the background documentation for this information collection at the following website,
2:00 p.m. on Thursday, June 28, 2018.
Closed Commission Hearing Room 10800.
This meeting will be closed to the public.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries
The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (6), (7), (8), 9(B) and (10) and 17 CFR 200.402(a)(3), (a)(5), (a)(6), (a)(7), (a)(8), (a)(9)(ii) and (a)(10), permit consideration of the scheduled matters at the closed meeting.
Commissioner Peirce, as duty officer, voted to consider the items listed for the closed meeting in closed session.
The subject matters of the closed meeting will be:
Institution and settlement of injunctive actions;
Institution and settlement of administrative proceedings; and
Other matters relating to enforcement proceedings.
At times, changes in Commission priorities require alterations in the scheduling of meeting items.
For further information and to ascertain what, if any, matters have been added, deleted or postponed; please contact Brent J. Fields from the Office of the Secretary at (202) 551-5400.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Form 1-K (17 CFR 239.91) is used to file annual reports by Tier 2 issuers under Regulation A, an exemption from registration under the Securities Act of 1933 (15 U.S.C. 77a
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
The public may view the background documentation for this information collection at the following website,
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Form 1-SA (17 CFR 239.92) is used to file semiannual reports by Tier 2 issuers under Regulation A, an exemption from registration under the Securities Act of 1933 (15 U.S.C. 77a
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
The public may view the background documentation for this information collection at the following website,
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA is proposing to extend to July 18, 2019 the implementation of FINRA Rule 4240. FINRA Rule 4240 implements an interim pilot program with respect to margin requirements for certain transactions in credit default swaps that are security-based swaps.
The text of the proposed rule change is available on FINRA's website at
In its filing with the Commission, FINRA 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. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
On May 22, 2009, the Commission approved FINRA Rule 4240,
As explained in the Approval Order, FINRA Rule 4240, coterminous with certain Commission actions, was intended to address concerns arising from systemic risk posed by CDS, including, among other things, risks to the financial system arising from the lack of a central clearing counterparty to clear and settle CDS.
The Commission and the CFTC have proposed or adopted rules with respect to swaps and security-based swaps pursuant to Title VII of the Dodd-Frank Act.
FINRA has filed the proposed rule change for immediate effectiveness. FINRA is proposing that the implementation date of the proposed rule change will be July 18, 2018. The proposed rule change will expire on July 18, 2019.
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
FINRA does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. FINRA believes that extending the implementation of FINRA Rule 4240 for a limited period, to July 18, 2019, in light of the continuing development of the CDS business and ongoing regulatory developments, helps to promote stability in the financial markets and regulatory certainty for members.
Written comments were neither solicited nor received.
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 shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Eduardo Aleman, Assistant 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.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (“PRA”) (44 U.S.C. 3501
Rule 15g-3 requires that brokers and dealers disclose to customers current quotation prices or similar market information in connection with transactions in penny stocks. The purpose of the rule is to increase the level of disclosure to investors concerning penny stocks generally and specific penny stock transactions.
The Commission estimates that approximately 195 broker-dealers will spend an average of 87 hours annually to comply with this rule. Thus, the total compliance burden is approximately 16,965 burden-hours per year.
Rule 15g-3 contains record retention requirements. Compliance with the rule is mandatory. The required records are available only to the examination staff of the Commission and the self regulatory organizations of which the broker-dealer is a member.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.
The public may view background documentation for this information collection at the following website:
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to relocate the Exchange's rules pertaining to co-location and direct connectivity, which are presently at Section VI, subsections E (co-location) and F-H (direct connectivity) of the Exchange's Schedule of Fees, to the Exchange's new rulebook shell, entitled “General Rules,” at new General 8 (“Connectivity”), Sections 1 and 2, respectively.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to relocate its rules governing co-location and direct connectivity services, which presently comprise Section VI, subsections E (co-location) and F-H (direct connectivity) of the Exchange's Schedule of Fees. The Exchange proposes to establish, within its new rulebook shell,
The Exchange considers it appropriate to relocate these Rules to better organize its Rulebook. The other Affiliated Exchanges intend to propose similar reorganizations of their co-location and direct connectivity rules so that these rules will be harmonized among all of the Affiliated Exchanges.
The relocation of the co-location and direct connectivity rules is part of the Exchange's continued effort to promote efficiency and conformity of its processes with those of its Affiliated Exchanges. The Exchange believes that moving the co-location and direct connectivity rules to their new location will facilitate the use of the Rulebook by Members of the Exchange who are members of other Affiliated Exchanges. Moreover, the proposed changes are of a non-substantive nature and will not amend the relocated rules other than to update their numbers and make conforming cross-reference changes.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on intermarket or intra-market competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed changes do not impose a burden on competition because, as previously stated, they (i) are of a non-substantive nature, (ii) are intended to harmonize the Exchange's rules with those of its Affiliated Exchanges, and (iii) are intended to organize the Rulebook in a way that it will ease the Members' navigation and reading of the rules across the Affiliated Exchanges.
No written comments were either solicited or received.
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
A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On December 8, 2017, The Options Clearing Corporation (“OCC”) filed with the Securities and Exchange Commission (“Commission”) proposed rule change SR-OCC-2017-021 (“Proposed Rule Change”) pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Section 19(b)(2)(B)(ii) of the Act provides that, after initiating proceedings, the Commission shall issue an order approving or disapproving the
The 180th day after publication of the notice for the Proposed Rule Change in the
The Commission also seeks additional comment to help further inform its analysis of the Proposed Rule Change. Specifically, the Commission invites interested persons to provide views, data, and arguments concerning the Proposed Rule Change, including whether the Proposed Rule Change is consistent with the Act and the applicable rules or regulations thereunder. Please note that comments previously received on the substance of the Proposed Rule Change will be considered together with comments submitted in response to this notice. Therefore, while commenters are free to submit additional comments at this time, they need not re-submit earlier comments.
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. Persons submitting comments are cautioned that we do not redact or edit personal identifying information from comment submissions. You should submit only information that you wish to make available publicly.
All submissions should refer to File Number SR-OCC-2017-021 and should be submitted on or before July 11, 2018. Any person who wishes to file a rebuttal to any other person's submission must file that rebuttal on or before July 17, 2018.
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 Exchange proposes to amend Rule 24.21 relating to Crowd Space Disputes. The text of the proposed rule change is also available on the Exchange's website (
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 this rule change is to amend Rule 24.21 (Index Crowd Space Dispute Resolution Procedures). By way of background, Rule 24.21 provides for guidelines and procedures to resolve disputes concerning the right of Trading Permit Holders (“TPHs”) to occupy a certain space in certain index option trading pits.
Particularly, the Exchange proposes to amend subparagraphs (b) and (g) of Rule 24.21, which provisions relate to the Space Mediator and the Crowd Space Dispute Resolution (“CSDR”) panel, respectively. Currently, the rule provides that the Space Mediator
The Exchange is seeking to reduce the number of TPHs that must be appointed to a Panel. Specifically, the Exchange proposes that Panels be comprised of 5 TPHs, two of whom trade in a trading station where the dispute has arisen and two of whom trade outside of the trading station where the dispute has arisen. The fifth Panel member would be a TPH Floor Official that may trade in or out of the trading station where the dispute has arisen. The Exchange desires this reduction in Panel size because it has become increasingly burdensome for the Exchange to designate a sufficient number of TPHs to sit on any given Panel, as fewer TPHs are willing to perform these functions and often times there are conflicts limiting the pools of available TPHs. The Exchange notes that the proposed change to state that the fifth panel member must be a “TPH” Floor Official is not a substantive change, but rather reflects the Exchange's current practice with respect to staffing Panels (
The Exchange also proposes to eliminate the language providing that the Space Mediator selects members of the Panel “other than the Space Mediator himself”. Particularly, the Exchange notes that Space Mediator currently is, and has been for some time, an Exchange employee. Additionally, the Exchange does not intend in the future to appoint a Space Mediator that is a TPH. Since all Panels are to be comprised of TPHs (and thereby could not include the Space Mediator), the Exchange believes the above-mentioned language is unnecessary and therefore proposes to eliminate it. Similarly, the Exchange proposes to make clear in subparagraph (b) of Rule 24.21 that the Space Mediator shall be an Exchange employee, to provide clarity in the rules and reflect current practice. Lastly, the Exchange proposes to move the sentence “The selection of all Panel members will be according to the sole discretion of the Space Mediator” within subparagraph (g) to make the rule easier to read, as this sentence applies to the Panel in its entirety.
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, over the years, fewer TPHs have made themselves available to serve on Panels. The Exchange notes that service on a Panel is voluntary and it cannot force any TPH to serve on a Panel. As such, it has become increasingly burdensome to appoint a sufficient number of TPHs to the Panels. The Exchange believes reducing the number of Panel members will remove impediments to, and perfect the mechanism of, a free and open market because it will assist the Exchange in being able to appoint a sufficient number of TPHs to a Panel in a timely manner. The Exchange notes that the composition requirements of ensuring there are Panel members both in and outside of the station where the dispute occurred still ensures a fair balance.
The Exchange also believes the proposed changes to make explicit that the Floor Official panel member must be a TPH and that the Space Mediator must be an Exchange employee provides transparency and clarity in the rules, which alleviates confusion, thereby protecting investors and the public interest. The Exchange also notes these changes do not reflect substantive changes from current practice, but rather clarifies and codifies the Exchange's current practice.
Cboe Options 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 proposed rule change merely reduces the number of Panel members that must serve on a Panel and clarifies and codifies current practices relating to the spot dispute process and thus has no impact on current trading on Cboe Options. Therefore, the proposed rule change 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 and Rule 19b-4(f)(6) 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 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 December 18, 2017, The Options Clearing Corporation (“OCC”) filed with the Securities and Exchange Commission (“Commission”) proposed rule change SR-OCC-2017-020 (“Proposed Rule Change”) pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
On January 22, 2018, the Commission sent OCC a request for additional information, which tolls the Commission's 60-day review period for the Advance Notice.
Section 19(b)(2)(B)(ii) of the Act provides that, after initiating proceedings, the Commission shall issue an order approving or disapproving the proposed rule change not later than 180 days after the date of publication of notice of filing of the proposed rule change.
The 180th day after publication of the notice for the Proposed Rule Change in the
The Commission also seeks additional comment to help further inform its analysis of the Proposed Rule Change. Specifically, the Commission invites interested persons to provide views, data, and arguments concerning the Proposed Rule Change, including whether the Proposed Rule Change is consistent with the Act and the applicable rules or regulations thereunder. Please note that comments previously received on the substance of the Proposed Rule Change will be considered together with comments submitted in response to this notice. Therefore, while commenters are free to submit additional comments at this time, they need not re-submit earlier comments.
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. Persons submitting comments are cautioned that we do not redact or edit personal identifying information from comment submissions. You should submit only information that you wish to make available publicly.
All submissions should refer to File Number SR-OCC-2017-020 and should be submitted on or before July 11, 2018. Any person who wishes to file a rebuttal to any other person's submission must file that rebuttal on or before July 17, 2018.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501,
Section 13(f)
The information collection requirements apply to institutional investment managers that meet the $100 million reporting threshold. Section 13(f)(6)(A) of the Exchange Act defines an “institutional investment manager” as any person, other than a natural person, investing in or buying and selling securities for its own account, and any person exercising investment discretion with respect to the account of any other person. Rule 13f-1(b) under the Exchange Act defines “investment discretion” for purposes of Form 13F reporting.
The reporting system required by Section 13(f) of the Exchange Act is intended, among other things, to create in the Commission a central repository of historical and current data about the investment activities of institutional investment managers, and to improve the body of factual data available to regulators and the public.
The Commission staff estimates that 5,837 respondents make approximately 23,348 responses under the rule each year. The staff estimates that on average, Form 13F filers spend 80.8 hours/year to prepare and submit the report. In addition, the staff estimates that 223 respondents file approximately 829 amendments each year. The staff estimates that on average, Form 13F filers spend 4 hours/year to prepare and submit amendments to Form 13F. The total annual burden of the rule's requirements for all respondents therefore is estimated to be 472,521.6 hours [(471,629.6 hours (5,837 filers × 80.8 hours)) + (892 (223 filers × 4 hours))].
The estimate of average burden hours is made solely for the purposes of the Paperwork Reduction Act. The estimate is not derived from a comprehensive or even a representative survey or study of the costs of Commission rules. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
The public may view the background documentation for this information collection at the following website,
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to amend its Fees Schedule relating to the SPX Select Market-Maker Program.
The text of the proposed rule change is also available on the Exchange's website (
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 is proposing to clarify text in its Fees Schedule relating to the SPX Select Market-Maker (“SMM”) Program. By way of background, the Exchange recently established a financial incentive program for SPX SMMs, which provides that any appointed SPX SMM will receive a monthly waiver of the cost of one Market-Maker Trading Permit and one SPX Tier Appointment provided that the SMM satisfies a heightened quoting standard for that month, which standard is set forth in Footnote 49 of the Fees Schedule. Footnote 49 currently provides that an SMM will receive the monthly Trading Permit and SPX Tier Appointment waiver if it (1) provides continuous electronic quotes in 95% of all SPX series 90% of the time in a given month, (2) submits opening quotes that are no wider than the Opening Exchange Prescribed Width (“OEPW”) within one minute of the initiation of an opening rotation in any series that is not open due to the lack of a qualifying quote, on all trading days, to ensure electronic quotes on the open that allow the series to open, (3) submits opening quotes that are no wider than the OEPW quote by 8:00 a.m. (CT) on volatility settlement days and (4) provides quotes for the end-of-month fair value closing rotation on a rotating basis.
The Exchange proposes to clarify the criteria currently set forth in the third prong of the heightened quoting standard, described above. Specifically, the Exchange proposes to add text that explicitly provides that to satisfy the third prong, an SMM must submit opening quotes that are no wider than the OEPW quote by 8:00 a.m. CST on volatility “index derivative” settlement days “in the SPX series that expire in the month used to calculate the settlement value for expiring volatility index derivatives.” The Exchange notes that this prong was included as part of the heightened quoting standard to encourage SMM participation prior to the opening on volatility index derivative settlement days to increase liquidity in the SPX series used to calculate the settlement value, which is desirable to ensure these series open at competitive prices on expiration days for volatility index derivatives and thus ensure a fair and orderly opening and settlement process. While liquidity is important to open all series on the Exchange, given the potential impact on the exercise settlement value determined for expiring volatility index derivatives, the Exchange believes it is appropriate to ensure a fair and orderly opening of the series used to calculate the exercise settlement value. The Exchange calculates the settlement value for expiring volatility index derivatives using the opening pricings of SPX options that expire 30 days later. All other SPX series are not used by the Exchange to determine the exercise settlement value. As such, the Exchange doesn't believe that it is appropriate to require SMMs to submit opening quotes that are no wider than the OEPW by 8:00 a.m. (CT) on volatility index derivative settlement days in all SPX options series, if only a subset of SPX options series are used in the settlement value calculation. In order to alleviate any confusion, the Exchange wishes to make clear that the third prong, as originally written, does not encompass all SPX options series. Rather, the third prong requires only the submission of opening quotes prior to 8:00 a.m. CT on volatility index derivative settlement days that are no wider than the OEPW in the series that expire in the month used to calculate the volatility index derivative settlement value. With respect to the remaining SPX options series, the Exchange notes that SMMs already are required pursuant to prong 2 to submit opening quotes that are no wider than the OEPW within one minute of the initiation of an opening rotation in any series that is not open due to the lack of a qualifying quote, on all trading days, to ensure electronic quotes on the open that allow the series to open.
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.
The Exchange believes clarifying the third prong in Footnote 49 helps avoid confusion by making clear which SPX series are subject to the quoting criteria in the third prong of the SMM heighted quoting standard. The alleviation of confusion removes impediments to, and perfects the mechanism of, a free and open market and a national market system and protects investors and the public interest. Additionally, the Exchange believes that the proposed clarification in Footnote 49 is reasonable because the third prong is meant to specifically address liquidity on volatility index derivative settlement days that ensure a fair and orderly opening and settlement process and not address liquidity in SPX options series generally.
The Exchange does not believe that the proposed rule change will impose any burden on intramarket or intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed clarification is intended to make clear in the Fees Schedule which SPX options series are subject to the criteria contained in the third prong of the heightened quoting standard in order to maintain transparency in the rules and alleviate confusion. The proposed change also applies to SPX, which is only traded on Cboe Options. The Exchange believes the proposed change therefore does not raise any competitive issues.
The Exchange neither solicited nor received comments on the proposed rule change.
Because the proposed rule change does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Form F-X (17 CFR 239.42) is used to appoint an agent for service of process by Canadian issuers registering securities on Forms F-7, F-8, F-9 or F-10 under the Securities Act of 1933 (15 U.S.C. 77a
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
The public may view the background documentation for this information collection at the following website,
Notice is hereby given that the Securities and Exchange Commission (“Commission”) has issued an Order, pursuant to Section 17(d) of the Securities Exchange Act of 1934 (“Act”),
Section 19(g)(1) of the Act,
Section 17(d)(1) of the Act
To implement Section 17(d)(1), the Commission adopted two rules: Rule 17d-1 and Rule 17d-2 under the Act.
To address regulatory duplication in these and other areas, the Commission adopted Rule 17d-2 under the Act.
On April 6, 2017, the Commission declared effective the Plan entered into between FINRA and BOX for allocating regulatory responsibility pursuant to Rule 17d-2.
On June 13, 2018, the parties submitted a proposed amendment to the Plan (“Amended Plan”). The primary purpose of the Amended Plan is to allocate surveillance, investigation, and enforcement responsibilities for Rule 14e-4 under the Act, as well as certain provisions of Regulation SHO. The text of the proposed Amended Plan is as follows (additions are
This Agreement, by and between the Financial Industry Regulatory Authority, Inc. (“FINRA”) and BOX Options Exchange LLC (“BOX”), is made this [2nd day of March, 2017]
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(a) Surveillance, examination, investigation and enforcement with respect to trading activities or practices involving BOX's own marketplace;
(b) registration pursuant to its applicable rules of associated persons (
(c) discharge of its duties and obligations as a Designated Examining Authority pursuant to Rule 17d-1 under the Exchange Act; and
(d) any BOX Rules that are not Common Rules as provided in paragraph 6.
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(a) FINRA shall make available to BOX all information obtained by FINRA in the performance by it of the Regulatory Responsibilities hereunder with respect to the Dual Members subject to this Agreement. In particular, and not in limitation of the foregoing, FINRA shall furnish BOX any information it obtains about Dual Members which reflects adversely on their financial condition. BOX shall make available to FINRA any information coming to its attention that reflects adversely on the financial condition of Dual Members or indicates possible violations of applicable laws, rules or regulations by such firms.
(b) The parties agree that documents or information shared shall be held in confidence, and used only for the purposes of carrying out their respective regulatory obligations. Neither party shall assert regulatory or other privileges as against the other with respect to documents or information that is required to be shared pursuant to this Agreement.
(c) The sharing of documents or information between the parties pursuant to this Agreement shall not be deemed a waiver as against third parties of regulatory or other privileges relating to the discovery of documents or information.
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BOX Options Exchange LLC (“BOX”) hereby certifies that the requirements contained in the rules listed below are identical to, or substantially similar to, the comparable FINRA (NASD) Rule, Exchange Act provision or SEC rule identified (“Common Rules”).
[* FINRA shall not have Regulatory Responsibilities for these rules as they pertain to violations of insider trading activities, which is covered by a separate 17d-2 Agreement by and among BATS BZX Exchange, Inc., BATS BYX Y-Exchange, Inc., Chicago Stock Exchange, Inc., BATS EDGA Exchange, Inc., BATS EDGX Exchange, Inc.,
[
Interested persons are invited to submit written data, views, and arguments concerning the foregoing. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
The Commission finds that the proposed Amended Plan is consistent with the factors set forth in Section 17(d) of the Act
The Commission notes that, under the Amended Plan, BOX and FINRA have allocated regulatory responsibility for those BOX rules, set forth in the Certification, that are substantially similar to the applicable FINRA rules in that examination for compliance with such provisions and rules would not require FINRA to develop one or more new examination standards, modules, procedures, or criteria in order to analyze the application of the rule, or a Common Member's activity, conduct, or output in relation to such rule. In addition, under the Amended Plan, FINRA would assume regulatory responsibility for certain provisions of the federal securities laws and the rules and regulations thereunder that are set forth in the Certification. The Common Rules covered by the Amended Plan are specifically listed in the Certification, as may be amended by the Parties from time to time.
According to the Amended Plan, BOX will review the Certification at least annually, or more frequently if required by changes in either the rules of BOX or FINRA, and, if necessary, submit to FINRA an updated list of Common Rules to add BOX rules not included on the then-current list of Common Rules that are substantially similar to FINRA rules; delete BOX rules included in the then-current list of Common Rules that no longer qualify as common rules; and confirm that the remaining rules on the list of Common Rules continue to be BOX rules that qualify as common rules.
The Commission is hereby declaring effective an Amended Plan that, among other things, allocates regulatory responsibility to FINRA for the oversight and enforcement of all BOX rules that are substantially similar to the rules of FINRA for Common Members of BOX and FINRA. Therefore, modifications to the Certification need not be filed with the Commission as an amendment to the Amended Plan, provided that the Parties are only adding to, deleting from, or confirming changes to BOX rules in the Certification in conformance with the definition of Common Rules provided in the Amended Plan. However, should the Parties decide to add a BOX rule to the Certification that is not substantially similar to a FINRA rule; delete a BOX rule from the Certification that is substantially similar to a FINRA rule; or leave on the Certification a BOX rule that is no longer substantially similar to a FINRA rule, then such a change would constitute an amendment to the Amended Plan, which must be filed with the Commission pursuant to Rule 17d-2 under the Act.
Under paragraph (c) of Rule 17d-2, the Commission may, after appropriate notice and comment, declare a plan, or any part of a plan, effective. In this instance, the Commission believes that
This order gives effect to the Amended Plan filed with the Commission in File No. 4-709. The Parties shall notify all members affected by the Amended Plan of their rights and obligations under the Amended Plan.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act” or “Exchange Act”)
The MSRB filed with the Commission a proposed rule change to amend MSRB Rule G-3, on professional qualification requirements, to (i) restructure the MSRB's current Municipal Securities Representative Qualification Examination (“Series 52”); (ii) harmonize certain MSRB qualification requirements with the Financial Industry Regulatory Authority's (“FINRA”) rule change to make modifications to its representative-level qualification program, consolidate NASD and Incorporated NYSE registration and qualification rules, and amend its continuing education (“CE”) requirements (hereinafter “FINRA's consolidated rule change”);
The text of the proposed rule change is available on the MSRB's website at
In its filing with the Commission, the MSRB included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The MSRB has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
MSRB The MSRB is charged with setting professional qualification standards for brokers, dealers, and municipal securities dealers (“dealers”), and municipal advisors. Specifically, Section 15B(b)(2)(A) of the Act authorizes the MSRB to prescribe “standards of training, experience, competence, and such other qualifications as the Board finds necessary or appropriate in the public interest or for the protection of investors and municipal entities or obligated persons.”
FINRA's consolidated rule change reflected a multi-year effort to not only create a consolidated FINRA rulebook, but to create the SIE and tailored, specialized knowledge examinations for its particular registration categories, and also to enhance its registration rules to afford firms greater flexibility to develop and maintain a depth of registered associated persons with professional qualifications. The consolidated rule change began, in part, in December 2009, with the publication of FINRA Regulatory Notice 09-70
In May 2015, in connection with its continued efforts to streamline its registration and qualification rules, FINRA published Regulatory Notice 15-20
In March 2017, FINRA's consolidated rule change was filed with the SEC to: (i) Consolidate, with amendments, the NASD and Incorporated NYSE qualification and registration rules; (ii) restructure FINRA's representative-level qualification examination program with the creation of the SIE; and (iii) amend FINRA's CE requirements. All proposed amendments were subject to notice and comment through FINRA's previous requests for comments. FINRA's proposed rule change was published for comment in the
The MSRB conducted a review of its qualifications program to determine where it was appropriate to harmonize with FINRA's consolidated rule change. Provided below is a detailed description of the proposed amendments to Rule G-3.
FINRA's consolidated rule change expanded the scope of permissive registrations under NASD Rules 1021 and 1031 to eliminate a constraint that only certain associated persons of a member could obtain permissive registrations and to codify such provisions as FINRA Rule 1210.02. Specifically, as approved, FINRA Rule 1210.02 allows any associated person of a member to obtain and maintain any registration permitted by the member irrespective of the functional role of the person at the firm. In addition, FINRA Rule 1210.02 provides that a person maintaining a permissive registration would be deemed a registered person of the firm and be assigned an appropriately registered supervisor who would be responsible for periodically contacting such individual's direct supervisor to verify that the individual is not engaging in activities outside the scope of his or her current role.
The MSRB is proposing to amend Rule G-3 to adopt Supplementary Material .03 that would similarly allow dealers to have any associated person at a dealer maintain certain MSRB qualifications. More specifically, any individual associated with a dealer would be allowed, if permitted by the dealer, to obtain and maintain a registration as a municipal securities representative, a municipal securities principal or a municipal fund securities limited principal. Additionally, proposed Supplementary Material .03 would make clear that individuals maintaining permissive registrations pursuant to Rule G-3 would be considered qualified persons and, to the extent relevant to the person's activities, the person would be subject to applicable MSRB rules.
FINRA's consolidated rule change adopted Rule 1210.09, which established a waiver program for any individual registered with a member who subsequently leaves the firm to work for a financial services industry affiliate of a member,
Additionally, under FINRA Rule 1210.09, to be eligible for an initial designation as an FSA-eligible person by a FINRA member, an individual must have been registered for a total of five years within the most recent 10-year period prior to the designation. Once designated as FSA-eligible, the individual is eligible for an FSA-waiver for up to seven years, so long as the individual is continuously working for a financial services industry affiliate of a member and other conditions are satisfied.
Pursuant to FINRA Rule 1240, during the period an FSA-eligible person is working for a financial services industry affiliate, the person is required to complete the Regulatory Element portion of CE that correlates with such person's most recent registration category and based on the same CE cycle had the person remained registered. Consequently, a person loses the ability to qualify for an FSA-waiver if such person fails to complete the mandatory Regulatory Element portion of CE. FINRA Rule 1210.09 provides that once an FSA-eligible person re-associates with a FINRA member, the firm can file a Form U4 (Uniform Application for Securities Industry Registration or Transfer) and request that the individual's prior FINRA registration(s) be reinstated without having to requalify by examination.
The MSRB is proposing to amend Rule G-3 to adopt Supplementary Material .04 that would allow a municipal securities representative, municipal securities principal and/or a municipal fund securities limited principal
1. An individual must have been registered with a dealer for a total of five years within the most recent 10-year period prior to working for a financial services industry affiliate, which shall be a legal entity that controls, is controlled by or is under common control with a dealer and is regulated by the SEC, CFTC, state securities authorities, federal or state banking authorities, state insurance authorities, or substantially equivalent foreign regulatory authorities.
2. The individual has continuously worked for a financial services industry affiliate(s) of a dealer since terminating association with a dealer;
3. The individual has completed the Regulatory Element portion of CE consistent with the requirements under Rule G-3(i)(i)(A) based on the person's most recent registration status and such CE has been completed based on the same cycle, as if the person had remained registered;
4. The individual does not have any pending or adverse regulatory matters, or terminations and has not otherwise been subject to a statutory disqualification while working for a financial services industry affiliate(s) of a dealer; and
5. The waiver request is made within seven years of the individual's initial designation as an FSA-eligible person.
The MSRB is also proposing to amend Rule G-3(h)(i) to provide that associated persons that have met the conditions under Supplementary Material .04 shall be granted an FSA-waiver consistent with Rule G-3(h)(i)(A) and (B). Providing for such waivers allows associated persons of dealers a greater opportunity to enhance their financial services industry knowledge without having to requalify by examination each time a person decides to explore different career opportunities with a financial services industry affiliate of a dealer.
Currently Rule G-3(b)(ii)(D) provides that an individual qualified as a municipal securities representative, general securities representative or general securities principal may function as a municipal securities principal for a period of 90 days before passing the Series 53 exam; and pursuant to Rule G-3(b)(iv)(B)(4) an individual qualified as a general securities representative, investment company/variable contracts limited representative, general securities principal or investment company/variable contracts limited principal may function as a municipal fund securities limited principal for a period of 90 days before passing the Series 51 exam. In addition, Rule G-3(c)(ii)(D) provides that an individual qualified as a municipal securities representative, general securities representative or general securities principal may function as a municipal securities sales principal for a period of 90 days before passing the General Securities Sales Supervisory Qualification Examination (Series 9/10).
FINRA's consolidated rule change modified a similar FINRA provision
Accordingly, the MSRB is proposing to amend Rule G-3(b) and (c) to extend the limited time period in which a person could function as a principal without being qualified with a principal examination, assuming other qualification requirements are met, from 90 days to 120 calendar days in furtherance of also better aligning with the current examination enrollment window. The MSRB is also proposing to amend Rule G-3(b) and (c) to require that, before a qualified representative can be permitted to function as a principal for 120 calendar days without passing a principal examination, the qualified representative must have at least 18 months of experience within the five-year period immediately preceding the designation as principal. The MSRB believes that establishing an experience requirement ensures that individuals designated to supervise activities have an appropriate level of experience as a qualified representative before acting as a principal without passing the principal examination. For this reason, the 18-month experience requirement will not apply to a qualified principal who is designated to function in another principal capacity for 120 days before passing the additional principal qualification examination.
Currently, Rule G-3(i)(i)(A)(2) provides that any registered persons who have not completed the Regulatory Element portion of CE within the prescribed time frames will have their municipal securities registration(s) deemed inactive until the Regulatory Element requirements have been satisfied. Rule G-3(i)(i)(A)(2) also requires for any person whose registration has been deemed inactive that such person must cease all activities as a registered person and prohibits such person from performing any duties and functioning in any capacity requiring registration.
FINRA's consolidated rule change codified existing guidance in NASD's Notice to Members 95-35, regarding the impact of failing to complete the Regulatory Element portion of CE on a person's activities and compensation, as FINRA Rule 1240(a)(2). Specifically, approved FINRA Rule 1240(a)(2) provides that any person whose registration has been deemed inactive under the rule may not accept or solicit business or receive any compensation for the purchase or sale of securities.
Currently, Rule G-3(i)(i)(B), on Firm Element continuing education, requires that a dealer maintain a continuing education program for its covered registered persons to enhance their securities knowledge, skill and professionalism. The MSRB has supported a principles-based approach to compliance in this area and afforded dealers' considerable flexibility in developing the scope and content for their Firm Element portion of CE subject to the enumerated minimum standards for a firm's training programs. A dealer's Firm Element portion of CE, as prescribed in Rule G-3(i)(i)(B)(2)(b), must cover, with respect to municipal securities products, services and strategies offered by the dealer, at a minimum:
(i) General investment features and associated risk factors;
(ii) Suitability and sales practice considerations; and
(iii) Applicable regulatory requirements.
FINRA's consolidated rule change also requires, pursuant to FINRA Rule 1240, that each member maintain a continuing education program for its covered registered persons to enhance their securities knowledge, skill and professionalism and that the training be appropriate for the business of the member and, at a minimum, cover, among other things, training in ethics and professional responsibility. The MSRB is proposing to amend Rule G-3(i)(i)(B)(2)(b) to adopt a similar provision to require dealers to also include training in ethics and professional responsibility for its registered persons. The MSRB believes such training promotes high standards of professionalism for registered persons.
The MSRB does not currently have a rule that provides an inactive status for an associated person that volunteers for or is called to active military service in the Armed Forces of the United States that would allow such person's registration to be tolled.
FINRA's consolidated rule change consolidated NASD Rule IM-1000-2 as FINRA Rule 1210.10 with certain changes, which affords relief to a registered person who volunteers for or is called to active military service in the Armed Forces of the United States by tolling such person's lapse of registration and CE obligations. More specifically, FINRA Rule 1210.10 allows, after proper notification to FINRA, for a member to place a registered person on inactive status, whereby such person does not have to re-register upon returning to active employment. An associated person who is placed on inactive status may either return to active employment with the firm the person remained registered with during the person's inactive status period or associate with a different firm. FINRA Rule 1210.10 also relieves registered persons on such inactive status from having to complete either the Regulatory Element or Firm Element portion of CE during their active military service.
Additionally, during the pendency of the registered person's inactive status, the person may continue to receive transaction-based compensation, including continuing commissions. The employing member may also allow an inactive person to enter into an
A person who is no longer registered with a member will generally have their professional qualifications lapse after a period of two years. However, FINRA Rule 1210.10 provides that, for purposes of determining the two year period, a formerly registered person who volunteers for or is called to active military service will have that time tolled, commencing on the date the person began active service.
Rule G-3 generally provides that an individual who is not associated with a dealer or municipal advisor for a period of more than two years will have his or her professional qualifications lapse, requiring such person to requalify by examination upon re-associating with a dealer or municipal advisor. The MSRB is proposing to amend Rule G-3 to adopt Supplementary Material .05, which would provide that, for purposes of determining the two-year period, a formerly qualified associated person who volunteers for or is called to active U.S. military service will have that time tolled commencing on the date the person began active military service. Importantly, Supplementary Material .05 would preserve the time tolled by establishing that the MSRB must receive notice of the person's period of active U.S. military service within 90 days following the completion of such person's active U.S. military service.
In addition, proposed Supplementary Material .05 would permit an associated person of a dealer or municipal advisor that is qualified under Rule G-3, upon volunteering for or being called to active U.S. military service, to be deemed inactive until the associated person returns from active U.S. military service. Additionally, under the proposed rule change, during the period the associated person is on active U.S. military service, the person would remain eligible for transaction-related compensation, including continuing commissions and the firm could permit the inactive person to enter into an agreement with a qualified associated person of the dealer or municipal advisor to have such qualified associated person service clients on behalf of the inactive person and share transaction-related compensation resulting from the municipal securities or municipal advisory business generated by the accounts. In addition, an associated person of a dealer or municipal advisor would not be subject to the applicable CE obligations under Rule G-3(i) during the period of active U.S. military service, provided the MSRB receives notice of the associated person's period of active U.S. military service within 30 days of completion of such service.
Proposed Supplementary Material .05 would also provide that a dealer or municipal advisor sole proprietor who temporarily closes his or her business by reason of volunteering for or being called into active U.S. military service shall be placed, on an inactive status after notice to the MSRB. As a result, in addition to the relief provided to the sole proprietor as a qualified associated person, the sole proprietor will not be required to pay fees pursuant to Rules A-11 or A-12 that, if applicable, accrue during the inactive period. Further, upon returning from active U.S. military service, the dealer or municipal advisor sole proprietor must provide the MSRB notice within 30 calendar days that the sole proprietor has returned to his or her business.
Rule G-3(g) allows any associated person of a broker, dealer, municipal securities dealer or municipal advisor who fails to pass an MSRB qualification examination to take the examination again after a period of 30 days has elapsed from the date of the prior examination, except that any person who fails to pass an examination three or more times in succession shall be prohibited from taking the examination again until a period of six months has elapsed from the date of such person's last attempt to pass the examination.
FINRA's consolidated rule change consolidated NASD Rule 1070(e) as FINRA Rule 1210.06 to provide that a person who fails a FINRA examination may retake the examination after 30 calendar days from the date of the person's last attempt to pass the examination, except a person who fails an examination three or more times in succession within a two-year period may only retake the examination after 180 calendar days from the date of the person's last attempt to pass the examination. In addition, FINRA Rule 1210.06 extended these provisions to the SIE examination.
Although generally consistent with FINRA's approved rule, to promote regulatory consistency, the MSRB is proposing to amend to Rule G-3(g), on retaking of qualification examinations, to change the term “six months” to “180 calendar days” and to add “within a two-year period” after the phrase “three of more times in succession.” The addition of the phrase is intended to clarify the frequency with which FINRA's test delivery system resets a candidate's exam history data.
FINRA's consolidated rule change established the SIE exam to eliminate the duplicative testing of general securities knowledge across its current representative-level qualification examinations by moving such content into the SIE exam.
In developing the SIE exam, FINRA established a committee of industry professionals to create the content outline for the SIE exam and invited staff from the MSRB's Professional Qualifications department to participate on the committee.
The sections and the associated number of questions for each section are:
• Section 1: Knowledge of Capital Markets (12 questions);
• Section 2: Understanding Products and Their Risks (33 questions);
• Section 3: Understanding Trading, Customer Accounts and Prohibited Activities (23 questions); and
• Section 4: Overview of the Regulatory Framework (7 questions).
Rule G-3(a)(ii), on qualification requirements, provides that “every municipal securities representative shall take and pass the Municipal Securities Representative Qualification Examination prior to being qualified as a municipal securities representative.”
The Series 52, in its current format, has general securities knowledge content that will be tested on the future SIE exam. The MSRB, therefore, intends to restructure the Series 52 as a specialized knowledge examination to better focus the content of the examination more specifically to municipal securities knowledge. Accordingly, the MSRB is proposing an amendment to Rule G-3(a)(ii) that would require an individual to pass both the SIE exam and the revised Series 52
The MSRB believes that the proposed rule change is consistent with Section 15B(b)(2)(A) of the Act,
The MSRB believes that, by requiring persons to take and pass a professional qualification examination, such requirement promotes public confidence by ensuring the minimum standards of training, experience and competence required by the Board are being achieved. The MSRB also believes that the restructuring of its current qualification examination program is consistent with and in furtherance of the stated objectives of Section 15B(b)(2)(A) of the Act because by ensuring the Series 52 specialized knowledge examination focuses on the most relevant laws, rules and regulations of the municipal securities market, investors are more well protected. Also, by more closely aligning the Series 52 specialized knowledge examination content to the functions and activities performed by a municipal securities representative, such associated persons are more likely to fully grasp the prescribed regulatory standards, which aides to preserve the integrity of the municipal securities market. Importantly, without compromising the qualification standards, the proposed rule change would improve the efficiency of the examination program by eliminating duplicative testing of general securities knowledge.
Moreover, consistent with Section 15B(b)(2)(A) of the Act, permitting such persons to work at an industry affiliate of a dealer without having to requalify by examination upon re-registering with a dealer, by permitting them to seek a waiver from re-examination, lends itself to a greater understanding of the financial services industry. Further, the proposed rule change would allow individuals to maintain their knowledge base while working in areas ancillary to the municipal securities market, thereby providing such market professionals additional securities knowledge, which, in turn, promotes confidence in market professionals. The proposed rule change would also expand the scope of permissive qualifications, which, among other things, would allow dealers to develop a depth of associated persons with qualifications to respond to unanticipated personnel changes and would encourage a greater understanding of the municipal securities markets. As proposed, by allowing individuals to function in a principal capacity for a limited period of time before having to pass a principal-level examination would
Lastly, under the proposed rule change, allowing associated persons that volunteer for or are called into active U.S. military service to be placed in an inactive status allows for regulatory consistency and promotes the public interest.
The MSRB does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change reflects the MSRB's belief that its registration requirements should be generally harmonized with FINRA's consolidated rule change for purposes of regulatory efficiency and that such changes do not attach additional burdens on dealers, and as applicable, municipal advisors. In addition, the MSRB's restructuring of its qualification examination program to better align with the functions and associated tasks currently performed by a municipal securities representative makes for a more effective qualification examination.
The Board did not solicit comment on the proposed change. Therefore, there are no comments on the proposed rule change received from members, participants or others.
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.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549.
For the Commission, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Rule 4702(b)(12)(A) so that Participants can choose to have their Limit On Close Orders rejected if subject to being re-priced when entered between 3:50 p.m. ET and immediately prior to 3:55 p.m. ET.
The text of the proposed rule change is available on the Exchange's website 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
On July 13, 2017, the Exchange filed a proposed rule change to enhance the Nasdaq Closing Cross by permitting Participants to submit Limit On Close (“LOC”) Orders until immediately prior to 3:55 p.m. ET subject to certain conditions, including that such LOC Orders would be re-priced in certain situations.
A LOC Order is an Order Type entered with a price that may be executed only in the Nasdaq Closing Cross, and only if the price determined by the Nasdaq Closing Cross is equal to or better than the price at which the LOC Order was entered.
The Exchange now proposes to permit Participants to choose to have LOC Orders rejected if subject to being re-priced when entered between 3:50 p.m. ET and immediately prior to 3:55 p.m. ET. While the Exchange believes that accepting LOC Orders after the regular 3:50 p.m. ET cutoff enhances price discovery, in order to promote price stability during the Nasdaq Closing Cross, the Exchange re-prices these LOC Orders if the First Reference price is less aggressive than the Order's limit price. Nevertheless, certain Participants may prefer not to have LOC Orders re-priced. A re-priced LOC Order would only have priority at the less aggressive First Reference Price, and as a result would be less likely to receive an execution in the Nasdaq Closing Cross than if it had been accepted at its stated limit price. For example, if the First Reference Price in ABC is $10, an LOC Order to buy entered at 3:52 with a stated limit price of $12 would be accepted at $10 today. If the Nasdaq Closing Cross is subsequently executed at a price of $11, the LOC Order would not participate even though its stated limit price indicates a willingness to pay up to $12. Some Participants would therefore prefer to have this LOC Order rejected at the outset to avoid this possibility when the Nasdaq Closing Cross is ultimately executed. Giving the option to have those LOC Orders rejected on entry rather than re-priced will give Participants more flexibility with respect to how such LOC Orders are handled. Participants that would prefer that LOC Orders be accepted to participate in the Nasdaq Closing Cross can continue to enter these LOC Orders subject to the current re-pricing logic, which will be the default configuration for Participants that have not chosen to have these LOC Orders rejected instead.
The Exchange proposes to introduce the change described in this proposed rule change in Q3 or Q4 2018. The Exchange will announce the implementation date of this change in an Equity Trader Alert issued to Participants prior to implementing the change.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
While the Exchange permits Participants to submit LOC Orders between 3:50 p.m. ET and immediately prior to 3:55 p.m. ET, the Exchange re-prices these LOC Orders to the First Reference Price if the First Reference price is less aggressive than the Order's limit price. As mentioned in the purpose section of this proposed rule change, this re-pricing is done to promote stability in the Nasdaq Closing Cross price. However, certain Participants may prefer not to have LOC Orders re-priced, and instead would like to have these LOC Orders rejected on entry instead. The Exchange therefore proposes to facilitate this by giving Participants the choice to have LOC Orders handled in this manner. The Exchange believes that this is consistent with the protection of investors and the public interest as it allows Participants to have more flexibility in how they may achieve their trading goals. Specifically, Participants that choose to have an LOC Order rejected instead of re-priced could thereafter execute their trading interest in a different manner, such as by entering it onto the continuous book, rather than waiting for an uncertain execution in the Nasdaq Closing Cross where the LOC Order may have a lower priority at the re-priced price. Participants that consume and house the First Reference Price in their systems can already do this themselves today by checking if an LOC Order would be subject to re-pricing (
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. The proposed functionality would be available to all Participants of the Exchange, who will now have the flexibility to choose to have LOC Orders
No written comments were either solicited or received.
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: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice of request for public comment.
The Department of State is seeking Office of Management and Budget (OMB) approval for the information collection described below. In accordance with the Paperwork Reduction Act of 1995, we are requesting comments on this collection from all interested individuals and organizations. The purpose of this notice is to allow 60 days for public comment preceding submission of the collection to OMB.
The Department will accept comments from the public up to August 27, 2018.
You may submit comments by any of the following methods:
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You must include the DS form number (if applicable), information collection title, and the OMB control number in any correspondence.
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We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.
• Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Please note that comments submitted in response to this Notice are public record. Before including any detailed personal information, you should be aware that your comments as submitted, including your personal information, will be available for public review.
DS-1884 solicits information from petitioners claiming employment-based immigrant visa preference under section 203(b)(4) of the Immigration and Nationality Act on the basis of qualification as a special immigrant described in section 101(a)(27)(D) of the Immigration and Nationality Act. A petitioner may file the DS-1884 petition within one year of notification by the Department of State that the Secretary has approved a recommendation that such special immigrant status be accorded to the alien. DS-1884 solicits information that will assist the consular officer in ensuring that the petitioner is statutorily qualified to receive such status, including meeting the years of service and exceptional service requirements.
The form can be obtained from posts abroad or through the Department's website. The application available on the Department's website allows an applicant to complete the application electronically and then print the application and submit it to post.
Surface Transportation Board.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act of 1995 (PRA), the Surface Transportation Board (STB or Board) gives notice that it is requesting from the Office of Management and Budget (OMB) an extension of approval for the information collections required under section 8(d) of the National Trails System Act (Trails Act). The Board is also seeking approval to merge into this collection (OMB Control Number: 2140-0022) the collection of information about notifications of Trails Act agreement and substitute sponsorship (OMB Control Number: 2140-0017). The Board previously published a notice about this collection in the
Comments on this information collection should be submitted by July 26, 2018.
Written comments should be identified as “Paperwork Reduction Act Comments, Surface Transportation Board: Statutory Authority to Preserve Rail Service.” These comments should be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention: Joseph B. Nye, Surface Transportation Board Desk Officer: by email at
For further information regarding this collection, contact Michael Higgins, Deputy Director, Office of Public Assistance, Governmental Affairs, and Compliance at (202) 245-0284 or at
The Board currently collects information from those seeking statutory authority to preserve rail carrier service under OMB Control Number 2140-0022. The authority under OMB Control Number 2140-0022 includes the collection of information under the Trails Act, such as the notifications of Trails Act agreement and substitute sponsorship, which is also addressed under OMB Control Number 2140-0017. This request proposes to combine collections under Control Numbers 2140-0017 and 2140-0022, with 2140-0022 being the survivor. The Board will request to discontinue Control Number 2140-0017 upon OMB approval of the merger.
Comments are requested concerning: (1) The accuracy of the Board's burden estimates; (2) ways to enhance the quality, utility, and clarity of the information collected; (3) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology, when appropriate; and (4) whether the collection of information is necessary for the proper performance of the functions of the Board, including whether the collection has practical utility. Submitted comments will be summarized and included in the Board's request for OMB approval.
First, under 49 U.S.C. 10904, the filing of an “Offer of Financial Assistance” (OFA) starts a process of negotiations to define the financial assistance needed to purchase or subsidize the rail line sought for abandonment. Once the OFA is filed, the offeror may request additional information from the railroad, which the railroad must provide. If the parties cannot agree to the sale or subsidy, either party also may file a request for the Board to set the terms and conditions of the financial assistance. Or, under section 10905, a public use request allows the Board to impose a 180-day public use condition on the abandonment of a rail line, permitting the parties to negotiate a public use for the rail line. Alternatively, under section 10907, a feeder line application provides the basis for authorizing an involuntary sale of a rail line.
Finally, under the Trails Act, a trail use request, if agreed upon by the abandoning carrier, requires the Board to condition the abandonment by issuing what is known as a Notice of Interim Trail Use (NITU) or Certificate of Interim Trail Use (CITU). The CITU/NITU permits parties, for 180 days, to negotiate for an interim trail use/railbanking agreement for the rail line. If parties reach an agreement, the CITU/NITU automatically authorizes interim trail use/railbanking, and the parties must notify the Board that they have reached an agreement. The interim trails use/railbanking preserves the rail corridor for possible future use as an active rail line again. If no agreement is reached, then upon expiration of the negotiation period, the CITU/NITU authorizes the railroad to exercise its option to fully abandon the line without further action by the Board.
The collection by the Board of these offers, requests, and applications, and the railroad's replies (when required), enables the Board to meet its statutory duty to regulate the referenced rail transactions.
Under the PRA, a federal agency that conducts or sponsors a collection of information must display a currently valid OMB control number. A collection of information, which is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c), includes agency requirements that persons submit reports, keep records, or provide information to the agency, third parties, or the public. Section 3507(b) of the PRA requires, concurrent with an agency's submitting a collection to OMB for approval, a 30-day notice and comment period through publication in the
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before July 26, 2018.
Comments should refer to docket number MARAD-2018-0102. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590. You may also send comments electronically via the internet at
Bianca Carr, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23-453, Washington, DC 20590. Telephone 202-366-9309, Email
As described by the applicant the intended service of the vessel KAT ATOMIC is:
The complete application is given in DOT docket MARAD-2018-0102 at
In accordance with 5 U.S.C. 553(c), DOT/MARAD solicits comments from the public to better inform its rulemaking process. DOT/MARAD posts these comments, without edit, to
49 CFR 1.93(a), 46 U.S.C. 55103, 46 U.S.C. 12121.
By Order of the Maritime Administrator.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before July 26, 2018.
Comments should refer to docket number MARAD-2018-0099. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590. You may also send comments electronically via the internet at
Bianca Carr, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23-453, Washington, DC 20590. Telephone 202-366-9309, Email
As described by the applicant the intended service of the vessel MISS SANDY RITA is:
The complete application is given in DOT docket MARAD-2018-0099 at
In accordance with 5 U.S.C. 553(c), DOT/MARAD solicits comments from the public to better inform its rulemaking process. DOT/MARAD posts these comments, without edit, to
49 CFR 1.93(a), 46 U.S.C. 55103, 46 U.S.C. 12121.
By Order of the Maritime Administrator.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before July 26, 2018.
Comments should refer to docket number MARAD-2018-0101. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590. You may also send comments electronically via the internet at
Bianca Carr, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23-453, Washington, DC 20590. Telephone 202-366-9309, Email
As described by the applicant the intended service of the vessel PRIVATE RESERVE is:
The complete application is given in DOT docket MARAD-2018-0101 at
In accordance with 5 U.S.C. 553(c), DOT/MARAD solicits comments from the public to better inform its rulemaking process. DOT/MARAD posts these comments, without edit, to
49 CFR 1.93(a), 46 U.S.C. 55103, 46 U.S.C. 12121)
By Order of the Maritime Administrator.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before July 26, 2018.
Comments should refer to docket number MARAD-2018-0100. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590. You may also send comments electronically via the internet at
Bianca Carr, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23-453, Washington, DC 20590. Telephone 202-366-9309, Email
As described by the applicant the intended service of the vessel EAGLE is:
The complete application is given in DOT docket MARAD-2018-0100 at
In accordance with 5 U.S.C. 553(c), DOT/MARAD solicits comments from
By Order of the Maritime Administrator.
Maritime Administration, DOT.
Notice and request for comments.
Pursuant to a delegation of authority from the Secretary of Transportation, the Maritime Administrator is authorized to issue waivers allowing documented vessels with only registry endorsements or foreign flag vessels to be used in operations that treat aquaculture fish or protect aquaculture fish from disease, parasitic infestation, or other threats to their health when suitable vessels of the United States are not available that could perform those services. A request for such a waiver has been received by the Maritime Administration (MARAD). This notice is being published to solicit comments intended to assist MARAD in determining whether suitable vessels of the United States is available that could perform the required services. If no suitable U.S.-flag vessels is available, the Maritime Administrator may issue a waiver necessary to comply with USCG Aquaculture Support regulations. A brief description of the proposed aquaculture support service is listed in the
Submit comments on or before July 26, 2018.
You may submit comments identified by DOT Docket Number MARAD-2018-0093 by any of the following methods:
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Bianca Carr, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23-453, Washington, DC 20590. Telephone 202-366-9309, Email
If you have questions on viewing the Docket, call Docket Operations, telephone: (800) 647-5527.
As a result of the enactment of the Coast Guard Authorization Act of 2010, codified at 46 U.S.C. 12102, the Secretary of Transportation has the discretionary authority to issue waivers allowing documented vessels with registry endorsements or foreign flag vessels to be used in operations that treat aquaculture fish for or protect aquaculture fish from disease, parasitic infestation, or other threats to their health when suitable vessels of the United States are not available that could perform those services. The Secretary has delegated this authority to the Maritime Administrator. Pursuant to this authority, MARAD is providing notice of the service requirements proposed by Cooke Aquaculture (Cooke) in order to make a U.S.-flag vessel availability determination. Specifics can be found in Cooke's application letter posted in the docket.
To comply with USCG Aquaculture Support regulations at 46 CFR part 106, Cooke is seeking a MARAD Aquaculture Waiver to operate the vessel MILDRED 1 as follows:
Interested parties may submit comments providing detailed information relating to the availability of U.S.-flag vessels to perform the required aquaculture support services. If MARAD determines, in accordance with 46 U.S.C. 12102(d)(1) and MARAD's regulations at 46 CFR part 388, that suitable U.S.-flag vessels are available to perform the required services, a waiver will not be granted. Comments should refer to the docket number of this notice and the vessel name in order for MARAD to properly consider the comments. Comments should also state the commenter's interest in the waiver application, and address the waiver criteria set forth in 46 CFR 388.4.
In accordance with 5 U.S.C. 553(c), MARAD solicits comments from the public to inform its process to determine the availability of suitable vessels. DOT posts these comments, without edit, to
49 CFR 1.93(w).
By Order of the Maritime Administrator.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before July 26, 2018.
Comments should refer to docket number MARAD-2018-0103. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590. You may also send comments electronically via the internet at
Bianca Carr, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23-453, Washington, DC 20590. Telephone 202-366-9309, Email
As described by the applicant the intended service of the vessel FROM RUSSIA WITH LOVE is:
The complete application is given in DOT docket MARAD-2018-0103 at
In accordance with 5 U.S.C. 553(c), DOT/MARAD solicits comments from the public to better inform its rulemaking process. DOT/MARAD posts these comments, without edit, to
49 CFR 1.93(a), 46 U.S.C. 55103, 46 U.S.C. 12121.
By Order of the Maritime Administrator.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments and information.
NMFS has received a request from the U.S. Navy (Navy) for authorization to take marine mammals incidental to the training and testing activities conducted in the Hawaii-Southern California Training and Testing (HSTT) Study Area. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue regulations and subsequent Letters of Authorization (LOA) to the Navy to incidentally take marine mammals during the specified activities. NMFS will consider public comments prior to issuing any final rule and making final decisions on the issuance of the requested MMPA authorizations. Agency responses to public comments will be summarized in the final rule. The Navy's activities qualify as military readiness activities pursuant to the MMPA, as amended by the National Defense Authorization Act for Fiscal Year 2004 (2004 NDAA).
Comments and information must be received no later than August 9, 2018.
You may submit comments, identified by NOAA-NMFS-2018-0071, by any of the following methods:
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Stephanie Egger, Office of Protected Resources, NMFS; phone: (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 online at:
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth.
NMFS has defined “negligible impact” in 50 CFR 216.103 as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.
NMFS has defined “unmitigable adverse impact” in 50 CFR 216.103 as an impact resulting from the specified activity:
(1) That is likely to reduce the availability of the species to a level insufficient for a harvest to meet subsistence needs by: (i) Causing the marine mammals to abandon or avoid hunting areas; (ii) directly displacing subsistence users; or (iii) placing physical barriers between the marine mammals and the subsistence hunters; and
(2) That cannot be sufficiently mitigated by other measures to increase the availability of marine mammals to allow subsistence needs to be met.
The MMPA states that the term “take” means to harass, hunt, capture, kill or attempt to harass, hunt, capture, or kill any marine mammal.
The 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).
On September 13, 2017, NMFS received an application from the Navy requesting incidental take regulations and two LOAs to take individuals of 39 marine mammal species by Level A and B harassment incidental to training and testing activities (categorized as military readiness activities) from the use of sonar and other transducers, in-water detonations, air guns, and impact pile driving/vibratory extraction in the HSTT Study Area over five years. In addition, the Navy is requesting incidental take authorization by serious injury or mortality of ten takes of two species due to explosives and for up to three takes of large whales from vessel
The Navy requests two five-year LOAs, one for training and one for testing activities to be conducted within the HSTT Study Area (which extends from the north-central Pacific Ocean, from the mean high tide line in Southern California west to Hawaii and the International Date Line), including the Hawaii and Southern California (SOCAL) Range Complexes, as well as the Silver Strand Training Complex and overlapping a small portion of the Point Mugu Sea Range. The Hawaii Range Complex encompasses ocean areas around the Hawaiian Islands, extending from 16 degrees north latitude to 43 degrees north latitude and from 150 degrees west longitude to the International Date Line. The SOCAL Range Complex is located approximately between Dana Point and San Diego, California, and extends southwest into the Pacific Ocean and also includes a small portion of the Point Mugu Sea Range. The Silver Strand Training Complex is an integrated set of training areas located on and adjacent to the Silver Strand, a narrow, sandy isthmus separating the San Diego Bay from the Pacific Ocean. Please refer to Figure 1-1 of the Navy's rulemaking/LOA application for a map of the HSTT Study Area, Figures 2-1 to 2-4 for the Hawaii Operating Area (where the majority of training and testing activities occur within the Hawaii Range Complex), Figures 2-5 to 2-7 for the SOCAL Range Complex, and Figure 2-8 for the Silver Strand Training Complex. The following types of training and testing, which are classified as military readiness activities pursuant to the MMPA, as amended by the 2004 NDAA, would be covered under the LOAs (if authorized): Amphibious warfare (in-water detonations), anti-submarine warfare (sonar and other transducers, in-water detonations), surface warfare (in-water detonations), mine warfare (sonar and other transducers, in-water detonations), and other warfare activities (sonar and other transducers, pile driving, air guns).
This will be NMFS's third rulemaking (Hawaii and Southern California were separate rules in Phase I) for HSTT activities under the MMPA. NMFS published the first two rules for Phase I effective from January 5, 2009, through January 5, 2014, (74 FR 1456; on January 12, 2009) and effective January 14, 2009, through January 14, 2014 (74 FR 3882 on January 21, 2009) for Hawaii and Southern California, respectively. The rulemaking for Phase II (combined both Hawaii and Southern California) is applicable from December 24, 2013, through December 24, 2018 (78 FR 78106; on December 24, 2013). For this third rulemaking, the Navy is proposing to conduct similar activities as they have conducted over the past nine years under the previous rulemakings.
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. This mission is mandated by Federal law (10 U.S.C. 5062), which ensures the readiness of the naval forces of the United States. The Navy executes this responsibility by training and testing at sea, often in designated operating areas (OPAREA) and testing and training ranges. The Navy must be able to access and utilize these areas and associated sea space and air space in order to develop and maintain skills for conducting naval activities.
The Navy proposes to conduct training and testing activities within the HSTT Study Area. The Navy has been conducting similar military readiness activities in the Study Area since the 1940s. The tempo and types of training and testing activities have fluctuated because of the introduction of new technologies, the evolving nature of international events, advances in warfighting doctrine and procedures, and changes in force structure (organization of ships, weapons, and personnel). Such developments influence the frequency, duration, intensity, and location of required training and testing activities, but the basic nature of sonar and explosive events conducted in the HSTT Study Area has remained the same.
The Navy's rulemaking/LOA application reflects the most up to date compilation of training and testing activities deemed necessary to accomplish military readiness requirements. The types and numbers of activities included in the proposed rule account for fluctuations in training and testing in order to meet evolving or emergent military readiness requirements.
The Navy is requesting authorization to take marine mammals incidental to conducting training and testing activities. The Navy has determined that acoustic and explosives stressors are 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 HSTT Draft Environmental Impact Statement (DEIS)/Overseas EIS (OEIS) (DEIS/OEIS) and in the Navy's rule making/LOA application (
The Navy routinely trains and tests in the HSTT Study Area in preparation for national defense missions. Training and testing activities covered in the Navy's rulemaking/LOA application are briefly described below, and in more detail within Chapter 2 of the HSTT DEIS/OEIS.
The Navy categorizes its activities into functional warfare areas called primary mission areas. These activities generally fall into the following seven primary mission areas: Air warfare; amphibious warfare; anti-submarine warfare (ASW); electronic warfare; expeditionary warfare; mine warfare (MIW); and surface warfare (SUW). Most activities addressed in the HSTT DEIS/OEIS are categorized under one of the primary mission areas; the testing community has three additional categories of activities for vessel evaluation, unmanned systems, and acoustic and oceanographic science and technology. Activities that do not fall within one of these areas are listed as “other activities.” Each warfare community (surface, subsurface, aviation, and special warfare) may train in some or all of these primary mission areas. The testing community also categorizes most, but not all, of its testing activities under these primary mission areas.
The Navy describes and analyzes the impacts of its training and testing activities within the HSTT DEIS/OEIS and the Navy's rulemaking/LOA application. In its assessment, the Navy concluded that sonar and other transducers, in-water detonations, air guns, and pile driving/removal were the stressors that would result in impacts on marine mammals that could rise to the level of harassment (and serious injury or mortality by explosives or by vessel strike) as defined under the MMPA. The Navy's rulemaking/LOA application provides the Navy's assessment of potential effects from these stressors in
• Amphibious warfare (in-water detonations);
• ASW (sonar and other transducers, in-water detonations);
• SUW (in-water detonations);
• MIW (sonar and other transducers, in-water detonations); and
• Other warfare activities (sonar and other transducers, impact pile driving/vibratory removal, air guns).
The Navy's training and testing activities in air warfare, electronic warfare, and expeditionary warfare do not involve sonar or other transducers, in-water detonations, pile driving/removal, air guns or any other stressors that could result in harassment, serious injury, or mortality of marine mammals. Therefore, activities in the air, electronic or expeditionary warfare areas are not discussed further in this proposed rule, but are analyzed fully in the Navy's HSTT DEIS/OEIS.
The mission of amphibious warfare is to project military power from the sea to the shore (
Amphibious warfare training ranges from individual, crew, and small unit events to large task force exercises. Individual and crew training include amphibious vehicles and naval gunfire support training. Such training includes shore assaults, boat raids, airfield or port seizures, and reconnaissance. Large scale amphibious exercises involve ship-to-shore maneuver, naval fire support, such as shore bombardment, and air strike and attacks on targets that are in close proximity to friendly forces.
Testing of guns, munitions, aircraft, ships, and amphibious vessels and vehicles used in amphibious warfare is often integrated into training activities and, in most cases, the systems are used in the same manner in which they are used for fleet training activities. Amphibious warfare tests, when integrated with training activities or conducted separately as full operational evaluations on existing amphibious vessels and vehicles following maintenance, repair, or modernization, may be conducted independently or in conjunction with other amphibious ship and aircraft activities. Testing is performed to ensure effective ship-to-shore coordination and transport of personnel, equipment, and supplies. Tests may also be conducted periodically on other systems, vessels, and aircraft intended for amphibious operations to assess operability and to investigate efficacy of new technologies.
The mission of ASW is to locate, neutralize, and defeat hostile submarine forces that threaten Navy forces. ASW is based on the principle that surveillance and attack aircraft, ships, and submarines all search for hostile submarines. These forces operate together or independently to gain early warning and detection, and to localize, track, target, and attack submarine threats. ASW training addresses basic skills such as detecting and classifying submarines, as well as evaluating sounds to distinguish between enemy submarines and friendly submarines, ships, and marine life. More advanced training integrates the full spectrum of ASW from detecting and tracking a submarine to attacking a target using either exercise torpedoes (
The mission of MIW is to detect, classify, and avoid or neutralize (disable) mines to protect Navy ships and submarines and to maintain free access to ports and shipping lanes. MIW also includes offensive mine laying to gain control of or deny the enemy access to sea space. Naval mines can be laid by ships, submarines, or aircraft. MIW neutralization training includes exercises in which ships, aircraft, submarines, underwater vehicles, unmanned vehicles, or marine mammal detection systems search for mine shapes. Personnel train to destroy or disable mines by attaching underwater explosives to or near the mine or using remotely operated vehicles to destroy the mine. Towed influence mine sweep systems mimic a particular ship's magnetic and acoustic signature, which would trigger a real mine causing it to explode.
Testing and development of MIW systems is conducted to improve sonar, laser, and magnetic detectors intended to hunt, locate, and record the positions of mines for avoidance or subsequent neutralization. MIW testing and development falls into two primary categories: Mine detection or classification, and mine countermeasure and neutralization. Mine detection or classification testing involves the use of air, surface, and subsurface vessels and uses sonar, including towed and sidescan sonar, and unmanned vehicles to locate and identify objects underwater. Mine detection and classification systems are sometimes used in conjunction with a mine neutralization system. Mine countermeasure and neutralization testing includes the use of air, surface, and subsurface units to evaluate the effectiveness of detection systems, countermeasure and neutralization systems. Most neutralization tests use mine shapes, or non-explosive practice mines, to evaluate a new or enhanced capability. For example, during a mine neutralization test, a previously located mine is destroyed or rendered nonfunctional using a helicopter or manned/unmanned surface vehicle based system that may involve the deployment of a towed neutralization system.
A small percentage of MIW tests require the use of high-explosive mines to evaluate and confirm the ability of the system or the crews conducting the training or testing to neutralize a high-explosive mine under operational conditions. The majority of MIW systems are deployed by ships, helicopters, and unmanned vehicles. Tests may also be conducted in support of scientific research to support these new technologies.
The mission of SUW is to obtain control of sea space from which naval forces may operate, and conduct offensive action against other surface, subsurface, and air targets while also defending against enemy forces. In conducting SUW, aircraft use guns, air-launched cruise missiles, or other precision-guided munitions; ships employ torpedoes, naval guns, and
Testing of weapons used in SUW is conducted to develop new technologies and to assess weapon performance and operability with new systems and platforms, such as unmanned systems. Tests include various air-to-surface guns and missiles, surface-to-surface guns and missiles, and bombing tests. Testing events may be integrated into training activities to test aircraft or aircraft systems in the delivery of munitions on a surface target. In most cases the tested systems are used in the same manner in which they are used for fleet training activities.
Naval forces conduct additional training, testing and maintenance activities, which fall under other primary mission areas that are not listed above. The HSTT DEIS/OEIS combines these training and testing activities together in an “other activities” grouping for simplicity. These training and testing activities include, but are not limited to, sonar maintenance for ships and submarines, submarine navigation and under-ice certification, elevated causeway system (pile driving and removal), and acoustic and oceanographic research. These activities include the use of various sonar systems, impact pile driving/vibratory extraction, and air guns.
A major training exercise (MTE) is comprised of several “unit level” range exercises conducted by several units operating together while commanded and controlled by a single commander. These exercises typically employ an exercise scenario developed to train and evaluate the strike group in naval tactical tasks. In an MTE, most of the activities being directed and coordinated by the strike group commander are identical in nature to the activities conducted during individual, crew, and smaller unit level training events. In an MTE, however, these disparate training tasks are conducted in concert, rather than in isolation. Some integrated or coordinated ASW exercises are similar in that they are comprised of several unit level exercises but are generally on a smaller scale than an MTE, are shorter in duration, use fewer assets, and use fewer hours of hull-mounted sonar per exercise. For the purpose of analysis, three key factors are used to identify and group major, integrated, and coordinated exercises including the scale of the exercise, duration of the exercise, and amount of hull-mounted sonar hours modeled/used for the exercise. NMFS considered the effects of all training exercises, not just these major, integrated, and coordinated training exercises in this proposed rule.
The Navy's research and acquisition community engages in a broad spectrum of testing activities in support of the fleet. These activities include, but are not limited to, basic and applied scientific research and technology development; testing, evaluation, and maintenance of systems (
Testing activities occur in response to emerging science or fleet operational needs. For example, future Navy experiments to develop a better understanding of ocean currents may be designed based on advancements made by non-government researchers not yet published in the scientific literature. Similarly, future but yet unknown Navy operations within a specific geographic area may require development of modified Navy assets to address local conditions. However, any evolving testing activities that would be covered under this rule would be expected to fall within the range of platforms, activities, sound sources, and other equipment described in this rule and to have impacts that fall within the range (
Some testing activities are similar to training activities conducted by the fleet. For example, both the fleet and the research and acquisition community fire torpedoes. While the firing of a torpedo might look identical to an observer, the difference is in the purpose of the firing. The fleet might fire the torpedo to practice the procedures for such a firing, whereas the research and acquisition community might be assessing a new torpedo guidance technology or testing it to ensure the torpedo meets performance specifications and operational requirements.
Naval Air Systems Command testing activities generally fall in the primary mission areas used by the fleets. Naval Air Systems Command activities include, but are not limited to, the testing of new aircraft platforms (
Naval Sea Systems Command activities are generally aligned with the primary mission areas used by the fleets. Additional activities include, but are not limited to, vessel evaluation, unmanned systems, and other testing activities. In the Navy's rulemaking/LOA application, for testing activities occurring at Navy shipyards and piers, only system testing is included.
Testing activities are conducted throughout the life of a Navy ship, from construction through deactivation from the fleet, to verification of performance and mission capabilities. Activities include pierside and at-sea testing of ship systems, including sonar, acoustic countermeasures, radars, torpedoes, weapons, unmanned systems, and radio equipment; tests to determine how the ship performs at sea (sea trials); development and operational test and evaluation programs for new technologies and systems; and testing on all ships and systems that have undergone overhaul or maintenance.
As the Department of the Navy's science and technology provider, the Office of Naval Research provides technology solutions for Navy and Marine Corps needs. The Office of Naval Research's mission is to plan, foster, and encourage scientific research in recognition of its paramount importance as related to the maintenance of future naval power, and the preservation of national security. The Office of Naval Research manages the Navy's basic, applied, and advanced research to foster transition from science and technology to higher levels of research, development, test, and evaluation. The Office of Naval Research is also a parent organization for the Naval Research Laboratory, which operates as the Navy's corporate research laboratory and conducts a broad multidisciplinary program of scientific research and advanced technological development. Testing conducted by the Office of Naval Research in the HSTT Study Area includes acoustic and oceanographic research, large displacement unmanned underwater vehicle (an innovative naval prototype) research, and emerging mine countermeasure technology research.
Space and Naval Warfare Systems Command is the information warfare systems command for the U.S. Navy. The mission of the Space and Naval Warfare Systems Command is to acquire, develop, deliver, and sustain decision superiority for the warfighter. Space and Naval Warfare Systems Command Systems Center Pacific is the research and development part of Space and Naval Warfare Systems Command focused on developing and transitioning technologies in the area of command, control, communications, computers, intelligence, surveillance, and reconnaissance. Space and Naval Warfare Systems Command Systems Center Pacific conducts research, development, test, and evaluation projects to support emerging technologies for intelligence, surveillance, and reconnaissance; anti-terrorism and force protection; mine countermeasures; anti‐submarine warfare; oceanographic research; remote sensing; and communications. These activities include, but are not limited to, the testing of surface and subsurface vehicles; intelligence, surveillance, and reconnaissance/information operations sensor systems; underwater surveillance technologies; and underwater communications.
The proposed training and testing activities were evaluated to identify specific components that could act as stressors (
The Navy uses a variety of sensors, platforms, weapons, and other devices, including ones used to ensure the safety of Sailors and Marines, to meet its mission. Training and testing with these systems may introduce acoustic (sound) energy or shock waves from explosives into the environment. The Navy's rulemaking/LOA application describes specific components that could act as stressors by having direct or indirect impacts on the environment. This analysis includes identification of the spatial variation of the identified stressors. The following subsections describe the acoustic and explosive stressors for biological resources within the Study Area. Stressor/resource interactions that were determined to have de minimus or no impacts (
Acoustic stressors include acoustic signals emitted into the water for a specific purpose, such as sonar, other transducers (devices that convert energy from one form to another—in this case, to sound waves), and air guns, as well as incidental sources of broadband sound produced as a byproduct of impact pile driving and vibratory extraction. Explosives also produce broadband sound but are characterized separately from other acoustic sources due to their unique hazardous characteristics. Characteristics of each of these sound sources are described in the following sections.
In order to better organize and facilitate the analysis of approximately 300 sources of underwater sound used for training and testing by the Navy, including sonars, other transducers, air guns, and explosives, a series of source classifications, or source bins, was developed. The source classification bins do not include the broadband sounds produced incidental to pile driving, vessel or aircraft transits, weapons firing and bow shocks.
The use of source classification bins provides the following benefits: Provides the ability for new sensors or munitions to be covered under existing authorizations, as long as those sources fall within the parameters of a “bin;” improves efficiency of source utilization data collection and reporting requirements anticipated under the MMPA authorizations; ensures a conservative approach to all impact estimates, as all sources within a given class are modeled as the most impactful source (highest source level, longest duty cycle, or largest net explosive weight) within that bin; allows analyses to be conducted in a more efficient manner, without any compromise of analytical results; and provides a framework to support the reallocation of source usage (hours/explosives) between different source bins, as long as the total numbers of takes remain within the overall analyzed and authorized limits. This flexibility is required to support evolving Navy training and testing requirements, which are linked to real world events.
Active sonar and other transducers emit non-impulsive sound waves into the water to detect objects, safely navigate, and communicate. Passive sonars differ from active sound sources in that they do not emit acoustic signals; rather, they only receive acoustic information about the environment, or listen. In the Navy's rulemaking/LOA application, the terms sonar and other transducers are used to indicate active sound sources unless otherwise specified.
The Navy employs a variety of sonars and other transducers to obtain and transmit information about the undersea environment. Some examples are mid-frequency hull-mounted sonars used to find and track enemy submarines; high-frequency small object detection sonars used to detect mines; high frequency underwater modems used to transfer data over short ranges; and extremely high-frequency (>200 kilohertz (kHz)) Doppler sonars used for navigation, like those used on commercial and private vessels. The characteristics of these sonars and other transducers, such as source level, beam width, directivity, and frequency, depend on the purpose of the source. Higher frequencies can carry more information or provide more information about objects off which they reflect, but attenuate more rapidly. Lower frequencies attenuate less rapidly, so may detect objects over a longer distance, but with less detail.
Propagation of sound produced underwater is highly dependent on
The sound sources and platforms typically used in naval activities analyzed in the Navy's rulemaking/LOA application are described in Appendix A (Navy Activity Descriptions) of the HSTT DEIS/OEIS. The effects of these factors are explained in Appendix D (Acoustic and Explosive Concepts) of the HSTT DEIS/OEIS. Sonars and other transducers used to obtain and transmit information underwater during Navy training and testing activities generally fall into several categories of use described below.
Sonar used during ASW would impart the greatest amount of acoustic energy of any category of sonar and other transducers analyzed in the Navy's rulemaking/LOA application. Types of sonars used to detect enemy vessels include hull-mounted, towed, line array, sonobuoy, helicopter dipping, and torpedo sonars. In addition, acoustic targets and decoys (countermeasures) may be deployed to emulate the sound signatures of vessels or repeat received signals.
Most ASW sonars are mid frequency (1-10 kHz) because mid-frequency sound balances sufficient resolution to identify targets with distance over which threats can be identified. However, some sources may use higher or lower frequencies. Duty cycles (the percentage of time acoustic energy is transmitted) can vary widely, from intermittently active to continuously active. For the duty cycle for the AN/SQS-53C, nominally they produce a 1-2 sec ping every 50-60 sec. Continuous active sonars often have substantially lower source levels but transmit the sonar signal much more frequently (greater than 80 percent of the time) when they are on. The beam width of ASW sonars can be wide-ranging in a search mode or highly directional in a track mode.
Most ASW activities involving submarines or submarine targets would occur in waters greater than 600 feet (ft) deep due to safety concerns about running aground at shallower depths. Sonars used for ASW activities would typically be used in waters greater than 200 meters (m) which can vary from beyond three nautical miles (nmi) to 12 nmi or more from shore depending on local bathymetry. Exceptions include use of dipping sonar by helicopters, maintenance of vessel systems while in port, and system checks while vessels transit to or from port.
Sonars used to locate mines and other small objects, as well those used in imaging (
Mine detection sonar use would be concentrated in areas where practice mines are deployed, typically in water depths less than 200 ft and at established minefields or temporary minefields close to strategic ports and harbors. Kingfisher mode on vessels is most likely to be used when transiting to and from port. Sound sources used for imaging could be used throughout the HSTT Study Area.
Similar to commercial and private vessels, Navy vessels employ navigational acoustic devices including speed logs, Doppler sonars for ship positioning, and fathometers. These may be in use at any time for safe vessel operation. These sources are typically highly directional to obtain specific navigational data.
Sound sources used to transmit data (such as underwater modems), provide location (pingers), or send a single brief release signal to bottom-mounted devices (acoustic release) may be used throughout the HSTT Study Area. These sources typically have low duty cycles and are usually only used when it is desirable to send a detectable acoustic message.
Sonars and other transducers are grouped into classes that share an attribute, such as frequency range or purpose of use. Classes are further sorted by bins based on the frequency or bandwidth; source level; and, when warranted, the application in which the source would be used, as follows:
• Frequency of the non-impulsive acoustic source;
○ Low-frequency sources operate below 1 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;
• Sound pressure level of the non-impulsive source;
○ Greater than 160 decibels (dB) re 1 micro Pascal (μPa), but less than 180 dB re 1 μPa;
○ Equal to 180 dB re 1 μPa and up to 200 dB re 1 μPa;
○ Greater than 200 dB re 1 μPa;
• Application in which the source would be used;
○ Sources with similar functions that have similar characteristics, such as pulse length (duration of each pulse), beam pattern, and duty cycle.
The bins used for classifying active sonars and transducers that are quantitatively analyzed in the HSTT Study Area are shown in Table 1 below. While general parameters or source characteristics are shown in the table, actual source parameters are classified.
Air guns are essentially stainless steel tubes charged with high-pressure air via a compressor. An impulsive sound is generated when the air is almost instantaneously released into the surrounding water. Small air guns with capacities up to 60 cubic inches (in
Generated impulses would have short durations, typically a few hundred milliseconds, with dominant frequencies below 1 kHz. The root-mean-square sound pressure level (SPL) and peak pressure (SPL peak) at a distance 1 m from the air gun would be approximately 215 dB re 1 μPa and 227 dB re 1 μPa, respectively, if operated at the full capacity of 60 in
Impact pile driving and vibratory pile removal would occur during construction of an Elevated Causeway System (ELCAS), a temporary pier that allows the offloading of ships in areas without a permanent port. Construction of the elevated causeway could occur in sandy shallow water coastal areas at Silver Strand Training Complex and at Camp Pendleton, both in the Southern California Range Complex.
Installing piles for elevated causeways would involve the use of an impact hammer (impulsive) mechanism with both it and the pile held in place by a crane. The hammer rests on the pile, and the assemblage is then placed in position vertically on the beach or, when offshore, positioned with the pile in the water and resting on the seafloor. When the pile driving starts, the hammer part of the mechanism is raised up and allowed to fall, transferring energy to the top of the pile. The pile is thereby driven into the sediment by a repeated series of these hammer blows. Each blow results in an impulsive sound emanating from the length of the pile into the water column as well as from the bottom of the pile through the sediment. Because the impact wave travels through the steel pile at speeds faster than the speed of sound in water, a steep-fronted acoustic shock wave is formed in the water (note this shock wave has very low peak pressure compared to a shock wave from an explosive) (Reinhall and Dahl, 2011). An impact pile driver generally operates on average 35 blows per minute.
Pile removal involves the use of vibratory extraction (non-impulsive), during which the vibratory hammer is suspended from the crane and attached to the top of a pile. The pile is then vibrated by hydraulic motors rotating eccentric weights in the mechanism, causing a rapid up and down vibration in the pile. This vibration causes the sediment particles in contact with the pile to lose frictional grip on the pile. The crane slowly lifts up on the vibratory driver and pile until the pile is free of the sediment. Vibratory removal creates continuous non-impulsive noise at low source levels for a short duration.
The source levels of the noise produced by impact pile driving and vibratory pile removal from an actual ELCAS pile driving and removal are shown in Table 2.
In addition to underwater noise, the installation and removal of piles also results in airborne noise in the environment. Impact pile driving creates in-air impulsive sound about 100 dBA re 20 μPa at a range of 15 m (Illingworth and Rodkin, 2016). During vibratory extraction, the three aspects that generate airborne noise are the crane, the power plant, and the vibratory extractor. The average sound level recorded in air during vibratory extraction was about 85 dBA re 20 μPa (94 dB re 20 μPa) within a range of 10-15 m (Illingworth and Rodkin, 2015).
The size of the pier and number of piles used in an ELCAS event is approximately 1,520 ft long, requiring 119 supporting piles. Construction of the ELCAS would involve intermittent impact pile driving over approximately 20 days. Crews work 24 hours (hrs) a day and would drive approximately 6 piles in that period. Each pile takes about 15 minutes to drive with time taken between piles to reposition the driver. When training events that use the ELCAS are complete, the structure would be removed using vibratory methods over approximately 10 days. Crews would remove about 12 piles per 24-hour period, each taking about 6 minutes to remove.
Pile driving for ELCAS training would occur in shallower water, and sound could be transmitted on direct paths through the water, be reflected at the water surface or bottom, or travel through bottom substrate. Soft substrates such as sand bottom at the proposed ELCAS locations would absorb or attenuate the sound more readily than hard substrates (rock), which may reflect the acoustic wave. Most acoustic energy would be concentrated below 1,000 hertz (Hz) (Hildebrand, 2009).
This section describes the characteristics of explosions during naval training and testing. The activities analyzed in the Navy's rulemaking/LOA application that use explosives are described in Appendix A (Navy Activity Descriptions) of the HSTT DEIS/OEIS. Explanations of the terminology and metrics used when describing explosives in the Navy's rulemaking/LOA application are also in Appendix D (Acoustic and Explosive Concepts) of the HSTT DEIS/OEIS.
The near-instantaneous rise from ambient to an extremely high peak pressure is what makes an explosive shock wave potentially damaging. Farther from an explosive, the peak pressures decay and the explosive waves propagate as an impulsive, broadband sound. Several parameters influence the effect of an explosive: The weight of the explosive warhead, the type of explosive material, the boundaries and characteristics of the propagation medium, and, in water, the detonation depth. The net explosive weight, the explosive power of a charge expressed as the equivalent weight of trinitrotoluene (TNT), accounts for the first two parameters. The effects of these factors are explained in Appendix D (Acoustic and Explosive Concepts) of the HSTT DEIS/OEIS.
Explosive detonations during training and testing activities are associated with high-explosive munitions, including, but not limited to, bombs, missiles, rockets, naval gun shells, torpedoes, mines, demolition charges, and explosive sonobuoys. Explosive detonations during training and testing involving the use of high-explosive munitions (including bombs, missiles, and naval gun shells), could occur in the air or at the water's surface. Explosive detonations associated with torpedoes and explosive sonobuoys could occur in the water column; mines and demolition charges could be detonated in the water column or on the ocean bottom. Most detonations would occur in waters greater than 200 ft in depth, and greater than 3 nmi from shore, although most mine warfare, demolition, and some testing detonations would occur in shallow water close to shore. Those that occur close to shore are typically conducted on designated ranges.
In order to better organize and facilitate the analysis of explosives used by the Navy during training and testing that could detonate in water or at the water surface, explosive classification bins were developed. The use of explosive classification bins provides the same benefits as described for acoustic source classification bins in Section 1.4.1 (Acoustic Stressors) of the Navy's rulemaking/LOA application.
Explosives detonated in water are binned by net explosive weight. The bins of explosives that are proposed for use in the Study Area are shown in Table 3 below.
Propagation of explosive pressure waves in water is highly dependent on environmental characteristics such as bathymetry, bottom type, water depth, temperature, and salinity, which affect how the pressure waves are reflected, refracted, or scattered; the potential for reverberation; and interference due to multi-path propagation. In addition, absorption greatly affects the distance over which higher frequency components of explosive broadband noise can propagate. Appendix D (Acoustic and Explosive Concepts) of the HSTT DEIS/OEIS explains the characteristics of explosive detonations and how the above factors affect the propagation of explosive energy in the water. Because of the complexity of analyzing sound propagation in the ocean environment, the Navy relies on acoustic models in its environmental analyses that consider sound source characteristics and varying ocean conditions across the HSTT Study Area.
Marine mammals could be exposed to fragments from underwater explosions associated with the specified activities. When explosive ordnance (
There is a very small chance that a vessel utilized in training or testing activities could strike a large whale. Vessel strikes have the potential to result in incidental take from serious injury and/or mortality. Vessel strikes are not specific to any particular training or testing activity, but rather a limited, sporadic, and incidental result of Navy vessel movement within the Study Area. Vessel strikes from commercial, recreational, and military vessels are known to seriously injure and occasionally kill cetaceans (Abramson
The Center for Naval Analysis conducted studies to determine traffic patterns of Navy and non-Navy vessels in the HSTT Study Area (Mintz, 2016; Mintz and Filadelfo, 2011; Mintz, 2012; Mintz and Parker, 2006). The most recent analysis covered the 5-year period from 2011 to 2015 for vessels over 65 ft in length (Mintz, 2016). Categories of vessels included in the study were U.S. Navy surface ship traffic and non-military civilian traffic such as cargo vessels, bulk carriers, commercial fishing vessels, oil tankers, passenger vessels, tugs, and research vessels (Mintz, 2016). In the Hawaii Range Complex, civilian commercial shipping comprised 89 percent of total vessel traffic while Navy ship traffic accounted for eight percent (Mintz, 2016). In the Southern California Range Complex civilian commercial shipping comprised 96 percent of total vessel traffic while Navy ship traffic accounted for four percent (Mintz, 2016).
Navy ships transit at speeds that are optimal for fuel conservation or to meet training and testing requirements. Small craft (for purposes of this analysis, less than 18 m in length) have much more variable speeds (0-50+ kn, dependent on the activity). Submarines generally operate at speeds in the range of 8-13 kn. While these speeds are considered averages and representative of most events, some vessels need to operate outside of these parameters for certain times or during certain activities. For example, to produce the required relative wind speed over the flight deck, an aircraft carrier engaged in flight operations must adjust its speed through the water accordingly. Also, there are other instances such as launch and recovery of a small rigid hull inflatable boat; vessel boarding, search, and seizure training events; or retrieval of a target when vessels would be dead in the water or moving slowly ahead to maintain steerage. There are a few specific events, including high-speed tests of newly constructed vessels, where vessels would operate at higher speeds.
Large Navy vessels (greater than 18 m in length) within the offshore areas of range complexes and testing ranges operate differently from commercial vessels in ways that may reduce potential whale collisions. Surface ships operated by or for the Navy have multiple personnel assigned to stand watch at all times, 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 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.
The Navy's Specified Activities are presented and analyzed as a representative year of training to account for the natural fluctuation of training cycles and deployment schedules that generally influences the actual level of training that occurs year after year in any five-year period. Using a representative level of activity rather than a maximum tempo of training activity in every year is more reflective of the amount of hull-mounted mid-frequency active sonar estimated to be necessary to meet training requirements. It also means that the Navy is requesting fewer hours of hull-mounted mid-frequency active sonar. Both unit-level training and major training exercises have been adjusted to meet this representative year, as discussed below. For the purposes of the Navy's rulemaking/LOA application, the Navy assumes that some unit-level training would be conducted using synthetic means (
The Optimized Fleet Response Plan and various training plans identify the number and duration of training cycles that could occur over a five-year period. The Specified Activities considers fluctuations in training cycles and deployment schedules that do not follow a traditional annual calendar but instead are influenced by in-theater demands and other external factors. Similar to unit-level training, the Specified Activities does not analyze a maximum number carrier strike group Composite Training Unit Exercises (one type of major exercise) every year, but instead assumes a maximum number of exercises would occur during two years of any five-year period and that a lower number of exercises would occur in the other 3 years (described in Estimate Take section).
The training activities that the Navy proposes to conduct in the HSTT Study Area are summarized in Table 4. The table is organized according to primary mission areas and includes the activity name, associated stressors applicable to the Navy's rulemaking/LOA application, description of the activity, sound source bin, the locations of those activities in the HSTT Study Area, and the number of Specified Activities. For further information regarding the primary platform used (
Testing activities covered in the Navy's rulemaking/LOA application are described in Table 5 through Table 8. The five-year Specified Activities presented here is based on the level of testing activities anticipated to be conducted into the reasonably foreseeable future, with adjustments that account for changes in the types and tempo (increases or decreases) of testing activities to meet current and future military readiness requirements. The Specified Activities includes the testing of new platforms, systems, and related equipment that will be introduced after December 2018 and during the period of the rule. The majority of testing activities that would be conducted under the Specified Activities are the same or similar as those conducted currently or in the past. The Specified Activities includes the testing of some new systems using new technologies and takes into account inherent uncertainties in this type of testing.
Under the Specified Activities, the Navy proposes a range of annual levels of testing that reflects the fluctuations in testing programs by recognizing that the maximum level of testing will not be conducted each year, but further indicates a five-year maximum for each activity that will not be exceeded. The Specified Activities contains a more realistic annual representation of activities, but includes years of a higher maximum amount of testing to account for these fluctuations.
The tables include the activity name, associated stressor(s), description of the activity, sound source bin, the areas where the activity is conducted, and the number of activities per year and per five years. Not all sound sources are used with each activity. Under the “Annual # of Activities” column, activities show either a single number or a range of numbers to indicate the number of times that activity could occur during any single year. The “5-Year # of Activities” is the maximum times an activity would occur over the 5-year period of this request. More detailed activity descriptions can be found in the HSTT DEIS/OEIS.
Table 5 summarizes the proposed testing activities for the Naval Air Systems Command analyzed within the HSTT Study Area.
Table 6 summarizes the proposed testing activities for the Naval Sea Systems Command analyzed within the HSTT Study Area.
Table 7 summarizes the proposed testing activities for the Office of Naval Research analyzed within the HSTT Study Area.
Table 8 summarizes the proposed testing activities for the Space and Naval Warfare Systems Command analyzed within the HSTT Study Area.
Table 9 through Table 12 show the acoustic source classes and numbers, explosive source bins and numbers, air gun sources, and pile driving and removal activities associated with Navy training and testing activities in the HSTT Study Area that were analyzed in the Navy's rulemaking/LOA application. Table 9 shows the acoustic source classes (
Table 10 shows the number of air guns shots proposed in the HSTT Study Area for training and testing activities.
Table 11 summarizes the impact pile driving and vibratory pile removal activities that would occur during a 24-hour period. Annually, for impact pile driving, the Navy will drive 119 piles, two times a year for a total of 238 piles. Over the 5-year period of the rule, the Navy will drive a total of 1190 piles by impact pile driving. Annually, for vibratory pile extraction, the Navy will extract 119 piles, two times a year for a total of 238 piles. Over the 5-year period of the rule, the Navy will extract a total of 1190 piles by vibratory pile extraction.
Table 12 shows the number of in-water explosives that could be used in any year under the Specified Activities for training and testing activities. Under the Specified Activities, bin use would vary annually, consistent with the number of annual activities summarized above. The five-year total for the Specified Activities takes into account that annual variability.
Vessels used as part of the Specified Activities include ships, submarines, unmanned vessels, and boats ranging in size from small, 22 ft (7 m) rigid hull inflatable boats to aircraft carriers with lengths up to 1,092 ft (333 m). Large Navy ships greater than 60 ft (18 m) generally operate at speeds in the range of 10 to 15 kn for fuel conservation. Submarines generally operate at speeds in the range of 8 to 13 kn in transits and less than those speeds for certain tactical maneuvers. Small craft, less than 60 ft (18 m) in length, have much more variable speeds (dependent on the activity). Speeds generally range from 10 to 14 kn. While these speeds for large and small craft are representative of most events, some vessels need to temporarily operate outside of these parameters.
The number of Navy vessels used in the HSTT Study Area varies based on military training and testing requirements, deployment schedules, annual budgets, and other unpredictable factors. Most training and testing activities involve the use of vessels. These activities could be widely dispersed throughout the HSTT Study Area, but would be typically conducted near naval ports, piers, and range areas. Navy vessel traffic would especially be concentrated near San Diego, California and Pearl Harbor, Hawaii. There is no seasonal differentiation in Navy vessel use. The majority of large vessel traffic occurs between the installations and the OPAREAS. Support craft would be more concentrated in the coastal waters in the areas of naval installations, ports and ranges. Activities involving vessel movements occur intermittently and are variable in duration, ranging from a few hours up to two weeks.
For training and testing to be effective, personnel must be able to safely use their sensors and weapon systems as they are intended to be used in a real-world situation and to their optimum capabilities. While standard operating procedures are designed for the safety of personnel and equipment and to ensure the success of training and testing activities, their implementation often yields additional benefits to environmental, socioeconomic, public health and safety, and cultural resources.
Navy standard operating procedures have been developed and refined over years of experience and are broadcast via numerous naval instructions and manuals, including, but not limited to:
• Ship, submarine, and aircraft safety manuals;
• Ship, submarine, and aircraft standard operating manuals;
• Fleet Area Control and Surveillance Facility range operating instructions;
• Fleet exercise publications and instructions;
• Naval Sea Systems Command test range safety and standard operating instructions;
• Navy instrumented range operating procedures;
• Naval shipyard sea trial agendas;
• Research, development, test, and evaluation plans;
• Naval gunfire safety instructions;
• Navy planned maintenance system instructions and requirements;
• Federal Aviation Administration regulations; and
• International Regulations for Preventing Collisions at Sea.
Because standard operating procedures are essential to safety and mission success, the Navy considers them to be part of the Specified Activities, and has included them in the environmental analysis. Standard operating procedures that are recognized as providing a potential benefit to marine mammals during training and testing activities are noted below and discussed in more detail within the HSTT DEIS/OEIS.
• Vessel Safety
• Weapons Firing Safety
• Target Deployment Safety
• Towed In-Water Device Safety
• Pile Driving Safety
Standard operating procedures (which are implemented regardless of their secondary benefits) are different from mitigation measures (which are designed entirely for the purpose of avoiding or reducing potential impacts on the environment). Refer to Section 1.5.5 Standing Operating Procedures of the Navy's rulemaking/LOA application for greater detail.
Training and testing activities would be conducted in the HSTT Study Area throughout the year from 2018 through 2023 for the five-year period covered by the regulations. The HSTT Study Area (see Figure 1.1-1 of the Navy's rulemaking/LOA application) is comprised of established operating and
The Hawaii Range Complex encompasses ocean areas located around the Hawaiian Islands chain. The ocean areas extend from 16 degrees north latitude to 43 degrees north latitude and from 150 degrees west longitude to the International Date Line, forming an area approximately 1,700 nmi by 1,600 nmi. The largest component of the Hawaii Range Complex is the Temporary OPAREA, extending north and west from the island of Kauai, and comprising over two million square nautical miles (nmi
The Hawaii Range Complex includes the ocean areas as described above, as well as specific training areas around the islands of Kauai, Oahu, and Maui (Figures 2-2, 2-3, and 2-4 respectively of the Navy's application). The Hawaii Range Complex also includes the ocean portion of the PMRF on Kauai, which is both a fleet training range and a fleet and DoD testing range. The facility includes 1,100 nmi
The SOCAL Range Complex is located between Dana Point and San Diego, and extends southwest into the Pacific Ocean (Figures 2-5, 2-6, and 2-7 of the Navy's application). Although the range complex extends more than 600 nmi beyond land, most activities occur with 200 nmi of Southern California. The two primary components of the SOCAL Range Complex are the ocean OPAREAs and the special use airspace. These components encompass 120,000 nmi
A small portion (approximately 1,000 nmi
The Silver Strand Training Complex is an integrated set of training areas located on and adjacent to the Silver Strand, a narrow, sandy isthmus separating the San Diego Bay from the Pacific Ocean. It is divided into two non-contiguous areas: Silver Strand Training Complex-North and Silver Strand Training Complex-South (Figure 2-8 of the Navy's application). The Silver Strand Training Complex-North includes 10 oceanside boat training lanes (numbered as Boat Lanes 1-10), ocean anchorage areas (numbered 101-178), bayside water training areas (Alpha through Hotel), and the Lilly Ann drop zone. The boat training lanes are each 500 yards (yd) wide stretching 4,000 yd seaward and forming a 5,000
The anchorages lie offshore of Coronado in the Pacific Ocean and overlap a portion of Boat Lanes 1-10. The anchorages are each 654 yd in diameter and are grouped together in an area located primarily due west of Silver Strand Training Complex-North, east of Zuniga Jetty and the restricted areas on approach to the San Diego Bay entrance.
In addition to the range complexes that are part of the Study Area, a transit corridor outside the boundaries of the range complexes is also included as part of the Study Area in the analysis. Although not part of any defined range complex, this transit corridor is important to the Navy in that it provides adequate air, sea, and undersea space in which vessels and aircraft conduct training and some sonar maintenance and testing while enroute between Southern California and Hawaii. The transit corridor, notionally defined by the great circle route (
The Study Area includes select pierside locations where Navy surface ship and submarine sonar maintenance testing occur. For purposes of the Navy's application, pierside locations include channels and routes to and from Navy ports, and facilities associated with Navy ports and shipyards. These locations in the Study Area are located at Navy ports and naval shipyards in Pearl Harbor, Hawaii and in San Diego Bay, California (Figure 2-9 of the Navy's application). In addition, some training and testing activities occur throughout San Diego Bay.
Marine mammal species and their associated stocks that have the potential to occur in the HSTT Study Area are presented in Table 13 along with an abundance estimate, an associated coefficient of variation value, and best/minimum abundance estimates. The Navy proposes to take individuals of 39 marine mammal species by Level A and B harassment incidental to training and testing activities from the use of sonar and other transducers, in-water detonations, air guns, and impact pile driving/vibratory extraction activities. In addition, the Navy is requesting ten mortalities of two marine mammal stocks from explosives, and three takes of large whales by serious injury or mortality from vessel strikes over the five-year period. One marine mammal species, the Hawaiian monk seal, has critical habitat designated under the Endangered Species Act in the HSTT Study Area (described below).
Information on the status, distribution, abundance, population trends, and ecology of marine mammals in the HSTT Study Area may be found in Chapter 4 of the Navy's rulemaking/LOA application. Additional information on the general biology and ecology of marine mammals are included in the HSTT DEIS/OEIS. In addition, NMFS annually publishes Stock Assessment Reports (SARs) for all marine mammals in U.S. Exclusive Economic Zone (EEZ) waters, including stocks that occur within the HSTT Study Area and are found specifically in the U.S. Pacific Marine Mammal SAR (Carretta
The species carried forward for analysis (and described in Table 13 below) are those likely to be found in the HSTT Study Area based on the most recent data available, and do not include stocks or species that may have once inhabited or transited the area but have not been sighted in recent years (
Below, we include additional information about the marine mammals in the area of the Specified Activities, where available, that will inform our analysis, such as identifying areas of important habitat or known behaviors, or where Unusual Mortality Events (UME) have been designated.
Currently there is one marine mammal, the ESA-listed Hawaiian monk seal, with designated critical habitat within the HSTT Study Area. However, critical habitat for ESA-listed Main Hawaiian Islands insular false killer whale was recently proposed in November 2017 (82 FR 51186; November 3, 2017), designating waters from the 45 m depth contour to the 3200 m depth contour around the main Hawaiian Islands from Niihau east to Hawaii. However, some areas were proposed for exclusion based on considerations of economic and national security impacts.
Critical habitat for Hawaiian monk seals was designated in 1986 (51 FR 16047; April 30, 1986) and later revised in 1988 (53 FR 18988; May 26, 1988) and in 2015 (80 FR 50925; August 21, 2015) (NOAA, 2015a) (Figure 4-1 of the Navy's application). The essential features of the critical habitat were identified as: (1) Adjacent terrestrial and aquatic areas with characteristics preferred by monk seals for pupping and nursing; (2) shallow, sheltered aquatic areas adjacent to coastal locations preferred by monk seals for pupping and nursing; (3) marine areas from 0 to 500 m in depth preferred by juvenile and adult monk seals for foraging; (4) areas with low levels of anthropogenic disturbance; (5) marine areas with adequate prey quantity and quality; and (6) significant areas used by monk seals for hauling out, resting, or molting (NOAA, 2015a).
In the Northwestern Hawaiian Islands Hawaiian monk seal critical habitat includes all beach areas, sand spits and islets, including all beach crest vegetation to its deepest extent inland as well as the seafloor and marine habitat 10 m in height above the seafloor from the shoreline out to the 200 m depth contour around Kure Atoll, Midway Atoll, Pearl and Hermes Reef, Lisianski Island, Laysan Island, Maro Reef, Gardner Pinnacles, French Frigate Shoals, Necker Island and Nihoa Island. In the main Hawaiian Islands, Hawaiian monk seal critical habitat includes the seafloor and marine habitat to 10 m above the seafloor from the 200 m depth contour through the shoreline and extending into terrestrial habitat 5 m inland from the shoreline between identified boundary points around Kaula Island (includes marine habitat only, some excluded areas see areas, Niihau (includes marine habitat from 10 m-200 m in depth; some excluded areas), Kauai, Oahu, Maui Nui (including Kahoolawe, Lanai, Maui, and Molokai), Hawaii.
The approximate area encompassed by the Northwestern Hawaiian Islands was designated as the Papahanaumokuakea Monument in 2006, in part to protect the habitat of the Hawaiian monk seal. Hawaiian monk seals are managed as a single stock. There are six main reproductive subpopulations at: French Frigate Shoals, Laysan Island, Lisianski Island,
Biologically Important Areas (BIAs) include areas of known importance for reproduction, feeding, or migration, or areas where small and resident populations are known to occur (Van Parijs, 2015). Unlike critical habitat, these areas are not formally designated pursuant to any statute or law, but are a compilation of the best available science intended to inform impact and mitigation analyses. An interactive map of the BIAs may be found here:
In Hawaii, 21 BIAs fall within or overlap with the HSTT Study Area. These include 11 small and resident population areas for species including dwarf sperm whales, Blainville's beaked whales, Cuvier's beaked whales, pygmy killer whales, short-finned pilot whales, melon-headed whales, false killer whales, pantropical spotted dolphins, spinner dolphins, rough-toothed dolphins, and common bottlenose dolphins (see Appendix K of the HSTT DEIS/OEIS for figures depicting these areas). In addition, six non-contiguous areas located adjacent to the eight main Hawaiian Islands have been designated as a humpback whale reproductive BIA (Baird
Five of the 28 BIAs that were identified for four species off the U.S. west coast (Calambokidis
A single biologically important area around and between portions of eight islands was identified for breeding humpback whales in the Main Hawaiian Islands from December through April (Baird
A year-round BIA has been identified for a small resident population of dwarf sperm whales located off the island of Hawaii (Mahaffy
A year-round BIA for a small resident population of Blainville's beaked whales has been identified off the island of Hawaii (McSweeney
A year-round BIA for a small resident population of Cuvier's beaked whales has been identified off the island of Hawaii with the highest density of groups in water between 1,500 and 4,000 m in depth, and density decreasing offshore (Baird
A year-round BIA for a small resident population of pygmy killer whales has been identified for the Hawaii Island resident population. This BIA includes the west side of the island of Hawaii, from northwest of Kawaihae south to the south point of the island, and along the southeast coast of the island. This BIA also overlaps the Navy's Hawaii Island Mitigation Area described later in this document.
A year- round BIA for a small resident population of short-finned pilot whales has been identified off the island of Hawaii (Baird
A year-round BIA has been identified for a small and resident population of melon-headed whales off the island of Hawaii, primarily using the Kohala area. This BIA also overlaps the Navy's Hawaii Island Mitigation Area described later in this document.
A year-round BIA has been identified for a small and resident insular population of false killer whales off the coasts of Oahu, Maui, Molokai, Lanai, and Hawaii Island. The known range of this population extends from west of Niihau to east of Hawaii, out to 122 km offshore (Baird
Three year-round BIAs have been identified for small and resident populations of pantropical spotted dolphin. Three stocks of this species occurs around the main Hawaiian Islands (Oahu, the 4-Island Region, and off the main island of Hawaii). Two of these BIAs also overlap the Navy's 4-Islands Region and Hawaii Island Mitigation Areas described later in this document.
Year-round BIAs have been identified for five small and resident populations of spinner dolphins. The boundaries of these populations are out to 10 nmi from shore around Kure and Midway Atolls, Pearl and Hermes Reef, Kauai and Niihau, Oahu and the 4-Islands Region and off the main island of Hawaii (Carretta
A year-round BIA has been identified for a small demographically isolated resident population off the island of Hawaii (Baird
Year-round BIAs have been identified for the four insular stocks of bottlenose dolphins in Hawaiian waters. They are found both nearshore and offshore areas (Barlow, 2006), but around the main Hawaiian Islands they are primarily found in depths of less than 1,000 m (Baird
There are nine feeding area BIAs identified for blue whales off the U.S. west coast (Calambokidis
Calambokidis
Under Title III of the Marine Protection, Research, and Sanctuaries Act of 1972 (also known as the National Marine Sanctuaries Act (NMSA)), NOAA can establish as national marine sanctuaries (NMS), areas of the marine environment with special conservation, recreational, ecological, historical, cultural, archaeological, scientific, educational, or aesthetic qualities. Sanctuary regulations prohibit destroying, causing the loss of, or injuring any sanctuary resource managed under the law or regulations for that sanctuary (15 CFR part 922). NMS are managed on a site-specific basis, and each sanctuary has site-specific regulations. Most, but not all sanctuaries have site-specific regulatory exemptions from the prohibitions for certain military activities. Separately, section 304(d) of the NMSA requires Federal agencies to consult with the Office of National Marine Sanctuaries whenever their Specified Activities are likely to destroy, cause the loss of, or injure a sanctuary resource. There are two national marine sanctuaries managed by the Office of National Marine Sanctuaries within the Study Area, the Hawaiian Islands Humpback Whale NMS and Channel Islands NMS (see Table 6.1-2 and Figures 6.1-3 and 6.1-4 of the HSTT DEIS/OEIS), which are described below.
The Hawaiian Islands Humpback Whale NMS is a single-species managed sanctuary, composed of 1,035 nmi
The Hawaiian Islands Humpback Whale NMS overlaps with the Main Hawaiian Islands Humpback Whale Reproduction Area (BIA) identified in Van Parijs (2015) and Baird et al. (2015) (shown in Figure K.3-1 of Appendix K and as discussed in Appendix K, Section K.3.1 (Main Hawaiian Islands Humpback Whale Reproduction Area of the HSTT DEIS/OEIS)).
The Channel Islands NMS is an ecosystem-based managed sanctuary consisting of an area of 1,109 nmi
A UME is defined under Section 410(6) of the MMPA as a stranding that is unexpected; involves a significant die-off of any marine mammal population; and demands immediate response. From 1991 to the present, there have been 16 formally recognized UMEs affecting marine mammals in California and Hawaii and involving species under NMFS's jurisdiction. Two UMEs that could be relevant to informing the current analysis are discussed below. Specifically, the California sea lion UME in California is still open, but will be closed soon. The Guadalupe fur seal UME in California is still active and involves an ongoing investigation.
Elevated strandings of California sea lion pups began in Southern California in January 2013. In 2013, over 1,600 California sea lions stranded alive along the Southern California coastline and
Increased strandings of Guadalupe fur seals began along the entire coast of California in January 2015 and were eight times higher than the historical average (approximately 10 seals/yr). Strandings have continued since 2015 and have remained well above average through 2017. As of March 8, 2018, the total number of Guadalupe fur seals to date in the UME is 241. Strandings are seasonal and generally peak in April through June of each year. The Guadalupe fur seal strandings have been mostly weaned pups and juveniles (1-2 years old) with both live and dead strandings occurring. Current findings from the majority of stranded animals include primary malnutrition with secondary bacterial and parasitic infections. This UME is occurring in the same area as the ongoing 2013-2017 California sea lion UME. This investigation is ongoing. Please refer to
Hearing is the most important sensory modality for marine mammals underwater, and exposure to anthropogenic sound can have deleterious effects. To appropriately assess the potential effects of exposure to sound, it is necessary to understand the frequency ranges marine mammals are able to hear. Current data indicate that not all marine mammal species have equal hearing capabilities (
• Low-frequency cetaceans (mysticetes): Generalized hearing is estimated to occur between approximately 7 Hz and 35 kHz;
• Mid-frequency cetaceans (larger toothed whales, beaked whales, and most delphinids): Generalized hearing is estimated to occur between approximately 150 Hz and 160 kHz;
• High-frequency cetaceans (porpoises, river dolphins, and members of the genera Kogia and Cephalorhynchus; including two members of the genus Lagenorhynchus, on the basis of recent echolocation data and genetic data): Generalized hearing is estimated to occur between approximately 275 Hz and 160 kHz;
• Pinnipeds in water; Phocidae (true seals): Generalized hearing is estimated to occur between approximately 50 Hz to 86 kHz; and
• Pinnipeds in water; Otariidae (eared seals): Generalized hearing is estimated to occur between 60 Hz and 39 kHz.
The pinniped functional hearing group was modified from Southall
For more detail concerning these groups and associated frequency ranges, please see NMFS (2016) for a review of available information.
This section includes a summary and discussion of the ways that components of the specified activity may impact marine mammals and their habitat. The “Estimated Take of Marine Mammals” section later in this document includes a quantitative analysis of the number of instances of take that could occur from these activities. The “Negligible Impact Analysis and Determination” section considers 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 take of marine mammals that may occur incidental to training and testing activities in the HSTT Study Area. The Navy analyzed potential impacts to marine mammals from acoustic and explosive sources as well as vessel strikes.
Other potential impacts to marine mammals from training and testing activities in the HSTT Study Area were analyzed in the HSTT DEIS/OEIS, in consultation with NMFS as a cooperating agency, and determined to be unlikely to result in marine mammal take. Therefore, the Navy has not requested authorization for take of marine mammals incidental to other components of their Specified Activities, and we agree that take is
For the purpose of MMPA incidental take authorizations, NMFS's effects assessments serve four primary purposes: (1) To prescribe the permissible methods of taking (
In the Potential Effects Section, NMFS provides a general description of the ways marine mammals may be affected by these activities in the form of mortality, physical trauma, sensory impairment (permanent and temporary threshold shifts and acoustic masking), physiological responses (particular stress responses), behavioral disturbance, or habitat effects. Explosives and vessel strikes, which have the potential to result in incidental take from serious injury and/or mortality, will be discussed in more detail in the Estimated Take of Marine Mammals section. The Estimated Take of Marine Mammals section also discusses how the potential effects on marine mammals from non-impulsive and impulsive sources relate to the MMPA definitions of Level A and Level B Harassment, and quantifies those effects that rise to the level of a take along with the potential effects from vessel strikes. The Negligible Impact Analysis Section assesses whether the proposed authorized take will have a negligible impact on the affected species and stocks.
Note that, in the following discussion, we refer in many cases to a review article concerning studies of noise-induced hearing loss conducted from 1996-2015 (
Richardson
We also describe more severe effects (
Based on the literature, there are two basic ways that non-impulsive sources might directly result in direct physiological effects. Noise-induced loss of hearing sensitivity (more commonly-called “threshold shift” (TS)) is the better-understood of these two effects, and the only one that is actually expected to occur. The second effect, acoustically mediated bubble growth and other pressure-related physiological impacts are addressed briefly below, but are not expected to result from the Navy's activities. Separately, an animal's behavioral reaction to an acoustic exposure might lead to physiological effects that might ultimately lead to injury or death, which is discussed later in the Stranding Section.
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 other Navy activities (
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 permanent condition. Of note, reduced hearing sensitivity as a simple function of aging has been observed in marine mammals, as well as humans and other taxa (Southall
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 (for example, beaked whales) are theoretically predicted to induce greater supersaturation (Houser
It is unlikely that the short duration (in combination with the source levels) of 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 of a problematic size. Recent research with
Yet another hypothesis (decompression sickness) has speculated 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, while there are several hypotheses, there is little data to support the potential for strong, anthropogenic underwater sounds to cause non-auditory physical effects in marine mammals. The available data do not support identification of a specific exposure level above which non-auditory effects can be expected (Southall
Sound can disrupt behavior through masking, or interfering with, an animal's ability to detect, recognize, or discriminate between acoustic signals of interest (
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, though, the detection of frequencies above those of the masking stimulus decreases also. This principle is expected to apply to marine mammals as well because of common biomechanical cochlear properties across taxa.
Under certain circumstances, marine mammals experiencing significant masking could also be impaired from maximizing their performance fitness in survival and reproduction. Therefore, when the coincident (masking) sound is man-made, it may be considered harassment when disrupting or altering critical behaviors. It is important to distinguish TTS and PTS, which persist after the sound exposure from masking, which occurs during the sound exposure. Because masking (without resulting in TS) is not associated with abnormal physiological function, it is not considered a physiological effect, but rather a potential behavioral effect.
The frequency range of the potentially masking sound is important in determining any potential behavioral impacts. For example, low-frequency signals may have less effect on high-frequency echolocation sounds produced by odontocetes but are more likely to affect detection of mysticete communication calls and other potentially important natural sounds such as those produced by surf and some prey species. The masking of communication signals by anthropogenic noise may be considered as a reduction in the communication space of animals (
Masking affects both senders and receivers of acoustic signals and can potentially have long-term chronic effects on marine mammals at the population level as well as at the individual level. Low-frequency ambient sound levels have increased by as much as 20 dB (more than three times in terms of SPL) in the world's ocean
Richardson
The echolocation calls of toothed whales are subject to masking by high-frequency sound. Human data indicate low-frequency sound 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 dominant background noise may be highly directional if it comes from a particular anthropogenic source such as a ship or industrial site. Directional hearing may significantly reduce the masking effects of these sounds by improving the effective signal-to-noise ratio.
The functional hearing ranges of mysticetes, odontocetes, and pinnipeds underwater all overlap the frequencies of the sonar sources used in the Navy's low-frequency active sonar (LFAS)/mid-frequency active sonar (MFAS)/high-frequency active sonar (HFAS) training and testing exercises. Additionally, almost all species' vocal repertoires span across the frequencies of these sonar sources used by the Navy. The closer the characteristics of the masking signal to the signal of interest, the more likely masking is to occur. Although hull-mounted sonar accounts for a large portion of the area ensonified by Navy activities (because of the source strength and number of hours it is conducted), the pulse length and low duty cycle of the MFAS/HFAS signal makes it less likely that masking would occur as a result.
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 it drops 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 that 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 communication 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
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 sufficient to trigger a stress response (Moberg, 2000; Sapolsky
According to Moberg (2000), in the case of many stressors, an animal's first and sometimes 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 systems or sympathetic nervous systems; the system that has received the most study has been the hypothalmus-pituitary-adrenal system (also known as the HPA axis in mammals or the hypothalamus-pituitary-interrenal axis in fish and some reptiles). Unlike stress responses associated with the autonomic nervous system, virtually all neuro-endocrine functions that are affected by stress—including immune competence, reproduction, metabolism, and behavior—are regulated by pituitary hormones. Stress-induced changes in the secretion of pituitary hormones have been implicated in failed reproduction (Moberg, 1987; Rivier and Rivest, 1991), altered metabolism (Elasser
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 function, which impairs those functions that experience the diversion. 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 its fitness will suffer. In these cases, the animals will have entered a pre-pathological or pathological state which is called “distress” (Seyle, 1950) or “allostatic loading” (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 involved 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 in terrestrial vertebrates; 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
Information has also been collected on the physiological responses of marine mammals to exposure 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 animals and terrestrial animals would also lead us to expect some marine mammals to experience physiological stress responses and, perhaps, physiological responses that would be classified as
Behavioral responses to sound are highly variable and context-specific. Many different variables can influence an animal's perception of and response to (nature and magnitude) 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 response: Increased alertness; orientation or attraction to a sound source; vocal modifications; cessation of feeding; cessation of social interaction; alteration of movement or diving behavior; habitat abandonment (temporary or permanent); and, in severe cases, panic, flight, stampede, or stranding, potentially resulting in death (Southall
A flight response is a dramatic change in normal movement to a directed and rapid movement away from the perceived location of a sound source. Relatively little information on flight responses of marine mammals to anthropogenic signals exist, although observations of flight responses to the presence of predators have occurred (Connor and Heithaus, 1996). Flight responses have been speculated as being a component of marine mammal strandings associated with sonar activities (Evans and England, 2001). If marine mammals respond to Navy vessels that are transmitting active sonar in the same way that they might respond to a predator, their probability of flight responses should increase when they perceive that Navy vessels are approaching them directly, because a direct approach may convey detection and intent to capture (Burger and Gochfeld, 1981, 1990; Cooper, 1997, 1998). There are limited data on flight response for marine mammals; however, there are examples of this response in terrestrial species. For instance, the probability of flight responses in Dall's sheep
Evidence suggests that at least some marine mammals have the ability to acoustically identify potential predators. For example, harbor seals that reside in the coastal waters off British Columbia are frequently targeted by certain groups of killer whales, but not others. The seals discriminate between the calls of threatening and non-threatening killer whales (Deecke
Changes in dive behavior can vary widely. They may consist of increased or decreased dive times and surface intervals as well as changes in the rates of ascent and descent during a dive. Variations in dive behavior may reflect interruptions in biologically significant activities (
Nowacek
Disruption of feeding behavior can be difficult to correlate with anthropogenic sound exposure, so it is usually inferred by observed displacement from known foraging areas, the appearance of secondary indicators (
Variations in respiration naturally vary with different behaviors and variations in respiration rate as a function of acoustic exposure can be expected to co-occur with other behavioral reactions, such as a flight response or an alteration in diving. However, respiration rates in and of themselves may be representative of annoyance or an acute stress response. Mean exhalation rates of gray whales at rest and while diving were found to be unaffected by seismic surveys conducted adjacent to the whale feeding grounds (Gailey
Social interactions between mammals can be affected by noise via the disruption of communication signals or by the displacement of individuals. Disruption of social relationships therefore depends on the disruption of other behaviors (
Vocal changes in response to anthropogenic noise can occur across the repertoire of sound production modes used by marine mammals, such as whistling, echolocation click production, calling, and singing. Changes may result in response to a need to compete with an increase in background noise or may reflect an increased vigilance or startle response. For example, in the presence of low-frequency active sonar, humpback whales have been observed to increase the length of their “songs” (Miller
Cerchio
Castellote
Seismic pulses at average received levels of 131 dB re 1 micropascal squared per second (µPa2-s) caused blue whales to increase call production (Di Iorio and Clark, 2010). In contrast, McDonald
Avoidance is the displacement of an individual from an area as a result of the presence of a sound. Richardson
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, 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 received levels 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 California and Hawaii 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 MFAS 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 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
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 (of varying similarity to MFAS/HFAS) 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 linear when compared to 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 (of varying similarity to MFAS/HFAS) including: Pingers, drilling playbacks, ship and ice-breaking noise, vessel noise, Acoustic Harassment Devices (AHDs), Acoustic Deterrent Devices (ADDs), MFAS, 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 (of varying similarity to MFAS/HFAS) 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-impulsive 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 the analysis. The limited data suggested that exposures to non-pulse sounds between 90 and 140 dB re: 1 µPa generally do not result in strong behavioral responses in pinnipeds in water, but no data exist at higher received levels.
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 Blainville's beaked whale responding to an MFAS playback. Tyack
Stimpert
Reaction to mid-frequency sounds included premature cessation of clicking and termination of a foraging dive, and a slower ascent rate to the surface. Results from a similar behavioral response study in southern California waters have been presented for the 2010-2011 field season (Southall
In the 2007-2008 Bahamas study, playback sounds of a potential predator—a killer whale—resulted in a similar but more pronounced reaction, which included longer inter-dive intervals and a sustained straight-line departure of more than 20 km from the area (Boyd
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
Through analysis of the behavioral response studies, a preliminary overarching effect of greater sensitivity to all anthropogenic exposures was seen in beaked whales compared to the other odontocetes studied (Southall
Southall
Baleen whales have shown a variety of responses to impulse sound sources, including avoidance, reduced surface intervals, altered swimming behavior, and changes in vocalization rates (Richardson
Gray whales migrating along the U.S. west coast showed avoidance responses to seismic vessels by 10 percent of animals at 164 dB re 1 µPa, and by 90 percent of animals at 190 dB re 1 µPa, with similar results for whales in the Bering Sea (Malme, 1986; 1988). In contrast, noise from seismic surveys was not found to impact feeding behavior or exhalation rates while resting or diving in western gray whales off the coast of Russia (Yazvenko
Humpback whales showed avoidance behavior at ranges of five to eight km from a seismic array during observational studies and controlled exposure experiments in western Australia (McCauley, 1998; Todd
A shift in an animal's resting state or an attentional change via an orienting response represent behaviors that would be considered mild disruptions if occurring alone. As previously mentioned, the responses may co-occur with other behaviors; for instance, an animal may initially orient toward a sound source, and then move away from it. Thus, any orienting response should be considered in context of other reactions that may occur.
Under some circumstances, some of the individual marine mammals that are exposed to active sonar transmissions will continue their normal behavioral activities. In other circumstances, individual animals will respond to sonar transmissions at lower received levels and move to avoid additional exposure or exposures at higher received levels (Richardson
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 low-frequency shipping and industrial noise in Cape Cod Bay. He concluded that underwater sound was the primary cause of behavioral reactions in these species of whales and that the whales responded behaviorally to acoustic stimuli within their respective hearing ranges. Watkins also noted that whales showed the strongest behavioral reactions to sounds in the 15 Hz to 28 kHz range, although negative reactions (avoidance, interruptions in vocalizations, etc.) were generally associated with sounds that were either unexpected, too loud, suddenly louder or different, or perceived as being associated with a potential threat (such as an approaching ship on a collision course). In particular, whales seemed to react negatively when they were within 100 m of the source or when received levels increased suddenly in excess of 12 dB relative to ambient sounds. At other times, the whales ignored the source of the signal and all four species habituated to these sounds. Nevertheless, Watkins concluded that whales ignored most sounds in the background of ambient noise, including sounds from distant human activities even though these sounds may have had considerable energies at frequencies well within the whales' range of hearing. Further, he noted that of the whales observed, fin whales were the most sensitive of the four species, followed by humpback whales; right whales were the least likely to be disturbed and generally did not react to low-amplitude engine noise. By the end of his period of study, Watkins (1986) concluded that fin and humpback whales have generally habituated to the continuous and broad-band noise of Cape Cod Bay while right whales did not appear to change their response. As mentioned above, animals that habituate to a particular disturbance may have experienced low-level stress responses initially, but those responses abated over time. In most cases, this likely means a lessened immediate potential effect from a disturbance. However, there is cause for concern where the habituation occurs in a potentially more harmful situation. For example, animals may become more vulnerable to vessel strikes once they habituate to vessel traffic (Swingle
Aicken
Underwater explosive detonations send a shock wave and sound energy through the water and can release gaseous by-products, create an oscillating bubble, or cause a plume of water to shoot up from the water surface. The shock wave and accompanying noise are of most concern to marine animals. Depending on the intensity of the shock wave and size, location, and depth of the animal, an animal can be injured, killed, suffer non-lethal physical effects, experience hearing related effects with or without behavioral responses, or exhibit temporary behavioral responses or tolerance from hearing the blast sound. Generally, exposures to higher levels of impulse and pressure levels would result in greater impacts to an individual animal.
Injuries resulting from a shock wave take place at boundaries between tissues of different densities. Different velocities are imparted to tissues of different densities, and this can lead to their physical disruption. Blast effects are greatest at the gas-liquid interface (Landsberg, 2000). Gas-containing organs, particularly the lungs and gastrointestinal tract, are especially susceptible (Goertner, 1982; Hill, 1978; Yelverton
Because the ears are the most sensitive to pressure, they are the organs most sensitive to injury (Ketten, 2000). Sound-related damage associated with sound energy from detonations can be theoretically distinct from injury from the shock wave, particularly farther from the explosion. If a noise is audible to an animal, it has the potential to damage the animal's hearing by causing decreased sensitivity (Ketten, 1995). Lethal impacts are those that result in immediate death or serious debilitation in or near an intense source and are not, technically, pure acoustic trauma (Ketten, 1995). Sublethal impacts include hearing loss, which is caused by exposures to perceptible sounds. Severe damage (from the shock wave) to the ears includes tympanic membrane rupture, fracture of the ossicles, damage to the cochlea, hemorrhage, and cerebrospinal fluid leakage into the middle ear. Moderate injury implies partial hearing loss due to tympanic membrane rupture and blood in the middle ear. Permanent hearing loss also can occur when the hair cells are damaged by one very loud event, as well as by prolonged exposure to a loud noise or chronic exposure to noise. The level of impact from blasts depends on both an animal's location and, at outer zones, on its sensitivity to the residual noise (Ketten, 1995).
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 well-being (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 exists for terrestrial species to which we can draw comparisons for marine mammals. Several authors have reported that disturbance stimuli may cause animals to abandon nesting and foraging sites (Sutherland and Crockford, 1993); may 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 5 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 subconsciously (for example, when an animal hears sounds that it associates with the approach of a predator) and the shift in attention can be sudden (Dukas, 2002; van Rij, 2007). Once a stimulus has captured an animal's attention, the animal can respond by ignoring the stimulus, assuming a “watch and wait” posture, or treat the stimulus as a disturbance and respond accordingly, which includes scanning for the source of the stimulus or “vigilance” (Cowlishaw
Vigilance is normally an adaptive behavior that helps animals determine the presence or absence of predators, assess their distance from conspecifics, or to attend cues from prey (Bednekoff and Lima, 1998; Treves, 2000). Despite those benefits, however, vigilance has a cost of time; 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 declines 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 and, as a result, 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). Ridgway
Lusseau and Bejder (2007) present data from three long-term studies illustrating the connections between disturbance from whale-watching boats and population-level effects in cetaceans. In Sharks Bay Australia, the abundance of bottlenose dolphins was compared within adjacent control and tourism sites over three consecutive 4.5-year periods of increasing tourism levels. Between the second and third time periods, in which tourism doubled, dolphin abundance decreased by 15 percent in the tourism area and did not change significantly in the control area. In Fiordland, New Zealand, two populations (Milford and Doubtful Sounds) of bottlenose dolphins with tourism levels that differed by a factor of seven were observed and significant increases in travelling time and decreases in resting time were documented for both. Consistent short-term avoidance strategies were observed in response to tour boats until a threshold of disturbance was reached (average 68 minutes between interactions), after which the response switched to a longer-term habitat displacement strategy. For one population, tourism only occurred in a part of the home range. However, tourism occurred throughout the home range of the Doubtful Sound population and once boat traffic increased beyond the 68-minute threshold (resulting in abandonment of their home range/preferred habitat), reproductive success drastically decreased (increased stillbirths) and abundance decreased significantly (from 67 to 56 individuals in short period). Last, in a study of northern resident killer whales off Vancouver Island, exposure to boat traffic was shown to reduce foraging opportunities and increase traveling time. A simple bioenergetics model was applied to show that the reduced foraging opportunities equated to a decreased energy intake of 18 percent, while the increased traveling incurred an increased energy output of 3-4 percent, which suggests that a management action based on avoiding interference with foraging might be particularly effective.
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 may 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), New
The definition for a stranding under title IV of 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 mammal strandings have been linked to a variety of causes, such as illness from exposure to infectious agents, biotoxins, or parasites; starvation; unusual oceanographic or weather events; or anthropogenic causes including fishery interaction, ship strike, entrainment, entrapment, sound exposure, or combinations of these stressors sustained concurrently or in series. Historically, the cause or causes of most strandings have remained unknown (Geraci
Numerous studies suggest that the physiology, behavior, habitat, social, relationships, age, or condition of cetaceans may cause them to strand or might pre-dispose them to strand when exposed to another phenomenon. These suggestions are consistent with the conclusions of numerous other studies that have demonstrated that combinations of dissimilar stressors commonly combine to kill an animal or dramatically reduce its fitness, even though one exposure without the other does not produce the same result (Chroussos, 2000; Creel, 2005; DeVries
Historically, stranding reporting and response efforts have been inconsistent, although significant improvements have occurred over the last 25 years. Reporting forms for basic (“Level A”) information, rehabilitation disposition, and Human Interaction have been standardized nationally (available at
Along the coasts of the continental United States and Alaska between 2001 and 2009, there were on average approximately 12,545 cetacean strandings and 39,104 pinniped strandings (51,649 total) per year (National Marine Fisheries Service, 2016i). Several mass strandings (strandings that involve two or more individuals of the same species, excluding a single mother-calf pair) that have occurred over the past two decades have been associated with anthropogenic activities that introduced sound into the marine environment such as naval operations and seismic surveys. An in-depth discussion of strandings is in the Navy's Technical Report on Marine Mammal Strandings Associated with U.S. Navy Sonar Activities (U.S. Navy Marine Mammal Program & Space and Naval Warfare Systems Command Center Pacific, 2017).
Worldwide, there have been several efforts to identify relationships between cetacean mass stranding events and military active sonar (Cox
Most of the stranding events reviewed by the IWC involved beaked whales. A mass stranding of Cuvier's beaked whales in the eastern Mediterranean Sea occurred in 1996 (Frantzis, 1998) and mass stranding events involving Gervais' beaked whales, Blainville's beaked whales, and Cuvier's beaked whales occurred off the coast of the Canary Islands in the late 1980s (Simmonds and Lopez-Jurado, 1991). The stranding events that occurred in the Canary Islands and Kyparissiakos Gulf in the late 1990s and the Bahamas in 2000 have been the most intensively-studied mass stranding events and have been associated with naval maneuvers involving the use of tactical sonar. Other cetacean species with naval sonar implicated in stranding events include harbor porpoise (
During a Navy training event on March 4, 2011 at the Silver Strand Training Complex in San Diego, California, three or possibly four dolphins were killed in an explosion. During an underwater detonation training event, a pod of 100 to 150 long-beaked common dolphins were observed moving towards the 700-yd (640.1 m) exclusion zone around the explosive charge, monitored by personnel in a safety boat and participants in a dive boat. Approximately five minutes remained on a time-delay fuse connected to a single 8.76 lb (3.97 kg) explosive charge (C-4 and detonation cord). Although the dive boat was placed between the pod and the explosive in an effort to guide the dolphins away from the area, that effort was unsuccessful and three long-beaked common dolphins near the
These dolphin mortalities are the only known occurrence of a U.S. Navy training or testing event involving impulsive energy (underwater detonation) that caused mortality or injury to a marine mammal. Despite this being a rare occurrence, the Navy has reviewed training requirements, safety procedures, and possible mitigation measures and implemented changes to reduce the potential for this to occur in the future. Discussions of procedures associated with underwater explosives training and other training events are presented in the Proposed Mitigation section.
On July 22, 2011 a mass stranding event involving long-finned pilot whales occurred at Kyle of Durness, Scotland. An investigation by Brownlow
One stranding event was contemporaneous with and reasonably associated spatially with the use of seismic air guns. This event occurred in the Gulf of California, coincident with seismic reflection profiling by the R/V Maurice Ewing operated by Columbia University's Lamont-Doherty Earth Observatory and involved two Cuvier's beaked whales (Hildebrand, 2004). The vessel had been firing an array of 20 air guns with a total volume of 8,500 in
Over the past 21 years, there have been five stranding events coincident with military MF active sonar use in which exposure to sonar is believed to have been a contributing factor: Greece (1996); the Bahamas (2000); Madeira (2000); Canary Islands (2002); and Spain (2006) (Cox et al., 2006; Fernandez, 2006; U.S. Navy Marine Mammal Program & Space and Naval Warfare Systems Command Center Pacific, 2017). These five mass strandings have resulted in about 40 known cetacean deaths consisting mostly of beaked whales and with close linkages to mid-frequency active sonar activity. In these circumstances, exposure to non-impulsive acoustic energy was considered a potential indirect cause of death of the marine mammals (Cox
Twelve Cuvier's beaked whales stranded atypically (in both time and space) along a 38.2-km strand of the Kyparissiakos Gulf coast on May 12 and 13, 1996 (Frantzis, 1998). From May 11 through May 15, the North Atlantic Treaty Organization (NATO) research vessel Alliance was conducting sonar tests with signals of 600 Hz and 3 kHz and source levels of 228 and 226 dB re: 1μPa, respectively (D'Amico and Verboom, 1998; D'Spain
Necropsies of eight of the animals were performed but were limited to basic external examination and sampling of stomach contents, blood, and skin. No ears or organs were collected, and no histological samples were preserved. No apparent abnormalities or wounds were found. Examination of photos of the animals, taken soon after their death, revealed that the eyes of at least four of the individuals were bleeding. Photos were taken soon after their death (Frantzis, 2004). Stomach contents contained the flesh of cephalopods, indicating that feeding had recently taken place (Frantzis, 1998).
All available information regarding the conditions associated with this stranding event were compiled, and many potential causes were examined including major pollution events, prominent tectonic activity, unusual
Because of the rarity of this mass stranding of Cuvier's beaked whales in the Kyparissiakos Gulf (first one in historical records), the probability for the two events (the military exercises and the strandings) to coincide in time and location, while being independent of each other, was thought to be extremely low (Frantzis, 1998). However, because full necropsies had not been conducted, and no abnormalities were noted, the cause of the strandings could not be precisely determined (Cox
NMFS and the Navy prepared a joint report addressing the multi-species stranding in the Bahamas in 2000, which took place within 24 hrs of U.S. Navy ships using MFAS as they passed through the Northeast and Northwest Providence Channels on March 15-16, 2000. The ships, which operated both AN/SQS-53C and AN/SQS-56, moved through the channel while emitting sonar pings approximately every 24 seconds. Of the 17 cetaceans that stranded over a 36-hr period (Cuvier's beaked whales, Blainville's beaked whales, minke whales, and a spotted dolphin), seven animals died on the beach (five Cuvier's beaked whales, one Blainville's beaked whale, and the spotted dolphin), while the other 10 were returned to the water alive (though their ultimate fate is unknown). As discussed in the Bahamas report (DOC/DON, 2001), there is no likely association between the minke whale and spotted dolphin strandings and the operation of MFAS.
Necropsies were performed on five of the stranded beaked whales. All five necropsied beaked whales were in good body condition, showing no signs of infection, disease, ship strike, blunt trauma, or fishery related injuries, and three still had food remains in their stomachs. Auditory structural damage was discovered in four of the whales, specifically bloody effusions or hemorrhaging around the ears. Bilateral intracochlear and unilateral temporal region subarachnoid hemorrhage, with blood clots in the lateral ventricles, were found in two of the whales. Three of the whales had small hemorrhages in their acoustic fats (located along the jaw and in the melon).
A comprehensive investigation was conducted and all possible causes of the stranding event were considered, whether they seemed likely at the outset or not. Based on the way in which the strandings coincided with ongoing naval activity involving tactical MFAS use, in terms of both time and geography, the nature of the physiological effects experienced by the dead animals, and the absence of any other acoustic sources, the investigation team concluded that MFAS aboard U.S. Navy ships that were in use during the active sonar exercise in question were the most plausible source of this acoustic or impulse trauma to beaked whales. This sound source was active in a complex environment that included the presence of a surface duct, unusual and steep bathymetry, a constricted channel with limited egress, intensive use of multiple, active sonar units over an extended period of time, and the presence of beaked whales that appear to be sensitive to the frequencies produced by these active sonars. The investigation team concluded that the cause of this stranding event was the confluence of the Navy MFAS and these contributory factors working together, and further recommended that the Navy avoid operating MFAS in situations where these five factors would be likely to occur. This report does not conclude that all five of these factors must be present for a stranding to occur, nor that beaked whales are the only species that could potentially be affected by the confluence of the other factors. Based on this, NMFS believes that the operation of MFAS in situations where surface ducts exist, or in marine environments defined by steep bathymetry and/or constricted channels may increase the likelihood of producing a sound field with the potential to cause cetaceans (especially beaked whales) to strand, and therefore, suggests the need for increased vigilance while operating MFAS in these areas, especially when beaked whales (or potentially other deep divers) are likely present.
From May 10-14, 2000, three Cuvier's beaked whales were found atypically stranded on two islands in the Madeira archipelago, Portugal (Cox
The bodies of the three stranded whales were examined post mortem (Woods Hole Oceanographic Institution, 2005), though only one of the stranded whales was fresh enough (24 hours after stranding) to be necropsied (Cox
Several observations on the Madeira stranded beaked whales, such as the pattern of injury to the auditory system, are the same as those observed in the Bahamas strandings. Blood in and around the eyes, kidney lesions, pleural hemorrhages, and congestion in the lungs are particularly consistent with the pathologies from the whales stranded in the Bahamas, and are consistent with stress and pressure related trauma. The similarities in pathology and stranding patterns between these two events suggest that a similar pressure event may have precipitated or contributed to the strandings at both sites (Woods Hole Oceanographic Institution, 2005).
Even though no definitive causal link can be made between the stranding event and naval exercises, certain conditions may have existed in the exercise area that, in their aggregate, may have contributed to the marine mammal strandings (Freitas, 2004): Exercises were conducted in areas of at least 547 fathoms (1,000 m) depth near a shoreline where there is a rapid
The southeastern area within the Canary Islands is well known for aggregations of beaked whales due to its ocean depths of greater than 547 fathoms (1,000 m) within a few hundred meters of the coastline (Fernandez
Eight Cuvier's beaked whales, one Blainville's beaked whale, and one Gervais' beaked whale were necropsied, 6 of them within 12 hours of stranding (Fernandez
The association of NATO MFAS use close in space and time to the beaked whale strandings, and the similarity between this stranding event and previous beaked whale mass strandings coincident with sonar use, suggests that a similar scenario and causative mechanism of stranding may be shared between the events. Beaked whales stranded in this event demonstrated brain and auditory system injuries, hemorrhages, and congestion in multiple organs, similar to the pathological findings of the Bahamas and Madeira stranding events. In addition, the necropsy results of Canary Islands stranding event lead to the hypothesis that the presence of disseminated and widespread gas bubbles and fat emboli were indicative of nitrogen bubble formation, similar to what might be expected in decompression sickness (Jepson
On July 3 and 4, 2004, approximately 150 to 200 melon-headed whales occupied the shallow waters of the Hanalei Bay, Kauai, Hawaii for over 28 hrs. Attendees of a canoe blessing observed the animals entering the Bay in a single wave formation at 7 a.m. on July 3, 2004. The animals were observed moving back into the shore from the mouth of the Bay at 9 a.m. The usually pelagic animals milled in the shallow bay and were returned to deeper water with human assistance beginning at 9:30 a.m. on July 4, 2004, and were out of sight by 10:30 a.m.
Only one animal, a calf, was known to have died following this event. The animal was noted alive and alone in the Bay on the afternoon of July 4, 2004, and was found dead in the Bay the morning of July 5, 2004. A full necropsy, magnetic resonance imaging, and computerized tomography examination were performed on the calf to determine the manner and cause of death. The combination of imaging, necropsy and histological analyses found no evidence of infectious, internal traumatic, congenital, or toxic factors. Cause of death could not be definitively determined, but it is likely that maternal separation, poor nutritional condition, and dehydration contributed to the final demise of the animal. Although it is not known when the calf was separated from its mother, the animals' movement into the Bay and subsequent milling and re-grouping may have contributed to the separation or lack of nursing, especially if the maternal bond was weak or this was an inexperienced mother with her first calf.
Environmental factors, abiotic and biotic, were analyzed for any anomalous occurrences that would have contributed to the animals entering and remaining in Hanalei Bay. The Bay's bathymetry is similar to many other sites within the Hawaiian Island chain and dissimilar to sites that have been associated with mass strandings in other parts of the U.S. The weather conditions appeared to be normal for that time of year with no fronts or other significant features noted. There was no evidence of unusual distribution, occurrence of predator or prey species, or unusual harmful algal blooms, although Mobley
The Hanalei event was spatially and temporally correlated with RIMPAC. Official sonar training and tracking exercises in the Pacific Missile Range Facility (PMRF) warning area did not commence until approximately 8 a.m. on July 3 and were thus ruled out as a possible trigger for the initial movement into the Bay. However, six naval surface vessels transiting to the operational area on July 2 intermittently transmitted active sonar (for approximately nine hours total from 1:15 p.m. to 12:30 a.m.) as they approached from the south. The potential for these transmissions to have triggered the whales' movement into Hanalei Bay was investigated. Analyses with the information available indicated that animals to the south and east of Kaua'i could have detected active sonar transmissions on July 2, and reached Hanalei Bay on or before 7 a.m. on July 3. However, data limitations regarding the position of the whales prior to their arrival in the Bay, the magnitude of sonar exposure, behavioral responses of melon-headed whales to acoustic stimuli, and other possible relevant factors preclude a conclusive finding regarding the role of sonar in triggering this event. Propagation modeling suggests that transmissions from sonar use during the July 3 exercise in the
While causation of this stranding event may never be unequivocally determined, NMFS consider the active sonar transmissions of July 2-3, 2004, a plausible, if not likely, contributing factor in what may have been a confluence of events. This conclusion is based on the following: (1) The evidently anomalous nature of the stranding; (2) its close spatiotemporal correlation with wide-scale, sustained use of sonar systems previously associated with stranding of deep-diving marine mammals; (3) the directed movement of two groups of transmitting vessels toward the southeast and southwest coast of Kauai; (4) the results of acoustic propagation modeling and an analysis of possible animal transit times to the Bay; and (5) the absence of any other compelling causative explanation. The initiation and persistence of this event may have resulted from an interaction of biological and physical factors. The biological factors may have included the presence of an apparently uncommon, deep-diving cetacean species (and possibly an offshore, non-resident group), social interactions among the animals before or after they entered the Bay, and/or unknown predator or prey conditions. The physical factors may have included the presence of nearby deep water, multiple vessels transiting in a directed manner while transmitting active sonar over a sustained period, the presence of surface sound ducting conditions, and/or intermittent and random human interactions while the animals were in the Bay.
A separate event involving melon-headed whales and rough-toothed dolphins took place over the same period of time in the Northern Mariana Islands (Jefferson
The Spanish Cetacean Society reported an atypical mass stranding of four beaked whales that occurred January 26, 2006, on the southeast coast of Spain, near Mojacar (Gulf of Vera) in the Western Mediterranean Sea. According to the report, two of the whales were discovered the evening of January 26 and were found to be still alive. Two other whales were discovered during the day on January 27, but had already died. The first three animals were located near the town of Mojacar and the fourth animal was found dead, a few kilometers north of the first three animals. From January 25-26, 2006, Standing NATO Response Force Maritime Group Two (five of seven ships including one U.S. ship under NATO Operational Control) had conducted active sonar training against a Spanish submarine within 50 nmi (93 km) of the stranding site.
Veterinary pathologists necropsied the two male and two female Cuvier's beaked whales. According to the pathologists, the most likely primary cause of this type of beaked whale mass stranding event was anthropogenic acoustic activities, most probably anti-submarine MFAS used during the military naval exercises. However, no positive acoustic link was established as a direct cause of the stranding. Even though no causal link can be made between the stranding event and naval exercises, certain conditions may have existed in the exercise area that, in their aggregate, may have contributed to the marine mammal strandings (Freitas, 2004): Exercises were conducted in areas of at least 547 fathoms (1,000 m) depth near a shoreline where there is a rapid change in bathymetry on the order of 547 to 3,281 fathoms (1,000 to 6,000 m) occurring across a relatively short horizontal distance (Freitas, 2004); multiple ships (in this instance, five) were operating MFAS in the same area over extended periods of time (in this case, 20 hours) in close proximity; and exercises took place in an area surrounded by landmasses, or in an embayment. Exercises involving multiple ships employing MFAS near land may have produced sound directed towards a channel or embayment that may have cut off the lines of egress for the affected marine mammals (Freitas, 2004).
Although the confluence of Navy MFAS with the other contributory factors noted in the report was identified as the cause of the 2000 Bahamas stranding event, the specific mechanisms that led to that stranding (or the others) are not understood, and there is uncertainty regarding the ordering of effects that led to the stranding. It is unclear whether beaked whales were directly injured by sound (
Although causal relationships between beaked whale stranding events and active sonar remain unknown, several authors have hypothesized that stranding events involving these species in the Bahamas and Canary Islands may have been triggered when the whales changed their dive behavior in a startled response to exposure to active sonar or to further avoid exposure (Cox
Because many species of marine mammals make repetitive and prolonged dives to great depths, it has long been assumed that marine mammals have evolved physiological mechanisms to protect against the effects of rapid and repeated decompressions. Although several investigators have identified physiological adaptations that may protect marine mammals against nitrogen gas supersaturation (alveolar collapse and elective circulation; Kooyman
Zimmer and Tyack (2007) modeled nitrogen tension and bubble growth in several tissue compartments for several hypothetical dive profiles and concluded that repetitive shallow dives (defined as a dive where depth does not exceed the depth of alveolar collapse, approximately 72 m for Ziphius), perhaps as a consequence of an extended avoidance reaction to sonar sound, could pose a risk for decompression sickness and that this risk should increase with the duration of the response. Their models also suggested that unrealistically rapid rates of ascent from normal dive behaviors are unlikely to result in supersaturation to the extent that bubble formation would be expected. Tyack
If marine mammals respond to a Navy vessel that is transmitting active sonar in the same way that they might respond to a predator, their probability of flight responses could increase when they perceive that Navy vessels are approaching them directly, because a direct approach may convey detection and intent to capture (Burger and Gochfeld, 1981, 1990; Cooper, 1997, 1998). The probability of flight responses could also increase as received levels of active sonar increase (and the ship is, therefore, closer) and as ship speeds increase (that is, as approach speeds increase). For example, the probability of flight responses in Dall's sheep (
Despite the many theories involving bubble formation (both as a direct cause of injury (see Acoustically Mediated Bubble Growth Section) and an indirect cause of stranding (See Behaviorally Mediated Bubble Growth Section), Southall
Stranding events, specifically UMEs that occurred along Southern California or Hawaii (inclusive of the HSTT Study
Data were gathered from stranding networks that operate within and adjacent to the HSTT Study Area and reviewed in an attempt to better understand the frequency that marine mammal strandings occur and what major causes of strandings (both human-related and natural) exist in areas around the HSTT Study Area (NMFS, 2015a). From 2010 through 2014, there were 314 cetacean and phocid strandings reported in Hawaii, an annual average of 63 strandings per year. Twenty-seven species stranded in this region. The most common species reported include the Hawaiian monk seal, humpback whale, sperm whale, striped and spinner dolphin. Although many marine mammals likely strand due to natural or anthropogenic causes, the majority of reported type of occurrences in marine mammal strandings in the HSTT Study Area include fisheries interactions, entanglement, vessel strike and predation. Bradford and Lyman (2015) address overall threats from human activities and industries on stocks in Hawaii.
In 2004, a mass out-of-habitat aggregation of melon-headed whales occurred in Hanalei Bay (see discussion above under “Strandings Associated with Active Sonar”). It is speculated that sonar operated during a major training exercise may be related to the incident. Upon further investigation, sonar was only considered as a plausible, but not sole, contributing factor among many factors in the event. The Hanalei Bay incident does not share the characteristics observed with other mass strandings of whales coincident with sonar activity (
Records for strandings in San Diego County (covering the shoreline for the Southern California portion of the HSTT Study Area) indicate that there were 143 cetacean and 1,235 pinniped strandings between 2010 and 2014, an annual average of about 29 and 247 per year, respectively. A total of 16 different species have been reported as stranded within this time frame. The majority of species reported include long-beaked common dolphins and California sea lions, but there were also reports of pacific white-sided, bottlenose and Risso's dolphins, gray, humpback, and fin whales, harbor seals and Northern elephant seals (National Marine Fisheries Service, 2015b, 2016a). However, stranded marine mammals are reported along the entire western coast of the United States each year. Within the same timeframe, there were 714 cetacean and 11,132 pinniped strandings reported outside of the Study Area, an annual average of about 142 and 2,226 respectively. Species that strand along the entire west coast are similar to those that typically strand within the Study Area with additional reports of harbor porpoise, Dall's porpoise, Steller sea lions, and various fur seals. The most common reported type of occurrence in stranded marine mammals in this region include fishery interactions, illness, predation, and vessel strikes (NMFS, 2016a). It is important to note that the mass stranding of pinnipeds along the west coast considered part of a NMFS declared UME are still being evaluated. The likely cause of this event is the lack of available prey near rookeries due to warming ocean temperatures (NOAA, 2016a). Carretta
Vessel collisions with marine mammals, also referred to as vessel strikes or ship strikes, can result in death or serious injury of the animal. Wounds resulting from ship strike may include massive trauma, hemorrhaging, broken bones, or propeller lacerations (Knowlton and Kraus, 2001). 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. Superficial strikes may not kill or result in the death of the animal. Lethal interactions are typically associated with large whales, which are occasionally found draped across the bulbous bow of large commercial ships upon arrival in port. Although smaller cetaceans are more maneuverable in relation to large vessels than are large whales, they may also be susceptible to strike. 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 in order 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 or serious injury (Knowlton and Kraus, 2001; Laist
Jensen and Silber (2003) 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 58 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 kn. The majority (79 percent) of these strikes occurred at speeds of 13 kn or greater. The average speed that resulted in serious injury or death was 18.6 kn. 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 to 75 percent as vessel speed increased from 10 to 14 kn, and exceeded 90 percent at 17 kn. Higher
In a separate study, Vanderlaan and Taggart (2007) analyzed the probability of lethal mortality of large whales at a given speed, showing that the greatest rate of change in the probability of a lethal injury to a large whale as a function of vessel speed occurs between 8.6 and 15 kn. The chances of a lethal injury decline from approximately 80 percent at 15 kn to approximately 20 percent at 8.6 kn. At speeds below 11.8 kn, the chances of lethal injury drop below 50 percent, while the probability asymptotically increases toward 100 percent above 15 kn.
The Jensen and Silber (2003) 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 because of the required personnel training and lookouts (as described in the Proposed Mitigation Measures section), and they are required to report all ship strikes involving marine mammals. Overall, the percentage of Navy traffic relative to overall large shipping traffic are very small (on the order of two percent) and therefore represent a correspondingly smaller threat of potential ship strikes when compared to commercial shipping.
In the SOCAL portion of the HSTT Study Area, the Navy has struck a total of 16 marine mammals in the 20-year period from 1991 through 2010 for an average of one per year. Of the 16 Navy vessel strikes over the 20-year period in SOCAL, there were seven mortalities and nine injuries reported. The vessel struck species include: Two mortalities and eight injuries of unknown species, three mortalities of gray whales (one in 1993 and two in 1998), one mortality of a blue whale in 2004, and one morality and one injury of fin whales in 2009.
In the HRC portion of the HSTT Study Area, the Navy struck a total of five marine mammals in the 20-year period from 1991 through 2010, for an average of zero to one per year. Of the five Navy vessel strikes over the 20-year period in the HRC, all were reported as injuries. The vessel struck species include: one humpback whale in 1998, one unknown species and one humpback whale in 2003, one sperm whale in 2007, and an unknown species in 2008. No more than two whales were struck by Navy vessels in any given year in the HRC portion of the HSTT within the last 20 years. There was only one 12-month period in 20 years in the HRC when two whales were struck in a single year (2003).
Overall, there have been zero documented vessel strikes associated with training and testing in the SOCAL and HRC portions of the HSTT Study Area since 2010 and 2008, respectively.
Between 2007 and 2009, the Navy developed and distributed additional training, mitigation, and reporting tools to Navy operators to improve marine mammal protection and to ensure compliance with permit requirements. In 2009, the Navy implemented Marine Species Awareness Training designed to improve effectiveness of visual observation for marine resources including marine mammals. In subsequent years, the Navy issued refined policy guidance on ship strikes in order to collect the most accurate and detailed data possible in response to a possible incident (also see the Notification and Reporting Plan for this proposed rule). For over a decade, the Navy has implemented the Protective Measures Assessment Protocol software tool, which provides operators with notification of the required mitigation and a visual display of the planned training or testing activity location overlaid with relevant environmental data.
The Navy's proposed training and testing activities could potentially affect marine mammal habitat through the introduction of impacts to the prey species of marine mammals, acoustic habitat (sound in the water column), water quality, and important habitat for marine mammals. Each of these components was considered in the HSTT DEIS/OEIS and was determined by the Navy to have no effect on marine mammal habitat. Based on the information below and the supporting information included in the HSTT DEIS/OEIS, NMFS has determined that the proposed training and training activities would not have adverse or long-term impacts on marine mammal habitat.
Sound may affect marine mammals through impacts on the abundance, behavior, or distribution of prey species (
Fishes, like other vertebrates, have variety of different sensory systems to glean information from ocean around them (Astrup and Mohl, 1993; Astrup, 1999; Braun and Grande, 2008; Carroll
Hearing capabilities vary considerably between different fish species with data only available for just over 100 species out of the 34,000 marine and freshwater fish species (Eschmeyer and Fong 2016). In order to better understand acoustic impacts on fishes, fish hearing groups are defined by species that possess a similar continuum of anatomical features which result in varying degrees of hearing sensitivity (Popper and Hastings, 2009a). There are four hearing groups defined for all fish species (modified from Popper
In terms of behavioral responses, Juanes
The potential effects of air gun noise on fishes depends on the overlapping frequency range, distance from the sound source, water depth of exposure, and species-specific hearing sensitivity, anatomy, and physiology. Some studies have shown no or slight reaction to air gun sounds (
Occasional behavioral reactions to intermittent explosions and impulsive sound sources are unlikely to cause long-term consequences for individual fish or populations. Fish that experience hearing loss as a result of exposure to explosions and impulsive sound sources may have a reduced ability to detect relevant sounds such as predators, prey, or social vocalizations. However, PTS has not been known to occur in fishes and any hearing loss in fish may be as temporary as the timeframe required to repair or replace the sensory cells that were damaged or destroyed (Popper
Fish not killed or driven from a location by an explosion might change their behavior, feeding pattern, or distribution. Changes in behavior of fish have been observed as a result of sound produced by explosives, with effect intensified in areas of hard substrate (Wright, 1982). However, Navy explosive use avoids hard substrate to the best extent practical during underwater detonations, or deep-water surface detonations (distance from bottom). Stunning from pressure waves could also temporarily immobilize fish, making them more susceptible to predation. The abundances of various fish (and invertebrates) near the detonation point for explosives could be altered for a few hours before animals from surrounding areas repopulate the area. However, these populations would likely be replenished as waters near the detonation point are mixed with adjacent waters. Repeated exposure of individual fish to sounds from underwater explosions is not likely and are expected to be short-term and localized. Long-term consequences for fish populations would not be expected. Several studies have demonstrated that air gun sounds might affect the distribution and behavior of some fishes, potentially impacting foraging opportunities or increasing energetic costs (
In conclusion, for fishes exposed to Navy sonar, there would be limited sonar use spread out in time and space across large offshore areas such that only small areas are actually ensonified (10's of miles) compared to the total life history distribution of fish prey species. There would be no probability for mortality and physical injury from sonar, and for most species, no or little potential for hearing or behavioral effects, except to a few select fishes with hearing specializations (
Invertebrates appear to be able to detect sounds (Pumphrey, 1950; Frings and Frings, 1967) and are most sensitive to low-frequency sounds (Packard
Vessels and in-water devices do not normally collide with adult fish, most of which can detect and avoid them. Exposure of fishes to vessel strike stressors is limited to those fish groups that are large, slow-moving, and may occur near the surface, such as ocean sunfish, whale sharks, basking sharks, and manta rays. These species are distributed widely in offshore portions of the Study Area. Any isolated cases of a Navy vessel striking an individual could injure that individual, impacting the fitness of an individual fish. Vessel strikes would not pose a risk to most of the other marine fish groups, because many fish can detect and avoid vessel movements, making strikes rare and allowing the fish to return to their normal behavior after the ship or device passes. As a vessel approaches a fish, they could have a detectable behavioral or physiological response (
In addition to fish, prey sources such as marine invertebrates could potentially be impacted by sound stressors as a result of the proposed activities. However, most marine invertebrates' ability to sense sounds is very limited. In most cases, marine invertebrates would not respond to impulsive and non-impulsive sounds, although they may detect and briefly respond to nearby low-frequency sounds. These short-term responses would likely be inconsequential to invertebrate populations. Impacts to benthic communities from impulsive sound generated by active acoustic sound sources are not well documented. (
Vessels also have the potential to impact marine invertebrates by disturbing the water column or sediments, or directly striking organisms (Bishop, 2008). The propeller wash (water displaced by propellers used for propulsion) from vessel movement and water displaced from vessel hulls can potentially disturb marine invertebrates in the water column and is a likely cause of zooplankton mortality (Bickel
There is little information concerning potential impacts of noise on zooplankton populations. However, one recent study (McCauley
Overall, the combined impacts of sound exposure, explosions, vessel strikes, and military expended materials resulting from the proposed activities would not be expected to have measurable effects on populations of marine mammal prey species. Prey species exposed to sound might move away from the sound source, experience TTS, experience masking of biologically relevant sounds, or show no obvious direct effects. Mortality from decompression injuries is possible in close proximity to a sound, but only limited data on mortality in response to air gun noise exposure are available (Hawkins
Acoustic habitat is the soundscape which encompasses all of the sound present in a particular location and time, as a whole when considered from the perspective of the animals experiencing it. Animals produce sound for, or listen for sounds produced by, conspecifics (communication during feeding, mating, and other social activities), other animals (finding prey or avoiding predators), and the physical environment (finding suitable habitats, navigating). Together, sounds made by animals and the geophysical environment (
Soundscapes are also defined by, and acoustic habitat influenced by, the total contribution of anthropogenic sound. This may include incidental emissions from sources such as vessel traffic, may be intentionally introduced to the marine environment for data acquisition purposes (as in the use of air gun arrays), or for Navy training and testing purposes (as in the use of sonar and explosives and other acoustic sources). Anthropogenic noise varies widely in its frequency, content, duration, and loudness and these characteristics greatly influence the potential habitat-mediated effects to marine mammals (please also see the previous discussion on “Masking”), which may range from local effects for brief periods of time to chronic effects over large areas and for long durations. Depending on the extent of effects to habitat, animals may alter their communications signals (thereby potentially expending additional energy) or miss acoustic cues (either conspecific or adventitious). Problems arising from a failure to detect cues are more likely to occur when noise stimuli are chronic and overlap with biologically relevant cues used for communication, orientation, and predator/prey detection (Francis and Barber, 2013). For more detail on these concepts see,
The term “listening area” refers to the region of ocean over which sources of sound can be detected by an animal at the center of the space. Loss of communication space concerns the area over which a specific animal signal, used to communicate with conspecifics in biologically-important contexts (
Sound produced from training and testing activities in the HSTT Study Area is temporary and transitory. The sounds produced during training and testing activities can be widely dispersed or concentrated in small areas for varying periods. Any anthropogenic noise attributed to training and testing activities in the HSTT Study Area would be temporary and the affected area would be expected to immediately return to the original state when these activities cease.
The HSTT DEIS/OEIS analyzed the potential effects on water quality from military expended materials. Training and testing activities may introduce water quality constituents into the water column. Based on the analysis of the HSTT DEIS/OEIS, military expended materials (
Indirect effects of explosives and unexploded ordnance to marine mammals via sediment is possible in the immediate vicinity of the ordnance. Degradation products of Royal Demolition Explosive are not toxic to marine organisms at realistic exposure levels (Rosen and Lotufo, 2010). Relatively low solubility of most explosives and their degradation products means that concentrations of these contaminants in the marine environment are relatively low and readily diluted. Furthermore, while explosives and their degradation products were detectable in marine sediment approximately 6-12 in (0.15-0.3 m) away from degrading ordnance, the concentrations of these compounds were not statistically distinguishable from background beyond 3-6 ft (1-2 m) from the degrading ordnance. Taken together, it is possible that marine mammals could be exposed to degrading explosives, but it would be within a very small radius of the explosive (1-6 ft (0.3-2 m)).
Equipment used by the Navy within the HSTT Study Area, including ships and other marine vessels, aircraft, and other equipment, are also potential sources of by-products. All equipment is properly maintained in accordance with applicable Navy or legal requirements. All such operating equipment meets Federal water quality standards, where applicable.
This section indicates the number of takes that NMFS is proposing to authorize which is based on the amount of take that NMFS anticipates could or is likely to occur, depending on the type of take and the methods used to estimate it, as described in detail below. NMFS coordinated closely with the Navy in the development of their incidental take application, and with one exception, preliminarily agrees that the methods the Navy has put forth described herein to estimate take (including the model, thresholds, and density estimates), and the resulting numbers estimated for authorization, are appropriate and based on the best available science.
Takes are predominantly in the form of harassment, but a small number of mortalities are also estimated. For a 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 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).
Authorized takes would primarily be in the form of Level B harassment, as use of the acoustic and explosive sources (
Described in the most basic way, we estimate the amount and type of harassment by considering: (1) Acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed (in this case, as defined in the military readiness definition included above) or incur some degree of temporary or permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and, (4) and the number of days during which activities might occur. Below, we describe these components in more detail and present the proposed take estimate.
Using the best available science, and in coordination with the Navy, NMFS has established acoustic thresholds above which exposed marine mammals would reasonably be expected to experience a disruption in behavioral patterns to a point where they are abandoned or significantly altered, or to incur TTS (equated to Level B harassment) or PTS of some degree (equated to Level A harassment). Thresholds have also been developed to identify the pressure levels above which animals may incur different types of tissue damage from exposure to pressure waves from explosive detonation.
NMFS's Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (Technical Guidance, 2016) identifies dual criteria to assess auditory injury (Level A harassment) to five different
These thresholds (Tables 14-15) were developed by compiling and synthesizing the best available science and soliciting input multiple times from both the public and peer reviewers to inform the final product, and are provided in the table below. The references, analysis, and methodology used in the development of the thresholds are described in NMFS 2016 Technical Guidance, which may be accessed at:
Based on the best available science, the Navy (in coordination with NMFS) used the acoustic and pressure thresholds indicated in Table 15 to predict the onset of TTS, PTS, tissue damage, and mortality for explosives (impulsive) and other impulsive sound sources.
Impact pile driving produces impulsive noise; therefore, the criteria used to assess the onset of TTS and PTS are identical to those used for air guns, as well as explosives (see Table 15 above) (see Hearing Loss from air guns in Section 6.4.3.1, Methods for Analyzing Impacts from air guns in the Navy's rulemaking/LOA application). Refer to the
Vibratory pile removal (that will be used during the ELCAS) creates continuous non-impulsive noise at low source levels for a short duration. Therefore, the criteria used to assess the onset of TTS and PTS due to exposure to sonars (non-impulsive, see Table 14 above) are also used to assess auditory impacts to marine mammals from vibratory pile driving (see Hearing Loss from Sonar and Other Transducers in Section 6.4.2.1, Methods for Analyzing Impacts from Sonars and Other Transducers in the Navy's rulemaking/LOA application). Refer to the
Marine mammal responses (some of which are considered disturbances that rise to the level of a take) to sound are highly variable and context specific (affected by differences in acoustic conditions, differences between species and populations; differences in gender, age, reproductive status, or social behavior; or other prior experience of the individuals), which means that there is support for alternative approaches for estimating behavioral harassment. Although the statutory definition of Level B harassment for military readiness activities requires that the natural behavior patterns of a marine mammal be significantly altered or abandoned in order to qualify as a take, the current state of science for determining those thresholds is still evolving and indefinite. In its analysis of impacts associated with sonar acoustic sources (which was coordinated with NMFS), the Navy proposes, and NMFS supports, an updated conservative approach that likely overestimates the number of takes by Level B harassment due to behavioral disturbance and response. Many of the responses estimated using the Navy's quantitative analysis are most likely to be moderate severity (see Southall
Though significantly driven by received level, the onset of behavioral disturbance from anthropogenic noise exposure is also informed to varying degrees by other factors related to the source (
The existing NMFS Level B harassment thresholds were also applied to estimate behavioral effects from impact and vibratory pile driving (Table 16).
As noted, the Navy coordinated with NMFS to propose behavioral harassment thresholds specific to their military readiness activities utilizing active sonar. Behavioral response criteria are used to estimate the number of animals that may exhibit a behavioral response to sonar and other transducers. The way the criteria were derived is discussed in detail in the
In the Navy acoustic impact analyses during Phase II, the likelihood of behavioral effects to sonar and other transducers was based on a probabilistic function (termed a behavioral response function—BRF), that related the likelihood (
Developing the new behavioral criteria for Phase III involved multiple steps: All available behavioral response studies conducted both in the field and on captive animals were examined in order to better understand the breadth of behavioral responses of marine mammals to sonar and other transducers. Marine mammal species
The Navy used cutoff distances beyond which the potential of significant behavioral responses (and therefore Level B harassment) is considered to be unlikely (see Table 16 below). For animals within the cutoff distance, a behavioral response function based on a received SPL as presented in Section 3.1.0 of the Navy's rulemaking/LOA application was used to predict the probability of a potential significant behavioral response. For training and testing events that contain multiple platforms or tactical sonar sources that exceed 215 dB re 1 μPa @ 1 m, this cutoff distance is substantially increased (
Tables 18-22 show the range to received sound levels in 6-dB steps from 5 representative sonar bins and the percentage of animals that may be taken under each behavioral response function. Cells are shaded if the mean range value for the specified received level exceeds the distance cutoff range for a particular hearing group and therefore are not included in the estimated take. See Section 6.4.2.1.1 (Methods for Analyzing Impacts from Sonars and Other Transducers) of the Navy's application for further details on the derivation and use of the behavioral response functions, thresholds, and the cutoff distances, which were coordinated with NMFS. Table 18 illustrates the potentially significant behavioral response for LFAS.
Tables 19 through Table 21 illustrates the potentially significant behavioral response for MFAS.
Table 22 illustrates the potentially significant behavioral response for HFAS.
Phase III explosive criteria for behavioral thresholds for marine mammals is the hearing groups' TTS threshold minus 5 dB (see Table 23 below and Table 15 for the TTS thresholds for explosives) for events that contain multiple impulses from explosives underwater. This was the same approach as taken in Phase II for explosive analysis. See the
The Navy's Acoustic Effects Model calculates sound energy propagation from sonar and other transducers and explosives during naval activities and the sound received by animat dosimeters. Animat dosimeters are virtual representations of marine mammals distributed in the area around the modeled naval activity that each records its individual sound “dose.” The model bases the distribution of animats over the HSTT Study Area on the density values in the
The model accounts for environmental variability of sound propagation in both distance and depth when computing the received sound level received by the animats. The model conducts a statistical analysis based on multiple model runs to compute the estimated effects on animals. The number of animats that exceed the thresholds for effects is tallied to provide an estimate of the number of marine mammals that could be affected.
Assumptions in the Navy model intentionally err on the side of overestimation when there are unknowns. Naval activities are modeled as though they would occur regardless of proximity to marine mammals meaning that no mitigation is considered (
The model estimates the impacts caused by individual training and testing exercises. During any individual modeled event, impacts to individual animats are considered over 24-hour periods. The animats do not represent actual animals, but rather they represent a distribution of animals based on density and abundance data, which allows for a statistical analysis of the number of instances that marine mammals may be exposed to sound levels resulting in an effect. Therefore, the model estimates the number of instances in which an effect threshold was exceeded over the course of a year, but does not estimate the number of individual marine mammals that may be impacted over a year (
The Navy's quantitative analysis estimates the sound and energy received by marine mammals distributed in the area around planned Navy activities involving air guns. The analysis for air guns was similar to explosives as an impulsive source, except explosive impulsive sources were placed into bins based on net explosive weights, while each non-explosive impulsive source (air guns) was assigned its own unique bin. The impulsive model used in the Navy's analysis used metrics to describe the sound received by the animats and the SPL
Underwater noise effects from pile driving and vibratory pile extraction were modeled using actual measures of impact pile driving and vibratory removal during construction of an Elevated Causeway System (Illingworth and Rodkin, 2015, 2016). A conservative estimate of spreading loss of sound in shallow coastal waters (
The following section provides range to effects for sonar and other active acoustic sources as well as explosives to specific acoustic thresholds determined using the Navy Acoustic Effects Model. Marine mammals exposed within these ranges for the shown duration are predicted to experience the associated effect. Range to effects is important information not only for predicting acoustic impacts, but also in verifying the accuracy of model results against real-world situations and determining adequate mitigation ranges to avoid higher level effects, especially physiological effects to marine mammals.
The range to received sound levels in 6-dB steps from 5 representative sonar bins and the percentage of the total number of animals that may exhibit a significant behavioral response (and therefore Level B harassment) under each behavioral response function are shown in Table 18 through Table 22 above, respectively. See Section 6.4.2.1.1 (Impact Ranges for Sonar and Other Transducers) of the Navy's rulemaking/LOA application for additional details on the derivation and use of the behavioral response functions, thresholds, and the cutoff distances.
The ranges to the PTS for five representative sonar systems for an
The tables below illustrate the range to TTS for 1, 30, 60, and 120 seconds from 5 representative sonar systems (see Table 25 through Table 29).
The following section provides the range (distance) over which specific physiological or behavioral effects are expected to occur based on the explosive criteria (see Chapter 6.5.2.1.1 of the Navy's rulemaking/LOA application and the
Table 30 shows the minimum, average, and maximum ranges to onset of auditory and behavioral effects for high-frequency cetaceans based on the developed thresholds.
Table 31 shows the minimum, average, and maximum ranges to onset of auditory and behavioral effects for mid-frequency cetaceans based on the developed thresholds.
Table 32 shows the minimum, average, and maximum ranges to onset of auditory and behavioral effects for low-frequency cetaceans based on the developed thresholds.
Table 33 shows the minimum, average, and maximum ranges to onset of auditory and behavioral effects for phocids based on the developed thresholds.
Table 34 shows the minimum, average, and maximum ranges to onset of auditory and behavioral effects for ottariids based on the developed thresholds.
Table 35 which show the minimum, average, and maximum ranges due to varying propagation conditions to non-auditory injury as a function of animal mass and explosive bin (
Ranges to mortality, based on animal mass, are show in Table 36 below.
Table 37 and Table 38 present the approximate ranges in meters to PTS, TTS, and potential behavioral reactions for air guns for 1 and 10 pulses, respectively. Ranges are specific to the HSTT Study Area and also to each marine mammal hearing group, dependent upon their criteria and the specific locations where animals from the hearing groups and the air gun activities could overlap. Small air guns (12-60 in
Table 39 and Table 40 present the approximate ranges in meters to PTS, TTS, and potential behavioral reactions for impact pile driving and vibratory pile removal, respectively. Non-auditory injury is not predicted for pile driving activities.
There have been two recorded Navy vessel strikes of marine mammals (two fin whales off San Diego, CA in 2009) in the HSTT Study Area from 2009 through 2017 (nine years), the period in which Navy began implementing effective mitigation measures to reduce the likelihood of vessel strikes. From unpublished NMFS data, the most commonly struck whales in Hawaii are humpback whales, and the most commonly struck whales in California are gray whales, fin whales, and humpback whales. The majority of these strikes are from non-Navy commercial shipping. For both areas (Hawaii and California), the higher strike rates to these species is largely attributed to
A quantitative analysis of impacts on a species requires data on their abundance and distribution that may be affected by anthropogenic activities in the potentially impacted area. The most appropriate metric for this type of analysis is density, which is the number of animals present per unit area. Marine species density estimation requires a significant amount of effort to both collect and analyze data to produce a reasonable estimate. Unlike surveys for terrestrial wildlife, many marine species spend much of their time submerged, and are not easily observed. In order to collect enough sighting data to make reasonable density estimates, multiple observations are required, often in areas that are not easily accessible (
For most cetacean species, abundance within U.S. waters is estimated using line-transect surveys or mark-recapture studies (
To characterize the marine species density for large areas such as the Study Area, the Navy compiled data from several sources. The Navy developed a protocol to select the best available data sources based on species, area, and time (season). The resulting Geographic Information System database called the Navy Marine Species Density Database includes seasonal density values for every marine mammal species present within the HSTT Study Area. This database is described in the technical report titled
A variety of density data and density models are needed in order to develop a density database that encompasses the entirety of the HSTT Study Area. Because this data is collected using different methods with varying amounts of accuracy and uncertainty, the Navy has developed a model hierarchy to ensure the most accurate data is used when available. The Density Technical Report describes these models in detail and provides detailed explanations of the models applied to each species density estimate. The below list describes models in order of preference.
1. Spatial density models are preferred and used when available because they provide an estimate with the least amount of uncertainty by deriving estimates for divided segments of the sampling area. These models (see Becker
2. Stratified designed-based density estimates use line-transect survey data with the sampling area divided (stratified) into sub-regions, and a density is predicted for each sub-region (see Barlow, 2016; Becker
3. Design-based density estimations use line-transect survey data from land and aerial surveys designed to cover a specific geographic area (see Carretta
Although relative environmental suitability (RES) models provide estimates for areas of the oceans that have not been surveyed using information on species occurrence and inferred habitat associations and have been used in past density databases, these models were not used in the current quantitative analysis. In the HSTT analysis, due to the availability of other density methods along the hierarchy the use of RES model was not necessary.
When interpreting the results of the quantitative analysis, as described in the Density Technical Report, “it is important to consider that even the best estimate of marine species density is really a model representation of the values of concentration where these animals might occur. Each model is limited to the variables and assumptions considered by the original data source provider. No mathematical model representation of any biological population is perfect, and with regards to marine mammal biodiversity, any single model method will not completely explain the actual distribution and abundance of marine mammal species. It is expected that there would be anomalies in the results that need to be evaluated, with independent information for each case, to support if we might accept or reject a model or portions of the model (U.S. Department of the Navy, 2017a).”
The Navy's estimate of abundance (based on the density estimates used) in the HSTT Study Area may differ from population abundances estimated in the NMFS's SARS for a variety of reasons.
These factors and others described in the Density Technical Report should be considered when examining the estimated impact numbers in comparison to current population abundance information for any given species or stock. For a detailed description of the density and assumptions made for each species, see the Density Technical Report.
NMFS coordinated with the Navy in the development of its take estimates and concurs that the Navy's proposed approach for density appropriately utilizes the best available science. Later, in the Negligible Impact Determination Section, we assess how the estimated take numbers compare to stock abundance in order to better understand the potential number of individuals impacted—and the rationale for which abundance estimate is used is included there.
The HSTT DEIS/OEIS considered all training and testing activities proposed to occur in the HSTT Study Area that have the potential to result in the MMPA defined take of marine mammals. The Navy determined that the following three stressors could result in the incidental taking of marine mammals. NMFS has reviewed the Navy's data and analysis and determined that it is complete and accurate and agrees that the following stressors have the potential to result in takes of marine mammals from the Specified Activities.
• Acoustics (sonar and other transducers; air guns; pile driving/extraction).
• Explosives (explosive shock wave and sound (assumed to encompass the risk due to fragmentation).
• Physical Disturbance and Strike (vessel strike).
Acoustic and explosive sources have the potential to result in incidental takes of marine mammals by harassment, injury, or mortality. Vessel strikes have the potential to result in incidental take from injury, serious injury and/or mortality.
The quantitative analysis process used for the HSTT DEIS/OEIS and the Navy's request in the rulemaking/LOA application to estimate potential exposures to marine mammals resulting from acoustic and explosive stressors is detailed in the technical report titled
During the conduct of training and testing activities, there is typically at least one, if not numerous, support personnel involved in the activity (
The Navy used the equations in the below sections to calculate the reduction in model-estimated mortality impacts due to implementing mitigation.
To quantify the number of marine mammals predicted to be sighted by Lookouts during implementation of mitigation in the range to injury (PTS) for sonar and other transducers, the species sightability is multiplied by the mitigation effectiveness scores and number of model-estimated PTS impacts, as shown in the equation below:
To quantify the number of marine mammals predicted to be sighted by Lookouts during implementation of mitigation in the range to mortality during events using explosives, the species sightability is multiplied by the mitigation effectiveness scores and number of model-estimated mortality impacts, as shown in equation 1 above. The marine mammals and sea turtles predicted to be sighted by Lookouts during implementation of mitigation in the range to mortality, as calculated by the above equation 2, are predicted to avoid exposure in these ranges. The Navy corrects the category of predicted impact for the number of animals sighted within the mitigation zone, but does not modify the total number of animals predicted to experience impacts from the scenario. For example, the number of animals sighted (
NMFS coordinated with the Navy in the development of this quantitative method to address the effects of mitigation on acoustic exposures and explosive takes, and NMFS concurs with the Navy that it is appropriate to incorporate into the take estimates based on the best available science. For additional information on the quantitative analysis process and mitigation measures, refer to the technical report titled
Based on the methods outlined in the previous sections and the Navy's model and the quantitative assessment of mitigation, the Navy summarizes the take request for acoustic and explosive sources for training and testing activities both annually (based on the maximum number of activities per 12-month period) and over a 5-year period. NMFS has reviewed the Navy's data and analysis and preliminary determined that it is complete and accurate and that the takes by harassment proposed for authorization are reasonably expected to occur and that the takes by mortality could occur as in the case of vessel strikes. Five-year total impacts may be less than the sum total of each year because although the annual estimates are based on the maximum estimated takes, five-year estimates are based on the sum of two maximum years and three nominal years.
Table 41 summarizes the Navy's take request and the amount and type of take that is reasonably likely to occur (Level A and Level B harassment) by species associated with all training activities. Note that Level B harassment take includes both behavioral disruption and TTS. Figures 6-12 through 6-50 in Section 6 of the Navy's rulemaking/LOA application illustrate the comparative amounts of TTS and behavioral disruption (at the level of a take) for each species, noting that if a “taken” animat was exposed to both TTS and behavioral disruption in the model, it was recorded as a TTS.
Table 42 summarizes the Navy's take request and the amount and type of take that is reasonably likely to occur (Level A and Level B harassment) by species associated with all testing activities. Note that Level B harassment take includes both behavioral disruption and TTS. Figures 6-12 through 6-50 in Section 6 of the Navy's rulemaking/LOA application illustrate the comparative amounts of TTS and behavioral disruption (at the level of a take) for each species, noting that if a “taken” animat was exposed to both TTS and behavioral disruption in the model, it was recorded as a TTS.
A detailed analysis for vessel strike is contained in Chapters 5 and 6 the Navy's rulemaking/LOA application. Vessel strike to marine mammals is not associated with any specific training or testing activity but rather is a limited, sporadic, and incidental result of Navy vessel movement within the HSTT Study Area. To support the prediction of strikes that could occur in the five years covered by the rule, the Navy calculated probabilities derived from a Poisson distribution using ship strike data between 2009-2016 in the HSTT Study Area, as well as historical at-sea days in HSTT from 2009-2016 and estimated potential at-sea days for the period from 2019 to 2023 to determine the probabilities of a specific number of strikes (n=0, 1, 2, etc.) over the period from 2019 to 2023. The Navy struck two whales in 2009 (both fin whales) in the HSTT Study Area, and there have been no strikes since that time from activities in the HSTT study area that would be covered by these regulations. The Navy used those two fin whale strikes in their calculations and evaluated data beginning in 2009 as that was the start of the Navy's Marine Species Awareness Training and adoption of additional mitigation measures to address ship strike. However, there have been no incidents of vessel strikes between June 2009 and April 2018 from HSTT Study Area activities. Based on the resulting probabilities presented in the Navy's analysis, there is a 10 percent chance of three strikes over the period from 2019 to 2023. Therefore, the Navy estimates, and NMFS agrees, that there is some probability that it could strike, and take by serious injury or mortality, up to three large whales incidental to training and testing activities within the HSTT Study Area over the course of the five years.
The Navy then refined its take request based on the species/stocks most likely to be present in the HSTT Study Area based on documented abundance and where overlap is between a species' common occurrence and core Navy training and testing areas within the HSTT Study Area. To determine which species may be struck, a weight of evidence approach was used to qualitatively rank range complex specific species using historic and current stranding data from NMFS, relative abundance as derived by NMFS for the HSTT Phase II Biological Opinion, and the Navy funded monitoring within each range complex. Results of this approach are presented in Table 5-4 of the Navy's rulemaking/LOA application.
The Navy anticipates, and NMFS preliminarily concurs, based on the Navy's ship strike analysis presented in the Navy's rulemaking/LOA application, that three vessel strikes could occur over the course of five years, and that no more than two would involve (and therefore the Navy is requesting no more than two lethal takes from) the following species and stocks:
• Gray whale (Eastern North Pacific stock);
• Fin whale (California, Oregon, Washington stock);
• Humpback whale (California, Oregon, California stock or Mexico DPS);
• Humpback whale (Central Pacific stock or Hawaii DPS); and
• Sperm whale (Hawaiian stock).
Of the possibility for three vessel strikes over the five years, no more than one would involve the species below; therefore, the Navy is requesting no more than one lethal take from) the following species and stocks:
• Blue whale (Eastern North Pacific stock);
• Bryde's whale (Eastern Tropical Pacific stock);
• Bryde's whale (Hawaiian stock);
• Humpback whale (California, Oregon, California stock or Central America DPS);
• Minke whale (California, Oregon, Washington stock);
• Minke whale (Hawaiian stock);
• Sperm whale (California, Oregon, Washington stock);
• Sei whale (Hawaiian stock); and
• Sei whale (Eastern North Pacific stock).
Vessel strikes to the stocks below are very unlikely to occur due to their relatively low occurrence in the Study Area, particularly in core HSTT training and testing subareas, and therefore the Navy is not requesting lethal take authorization for the following species and stocks:
• Blue whale (Central North Pacific stock);
• Fin whale (Hawaiian stock); and
• Gray whale (Western North Pacific stock).
The Navy's model and quantitative analysis process used for the HSTT DEIS/OEIS and in the Navy's rulemaking/LOA application to estimate potential exposures of marine mammals to explosive stressors is detailed in the technical report titled
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 a determination of “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's and U.S. Fish and Wildlife Service's implementing regulations for section 101(a)(5) both 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 incidental take 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.” (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 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” 50 CFR 216.102(b), which are typically identified as mitigation measures.
The negligible impact and least practicable adverse impact standards in the MMPA both call for evaluation at the level of the “species or stock.” The MMPA does not define the term “species.” However, Merriam-Webster Dictionary defines “species” to include “related organisms or
This interpretation is consistent with Congress's statutory findings for enacting the MMPA, nearly all of which are most applicable at the species or stock (
Recognizing this common focus of the least practicable adverse impact and negligible impact provisions on the “species or stock” does not mean we conflate the two standards; despite some common statutory language, we recognize the two provisions are different and have different functions. First, a negligible impact finding is required before NMFS can issue an incidental take authorization. Although it is acceptable to use the mitigation measures to reach a negligible impact finding (see 50 CFR 216.104(c)), no amount of mitigation can enable NMFS to issue an incidental take authorization for an activity that still would not meet the negligible impact standard. Moreover, even where NMFS can reach a negligible impact finding—which we emphasize does allow for the possibility of some “negligible” population-level impact—the agency must still prescribe measures that will affect the least practicable amount of adverse impact upon the affected species or stock.
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 specifically 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 reiterate that the least practicable adverse impact standard also requires consideration of measures for marine mammal habitat, with particular attention to rookeries, mating grounds, and other areas of similar significance, and for subsistence impacts; whereas the negligible impact standard is concerned solely with conclusions about the impact of an activity on annual rates of recruitment and survival.
In
We have carefully reviewed and considered the Ninth Circuit's opinion in
Given the
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 potential measure(s) is expected to reduce adverse impacts to marine mammal species or stocks, their habitat, and their availability for subsistence uses (where relevant). This analysis considers such things as 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; and
(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, specifically considers 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's analysis focuses 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 complete information on impacts to species or stocks from a specified activity is not available for every activity type, and additional information would help NMFS and the Navy better understand how specific disturbance events affect the fitness of individuals of certain species, there have been significant 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 typically be predicted 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 effects to species or stocks. We also acknowledge that there is always the potential that new information, or a new recommendation that we had not previously considered, becomes available and necessitates reevaluation of mitigation measures (which may be addressed through adaptive management) to see if further reductions of population impacts are possible and practicable.
In the evaluation of specific measures, the details of the specified activity will necessarily inform each of the two primary factors discussed above (expected reduction of impacts and practicability), and are carefully considered to determine the types of mitigation that are appropriate under the least practicable adverse impact standard. Analysis of how a potential mitigation measure may reduce adverse impacts on a marine mammal stock or species, consideration of personnel safety, practicality of implementation, and consideration of the impact on effectiveness of military readiness activities are not issues that can be meaningfully evaluated through a yes/no lens. The manner in which, and the degree to which, implementation of a measure is expected to reduce impacts, as well as its practicability in terms of these considerations, can vary widely. For example, a time/area restriction could be of very high value for decreasing population-level impacts (
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 specific activity and the species or stocks affected, measures with the following types of effects have greater value in reducing 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 are expected in the absence of mitigation in order to assess the added value of any potential measures. Finally, because the least practicable adverse impact standard gives NMFS discretion to weigh a variety of factors when determining what should be included as appropriate mitigation measures and because the focus is on reducing impacts at the species or stock level, it does not compel mitigation for every kind of take, or every individual taken, even when practicable for implementation by the applicant.
The status of the species or stock is also relevant in evaluating the appropriateness of potential 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 a UME or has other known vulnerabilities, such as recovering from an oil spill.
Habitat mitigation, particularly as it relates to rookeries, mating grounds, and areas of similar significance, is also relevant to achieving the standard and can include measures such as reducing impacts of the activity on known prey utilized in the activity area or reducing impacts on physical habitat. As with species- or stock-related mitigation, the emphasis given to a measure's ability to reduce impacts on a species or stock's habitat considers the degree, likelihood, and context of the anticipated reduction of impacts to habitat. Because habitat value is informed by marine mammal presence and use, in some cases there may be overlap in measures for the species or stock and for use of habitat.
We consider available information indicating the likelihood of any measure to accomplish its objective. If evidence shows that a measure has not typically been effective nor successful, then either that measure should be modified or the potential value of the measure to reduce effects should be lowered.
2.
NMFS reviewed the Specified Activities and the proposed mitigation measures as described in the Navy's rulemaking/LOA application and the HSTT DEIS/OEIS to determine if they would result in the least practicable adverse effect on marine mammals. NMFS worked with the Navy in the development of the Navy's initially proposed measures, which are informed by years of implementation and monitoring. A complete discussion of the evaluation process used to develop, assess, and select mitigation measures, which was informed by input from NMFS, can be found in Chapter 5 (Mitigation) and Appendix K (Geographic Mitigation Assessment) of the HSTT DEIS/OEIS and is summarized below. We agree that the process described in Chapter 5 and Appendix K of the HSTT DEIS/OEIS is an accurate and appropriate process for evaluating whether the mitigation measures proposed in this rule meet the least practicable adverse impact standard for the testing and training activities in this proposed rule. The Navy proposes to implement these mitigation measures to avoid potential impacts from acoustic, explosive, and physical disturbance and strike stressors.
In summary (and described in more detail below), the Navy proposes procedural mitigation measures that we find will reduce the probability and/or severity of impacts expected to result from acute exposure to acoustic sources or explosives, ship strike, and impacts to marine mammal habitat. Specifically, the Navy would use a combination of delayed starts, powerdowns, and shutdowns to minimize or avoid serious injury or mortality, minimize the likelihood or severity of PTS or other injury, and reduce instances of TTS or more severe behavioral disruption caused by acoustic sources or explosives. The Navy also proposes to implement multiple time/area restrictions (several of which have been added since the Phase II rule) that would reduce take of marine mammals in areas or at times where they are known to engage in important behaviors, such as feeding or calving, where the disruption of those behaviors would have a higher probability of resulting in impacts on reproduction or survival of individuals that could lead to population-level impacts. The Navy assessed the practicability of the measures it proposed in the context of personnel safety, practicality of implementation, and their impacts on the Navy's ability to meet their Title 10 requirements and found that the measures were supportable. As summarized in this paragraph and described in more detail below, NMFS has evaluated the measures the Navy has proposed in the manner described earlier in this section (
The Navy also evaluated numerous measures in the Navy's HSTT DEIS/OEIS that are not included in the Navy's rulemaking/LOA application for the Specified Activities, and NMFS preliminarily concurs with Navy's analysis that their inclusion was not appropriate under the least practicable adverse impact standard based on our assessment. The Navy considers these additional potential mitigation measures in two groups. Chapter 5 of the HSTT DEIS/OEIS, in the “Measures Considered but Eliminated” section, includes an analysis of an array of different types of mitigation that have been recommended over the years by NGOs or the public, through scoping or public comment on environmental compliance documents. Appendix K of the HSTT DEIS/OEIS includes an in-depth analysis of time/area restrictions that have been recommended over time or previously implemented as a result of litigation. As described in Chapter 5 of the DEIS/OEIS, commenters sometimes recommend that the Navy reduce their overall amount of training, reduce explosive use, modify their sound sources, completely replace live training with computer simulation, or include time of day restrictions. All of these proposed measures could potentially reduce the number of marine mammals taken, via direct reduction of the activities or amount of sound energy put in the water. However, as the Navy has described in Chapter 5 of the HSTT DEIS/OEIS, they need to train and test in the conditions in which they fight—and these types of modifications fundamentally change the activity in a manner that would not support the purpose and need for the training and testing (
Second in Chapter 5 of the DEIS/OEIS, the Navy evaluated additional potential procedural mitigation measures, including increased mitigation zones, ramp-up measures, additional passive acoustic and visual monitoring, and decreased vessel speeds. Some of these measures have the potential to incrementally reduce take to some degree in certain circumstances, though the degree to which this would occur is typically low or uncertain. However, as described in the Navy's analysis, the impracticability of implementation outweighed the potential reduction of impacts to marine mammal species or stocks (see Chapter 5 of HSTT DEIS/OEIS). NMFS reviewed the Navy's evaluation and concurred with this assessment that this additional mitigation was not warranted.
Appendix K describes a comprehensive method for analyzing potential geographic mitigation that includes consideration of both a biological assessment of how the potential time/area limitation would benefit the species or stock and its habitat (
Navy has proposed several time/area mitigations that were not included in the Phase II HSTT regulations. For the areas that are not included in the proposed regulations, though, the Navy found that on balance, the mitigation was not warranted because the anticipated reduction of adverse impacts on marine mammal species or stock and their habitat was not sufficient to offset the impracticability of implementation (in some cases potential benefits to marine mammals were limited to non-existent, in others the consequences on mission effectiveness were too great). NMFS has reviewed the Navy's analysis (Chapter 5 and Appendix K referenced above), which considers the same factors that NMFS would consider to satisfy the least practical adverse impact standard, and has preliminarily concurred with the conclusions, and is not proposing to include any of the measures that the Navy ruled out in the proposed regulations. Below are the mitigation measures that NMFS determined will ensure the least practicable adverse impact on all affected species and stocks and their habitat, including the specific considerations for military readiness activities. The following sections summarize the mitigation measures that will be implemented in association with the training and testing activities analyzed in this document. The mitigation measures are organized into two categories: Procedural mitigation and mitigation areas.
Procedural mitigation is mitigation that the Navy will implement whenever and wherever an applicable training or testing activity takes place within the HSTT Study Area. The Navy customizes procedural mitigation for each applicable activity category or stressor. Procedural mitigation generally involves: (1) The use of one or more trained Lookouts to diligently observe for specific biological resources (including marine mammals) within a mitigation zone, (2) requirements for Lookouts to immediately communicate sightings of specific biological resources to the appropriate watch station for information dissemination, and (3) requirements for the watch station to implement mitigation (
Mitigation measures for acoustic stressors are provided in Tables 44 through 47.
Procedural mitigation for active sonar is described in Table 44 below.
Procedural mitigation for air guns is described in Table 45 below.
Procedural mitigation for pile driving is described in Table 46 below.
Procedural mitigation for weapons firing noise is described in Table 47 below.
Mitigation measures for explosive stressors are provided in Tables 48 through 52.
Procedural mitigation for explosive sonobuoys is described in Table 48 below.
Procedural mitigation for explosive torpedoes is described in Table 49 below.
Procedural mitigation for medium- and large-caliber projectiles is described in Table 50 below.
Procedural mitigation for explosive missiles and rockets is described in Table 51 below.
Procedural mitigation for explosive bombs is described in Table 52 below.
Procedural mitigation for sinking exercises is described in Table 53 below.
Procedural mitigation for explosive mine countermeasure and neutralization activities is described in Table 54 below.
Procedural mitigation for explosive mine neutralization activities involving Navy divers is described in Table 55 below.
Procedural mitigation for underwater demolition multiple charge—mat weave and obstacle Loading is described in Table 56 below.
Procedural mitigation for maritime security operations—anti-swimmer grenades is described in Table 57 below.
Mitigation measures for physical disturbance and strike stressors are provided in Table 58 through Table 62.
Procedural mitigation for vessel movement is described in Table 58 below.
Procedural mitigation for towed in-water devices is described in Table 59 below.
Procedural mitigation for small-, medium-, and large-caliber non-explosive practice munitions is described in Table 60 below.
Procedural mitigation for non-explosive missiles and rockets is described in Table 61 below.
Procedural mitigation for non-explosive bombs and mine shapes is described in Table 62 below.
In addition to procedural mitigation, the Navy will implement mitigation measures within mitigation areas to avoid or minimize potential impacts on marine mammals (see the revised Figures provided in the Navy's addendum to the application). A full technical analysis (for which the methods were summarized above) of the mitigation areas that the Navy considered for marine mammals is provided in Appendix K (Geographic Mitigation Assessment) of the HSTT DEIS/OEIS. The Navy has taken into account public comments received from the HSTT DEIS/OEIS, best available science, and the practicability of implementing additional mitigations and has enhanced their mitigation areas and mitigation measures to further reduce impacts to marine mammals, and therefore, the Navy revised their mitigation areas since their application. These revisions are discussed below and can be found as an addendum to the Navy's application at
Information on the mitigation measures that the Navy will implement within mitigation areas is provided in Tables 63 and 64. The mitigation applies year-round unless specified otherwise in the tables.
Mitigation areas for the HRC are described in Table 63 below. The location of each mitigation area is in the Navy's addendum to the application on Mitigation Areas.
Mitigation areas for the SOCAL portion of the Study Area are described in Table 64 below. The location of each mitigation area is shown in the Navy's addendum to the application on Mitigation Areas.
NMFS conducted an independent analysis of the mitigation areas that the Navy proposed, which are described below. NMFS concurs with the Navy's analysis, which indicates that the measures in these mitigation areas are both practicable (which is the Navy's purview to determine) and will reduce the likelihood or severity of adverse impacts to marine mammal species or stocks or their habitat in the manner described in the Navy's analysis. Specifically, the mitigation areas will provide the following benefits to the affected stocks:
Potential benefits to humpback whales are noted in the section above. For beaked whales, which have been shown to be more sensitive to loud sounds, a reduction of impacts in general where the stock is known to live or concentrate is expected to reduce the likelihood that more severe responses that could affect individual fitness would occur. For small resident populations, one goal is to ensure that the entirety of any small population is not being extensively impacted, in order to reduce the probability that repeated behavioral exposures to small numbers of individuals will result in energetic impacts, or other impacts with the potential to reduce survival or reproductive success on individuals that will more readily accrue to population level impacts in smaller stocks.
The Navy's proposed mitigation measures are summarized in Tables 65 and 66.
A summary of procedural mitigation is described in Table 65 below.
A summary of mitigation areas for marine mammals is described in Table 66 below.
NMFS has carefully evaluated the Navy's proposed mitigation measures—many of which were developed with NMFS's input during the previous phases of Navy training and testing authorizations—and considered a broad range of other measures (
Based on our evaluation of the Navy's proposed measures, as well as other measures considered by the Navy and NMFS, NMFS has preliminarily determined that the Navy's proposed mitigation measures 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. Additionally, the adaptive management component helps further ensure that mitigation is regularly assessed and opportunities are available to improve the mitigation, based on the factors above, through modification as appropriate. The proposed rule comment period provides the public an opportunity to submit recommendations, views, and/or concerns regarding the proposed mitigation measures. While NMFS has preliminarily determined that the Navy's proposed mitigation measures would effect the least practicable adverse impact on the affected species or stocks and their habitat, NMFS will consider all public comments to help inform our final decision. Consequently, the proposed mitigation measures may be refined, modified, removed, or added to prior to the issuance of any final rule based on public comments received, and where appropriate, further analysis of any additional mitigation measures.
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.
Although the Navy has been conducting research and monitoring in the HSTT Study Area for over 20 years, they developed a formal marine species monitoring program in support of the MMPA and ESA authorizations for the Hawaii and Southern California range complexes in 2009. This robust program has resulted in hundreds of technical reports and publications on marine mammals that have informed Navy and NMFS analysis in environmental planning documents, Rules and Biological Opinions. The reports are made available to the public on the Navy's marine species monitoring website (
The Navy would continue collecting monitoring data to inform our understanding of: The occurrence of marine mammals in the action area; the likely exposure of marine mammals to stressors of concern in the area; the response of marine mammals to exposures to stressors; the consequences of a particular marine mammal response to their individual fitness and, ultimately, populations; and, the effectiveness of implemented mitigation measures. Taken together, mitigation and monitoring comprise the Navy's integrated approach for reducing environmental impacts from the specified activities. The Navy's overall monitoring approach will seek to leverage and build on existing research efforts whenever possible.
Consistent with the cooperating agency agreement between the Navy and NMFS, monitoring measures presented here, as well as the mitigation measures described above, focus on the protection and management of potentially affected marine mammals. A well-designed monitoring program can provide important feedback for validating assumptions made in analyses and allow for adaptive management of marine resources. Monitoring is required under the MMPA, and details of the monitoring program for the specified activities have been developed through coordination between NMFS and the Navy through the regulatory process for previous Navy at-sea training and testing actions. Input received during the public comment period and discussions with other agencies or NMFS offices during the rulemaking process could result in changes to the monitoring as described in this document.
The Navy's ICMP is intended to coordinate marine species 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. This process includes conducting an annual adaptive management review meeting, at which the Navy and NMFS jointly consider the prior-year goals, monitoring results, and related scientific advances to determine if monitoring plan modifications are warranted to more effectively address program goals. Although the ICMP does not specify actual monitoring field work or individual projects, it does establish a matrix of goals and objectives that have been developed in coordination with NMFS. As the ICMP is implemented through the Strategic Planning Process, detailed and specific studies will be developed which support the Navy's and NMFS 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 understanding of the likely occurrence of marine mammals and/or ESA-listed marine species in the vicinity of the action (
• An increase in 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 understanding of how individual marine mammals or ESA-listed marine species respond (behaviorally or physiologically) to the specific stressors associated with the action (in specific contexts, where possible,
• An increase in 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 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;
• An increase in the probability of detecting marine mammals (through improved technology or methods), both specifically within the mitigation zone (thus allowing for more effective implementation of the mitigation) and in general, to better achieve the above goals; and
• A reduction in the adverse impact of activities to the least practicable level, as defined in the MMPA.
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 the ICMP's top-level goals, and a conceptual framework incorporating a progression of knowledge, spanning occurrence, exposure, response, and consequences. The Strategic Planning Process for Marine Species Monitoring is used to set overarching intermediate
The monitoring program has undergone significant changes that highlight its evolution through the process of adaptive management. The monitoring program developed for the first cycle of environmental compliance documents (
Progress has also been made on the monitoring program's conceptual framework categories from the Scientific Advisory Group for Navy Marine Species Monitoring (U.S. Department of the Navy, 2011e), ranging from occurrence of animals, to their exposure, response, and population consequences. Lessons-learned with Phase I and II monitoring in HRC and SOCAL suggested that “layering” multiple components of monitoring simultaneously provides a way to leverage an increase in return of the progress toward answering scientific monitoring questions.
Specific Phase II monitoring has included:
• HRC
○ Long-term Trends in Abundance of Marine Mammals at PMRF;
○ Estimation of Received Levels of Mid-Frequency Active Sonar on Marine Mammals at PMRF;
○ Behavioral Response of Marine Mammals to Navy Training and Testing at PMRF; and
○ Navy Civilian Marine Mammal Observers on MFAS Ships in Offshore Waters of HRC.
• SOCAL
○ Blue and Fin Whale Satellite Tagging;
○ Cuvier's Beaked Whale Impact Assessment at the Southern California Offshore Antisubmarine Warfare Range (SOAR);
○ Cuvier's Beaked Whale, Blue Whale, and Fin Whale Impact Assessments at Non-Instrumented Range Locations in SOCAL; and
○ Marine Mammal Sightings during California Cooperative Oceanic Fisheries Investigation (CalCOFI) Cruises.
Numerous publications, dissertations and conference presentations have resulted from research conducted under the Navy's marine species monitoring program (
Furthermore, collaboration between the monitoring program and the Navy's research and development (
NMFS and Navy also consider data collected during procedural mitigations as monitoring. Data are collected by shipboard personnel on hours spent training, hours of observation, hours of sonar, marine mammals observed within the mitigation zone during Major Training Exercises when mitigations are implemented. These data are provided to NMFS in both classified and unclassified annual exercise reports.
NMFS has received multiple years' worth of annual exercise and monitoring reports addressing active sonar use and explosive detonations within the HSTT Study Area 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 and testing activities within the HSTT Study Area. The Navy's annual exercise and monitoring reports may be viewed at:
The Navy has been funding various marine mammal studies and research within the HSTT Study Area for the past 20 years. Under permitting from NMFS starting in 2009, this effort has transitioned from a specific metric based approach, to a broader new research only approach (
In adaptive management consultation with NMFS, some variation of these ongoing studies or proposed new studies will continue within the HSTT Study Area for either the duration of any new regulations, or for a set period as specified in a given project's scope. Some projects may only require one or two years of field effort. Other projects could entail multi-year field efforts (two to five years). For instance, in the SOCAL portion of the HSTT Study Area, the Navy has funded development and application of new passive acoustic technology since the early 2000's for detecting Cuvier's beaked whales. This also includes ongoing effort to further identify and update population demographics for Cuvier's beaked whales (re-sighting rates, population growth, calving rates, movements, etc.) specific to Navy training and testing areas, as well as responses to Navy activity. Variations of these Cuvier's beaked whale monitoring studies will likely continue under future authorizations. The Navy's marine species monitoring web portal provides details on past and current monitoring projects, including technical reports, publications, presentations, and access
The Navy's marine species monitoring program typically supports 6-10 monitoring projects in the HSTT Study Area at any given time. Projects can be either major multi-year major efforts, or one to two year special studies. Navy monitoring projects in HSTT through 2018 currently include:
• Long-term Trends In Abundance Of Marine Mammals At The Pacific Missile Range Facility (Hawaii—began in 2015);
• Estimation Of Received Levels Of Mid-frequency Active Sonar On Marine Mammals At The Pacific Missile Range Facility (Hawaii—began in 2009);
• Behavioral Response Of Marine Mammals To Training And Testing At The Pacific Missile Range Facility (Hawaii—began in 2009);
• Humpback Whale Satellite Tracking And Genetics (Hawaii, Southern California—began in 2017);
• Navy Civilian Marine Mammal Observers On Navy Destroyers (Hawaii, Southern California began in 2010);
• Blue and Fin Whale Satellite Tracking And Genetics (Southern California—field work 2014-2017 with ongoing analysis);
• Cuvier's Beaked Whale Population Assessment And Impact Assessment At Southern California Anti-Submarine Range (Southern California—began in 2015);
• Cuvier's Beaked Whale Occurrence In Southern California From Passive Acoustic Monitoring (Southern California—began in 2012); and
• Guadalupe Fur Seal Satellite Tracking and Census (Southern California—one-year effort beginning in 2018).
Additional scientific projects may have field efforts within Hawaii and Southern California under separate Navy funding from the Navy's two marine species research programs, the Office of Naval Research Marine Mammals and Biology Program and the Living Marine Resources Program. The periodicity of these research projects are more variable than the Navy's compliance monitoring described above.
The final regulations governing the take of marine mammals incidental to Navy training and testing activities in the Study Area would contain an adaptive management component. Our understanding of the effects of Navy training and testing activities (
The reporting requirements associated with this proposed rule are designed to provide NMFS with monitoring data from the previous year to allow NMFS to consider whether any changes to existing mitigation and monitoring requirements 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 mammals 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 LOAs.
In order to issue an incidental take authorization 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. Some of the reporting requirements are still in development and the final rulemaking may contain additional minor details not contained here. Additionally, proposed reporting requirements may be modified, removed, or added based on information or comments received during the public comment period. Reports from individual monitoring events, results of analyses, publications, and periodic progress reports for specific monitoring projects would be posted to the Navy's Marine Species Monitoring web portal:
The Navy will abide by the Notification and Reporting Plan, which sets out notification, reporting, and other requirements when injured, live stranded, or dead marine mammals are detected. The Notification and Reporting Plan will be available for review at
The Navy shall submit an annual report to NMFS of the HSTT monitoring describing the implementation and results from the previous calendar year. Data collection methods will be standardized across range complexes and HSTT Study Area to allow for comparison in different geographic locations. The draft of the annual monitoring report shall be submitted either three months after the calendar year, or three months after the conclusion of the monitoring year to be determined by the Adaptive Management process. Such a report would describe progress of knowledge made with respect to intermediate scientific objectives within the HSTT Study Area associated with the Integrated Comprehensive Monitoring Program. Similar study questions shall be treated together so that summaries can be provided for each topic area. The report need not include analyses and content that does not provide direct assessment of cumulative progress on the monitoring plan study questions. NMFS will submit comments on the draft monitoring report, if any, within three months of receipt. The report will be considered final after the Navy has addressed NMFS's comments, or three months after the submittal of the draft if NMFS does not have comments.
As an alternative, the Navy may submit a multi-Range Complex annual Monitoring Plan report to fulfill this requirement. Such a report would describe progress of knowledge made with respect to monitoring study questions across multiple Navy ranges associated with the ICMP. Similar study questions shall be treated together so that progress on each topic shall be summarized across multiple Navy ranges. The report need not include analyses and content that does not provide direct assessment of cumulative
Each year, the Navy will submit two preliminary reports to NMFS 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 detailed reports to NMFS within 3 months after the anniversary of the date of issuance of the LOA. The annual reports shall contain information on MTEs, Sinking Exercise (SINKEX) events, 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, sonobuoys, etc.) for each explosive bin). The analysis in the detailed reports will be based on the accumulation of data from the current year's report and data collected from previous reports. The Annual HSTT Training Exercise Report and Testing Activity Navy reports can be consolidated with other exercise reports from other range complexes in the Pacific Ocean for a single Pacific Exercise Report, if desired. Specific sub-reporting in these annual reports include:
• Humpback Whale Special Reporting Area (December 15-April 15): The Navy will report the total hours of operation of surface ship hull-mounted mid-frequency active sonar used in the special reporting area;
• HSTT Mitigation Areas (see section 11 of the Navy's application): The Navy will report any use that occurred as specifically described in these areas; and
• Information included in the classified annual reports may be used to inform future adaptive management of activities within the HSTT Study Area.
The Navy will continue to report and coordinate with NMFS for the following:
• Annual marine species monitoring technical review meetings with researchers, regulators and Marine Mammal Commission (currently, every two years a joint Pacific-Atlantic meeting is held); and
• Annual Adaptive Management meetings with NMFS, regulators and Marine Mammal Commission (recently modified to occur in conjunction with the annual monitoring technical review meeting).
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 adverse effects on annual rates of recruitment or survival (
In the Estimated Take section, we identified the subset of potential effects that would be expected to rise to the level of takes, and then identified the number of each of those takes that we believe could occur (mortality) or are likely to occur (harassment) based on the methods described. The impact that any given take will have is dependent on many case-specific factors that need to be considered in the negligible impact analysis (
The Navy's Specified Activities reflects representative levels/ranges of training and testing activities, accounting for the natural fluctuation in training, testing, and deployment schedules. This approach is representative of how Navy's activities are conducted over any given year over any given five-year period. Specifically, to calculate take, the Navy provided a range of levels for each activity/source type for a year—they used the maximum annual level to calculate annual takes, and they used the sum of three nominal years (average level) and two maximum years to calculate five-year takes for each source type. The Specified Activities section contains a more realistic annual representation of activities, but includes years of a higher maximum amount of training and testing to account for these fluctuations. There may be some flexibility in the exact number of hours, items, or detonations that may vary from year to year, but take totals would not exceed the five-year totals indicated in Tables 41 and 42. We base our analysis and negligible impact determination (NID) on the maximum number of takes that could occur or are likely to occur, 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 affected individuals. To avoid repetition, we provide some general analysis immediately below that applies to all the species listed in Tables 41 and 42, given that some of the anticipated effects of the Navy's training and testing activities on marine
The Navy's harassment take request is based on its model and quantitative assessment of mitigation, which NMFS believes appropriately predicts that amount of harassment that is likely to occur. In the discussions below, the “acoustic analysis” refers to the Navy's modeling results and quantitative assessment of mitigation. 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 energy received by a marine mammal exceeds the thresholds for effects. Assumptions in the Navy model intentionally err on the side of overestimation when there are unknowns. Naval activities are modeled as though they would occur regardless of proximity to marine mammals, meaning that no mitigation is considered (
Generally speaking, the Navy and NMFS anticipate more severe effects from takes resulting from exposure to higher received levels (though this is in no way a strictly linear relationship for behavioral effects throughout species, individuals, or circumstances) and less severe effects from takes resulting from exposure to lower received levels. However, there is also growing evidence of the importance of distance in predicting marine mammal behavioral response to sound—
Depending on the location, duration, and frequency of activities, along with the distribution and movement of marine mammals, individual animals may be exposed to impulse or non-impulse sounds at or above the Level A and Level B harassment threshold on multiple days. However, the Navy is currently unable to estimate the number of individuals that may be taken during training and testing activities. The model results estimate the total number of takes that may occur to a smaller number of individuals.
Some of the lower level physiological stress responses (
The estimates calculated using the behavioral response function do not differentiate between the different types of behavioral responses that rise to the level of Level B harassments. As described in the Navy's application, the Navy identified (with NMFS's input) the types of behaviors that would be considered a take (moderate behavioral responses as characterized in Southall
Use of sonar and other transducers would typically be transient and temporary. The majority of acoustic effects to mysticetes from sonar and other active sound sources during testing and training activities would be primarily from ASW events. It is important to note although ASW is one of the warfare areas of focus during MTEs, there are significant periods when active ASW sonars are not in use. Nevertheless, behavioral reactions are assumed more likely to be significant during MTEs than during other ASW activities due to the duration (
As noted previously, 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 of Navy activities utilizing tactical sonar sources and explosives vary and are fully described in Appendix A of the HSTT DEIS/OEIS. Sonar used during ASW would impart the greatest amount of acoustic energy of any category of sonar and other transducers analyzed in the Navy's rulemaking/LOA application and included hull-mounted, towed, sonobuoy, helicopter dipping, and torpedo sonars. Most ASW sonars are MFAS (1-10 kHz); however, some sources may use higher or lower frequencies. ASW training activities using hull mounted sonar proposed for the HSTT Study Area generally last for only a few hours. Some ASW training
Most planned explosive events are scheduled to occur over a short duration (1-8 hours); however, the explosive component of the activity only lasts for minutes (see Tables 4 through 7). 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. Although SINKEXs may last for up to 48 hrs (4-8 hrs, possibly 1-2 days), they are almost always completed in a single day and only one event is planned annually for the HSTT training activities. They are stationary and conducted in deep, open water (where fewer marine mammals would typically be expected to be randomly encountered), and they have rigorous monitoring (
Last, as described previously, Navy modeling uses the best available science to predict the instances of exposure above certain acoustic thresholds, which are equated, as appropriate, to harassment takes (and further corrected to account for mitigation and avoidance). As further noted, for active acoustics, it is more challenging to parse out the number of individuals taken from this larger number of instances. One method that NMFS can use to help better understand the overall scope of the impacts is to compare these total instances of take against the abundance of that stock. For example, if there are 100 takes in a population of 100, one can assume either that every individual was exposed above acoustic thresholds in no more than one day, or that some smaller number were exposed in one day but a few of those individuals were exposed multiple days within a year. Where the instances of take exceed 100 percent of the population, multiple takes of some individuals are predicted to occur within a year. Generally speaking, the higher the number of takes as compared to the population abundance, the more multiple takes of individuals are likely, and the higher the actual percentage of individuals in the population that are likely taken at least once in a year. We look at this comparative metric to give us a relative sense across species/stocks of where larger portions of the stocks are being taken by Navy activities and where there is a higher likelihood that the same individuals are being taken across multiple days and where that number of days might be higher. At a minimum, it provides a relative picture of the scale of impacts to each stock.
In the ocean, unlike a modeling simulation with static animals, the use of sonar and other active acoustic sources is often transient, and is unlikely to repeatedly expose the same individual animals within a short period, for example within one specific exercise. However, some repeated exposures across different activities would likely occur over the year, especially where numerous activities occur in generally the same area (for example on instrumented ranges) with more resident species. In short, we expect that the total anticipated takes represent exposures of a smaller number of individuals of which some would be exposed multiple times, but based on the nature of the Navy's activities and the movement patterns of marine mammals, it is unlikely that any particular subset would be taken over more than a few sequential days—
When calculating the proportion of a population affected by takes (
NMFS's Southwest Fisheries Science Center derived densities for the Navy, and NMFS supports, the use of spatially and temporally explicit density models that vary in space and time to estimate their potential impacts to species. See the
Models may predict different population abundances for many reasons. The models may be based on different data sets or different temporal predictions may be made. The SARs are often based on single years of NMFS surveys, whereas the models used by the Navy generally include multiple years of survey data from NMFS, the Navy, and other sources. To present a single, best estimate, the SARs often use a single season survey where they have the best spatial coverage (generally summer). Navy models often use predictions for multiple seasons, where appropriate for the species, even when survey coverage in non-summer seasons is limited, to characterize impacts over multiple seasons as Navy activities may occur in any season. Predictions may be made for different spatial extents. Many different, but equally valid, habitat and density modeling techniques exist and these can also be the cause of differences in population predictions. Differences in population estimates may be caused by a combination of these factors. Even similar estimates should be interpreted with caution and differences in models be fully understood before drawing conclusions.
The Navy Study Area covers a broad area off of Hawaii and Southern California, and the Navy has tried to find density estimates for this entire area, where appropriate given species distributions. However, only a small number of Navy training and testing activities occur outside of the U.S. EEZ. Because of the differences in the availability of data in the U.S. EEZ versus outside (which results in more accurate density and abundance estimates inside the U.S. EEZ) and the fact that activities and takes are more concentrated in the U.S. EEZ, NMFS chose to look at how estimated instances of take compare to predicted abundance both within the U.S. EEZ and across the entire study area to help better understand, at least in a relative sense, what the estimated instances of take tell us about either the likely number of individuals taken, and/or over how many days they might be taken. These comparisons are undertaken below in the taxa-specific sections.
NMFS and the Navy have estimated that some individuals of some species of marine mammals may sustain some level of TTS from active sonar. 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. Tables 69-81 indicate the amounts of TTS that may be incurred by different stocks from exposure to acoustic sources (sonar, air guns, pile driving) and explosives. The TTS sustained by an animal is primarily classified by three characteristics:
1. Frequency—Available data (of mid-frequency hearing specialists exposed to mid- or high-frequency sounds; Southall
2. Degree of the shift (
3. Duration of TTS (recovery time)—In the TTS laboratory studies (see Threshold Shift) section), some using exposures of almost an hour in duration or up to 217 SEL, almost all individuals recovered within 1 day (or less, often in minutes), although in one study (Finneran
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 LFAS/MFAS/HFAS training and testing exercises in the HSTT Study Area, it is unlikely that marine mammals would ever sustain a TTS from MFAS that alters their sensitivity by more than 20 dB for more than a few hours (and any incident of TTS would likely be far less severe due to the short duration of the majority of the events and the speed of a typical vessel). Also, for the same reasons discussed in the Diel Cycle section, and because of the short distance within which animals would need to approach the sound source, it is unlikely that animals would be exposed to the levels necessary to induce TTS in subsequent time periods such that their recovery is impeded. Additionally, though the frequency range of TTS that marine mammals might sustain would overlap with some of the frequency ranges of their vocalization types, the frequency range of TTS from MFAS (the source from which TTS would most likely be sustained because the higher source level and slower attenuation make it more likely that an animal would be exposed to a higher received level) would not usually span the entire frequency range of one vocalization type, much less span all types of vocalizations or other critical auditory cues. If impaired, marine mammals would typically be aware of their impairment and would sometimes able to implement behaviors to compensate (see Acoustic Masking or Communication Impairment section), though these compensations may incur energetic costs.
Therefore, even though the models show that the affected species and stocks will experience Level B
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. Hull-mounted anti-submarine sonars can also be used in an object detection mode known as “Kingfisher” mode (
Most ASW sonars and countermeasures use MF frequencies and a few use LF and HF frequencies. Most of these sonar signals are limited in the temporal, frequency, and spatial domains. The duration of most individual sounds is short, lasting up to a few seconds each. Very few systems operate with higher duty cycles or nearly continuously, but typically use lower power. Nevertheless, masking may be more prevalent at closer ranges to these high-duty cycle and continuous active sonar systems. Most ASW activities are geographically dispersed and last for only a few hours, often with intermittent sonar use even within this period. Most ASW sonars also have a narrow frequency band (typically less than one-third octave). These factors reduce the likelihood of sources causing significant masking in mysticetes. HF sonars are typically used for mine hunting, navigation, and object detection, HF (greater than 10 kHz) sonars fall outside of the best hearing and vocalization ranges of mysticetes. Furthermore, HF (above 10 kHz) attenuate more rapidly in the water due to absorption than do lower frequency signals, thus producing only a small zone of potential masking. Masking in mysticetes due to exposure to high-frequency sonar is unlikely. Masking effects from LFAS/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 resemble the characteristics of any marine mammal's vocalizations. Masking could occur in mysticetes due to the overlap between their low-frequency vocalizations and the dominant frequencies of air gun pulses. However, masking in odontocetes or pinnipeds is less likely unless the air gun activity is in close range when the pulses are more broadband. Masking is more likely to occur in the presence of broadband, relatively continuous noise sources such as during vibratory pile driving and from vessels. The other sources used in Navy training and testing, 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. For the reasons described here, any limited masking that could potentially occur would be minor and short-term and not expected to have adverse impacts on reproductive success or survivorship.
Tables 69-81 indicate the number of individuals of each species and stock for which Level A harassment in the form of PTS resulting from exposure to active sonar and/or explosives is estimated to occur. Tables 69-81 also indicate the number of individuals of each species and stock for which Level A harassment in the form of tissue damage resulting from exposure to explosive detonations is estimated to occur. The number of individuals to potentially incur PTS annually (from sonar and explosives) for the predicted species ranges from 0 to 209 (209 for Dall's porpoise), but is more typically zero or a few up to 18 (with the exception of a few species
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-emitting 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 (nominally 10-15 kn) 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
For explosive activities, the Navy implements mitigation measures (described in Proposed Mitigation Measures) during explosive activities, including delaying detonations when a marine mammal is observed in the mitigation zone. Observing for marine mammals during the explosive activities will include aerial and passive acoustic detection methods (when they are available and part of the activity) before the activity begins, in order to cover the mitigation zones that can range from 200 yds (183 m) to 2,500 yds (2,286 m) depending on the source (
Nearly all explosive events will occur during daylight hours to improve the sightability of marine mammals improving mitigation effectiveness. The proposed mitigation is expected to reduce the likelihood that all of the proposed takes will occur. Some, though likely not all, of that reduction was quantified in the Navy's quantitative assessment of mitigation; however, we analyze the type and amount of Level A take indicated in Tables 41 and 42. Generally speaking, the number and degree of potential injury are low.
Therefore, given that the numbers of anticipated injury in the form of PTS or tissue damage are very low (<18 or single digits, respectively), for any given stock, with the exception of a few species, and the severity of these impacts are expected to be on the less severe end of what could potentially occur because of the factors described above, as well as the fact that any PTS incurred may overlap with the frequency ranges of their vocalizations, but is unlikely to affect all vocalizations and other critical auditory clues, the Level A harassment shown in Tables 69-81 is not expected to have significant or long-term impacts on affected animals in a manner that would affect reproduction or survival.
NMFS proposes to authorize a very small number of serious injuries or mortalities that could occur in the event of a ship strike or as a result of marine mammal exposure to explosive detonations. We note here that the takes from potential ship strikes or explosive exposures enumerated below could result in non-serious injury, but their worse potential outcome (mortality) is analyzed for the purposes of the negligible impact determination.
In addition, we discuss here the connection between the mechanisms for authorizing incidental take under section 101(a)(5) for activities, such as Navy's testing and training in the HSTT Study Area, and for authorizing incidental take from commercial fisheries. In 1988, Congress amended the MMPA's provisions for addressing incidental take of marine mammals in commercial fishing operations. Congress directed NMFS to develop and recommend a new long-term regime to govern such incidental taking (see MMC, 1994). The need to develop a system suited to the unique circumstances of commercial fishing operations led NMFS to suggest a new conceptual means and associated regulatory framework. That concept, Potential Biological Removal (PBR), and a system for developing plans containing regulatory and voluntary measures to reduce incidental take for fisheries that exceed PBR were incorporated as sections 117 and 118 in the 1994 amendments to the MMPA.
PBR is defined in the MMPA (16 U.S.C. 1362(20)) as “the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population” (OSP) and is a measure to be considered when evaluating the effects of M/SI on a marine mammal species or stock. OSP is defined by the MMPA (16 U.S.C. 1362(9)) as “the number of animals which will result in the maximum productivity of the population or the species, keeping in mind the carrying capacity of the habitat and the health of the ecosystem of which they form a constituent element.” A primary goal of the MMPA is to ensure that each species or stock of marine mammal is maintained at or returned to its OSP.
PBR values are calculated by NMFS as the level of annual removal from a stock that will allow that stock to equilibrate within OSP at least 95 percent of the time, and is the product of factors relating to the minimum population estimate of the stock (N
PBR can be used as a consideration of the effects of M/SI on a marine mammal stock but was applied specifically to work within the management framework for commercial fishing incidental take. PBR cannot be applied appropriately outside of the section 118 regulatory framework for which it was designed without consideration of how it applies in section 118 and how other statutory management frameworks in the MMPA differ. PBR was not designed as an absolute threshold limiting commercial fisheries, but rather as a means to evaluate the relative impacts of those activities on marine mammal stocks. Even where commercial fishing is causing M/SI at levels that exceed PBR, the fishery is not suspended. When M/SI exceeds PBR, NMFS may develop a take reduction plan, usually with the assistance of a take reduction team. The take reduction plan will include measures to reduce and/or minimize the taking of marine mammals by commercial fisheries to a level below the stock's PBR. That is, where the total annual human-caused M/SI exceeds PBR, NMFS is not required to halt fishing activities contributing to total M/SI but rather utilizes the take reduction process to further mitigate the effects of fishery activities via additional bycatch reduction measures. PBR is not used to grant or deny authorization of commercial fisheries that may incidentally take marine mammals.
Similarly, to the extent consideration of PBR may be relevant to considering the impacts of incidental take from activities other than commercial fisheries, using it as the sole reason to deny incidental take authorization for
Since the introduction of PBR, NMFS has used the concept almost entirely within the context of implementing sections 117 and 118 and other commercial fisheries management-related provisions of the MMPA. The MMPA requires that PBR be estimated in stock assessment reports and that it be used in applications related to the management of take incidental to commercial fisheries (
Nonetheless, NMFS recognizes that as a quantitative metric, PBR may be useful in certain instances as a consideration when evaluating the impacts of other human-caused activities on marine mammal stocks. Outside the commercial fishing context, and in consideration of all known human-caused mortality, PBR can help inform the potential effects of M/SI caused by activities authorized under 101(a)(5)(A) on marine mammal stocks. As noted by NMFS and the USFWS in our implementation regulations for the 1986 amendments to the MMPA (54 FR 40341, September 29, 1989), the Services consider many factors, when available, in making a negligible impact determination, including, but not limited to, the status of the species or stock relative to OSP (if known), whether the recruitment rate for the species or stock is increasing, decreasing, stable, or unknown, the size and distribution of the population, and existing impacts and environmental conditions. To specifically use PBR, along with other factors, to evaluate the effects of M/SI, we first calculate a metric for each species or stock that incorporates information regarding ongoing anthropogenic M/SI into the PBR value (
Alternately, for a species or stock with incidental M/SI less than 10 percent of residual PBR, we consider M/SI from the specified activities to represent an insignificant incremental increase in ongoing anthropogenic M/SI that alone (
Our evaluation of the M/SI for each of the species and stocks for which mortality could occur follows. In addition, all mortality authorized for some of the same species or stocks over the next several years pursuant to our final rulemaking for the NMFS Southwest and Pacific Islands Fisheries Science Centers has been incorporated into the residual PBR.
We first consider maximum potential incidental M/SI from Navy's ship strike analysis for the affected mysticetes and sperm whales (see Table 67) and from the Navy's explosive detonations for California sea lions and short-beaked common dolphin (see Table 68) in consideration of NMFS's threshold for identifying insignificant M/SI take (10 percent of residual PBR (69 FR 43338; July 20, 2004)). By considering the maximum potential incidental M/SI in relation to PBR and ongoing sources of anthropogenic mortality, we begin our evaluation of whether the potential incremental addition of M/SI through Navy's ship strikes and explosive detonations may affect the species' or stocks' annual rates of recruitment or survival. We also consider the interaction of those mortalities with incidental taking of that species or stock by harassment pursuant to the specified activity.
Based on the methods discussed previously, NMFS believes that mortal takes of three large whales over the course of the five-year rule, with no more than two from any of the following species/stocks over the five-year period: Gray whale (Eastern North Pacific stock), fin whale (CA/OR/WA stock), humpback whale (CA/OR/WA stock or Mexico DPS), humpback whale (Central Pacific stock or Hawaii DPS) and sperm whale (Hawaiian stock). Of the mortal takes of three large whales that could occur, no more than one mortality would occur from any of the following species/stocks over the five-year period: Blue whale (Eastern North Pacific stock), Bryde's whale (Eastern Tropical Pacific stock), Bryde's whale (Hawaiian stock), humpback whale (CA/OR/WA stock or Central America DPS), minke whale (CA/OR/WA stock), minke whale (Hawaiian stock), sperm whale (CA/OR/WA stock), sei whale (Hawaiian stock), and sei whale (Eastern North Pacific
The Navy has also requested a small number of takes by serious injury or mortality from explosives. To calculate the annual average of mortalities for explosives in Table 68 we used the same method as described for vessel strikes. The annual average is the number of takes divided by five years to get the annual number.
The following species are being requested for mortality takes from explosions. A total of 10 mortalities: 4 California sea lions and 6 short-beaked common dolphins over the 5-year period (therefore 0.8 mortalities annually for California sea lions and 1.2 mortalities annually for short-beaked common dolphin) are described in Table 68.
As noted above, for a species or stock with incidental M/SI less than 10 percent of residual PBR, we consider M/SI from the specified activities to represent an insignificant incremental increase in ongoing anthropogenic M/SI that alone (
For sperm whales (CA/OR/WA stock), PBR is currently 2.7 and the total annual M/SI is 1.7 and yields a residual PBR of 1.0. The M/SI value includes incidental fishery interaction records of 1.7, and records of vessel collisions of 0. The proposed authorization of 0.2 mortalities represents 20 percent of residual PBR. Because this value is not close to, at, or exceeding residual PBR, it means that the proposed M/SI is not expected to result in more than a negligible impact on this stock, however, we still address other factors, where available. In regard to mitigation measures that may lessen other human-caused mortality in the future, NOAA is currently implementing marine mammal take reduction measures as identified in the Pacific Offshore Cetacean Take Reduction Plan (including acoustic pingers) to reduce bycatch and incidental serious injury and mortality of sperm whales, and other whales in the CA/OR swordfish drift gillnet fishery. There have been few observed interactions with sperm whales since the fishery was observed, both pre and post-take reduction plan, however, pingers are within the hearing range of sperm whales, and we can infer that they may play a part in reducing sperm whale interactions in this fishery. This information will be considered in combination with our assessment of the impacts of harassment takes later in the section.
For blue whales (Eastern North Pacific stock), PBR is currently set at 2.3 and the total annual M/SI of 0.9 yielding a residual PBR of 1.4. The M/SI value includes incidental fishery interaction records of 0, and records of vessel collisions of 0.9. The proposed authorization of 0.2 represents 14 percent of residual PBR. Because this value is not close to, at, or exceeding residual PBR, it means that the proposed M/SI is not expected to result in more than a negligible impact on this stock, however, we still address other factors, where available. We note that the Eastern North Pacific blue whale stock is considered stable.
In regard to mitigation that may lessen other human-caused mortality in the future, NOAA is currently implementing marine mammal take reduction measures as identified in the Pacific Offshore Cetacean Take Reduction Plan (including the use of acoustic pingers) to reduce the bycatch of blue whales and other marine mammals. In addition, the Channel Islands NMS staff coordinates, collects and monitors whale sightings in and around the Whale Advisory Zone and the Channel Islands NMS region. The seasonally established Whale Advisory Zone spans from Point Arguello to Dana Point, including the Traffic Separation Schemes in the Santa Barbara Channel and San Pedro Channel. Vessels transiting the area from June through November are recommended to exercise caution and voluntarily reduce speed to 10 kn or less for blue, humpback and fin whales. Channel Island NMS observers collect information from aerial surveys conducted by NOAA, the U.S. Coast Guard, California Department of Fish and Game, and U.S. Navy chartered aircraft. Information on seasonal presence, movement and general distribution patterns of large whales is shared with mariners, NMFS Office of Protected Resources, U.S. Coast Guard, California Department of Fish and Game, the Santa Barbara Museum of Natural History, the Marine Exchange of Southern California, and whale scientists. Real time and historical whale observation data collected from multiple sources can be viewed on the Point Blue Whale Database. This information will be considered in combination with our assessment of the impacts of harassment takes later in the section.
For sei whales (
For sei whales (
For Bryde's whales (Eastern Tropical Pacific stock) PBR is currently undetermined and the total annual M/SI is 0.2. Therefore, residual PBR is unknown. The M/SI value includes incidental fishery interaction records which are unknown, and records of vessel collisions are 0.2. The total human-caused mortality is very low and the Navy's activities would add a fractional amount. Given the fact that this stock contains animals that reside both within and outside the U.S. EEZ (a very large range) and there known M/SI of only 0.2, it is unlikely that the addition of 0.2 annual mortality would result in more than a negligible impact on this stock. This information will be considered in combination with our assessment of the impacts of harassment takes later in the section.
For minke whales (Hawaiian stock) PBR is currently undetermined and the total annual M/SI is unknown; therefore, residual PBR is unknown. The M/SI value includes incidental fishery interaction records of 0, and records of vessel collisions of 0. Given the fact that this stock contains animals that reside both within and outside the U.S. EEZ (a very large range) and there is no known M/SI, it is unlikely that the addition of 0.2 annual mortality would result in more than a negligible impact on this stock. This information will be considered in combination with our assessment of the impacts of harassment takes later in the section.
In the discussions below, the “acoustic analysis” refers to the Navy's analysis, which includes the use of several models and other applicable calculations as described in the Estimated Take of Marine Mammals section. The quantitative analysis process used for the HSTT DEIS/OEIS and the Navy's rulemaking/LOA application to estimate potential exposures to marine mammals resulting from acoustic and explosive stressors is detailed in the technical report titled
The amount and type of incidental take of marine mammals anticipated to occur from exposures to sonar and other active acoustic sources and explosions during the five-year training and testing period are shown in Tables 41 and 42. The vast majority of predicted exposures (greater than 99 percent) are expected to be Level B harassment (non-injurious TTS and behavioral reactions) from acoustic and explosive sources during training and testing activities at relatively low received levels.
The analysis below may in some cases (
In Table 69 and Table 70 below, for mysticetes, we indicate the total annual mortality, Level A and Level B harassment, and a number indicating the instances of total take as a percentage of abundance. Overall, takes from Level A harassment (PTS and Tissue Damage) account for less than one percent of all total takes.
Of these species, blue whale, fin whale, sei whale, humpback whale (CA/OR/WA stock) and gray whale (Western North Pacific stock) are listed as endangered under the ESA and depleted under the MMPA. NMFS is currently engaged in an internal Section 7 consultation under the ESA and the outcome of that consultation will further inform our final decision.
Of the total instances of all of the different types of takes, the numbers indicating the instances of total take as a percentage of abundance for mysticetes ranges from 94 to 180 percent for HRC stocks (blue, Bryde's, fin, humpback minke and sei whales), suggesting that most individuals are taken in an average of 1 to 2 days per year (Table 69). For SOCAL stocks (blue, Bryde's, fin, humpback, minke, sei, and gray whales), the percentages as compared to the abundances across the U.S. EEZ stock range (Predicted in the SAR) are between 4 and 146, suggesting that across these wide-ranging stocks individuals are taken on average on between 0 and 2 days per year (Table 70). Alternately when compared to the abundance estimates within the Navy's SOCAL action area, based on static density estimates, the percentages range from 0 to 3,154, suggesting that if any of these exposed individuals remained in the action area the whole year, they might be taken on average on 32 days in a year. Although we generally do not expect individuals to remain in the action area for the whole year (or to accrue take over this many days), these numbers do suggest that individuals residing in the action area for some amount of time could accrue take on more than the average one or two days per year. Effects are such that these averages allow that perhaps a smaller subset is taken with a slightly higher average and larger variability of highs and lows, but still with no reason to think that any individuals would be taken every day for weeks or months out of the year, much less on sequential days. These behavioral takes are expected to be of a milder to potentially moderate intensity and are not likely to occur over sequential days, which suggests that the overall scale of impacts for any individual would be relatively low and unlikely to result in fitness effects that would impact reproductive success or survival.
Most Level B harassments to mysticetes from hull-mounted sonar (MF1) in the HSTT Study Area would result from received levels between 154 and 172 dB SPL (62 percent). As mentioned earlier in this section, we anticipate more severe effects from takes when animals are exposed to higher received levels. Comparatively minor to potentially moderate behavioral reactions are unlikely to cause long-term consequences for individual animals or populations, and even if some smaller subset of the takes are in the form of a longer (several hours or a day) and more moderate response, because they are not expected to be repeated over sequential multiple days, impacts to individual fitness are not anticipated. Also, as noted in the Potential Effects section, while there are multiple examples from behavioral response studies of odontocetes ceasing their feeding dives when exposed to sonar pulses at certain levels, but alternately, blue whales were
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 (
While MTEs may have a longer duration, they are not concentrated in small geographic areas over that time period. MTES use hundreds of square miles of ocean space during the course of the event. For example, Goldbogen
Richardson
The implementation of mitigation and the sightability of mysticetes (due to their large size) and therefore higher likelihood that shutdown and other mitigation measures will be effective for these species and reduces the potential for a more significant behavioral reaction or a threshold shift to occur (which would be more likely within the shutdown zone, were the mitigation not implemented). As noted previously, when an animal incurs a threshold shift, it occurs in the frequency from that of the source up to one octave above—this means that threshold shift caused by Navy sonar sources will typically occur in the range of 2-20 kHz, and if resulting from hull-mounted sonar, will be in the range of 3.5-7 kHz. The majority of mysticete vocalizations occur in frequencies below 1 kHz, which means that TTS incurred by mysticetes will not interfere with conspecific communication. When we look in ocean areas where the Navy has been intensively training and testing with sonar and other active acoustic sources for decades, there is no data suggesting any long-term consequences to mysticetes from exposure to sonar and other active acoustic sources.
The Navy will implement mitigation areas that will avoid or reduce impacts to mysticetes and where BIAs for large whales have been identified in the SOCAL portion of the HSTT Study Area. The Navy will implement the San Diego Arc Mitigation Area from June 1 through October 31 to protect blue whales. The San Diego Arc overlaps the San Diego Blue Whale Feeding Area (BIA) (see also the HSTT DEIS/OEIS Section K.4 (BIAs within the SOCAL Portion of the HSTT Study Area for blue whale feeding areas)). In the San Diego Arc Mitigation Area the Navy will not exceed 200 hrs of MFAS sensor MF1 use ((with the exception of active sonar maintenance and systems checks) between June 1 and October 31 annually. Additionally, in the San Diego Arc Mitigation Area, the Navy will not use explosives during large-caliber gunnery, torpedo, bombing, and missile (including 2.75 in rockets) activities during training or testing.
In addition, the Navy will implement the Santa Barbara Island Mitigation Area year-round for the protection of blue, fin, and gray whales (and other marine mammals) within that portion of the Channel Islands NMS. The Santa Barbara Island Mitigation Area will partially protect the identified important feeding area, San Nicolas Island for blue whales. The Navy will restrict the use of MFAS sensor MF1 and explosives used in gunnery (all calibers), torpedo, bombing, and missile exercises (including 2.75 in rockets) during unit-level training and MTEs.
The Navy will implement mitigation areas that will avoid or reduce impacts to mysticetes and where BIAs for large whales have been identified in the HRC portion of the HSTT Study Area as described below.
In the 4-Islands Region Mitigation Area, the Navy will not use MFAS sensor MF1 during training or testing activities from November 15 through April 15. Since 2009, the Navy has adhered to a Humpback Whale Cautionary Area as a mitigation area within the Hawaiian Islands Humpback Whale NMS an area identified as having one of the highest concentrations of humpback whales, with calves, during the critical winter months. As added protection, the Navy proposes to expand the size and extend the season of the current Humpback Whale Cautionary Area, renaming this area the 4-Islands Region Mitigation Area to reflect the benefits afforded to multiple species. The season is currently between December 15 and April 15; the Navy proposes to extend it from November 15 through April 15 because the peak humpback whale season has expanded. The size of the 4-Islands Region Mitigation Area would expand to include an area north of Maui and Molokai and overlaps an area identified as a BIA for the critically endangered Main Hawaiian Islands insular false
Within the 4-Islands Region Mitigation Area is the Hawaiian Island Humpback Whale Reproduction Area BIA (4-Islands Region and Penguin Bank). The use of sonar and other transducers primarily occur farther offshore than the designated boundaries of the Hawaiian Islands Humpback Whale Reproduction Area BIA. Explosive events are typically conducted in areas that are designated for explosive use, which are areas outside of the Hawaiian Islands Humpback Whale Reproduction Area BIA.
The restrictions on MFAS sensor MF1 in this area and the fact that the Navy does not plan to use any explosives in this area means that the number of takes of humpback whales will be lessened, as will their potential severity, in that the Navy is avoiding exposures in an area and time where they would be more likely to interfere with cow/calf communication or potentially heightened impacts on sensitive or naïve individuals (calves).
The Navy is also proposing an additional mitigation area, the Hawaii Island Mitigation Area. The Hawaii Island Mitigation Area would be established where year-round, where the Navy will not use more than 300 hrs of MFAS sensory MF1 and will not exceed 20 hrs of MFAS senory MF4 year-round. Also within the Hawaii Island Mitigation Area, the Navy will not use any explosives (
The 4-Islands Region Mitigation Area and the Hawaii Island Mitigation Area both also overlap with portions of the Hawaiian Islands Humpback Whale NMS. It is also of note that Navy training and testing in the Hawaiian Islands Humpback Whale NMS will follow the procedural mitigation measure that humpbacks are not approached within 100 yds and aircraft operate above 1,000 ft, which further lessens the likelihood of ship strike and behavioral disturbance resulting from aircraft, respectively.
The Navy will continue to issue an annual humpback whale awareness notification message to remind ships and aircraft to be extra vigilant during times of high densities of humpback whales while in transit and to maintain certain distances from animals during the operation of ships and aircraft.
In summary and as described above, the following factors primarily support our preliminary determination that the impacts resulting from Navy's activities are not expected to adversely affect the mysticetes stocks through effects on annual rates of recruitment or survival.
• As described in the “Serious Injury or Mortality” section above, between zero and two serious injuries or mortalities over the five-year period could occur for large whales (see Tables 67) depending on the species.
○ Using PBR as a consideration in assessing these possible mortalities, the possible mortality for fin whale (CA/OR/WA), gray whale (Eastern North Pacific stock), humpback whales (CA/OR/WA and Central Pacific stocks), Bryde's whale (Hawaiian stock), and Minke whale (CA/OR/WA stock) is below the insignificance threshold of 10 percent of residual PBR.
○ The possible total mortality for sperm whale (CA/OR/WA stock), blue whale (Eastern North Pacific Stock) and sei whales (Eastern North Pacific stock) is below residual PBR.
○ The possible total mortality for sei whale (Hawaiian stock) is equal to PBR, which places it slightly above residual PBR because of the other known human mortality. PBR is a conservative metric that is not intended to serve as an absolute cap on authorized mortality. One mortality is the smallest amount that could possibly occur in a five-year period, and when this fractional addition is considered in the context of barely exceeding residual PBR, any impacts on the stock are not expected to be more than negligible.
○ While residual PBR is not known for minke whales (Hawaiian stock) and Bryde's whales (Eastern Tropical Pacific stock), very little other human-caused mortality is known for either stock, and the Navy's activities would add a fractional amount to these wide-ranging stocks.
• As described above, any PTS that may occur is expected to be of a small degree, and any TTS of a relatively small degree because of the unlikelihood that animals would be close enough for a long enough period of time to incur more severe PTS (from sonar) and the anticipated effectiveness of mitigation in preventing very close exposures for explosives, as discussed above. Further, as noted above, any threshold shift incurred from sonar would be in the frequency range of 2-20 kHz, which is above the frequency of the majority of mysticete vocalizations, and therefore would not be expected to interfere with conspecific communication.
• While the majority of harassment takes are caused by exposure during ASW activities, the impacts from these exposures are not expected to be significant and are generally expected to be short-term because (and as discussed above):
○ ASW activities typically involve fast-moving assets (relative to marine mammal swim speeds) and individuals are not expected to be exposed either for long periods within a day or over many sequential days.
○ The majority of the harassment takes result from hull-mounted sonar during MTEs. When distance cut offs for mysticetes are applied, this means that all of the takes from hull-mounted sonar (MF1) result from above exposure 154 dB. However, the majority (
○ As described in more detail above, the scale of effects are such that most individuals of the HRC stocks are taken in an average of 1 or 2 days per year and individuals of the SOCAL stocks are taken an average of a few days per year, with the likelihood that some smaller subset might be taken in notably more than a few days per year, but likely something less than 6-32 days per year, but, given this number of takes spread across a year and the nature of the Navy's activities, these takes are not expected to typically occur over sequential days.
• The Navy is implementing mitigation areas that specifically reduce or avoid impacts to humpback whales in their important Hawaii calving area and blue whales in their California feeding areas, and further reduce impacts over all to mysticetes in several other areas, all of which is expected to reduce the
Consequently, the HSTT activities are not expected to adversely impact rates of recruitment or survival of any of the stocks of mysticete whales (Table 69 and 70 above in this section).
In Table 71 and Table 72 below, for sperm whales we indicate the total annual mortality, Level A and Level B harassment, and a number indicating the instances of total take as a percentage of abundance. No PTS or tissue damage is anticipated.
All takes annually for sperm whales are from Level B harassment either behavioral or TTS (Tables 71 and 72 above). Sperm whales are listed as endangered under the ESA (both CA/OR/WA and Hawaii stocks) and depleted under the MMPA. NMFS is currently engaged in an internal Section 7 consultation under the ESA and the outcome of that consultation will further inform our final decision.
Most Level B harassments to sperm whales and from hull-mounted sonar (MF1) in the HSTT Study Area would result from received levels between 154 and 166 dB SPL (85 percent). Therefore, the majority of Level B takes are expected to be in the form of milder responses (
For the total instances of all of the different types of takes, the numbers indicating the instances of total take as a percentage of abundance for sperm whales are generally between 125 and 151, with 913 for the CA/OR/WA stock of sperm whales specifically when compared against the Navy's action area abundance. Based on the percentages above, most individuals are taken in an average of 1-2 days per year based on the overall abundance of these far-ranging stocks, while some sperm whale individuals that might remain in the Navy's SOCAL action area for extended periods may be taken on more like an average of nine days in a year. These averages allow that perhaps a smaller subset is taken with a slightly higher average and larger variability of highs and lows, but still with no reason to think that any individuals would be taken every day for weeks or months out of the year, much less on sequential days. The majority of these behavioral takes are expected to be of a milder intensity (compared to those that occur at higher levels) and are not likely to occur over sequential days, which suggests that the overall scale of impacts for any individual would be relatively low and unlikely to result in fitness effects that would impact reproductive success or survival.
Sperm whales have shown resilience to acoustic and human disturbance, although they may react to sound sources and activities within a few kilometers. Sperm whales that are exposed to activities that involve the use of sonar and other active acoustic sources may alert, ignore the stimulus, avoid the area by swimming away or diving, or display aggressive behavior (Richardson, 1995; Nowacek, 2007; Southall
In summary and as described above, the following factors primarily support our preliminary determination that the impacts resulting from Navy's activities are not expected to adversely affect sperm whales through effects on annual rates of recruitment or survival:
• As described in the “Serious Injury or Mortality” section (Table 67), one or two mortalities over five years is proposed for authorization for sperm whales (for CA/OR/WA and Hawaiian stocks, respectively).
○ The proposed serious injury or mortality for the sperm whale (Hawaiian stock) does fall below the insignificance threshold and, therefore, we consider the addition an insignificant incremental increase to human-caused mortality.
○ The possible total serious injury or total mortality for sperm whale (CA/OR/WA stock) falls below residual PBR. NOAA is currently implementing marine mammal take reduction measures as identified in the Pacific Offshore Cetacean Take Reduction Plan that addresses incidental serious injury and mortality of sperm whales, and other whales in the CA/OR swordfish drift gillnet fishery. The total anticipated human-caused mortality is not expected to exceed PBR for both stocks.
• No PTS or injury from acoustic or explosive stressors is proposed for authorization or anticipated to occur for sperm whales.
• While the majority of takes are caused by exposure during ASW activities, the impacts from these exposures are not expected to have either significant or long-term effects because (and as discussed above):
○ ASW activities typically involve fast-moving assets (relative to marine mammal swim speeds) and individuals are not expected to be exposed either for long periods within a day or over many sequential days.
○ As discussed, the majority of the harassment takes result from hull-mounted sonar during MTEs. When distance cutoffs are applied for odontocetes, this means that all of the takes from hull-mounted sonar (MF1) result from above exposure 154 dB. However, the majority (
• As described in more detail above (Table 71 and 72), the scale of the effects are such that for sperm whales, most individuals are take in an average of 1-2 days per year, while some subset of individuals that might remain in the Navy's SOCAL action area for extended periods could be taken on an average of 9 days per year. As described above, given this number of takes spread across a year and the nature of the Navy's activities, these takes are not expected to typically occur over sequential days.
• The HSTT 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 HSTT Study Area.
Consequently, the HSTT activities are not expected to adversely impact rates of recruitment or survival of any of the analyzed stocks of sperm whales (Table 73 above in this section).
In Table 73 and 74 below, for
Nearly all takes annually for Kogia species are from Level B harassment either behavioral or TTS (less than 1 percent PTS) (Tables 73 and 74 above). No serious injury, or mortalities are anticipated. These species are not ESA-listed.
Most Level B harassments to
For the total instances of all of the different types of takes, the numbers indicating the instances of total take as a percentage of abundance for
The quantitative analysis predicts small numbers of PTS per year from sonar and other transducers (during training and testing activities). However,
Impacts to dwarf and pygmy sperm whale stocks (small and resident populations BIAs) will be reduced through the Hawaii Island Mitigation Area that limits the use of mid-frequency active anti-submarine warfare sensor bins MF1 and MF4 and where the Navy will not use explosives during testing and training (
In summary and as described above, the following factors primarily support our preliminary determination that the impacts resulting from Navy's activities are not expected to adversely affect
• No serious injuries or mortalities are proposed for authorization or anticipated to occur for
• While the majority of takes are caused by exposure during ASW activities, the impacts from these exposures are not expected to have either significant or long-term effects because (and as discussed above):
○ ASW activities typically involve fast-moving assets (relative to marine mammal swim speeds) and individuals are not expected to be exposed either for long periods within a day or over many sequential days.
○ As discussed, the majority of the harassment takes result from hull-mounted sonar during MTEs. When distance cutoffs are applied for odontocetes, this means that all of the takes from hull-mounted sonar (MF1) result from above exposure 154 dB. However, the majority (
• As described in more detail above (Tables 73 and 74), the scale of the effects are such that pygmy and dwarf sperm whale are taken an average of 2-3 days per year, while some subset of individuals that might remain in the SOCAL action area for extended periods could be taken on an average of 12 days per year (based on the percentages above, respectively, but with some taken more or less). As described above, given this number of takes spread across a year and the nature of the Navy's activities, these takes are not expected to typically occur over sequential days.
• Impacts to these small and resident populations of dwarf and pygmy sperm whale stocks will be reduced through the implementation of the requirements in the Hawaii Island Mitigation Area.
•
• The HSTT activities are not expected to occur in an area/time of specific importance for reproductive, feeding, or other known critical behaviors for
Consequently, the HSTT activities are not expected to adversely impact rates of recruitment or survival of any of the analyzed stocks of
In Tables 75 and 76 below, for beaked whales, we indicate the total annual mortality, Level A and Level B harassment, and a number indicating the instances of total take as a percentage of abundance. No Level A harassment (PTS and Tissue Damage) takes are anticipated.
Nearly all takes annually for beaked whales from Level B harassment are behavioral, less than 1 percent are TTS (Tables 75 and 76 above). No PTS, injury, serious injury, or mortalities are anticipated. No beaked whales are listed under the ESA.
Most Level B harassments to beaked whales from hull-mounted sonar (MF1) in the HSTT Study Area would result from received levels between 154 and 160 dB SPL (94 percent). Therefore, the majority of Level B takes are expected to be in the form of milder responses (
For the total instances of all of the different types of takes, the numbers
Beaked whales have been shown to be particularly sensitive to sound and therefore have been assigned a lower harassment threshold,
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
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. Based on the best available science, the Navy and NMFS believe that beaked whales that exhibit a significant TTS or behavioral reaction due to sonar and other active acoustic training or testing activities would generally not have long-term consequences for individuals or populations.
NMFS does not expect strandings, serious 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 this proposed rule. However, for some of these stranding events, a causal relationship between sonar exposure and the stranding could not be clearly established (Cox
Biologically important areas for small and resident populations of Cuvier's and Blainville's beaked whales will be protected by the Hawaii Island Mitigation Area that limits the use of mid-frequency active anti-submarine warfare sensor bins MF1 and MF4 and where the Navy will not use explosives during testing and training (
In summary and as described above, the following factors primarily support our preliminary determination that the impacts resulting from the Navy's activities are not expected to adversely affect beaked whales taken through effects on annual rates of recruitment or survival.
• No mortalities of beaked whales are proposed for authorization or anticipated to occur.
• No PTS or injury of beaked whales from acoustic or explosives stressors are proposed for authorization or anticipated to occur.
• While the majority of takes are caused by exposure during ASW activities the impacts from these exposures are not expected to have either significant or long-term effects because (and as discussed above):
○ ASW activities typically involve fast-moving assets (relative to marine mammals swim speeds) and individuals are not expected to be exposed either for long periods within a day or over many sequential days.
○ As discussed, the majority of the harassment takes result from hull-mounted sonar during MTEs. When distance cutoffs are applied for beaked whales, this means that all of the takes from hull-mounted sonar (MF1) result from above exposure 154 dB. However, the majority (
• As described in more detail above (Tables 75 and 76), the scale of the effects are such that individuals in these stocks are likely taken in an average of 1-6 days per year, while a subset of beaked whale individuals that remain in the SOCAL action area for a substantial portion of the year could be taken in more, though not likely above 22-28 days per year, with Mesolplodon individuals potentially taken more, though not likely above 69 days per year. While the likelihood and extent of repeated takes for some subset of Mesoplodon individuals is comparatively high, we note that the population trend for this stock is increasing slightly, lessening the likelihood of adverse impacts on rates of recruitment or survival. While some of the individuals in SOCAL may occasionally be taken in sequential days, because of the nature of the exposures and the other factors discussed above, any impacts to individual fitness would be limited and with the potential to accrue to no more than a limited number of individuals and would not be expected to affect rates of recruitment or survival.
• Impacts to BIAs for small and resident populations of Cuvier's and Blainville's beaked whales will be reduced through implementation of requirements in the Hawaii Island Mitigation Area.
Consequently, the activities are not expected to adversely impact rates of recruitment or survival of any of the beaked whale stocks analyzed (Tables 75 and 76 above in this section).
In Tables 77 and 78 below, for odontocetes (in this section odontocetes refers specifically to the small whales and dolphins indicated in Tables 77 and 78), we indicate the total annual mortality, Level A and Level B harassment, and a number indicating
Nearly all takes annually for odonotocetes are from Level B harassment either behavioral or TTS (less than 1 percent PTS) (Tables 77 and 78 above). No serious injuries or mortalities are anticipated. False killer whales (Main Hawaiian Islands Insular) are listed as endangered under the ESA and depleted under the MMPA. NMFS is currently engaged in an internal Section 7 consultation under the ESA and the outcome of that consultation will further inform our final decision.
Most Level B harassments to odontocetes from hull-mounted sonar (MF1) in the HSTT Study Area would result from received levels between 154 and 166 dB SPL (85 percent). Therefore, the majority of Level B takes are expected to be in the form of milder responses compared to higher level exposures). As mentioned earlier in this section, we anticipate more severe
For the total instances of all of the different types of takes, the numbers indicating the instances of total take for odontocetes addressed in this section as a percentage of abundance range from 14 to 1,169 for Hawaiian stocks (Table 77). For most odontocetes off SOCAL, the instances of total take as a percentage of abundance are between 45 and 1,273 (Table 78). However, the percentages are 2,675 and 2,411 for Killer whale and Long-beaked common dolphin, respectively, when compared to the abundance within the Navy action area, which is based on static density estimates (Table 78). The percentages are 1,993 and 1,622 for Risso's dolphin when compared to the total U.S. EEZ abundance (from the SARs) and to the abundance within the Navy action area, respectively, and 2,811 for Bottlenose dolphin (CA/OR/WA offshore stock) when compared to the total abundance. This means that generally, Hawaiian and SOCAL odontocetes stocks might be expected to be taken an average of 2-13 days per year, while some of a subset of individuals of four stocks (Offshore bottlenose dolphins, killer whales, long-beaked common dolphin, and Risso's dolphin) that might remain in the Navy SOCAL action area for extended periods of time could be taken on more, 17 to 27 days per year. It is notable that for the offshore stock of bottlenose dolphins and for Risso's dolphins, the SAR abundances are actually less than the Navy action area abundances, likely because these are more offshore species and the navy abundance captures the abundance generated outside the U.S. EEZ from the Navy action are density estimates, and therefore the percentages are higher—but either way these stock comparisons fall within the general bounds discussed above. We further note that long-beaked common dolphin, which have a high percentage generated from a high number of takes and a high abundance, have an increasing population trend (Caretta
Research and observations show that if delphinids 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. Delphinids may not react at all until the sound source is approaching within a few hundred meters to within a few kilometers depending on the environmental conditions and species. Delphinids that are exposed to activities that involve the use of sonar and other active acoustic sources may alert, ignore the stimulus, change their behaviors or vocalizations, avoid the sound source by swimming away or diving, or be attracted to the sound source (Richardson, 1995; Nowacek, 2007; Southall
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.
Identified important areas for odontocetes will be protected by the Navy's mitigation areas. The size of the 4-Islands Region Mitigation Area would expand to include an area north of Maui and Molokai and overlaps an area identified as a BIA for the endangered Main Hawaiian Islands insular false killer whales (Baird
In summary and as described above, the following factors primarily support our preliminary determination that the impacts resulting from Navy's activities are not expected to adversely affect dolphins and small whales taken through effects on annual rates of recruitment or survival.
• As described in the “Serious Injury or Mortality” section (Table 68), 1.2 mortalities annually over five years is proposed for authorization for short-beaked common dolphin (CA/OR/WA stock). The proposed mortality for short-beaked common dolphin (CA/OR/WA stock) falls below the insignificance threshold and, therefore, we consider the addition an insignificant incremental increase to human-caused mortality.
• There are no PTS or injury from acoustic or explosive sources proposed for authorization or anticipated to occur for most odontocetes. As described above, any PTS that may occur is expected to be of a relatively smaller degree because of the unlikelihood that animals would be close enough for a long enough amount of time to incur more severe PTS (for sonar) and the anticipated effectiveness of mitigation in preventing very close exposures for explosives.
• Large threshold shifts are not anticipated for these activities because of the unlikelihood that animals will remain within the ensonified area (due to the short duration of the majority of exercises, the speed of the vessels (relative to marine mammals swim speeds), and the short distance within which the animal would need to approach the sound source) at high levels for the duration necessary to induce larger threshold shifts.
• While the majority of takes are caused by exposure during ASW activities, the impacts from these exposures are not expected to have either significant or long-term effects because (and as discussed above):
○ ASW activities typically involve fast-moving assets (relative to marine mammal swim speeds) and individuals are not expected to be exposed either for long periods within a day or over many sequential days.
○ As discussed, the majority of the harassment takes result from hull-mounted sonar during MTEs. When
• As described in more detail above (Tables 77 and 78) for the stocks addressed in this section, the scale of the effects are such that individuals of most Hawaiian and SOCAL odontocete stocks are likely taken an average of 2-13 days per year, while killer whale, long-beaked common dolphin, and Risso's dolphin individuals that remain in the SOCAL action area could be taken an average of 17-27 days per year. Bottlenose dolphin (CA/OR/WA offshore stock) could be taken an average of 10-29 days per year. While some of the individuals in SOCAL may occasionally be taken in sequential days, because of the nature of the exposures and the other factors discussed above, any impacts to individual fitness would be limited and with the potential to accrue to no more than a limited number of individuals and would not be expected to affect rates of recruitment or survival. We further note that long-beaked common dolphin have an increasing population trend.
• The 4-Islands Region Mitigation Area provides partial protection for identified biologically important area for dolphin species (small and resident populations) by not using mid-frequency active anti-submarine warfare sensor MF1.
• The Navy's Hawaii Island Mitigation Area also provides additional protection for identified biologically important areas (small and resident populations) for endangered Main Hawaiian Islands insular false killer whales, pygmy killer whale, melon-headed whale, short-finned pilot whale, and dolphin species by limiting the use of mid-frequency MF1 and MF4 and not using explosives during testing and training.
• All odontocetes in the HSTT Study Area with the exception of endangered Main Hawaiian Islands Insular false killer whale 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 any of the stocks of analyzed odontocete species (Table 74, above in this section).
In Table 79 below, for Dall's porpoise, we indicate the total annual mortality, Level A and Level B harassment, and a number indicating the instances of total take as a percentage of abundance. Overall, takes from Level A harassment (PTS and Tissue Damage) account for less than one percent of all total takes.
Nearly all takes annually for Dall's porpoises are from Level B harassment either behavioral or TTS. Less than 1 percent of all takes are Level A harassment (PTS) (Table 79 above). No injury (tissue damage) serious injury or mortalities are anticipated. Dall's porpoise are not listed under the ESA.
Most Level B harassments to Dall's porpoise from hull-mounted sonar (MF1) in the HSTT Study Area would result from received levels between 154 and 166 dB SPL (85 percent). Therefore, the majority of Level B takes are expected to be in the form of milder responses compared to higher level exposures. As mentioned earlier in this section, we anticipate more severe effects from takes when animals are exposed to higher received levels.
The majority of Level B takes are expected to be in the form of milder to moderate responses. As mentioned earlier in this section, we anticipate more severe effects from takes when animals are exposed to higher received levels.
For the total instances of all of the different types of takes, the numbers indicating the instances of total take for Dall's porpoise as a percentage of abundance is 173 when compared to the total abundance and 2,170 when compared to the abundance within the Navy action area, which is based on static density estimates (Table 79). This means that generally, Dall's porpoise might be expected to be taken on an average of 2 days per year, while some subset of individuals that might remain in the Navy SOCAL action area for extended periods of time could be taken on more like an average of 22 days per year. Occasional mild to moderate behavioral reactions are unlikely to cause long-term consequences for individual animals or populations, and because of the overall number of likely days taken and the nature of the operations, exposures are generally not expected to occur on many sequential days. Impacts to individual fitness that could affect survivorship or reproductive success are not anticipated.
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 (similar to Dall's porpoise) have been observed to be especially sensitive to human activity (Tyack
ASW training activities using hull mounted sonar proposed for the HSTT Study Area generally last for only a few hours. Some ASW exercises can generally last for 2-10 days, or as much as 21 days for an MTE-Large Integrated ASW (see Table 4). For these multi-day exercises there will be extended intervals of non-activity in between active sonar periods. In addition, the Navy does not generally conduct ASW activities in the same locations. Given the average length of ASW events (times of continuous sonar use) and typical vessel speed, combined with the fact that the majority of porpoises in the HSTT Study Area would not likely remain in an area for successive days, it is unlikely that an animal would be exposed to active sonar at levels likely to result in a substantive response (
In summary and as described above, the following factors primarily support our preliminary determination that the impacts resulting from Navy's activities are not expected to adversely affect Dall's porpoise taken through effects on annual rates of recruitment or survival.
• As described above, any PTS that may occur is expected to be of a relatively smaller degree because of the unlikelihood that animals would be close enough for a long enough amount of time to incur more severe PTS (for sonar) and the anticipated effectiveness of mitigation in preventing very close exposures for explosives.
• Large threshold shifts are not anticipated for these activities because of the unlikelihood that animals will remain within the ensonified area (due to the short duration of the majority of exercises, the speed of the vessels (relative to marine mammals swim speeds), and the short distance within which the animal would need to approach the sound source) at high levels for the duration necessary to induce larger threshold shifts.
• While the majority of takes are caused by exposure during ASW activities, the impacts from these exposures are not expected to have either significant or long-term effects because (and as discussed above):
○ ASW activities typically involve fast-moving assets (relative to marine mammal swim speeds) and individuals are not expected to be exposed either for long periods within a day or over many sequential days. As discussed, the majority of the harassment takes result from hull-mounted sonar during MTEs. When distance cutoffs are applied for odontocetes, this means that all of the takes from hull-mounted sonar (MF1) result from above exposure 154 dB. However, the majority (
• As described in detail above (Table 79), the scale of the effects are such that individuals of Dall's porpoise might be expected to be taken on an average of 2 days per year, while some subset of
• Dall's porpoise in the HSTT 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 any of the Dall's porpoise stock (CA/OR/WA).
In Tables 80 and 81 below, for pinnipeds, we indicate the total annual mortality, Level A and Level B harassment, and a number indicating the instances of total take as a percentage of abundance. Overall, takes from Level A harassment (PTS and Tissue Damage) account for less than one percent of all total takes.
Nearly all takes annually for pinnipeds are from Level B harassment either behavioral or TTS (less than 1 percent PTS) (Tables 80 and 81 above). No, injury, serious injury, or mortalities are anticipated. Hawaiian monk seal and Guadalupe fur seal are listed as endangered under the ESA and depleted under the MMPA. NMFS is currently engaged in an internal Section 7 consultation under the ESA and the outcome of that consultation will further inform our final decision. The UME for Guadalupe fur seal is ongoing. Separately, the UME for California sea lions, not an ESA-listed species, will be closed soon.
Most Level B harassments to pinnipeds from hull-mounted sonar (MF1) in the HSTT Study Area would result from received levels between 160 and 172 dB SPL (83 percent). Therefore, the majority of Level B takes are expected to be in the form of milder to moderate responses. As mentioned earlier in this section, we anticipate more severe effects from takes when animals are exposed to higher received levels.
For the total instances of all of the different types of takes, the numbers indicating the instances of total take for pinnipeds as a percentage of abundance ranges from 7 to 124 when compared to the total abundance (Tables 80 and 81). However, for most pinnipeds off SOCAL, the instance of total take as a percentage of abundance are between 1,484 and 2,896 when compared to the abundance within the Navy action area, which is based on static density estimates (Table 81). This means that generally, pinnipeds might be expected to be taken on an average of less than 2 days per year. However, some subset of individuals of the California sea lion, Northern fur seal, and harbor seal stocks that might remain in the Navy SOCAL action area for extended periods of time could be taken on more like an average of 29, 18, and 17 days per year, respectively. The majority of the takes are not from higher level exposures from which more severe responses would be expected. Given the numbers of days within the year that they are expected to be taken, some subset of individuals, particularly California sea lions will likely occasionally be taken across sequential days, however, given the milder to moderate nature of the majority of the anticipated exposures (
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
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.
The Navy's testing and training activities do occur in areas of specific importance, critical habitat for Hawaiian monk seals. However, monk seals in the main Hawaiian islands have increased while the Navy has continued its activities. The Hawaiian monk seal overall population trend has been on a decline from 2004 through 2013, with the total number of Hawaiian monk seals decreasing by 3.4 percent per year (Carretta
Generally speaking, most pinniped stocks in the HSTT Study Area are thought to be stable or increasing. In summary and as described above, the following factors primarily support our preliminary determination that the impacts resulting from the Navy's activities are not expected to adversely affect pinnipeds taken through effects on annual rates of recruitment or survival.
• As described in the “Serious Injury or Mortality” section (Table 68), 0.8 mortalities annually over five years is proposed for authorization for California sea lions. The proposed mortality for California falls below the insignificance threshold and, therefore, we consider the addition an insignificant incremental increase to human-caused mortality. No mortalities of other pinnipeds are proposed for authorization or anticipated to occur.
• As described above, any PTS that may occur is expected to be of a relatively smaller degree because of the unlikelihood that animals would be close enough for a long enough amount of time to incur more severe PTS (for sonar) and the anticipated effectiveness of mitigation in preventing very close exposures for explosives.
• While the majority of takes are caused by exposure during ASW activities, the impacts from these exposures are not expected to have either significant or long-term effects because (and as discussed above):
○ ASW activities typically involve fast-moving assets (relative to marine mammals swim speeds) and individuals are not expected to be exposed either for long periods within a day or over many sequential days.
○ As discussed, the majority of the harassment takes result from hull-mounted sonar during MTEs. When distance cutoffs are applied for pinnipeds, this means that all of the takes from hull-mounted sonar (MF1) result from above exposure 160 dB. However, the majority (
• As described in detail above (Tables 80 and 81), the scale of the effects are such that pinnipeds are taken an average of less than 2 days per year. While some individuals of California sea lions, Northern fur seal, and harbor seals that might remain in the Navy SOCAL action area for extended periods of time could be taken on more, 17 to 29 days per year. These behavioral takes are not all expected to be of particularly high intensity and nor are they likely to occur over sequential days, which suggests that the overall scale of impacts for any individual would be relatively low. Some California sea lion individuals in SOCAL may occasionally be taken in sequential days, because of the nature of the exposures and the other factors discussed above, any impacts to individual fitness would be limited and with the potential to accrue to no more than a limited number of individuals and would not be expected to affect rates of recruitment or survival. We further note that California sea lions have an increasing population trend.
• The HSTT activities are expected to occur in an area/time of specific importance for reproductive, feeding, or other known critical behaviors for pinnipeds, particularly in critical habitat for ESA-listed Hawaiian monk seal; however, Navy's activities are not anticipated to affect critical habitat. Populations are increasing for monk seals on the main Hawaiian islands.
• Pinnipeds found in the HSTT Study Area are not depleted under the MMPA, nor are they listed under the ESA with the exception of the Hawaiian monk seal and Guadalupe fur seal which are listed as endangered under the ESA and depleted under the MMPA.
Consequently, the activities are not expected to adversely impact rates of recruitment or survival of any of the analyzed stocks of pinnipeds (Table 77 above in this section).
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 Specified Activities will have a negligible impact on all affected marine mammal species or stocks.
There are no relevant subsistence uses of marine mammals implicated by this action. Therefore, NMFS has preliminarily determined that the total taking affecting species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
There are nine 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 (Eastern and Central North Pacific stocks), fin whale (CA/OR/WA and Hawaiian stocks), gray whale (Western North Pacific stock), humpback whale (Mexico and Central America DPSs), sei whale (Eastern North Pacific and Hawaiian stocks), sperm whale (CA/OR/WA and Hawaiian stocks), false killer whale (Main Hawaiian Islands Insular), Hawaiian monk seal (Hawaiian stock), and Guadalupe fur seal (Mexico to California). There is also critical habitat designated for Hawaiian monk seal and proposed critical habitat for Main Hawaiian Island insular false killer whales. The Navy will consult with NMFS pursuant to section 7 of the ESA, and NMFS will also consult internally on the issuance of LOAs under section 101(a)(5)(A) of the MMPA for HSTT activities. Consultation will be concluded prior to a determination on the issuance of the final rule and LOAs.
NMFS will work with NOAA's Office of National Marine Sanctuaries to fulfill our responsibilities under the NMSA as warranted and will complete any NMSA requirements prior to a determination on the issuance of the final rule and LOAs.
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
Accordingly, NMFS plans to adopt the Navy's EIS/OEIS for the HSTT Study Area provided our independent evaluation of the document finds that it includes adequate information analyzing the effects on the human environment of issuing regulations and LOAs. NMFS is a cooperating agency on the Navy's HSTT DEIS/OEIS and has worked extensively with the Navy in developing the document.
The Navy's HSTT DEIS/OEIS was made available for public comment at
We will review all comments submitted in response to this notice prior to concluding our NEPA process or making a final decision on the final rule and LOA requests.
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 Federal agencies 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 would be affected by this rulemaking, and the Navy is not a small governmental jurisdiction, small organization, or small business, as defined by the RFA. Any requirements imposed by an LOA issued pursuant to these regulations, and any monitoring or reporting requirements imposed by these regulations, would be applicable only to the Navy. NMFS does not expect the issuance of these regulations or the associated LOA 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, Incidental take, Indians, Labeling, Marine mammals, Navy, Penalties, Reporting
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 may be authorized in Letters of Authorization (LOAs) only if it occurs within the Hawaii-Southern California Training and Testing (HSTT) Study Area, which includes established operating and warning areas across the north-central Pacific Ocean, from the mean high tide line in Southern California west to Hawaii and the International Date Line. The Study Area includes the at-sea areas of three existing range complexes (the Hawaii Range Complex (HRC), the Southern California Range Complex (SOCAL), and the Silver Strand Training Complex, and overlaps a portion of the Point Mugu Sea Range (PMSR)). Also included in the Study Area are Navy pierside locations in Hawaii and Southern California, Pearl Harbor, San Diego Bay, and the transit corridor on the high seas where sonar training and testing may occur.
(c) The taking of marine mammals by the Navy is only authorized if it occurs incidental to the Navy's conducting training and testing activities. The Navy's use of sonar and other transducers, in-water detonations, air guns, pile driving/extraction, and vessel movements incidental to training and testing exercises may cause take by harassment, serious injury or mortality as defined by the MMPA through the various warfare mission areas in which the Navy would conduct including amphibious warfare, anti-submarine warfare, expeditionary warfare, surface warfare, mine warfare, and other activities (sonar and other transducers, pile driving and removal activities, air guns, vessel strike).
Regulations in this subpart are effective [
Under LOAs issued pursuant to § 216.106 of this chapter and § 218.77, the Holder of the LOAs (hereinafter “Navy”) may incidentally, but not intentionally, take marine mammals within the area described in § 218.70(b) by Level A harassment and Level B harassment associated with the use of active sonar and other acoustic sources and explosives as well as serious injury or mortality associated with vessel strikes provided the activity is in compliance with all terms, conditions, and requirements of these regulations in this subpart and the applicable LOAs.
Notwithstanding takings contemplated in § 218.72 and authorized by LOAs issued under § 216.106 of this chapter and § 218.76, no person in connection with the activities described in § 218.72 may:
(a) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or an LOA issued under § 216.106 of this chapter and § 218.76;
(b) Take any marine mammal not specified in such LOAs;
(c) Take any marine mammal specified in such LOAs in any manner other than as specified;
(d) Take a marine mammal specified in such LOAs if NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal; or or
(e) Take a marine mammal specified in such LOAs if NMFS determines such taking results in an unmitigable adverse impact on the species or stock of such marine mammal for taking for subsistence uses.
When conducting the activities identified in § 218.70(c), the mitigation measures contained in any LOAs issued under § 216.106 of this chapter and § 218.76 must be implemented. These mitigation measures shall include the following requirements, but are not limited to:
(a)
(1)
(i) Humpback Whale Awareness Notification Message Area (November 15-April 15). The Navy shall issue a seasonal awareness notification message to alert ships and aircraft operating in the area to the possible presence of concentrations of large whales,
(ii) Blue Whale Awareness Notification Message Area (June 1-October 31). The Navy shall issue a seasonal awareness notification message to alert ships and aircraft operating in the area to the possible presence of concentrations of large whales, including blue whales. To maintain safety of navigation and to avoid interactions with large whales during transits, the Navy shall instruct vessels to remain vigilant to the presence of large whale species (including blue whales), that when concentrated seasonally, may become vulnerable to vessel strikes. Lookouts shall use the information from the awareness notification messages to assist their visual observation of applicable mitigation zones during training and testing activities and to aid in the implementation of procedural mitigation observation of applicable mitigation zones during training and testing activities and to aid in the implementation of procedural mitigation.
(iii) Gray Whale Awareness Notification Message Area (November 1-March 31). The Navy shall issue a seasonal awareness notification message to alert ships and aircraft operating in the area to the possible presence of concentrations of large whales, including gray whales. To maintain safety of navigation and to avoid interactions with large whales during transits, the Navy shall instruct vessels to remain vigilant to the presence of large whale species (including gray whales), that when concentrated seasonally, may become vulnerable to vessel strikes. Lookouts shall use the information from the awareness notification messages to assist their visual observation of applicable mitigation zones during training and testing activities and to aid in the implementation of procedural mitigation.
(iv) Fin Whale Awareness Notification Message Area (November 1-May 31). The Navy shall issue a seasonal awareness notification message to alert ships and aircraft operating in the area to the possible presence of concentrations of large whales, including fin whales. To maintain safety of navigation and to avoid interactions with large whales during transits, the Navy shall instruct vessels to remain vigilant to the presence of large whale species (including fin whales), that when concentrated seasonally, may become vulnerable to vessel strikes. Lookouts shall use the information from the awareness notification messages to assist their visual observation of applicable mitigation zones during training and testing activities and to aid in implementation of procedural mitigation.
(2)
(i) Number of Lookouts and Observation Platform—(A) Hull-mounted sources: Two lookouts at the forward part of the ship for platforms without space or manning restrictions while underway; One lookout at the forward part of a small boat or ship for platforms with space or manning restrictions while underway; and One lookout for platforms using active sonar while moored or at anchor (including pierside).
(B) Non-hull mounted sources: One lookout on the ship or aircraft conducting the activity.
(ii) Mitigation Zone and Requirements—(A) Prior to the start of the activity the Navy shall observe for floating vegetation and marine mammals; if resource is observed, the Navy shall not commence use of active sonar.
(B) During low-frequency active sonar at or above 200 decibel (dB) and hull-mounted mid-frequency active sonar the Navy shall observe for marine mammals and power down active sonar transmission by 6 dB if resource is observed within 1,000 yards (yd) of the sonar source; power down by an additional 4 dB (10 dB total) if resource is observed within 500 yd of the sonar source; and cease transmission if resource is observed within 200 yd of the sonar source.
(C) During low-frequency active sonar below 200 dB, mid-frequency active sonar sources that are not hull mounted, and high-frequency active sonar the Navy shall observe for marine mammals and cease active sonar transmission if resource is observed within 200 yd of the sonar source.
(D) To allow an observed marine mammal to leave the mitigation zone, the Navy shall not recommence active sonar transmission until one of the recommencement conditions has been met: The animal is observed exiting the mitigation zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the sonar source; the mitigation zone has been clear from any additional sightings for 10 min for aircraft-deployed sonar sources or 30 min for vessel-deployed sonar sources; for mobile activities, the active sonar source has transited a distance equal to double that of the mitigation zone size beyond the location of the last sighting; or for activities using hull-mounted sonar, the lookout concludes that dolphins are deliberately closing in on the ship to ride the ship's bow wave, and are therefore out of the main transmission axis of the sonar (and there are no other marine mammal sightings within the mitigation zone).
(3)
(ii) Mitigation Zone and Requirements—150 yd around the air gun.
(A) Prior to the start of the activity (
(B) During the activity, the Navy shall observe for marine mammals; if resource is observed, the Navy shall cease use of air guns.
(C) To allow an observed marine mammal to leave the mitigation zone, the Navy shall not recommence the use of air guns until one of the recommencement conditions has been met: The animal is observed exiting the mitigation zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the air gun; the mitigation zone has been clear from any additional sightings for 30 min; or for mobile activities, the air gun has transited a distance equal to double that
(4)
(i) Number of Lookouts and Observation Platform—One lookout positioned on the shore, the elevated causeway, or a small boat.
(ii) Mitigation Zone and Requirements—100 yd around the pile driver.
(A) Thirty minutes prior to the start of the activity, the Navy shall observe for floating vegetation and marine mammals; if resource is observed, the Navy shall not commence impact pile driving or vibratory pile extraction.
(B) During the activity, the Navy shall observe for marine mammals; if resource is observed, the Navy shall cease impact pile driving or vibratory pile extraction.
(C) To allow an observed marine mammal to leave the mitigation zone, the Navy shall not recommence pile driving until one of the recommencement conditions has been met: The animal is observed exiting the mitigation zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the pile driving location; or the mitigation zone has been clear from any additional sightings for 30 min.
(5)
(i) Number of Lookouts and Observation Platform—One lookout shall be positioned on the ship conducting the firing. Depending on the activity, the lookout could be the same as the one described in Explosive Medium-Caliber and Large-Caliber Projectiles or in Small-, Medium-and Large-Caliber Non-Explosive Practice Munitions.
(ii) Mitigation Zone and Requirements—Thirty degrees on either side of the firing line out to 70 yd from the muzzle of the weapon being fired.
(A) Prior to the start of the activity, the Navy shall observe for floating vegetation, and marine mammals; if resource is observed, the Navy shall not commence weapons firing.
(B) During the activity, the Navy shall observe for marine mammals; if resource is observed, the Navy shall cease weapons firing.
(C) To allow an observed marine mammal to leave the mitigation zone, the Navy shall not recommence weapons firing until one of the recommencement conditions has been met: The animal is observed exiting the mitigation zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the firing ship; the mitigation zone has been clear from any additional sightings for 30 min; or for mobile activities, the firing ship has transited a distance equal to double that of the mitigation zone size beyond the location of the last sighting.
(6)
(ii) Mitigation Zone and Requirements—600 yd around an explosive sonobuoy.
(A) Prior to the start of the activity (
(B) During the activity, the Navy shall observe for marine mammals; if resource is observed, the Navy shall cease sonobuoy or source/receiver pair detonations.
(C) To allow an observed marine mammal to leave the mitigation zone, the Navy shall not recommence the use of explosive sonobuoys until one of the recommencement conditions has been met: The animal is observed exiting the mitigation zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the sonobuoy; or the mitigation zone has been clear from any additional sightings for 10 min when the activity involves aircraft that have fuel constraints, or 30 min when the activity involves aircraft that are not typically fuel constrained.
(7)
(ii) Mitigation Zone and Requirements—2,100 yd around the intended impact location.
(A) Prior to the start of the activity (
(B) During the activity, the Navy shall observe for marine mammals and jellyfish aggregations; if resource is observed, the Navy shall cease firing.
(C) To allow an observed marine mammal to leave the mitigation zone, the Navy shall not recommence firing until one of the recommencement conditions has been met: The animal is observed exiting the mitigation zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the intended impact location; or the mitigation zone has been clear from any additional sightings for 10 min when the activity involves aircraft that have fuel constraints, or 30 min when the activity involves aircraft that are not typically fuel constrained. After completion of the activity, the Navy shall observe for marine mammals; if any injured or dead resources are observed, the Navy shall follow established incident reporting procedures.
(8)
(i) Number of Lookouts and Observation Platform—One Lookout on the vessel or aircraft conducting the activity. For activities using explosive large-caliber projectiles, depending on the activity, the Lookout could be the same as the one described in Weapons Firing Noise in paragraph (a)(5)(i) of this section.
(ii) Mitigation Zone and Requirements—(A) 200 yd around the intended impact location for air-to-surface activities using explosive medium-caliber projectiles,
(B) 600 yd around the intended impact location for surface-to-surface activities using explosive medium-caliber projectiles, or
(C) 1,000 yd around the intended impact location for surface-to-surface activities using explosive large-caliber projectiles.
(D) Prior to the start of the activity (
(E) During the activity, observe for marine mammals; if resource is observed, the Navy shall cease firing.
(F) To allow an observed marine mammal to leave the mitigation zone, the Navy shall not recommence firing until one of the recommencement conditions has been met: The animal is observed exiting the mitigation zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the intended impact location; the mitigation zone has been clear from any additional sightings for 10 min for aircraft-based firing or 30 min for vessel-based firing; or for activities using mobile targets, the
(9)
(i) Number of Lookouts and Observation Platform—One lookout positioned in an aircraft.
(ii) Mitigation Zone and Requirements—(A) 900 yd around the intended impact location for missiles or rockets with 0.6-20 lb net explosive weight, or
(B) 2,000 yd around the intended impact location for missiles with 21-500 lb net explosive weight.
(C) Prior to the start of the activity (
(D) During the activity, the Navy shall observe for marine mammals; if resource is observed, the Navy shall cease firing.
(E) To allow an observed marine mammal to leave the mitigation zone, the Navy shall not recommence firing until one of the recommencement conditions has been met: The animal is observed exiting the mitigation zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the intended impact location; or the mitigation zone has been clear from any additional sightings for 10 min when the activity involves aircraft that have fuel constraints, or 30 min when the activity involves aircraft that are not typically fuel constrained.
(10)
(ii) Mitigation Zone and Requirements—2,500 yd around the intended target.
(A) Prior to the start of the activity (
(B) During target approach, the Navy shall observe for marine mammals; if resource is observed, the Navy shall cease bomb deployment.
(C) To allow an observed marine mammal to leave the mitigation zone, the Navy shall not recommence bomb deployment until one of the recommencement conditions has been met: The animal is observed exiting the mitigation zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the intended target; the mitigation zone has been clear from any additional sightings for 10 min; or for activities using mobile targets, the intended target has transited a distance equal to double that of the mitigation zone size beyond the location of the last sighting.
(11)
(ii) Mitigation Zone and Requirements—2.5 nmi around the target ship hulk.
(A) 90 min prior to the first firing, the Navy shall conduct aerial observations for floating vegetation, jellyfish aggregations, and marine mammals; if resource is observed, the Navy shall not commence firing.
(B) During the activity, the Navy shall conduct passive acoustic monitoring and visually observe for marine mammals from the vessel; if resource is visually observed, the Navy shall cease firing.
(C) Immediately after any planned or unplanned breaks in weapons firing of longer than 2 hrs, the Navy shall observe for marine mammals from the aircraft and vessel; if resource is observed, the Navy shall not commence firing.
(D) To allow an observed marine mammal to leave the mitigation zone, the Navy shall not recommence firing until one of the recommencement conditions has been met: The animal is observed exiting the mitigation zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the target ship hulk; or the mitigation zone has been clear from any additional sightings for 30 min.
(E) For 2 hrs after sinking the vessel (or until sunset, whichever comes first), the Navy shall observe for marine mammals; if any injured or dead resources are observed, the Navy shall follow established incident reporting procedures.
(12)
(i) Number of Lookouts and Observation Platform—(A) One lookout positioned on a vessel or in an aircraft when using up to 0.1-5 lb net explosive weight charges.
(B) Two lookouts (one in an aircraft and one on a small boat) when using up to 6-650 lb net explosive weight charges.
(ii) Mitigation Zone and Requirements—(A) 600 yd around the detonation site for activities using 0.1-5 lb net explosive weight, or
(B) 2,100 yd around the detonation site for activities using 6-650 lb net explosive weight (including high explosive target mines).
(C) Prior to the start of the activity (
(D) During the activity, the Navy shall observe for marine mammals; if resource is observed, the Navy shall cease detonations.
(E) To allow an observed marine mammal to leave the mitigation zone, the Navy shall not recommence detonations until one of the recommencement conditions has been met: The animal is observed exiting the mitigation zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to detonation site; or the mitigation zone has been clear from any additional sightings for 10 min when the activity involves aircraft that have fuel constraints, or 30 min when the activity involves aircraft that are not typically fuel constrained.
(F) After completion of the activity, the Navy shall observe for marine mammals and sea turtles (typically 10 min when the activity involves aircraft that have fuel constraints, or 30 min. when the activity involves aircraft that are not typically fuel constrained); if any injured or dead resources are observed, the Navy shall follow established incident reporting procedures.
(13)
(i) Number of Lookouts and Observation Platform—(A) Two lookouts (two small boats with one Lookout each, or one Lookout on a small boat and one in a rotary-wing aircraft) when implementing the smaller mitigation zone.
(B) Four lookouts (two small boats with two Lookouts each), and a pilot or member of an aircrew shall serve as an additional Lookout if aircraft are used during the activity, when implementing the larger mitigation zone.
(ii) Mitigation Zone and Requirements—(A) The Navy shall not set time-delay firing devices (0.1-29 lb net explosive weight) to exceed 10 min.
(B) 500 yd around the detonation site during activities under positive control using 0.1-20 lb net explosive weight, or
(C) 1,000 yd around the detonation site during all activities using time-delay fuses (0.1-29 lb net explosive weight) and during activities under positive control using 21-60 lb net explosive weight charges.
(D) Prior to the start of the activity (
(E) During the activity, the Navy shall observe for marine mammals; if resource is observed, the Navy shall cease detonations or fuse initiation. All divers placing the charges on mines shall support the Lookouts while performing their regular duties and shall report all marine mammal sightings to their supporting small boat or Range Safety Officer. To the maximum extent practicable depending on mission requirements, safety, and environmental conditions, boats shall position themselves near the mid-point of the mitigation zone radius (but outside of the detonation plume and human safety zone), shall position themselves on opposite sides of the detonation location (when two boats are used), and shall travel in a circular pattern around the detonation location with one Lookout observing inward toward the detonation site and the other observing outward toward the perimeter of the mitigation zone. If used, aircraft shall travel in a circular pattern around the detonation location to the maximum extent practicable.
(F) To allow an observed marine mammal to leave the mitigation zone, the Navy shall not recommence detonations or fuse initiation until one of the recommencement conditions has been met: The animal is observed exiting the mitigation zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the detonation site; or the mitigation zone has been clear from any additional sightings for 10 min during activities under positive control with aircraft that have fuel constraints, or 30 min during activities under positive control with aircraft that are not typically fuel constrained and during activities using time-delay firing devices.
(G) After completion of an activity using time-delay firing devices, the Navy shall observe for marine mammals for 30 min; if any injured or dead resources are observed, the Navy follow established incident reporting procedures.
(14)
(ii) Mitigation Zone and Requirements—200 yd around the intended detonation location.
(A) Prior to the start of the activity (
(B) During the activity, the Navy shall observe for marine mammals; if resource is observed, the Navy shall cease detonations.
(C) To allow an observed marine mammal to leave the mitigation zone, the Navy shall not recommence detonations until one of the recommencement conditions has been met: The animal is observed exiting the mitigation zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the intended detonation location; the mitigation zone has been clear from any additional sightings for 30 min; or the intended detonation location has transited a distance equal to double that of the mitigation zone size beyond the location of the last sighting.
(15)
(ii) Mitigation Zone and Requirements—700 yd around the intended detonation site.
(A) For 30 min prior to the first detonation, the Lookout positioned on a small boat shall observe for floating vegetation and marine mammals; if resource is observed, the Navy shall not commence the initial detonation.
(B) For 10 min prior to the first detonation, the Lookout positioned on shore shall use binoculars to observe for marine mammals; if resource is observed, the Navy shall not commence the initial detonation until the mitigation zone has been clear of any additional sightings for a minimum of 10 min.
(C) During the activity, the Navy shall observe for marine mammals; if resource is observed, the Navy shall cease detonations.
(D) To allow an observed marine mammal to leave the mitigation zone, the Navy shall not recommence detonations until one of the recommencement conditions has been met: The animal is observed exiting the mitigation zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the detonation site; or the mitigation zone has been clear from any additional sightings for 10 min (as determined by the shore observer).
(E) After completion of the activity, the Lookout positioned on a small boat shall observe for marine mammals for 30 min; if any injured or dead resources are observed, the Navy shall follow established incident reporting procedures.
(16)
(i) Number of Lookouts and Observation Platform—One lookout on the vessel that is underway.
(ii) Mitigation Zone and Requirements—(A) 500 yd around whales—When underway, the Navy shall observe for marine mammals; if a whale is observed, the Navy shall maneuver to maintain distance.
(B) 200 yd around all other marine mammals (except bow-riding dolphins and pinnipeds hauled out on man-made navigational structures, port structures, and vessels)—When underway, the Navy shall observe for marine mammals; if a marine mammal other than a whale, bow-riding dolphin, or hauled-out pinniped is observed, the Navy shall maneuver to maintain distance.
(17)
(i) Number of Lookouts and Observation Platform—One lookout positioned on a manned towing platform.
(ii) Mitigation Zone and Requirements—250 yd around marine mammals. When towing an in-water device, the Navy shall observe for marine mammals; if resource is observed, the Navy shall maneuver to maintain distance.
(18)
(i) Number of Lookouts and Observation Platform—One Lookout positioned on the platform conducting the activity. Depending on the activity, the Lookout could be the same as the one described for Weapons Firing Noise in paragraph (a)(5)(i) of this section.
(ii) Mitigation Zone and Requirements—200 yd around the intended impact location.
(A) Prior to the start of the activity (
(B) During the activity, the Navy shall observe for marine mammals; if resource is observed, the Navy shall cease firing.
(C) To allow an observed marine mammal to leave the mitigation zone, the Navy shall not recommence firing until one of the recommencement conditions has been met: The animal is observed exiting the mitigation zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the intended impact location; the mitigation zone has been clear from any additional sightings for 10 min for aircraft-based firing or 30 min for vessel-based firing; or for activities using a mobile target, the intended impact location has transited a distance equal to double that of the mitigation zone size beyond the location of the last sighting.
(19)
(i) Number of Lookouts and Observation Platform—One Lookout positioned in an aircraft.
(ii) Mitigation Zone and Requirements—900 yd around the intended impact location.
(A) Prior to the start of the activity (
(B) During the activity, the Navy shall observe for marine mammals; if resource is observed, the Navy shall cease firing.
(C) To allow an observed marine mammal to leave the mitigation zone, the Navy shall not recommence firing until one of the recommencement conditions has been met: The animal is observed exiting the mitigation zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the intended impact location; or the mitigation zone has been clear from any additional sightings for 10 min when the activity involves aircraft that have fuel constraints, or 30 min when the activity involves aircraft that are not typically fuel constrained.
(20)
(i) Number of Lookouts and Observation Platform—One Lookout positioned in an aircraft.
(ii) Mitigation Zone and Requirements—1,000 yd around the intended target.
(A) Prior to the start of the activity (
(B) During approach of the target or intended minefield location, the Navy shall observe for marine mammals; if resource is observed, the Navy shall cease bomb deployment or mine laying.
(C) To allow an observed marine mammal to leave the mitigation zone, the Navy shall not recommence bomb deployment or mine laying until one of the recommencement conditions has been met: the animal is observed exiting the mitigation zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the intended target or minefield location; the mitigation zone has been clear from any additional sightings for 10 min; or for activities using mobile targets, the intended target has transited a distance equal to double that of the mitigation zone size beyond the location of the last sighting.
(b)
(1)
(i) Mitigation Area Requirements—(A) Hawaii Island Mitigation Area (year-round):
(
(
(
(
(B) 4-Islands Region Mitigation Area (November 15-April 15):
(
(
(ii) [Reserved]
(2)
(i) Mitigation Area Requirements—(A) San Diego Arc Mitigation Area (June 1-October 31):
(
(
(
(
(B) Santa Barbara Island Mitigation Area (year-round):
(
(
(ii) [Reserved]
(a) The Navy must notify NMFS immediately (or as soon as operational security considerations allow) if the specified activity identified in § 218.70 is thought to have resulted in the mortality or injury of any marine mammals, or in any take of marine mammals not identified in this subpart.
(b) The Navy must conduct all monitoring and required reporting under the LOAs, including abiding by the HSTT Study Area monitoring program. Details on program goals, objectives, project selection process, and current projects available at
(c) Notification of injured, live stranded, or dead marine mammals. The Navy shall abide by the Notification and Reporting Plan, which sets out notification, reporting, and other requirements when dead, injured, or live stranded marine mammals are detected.
(d) Annual HSTT Study Area marine species monitoring report. The Navy shall submit an annual report of the HSTT Study Area monitoring describing the implementation and results from the previous calendar year. Data collection methods shall be standardized across range complexes and study areas to allow for comparison in different geographic locations. The report shall be submitted either three months after the calendar year, or three months after the conclusion of the monitoring year to be determined by the Adaptive Management process to the Director, Office of Protected Resources, NMFS. Such a report would describe progress of knowledge made with respect to intermediate scientific objectives within the HSTT Study Area 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. As an alternative, the Navy may submit a multi-Range Complex annual Monitoring Plan report to fulfill this requirement. Such a report would describe progress of knowledge made with respect to monitoring study questions across multiple Navy ranges associated with the ICMP. Similar study questions shall be treated together so that progress on each topic shall be summarized across multiple Navy ranges. The report need not include analyses and content that does not provide direct assessment of cumulative progress on the monitoring study question. This will continue to allow Navy to provide a cohesive monitoring report covering multiple ranges (as per ICMP goals), rather than entirely separate reports for the HSTT, Gulf of Alaska, Mariana Islands, and the Northwest Study Areas, etc.
(e) Annual HSTT Training Exercise Report and Testing Activity Report. Each year, the Navy shall submit two preliminary reports (Quick Look Report) detailing the status of authorized sound sources within 21 days after the anniversary of the date of issuance of each LOA to the Director, Office of Protected Resources, NMFS. Each year, the Navy shall submit detailed reports to the Director, Office of Protected Resources, NMFS within 3 months after the anniversary of the date of issuance of the LOA. The HSTT annual Training Exercise Report and Testing Activity reports can be consolidated with other exercise reports from other range complexes in the Pacific Ocean for a single Pacific Exercise Report, if desired. The annual reports shall contain information on MTEs, Sinking Exercise (SINKEX) events, and a summary of all sound sources used, as described in paragraph (e)(3) of this section. The analysis in the detailed reports shall be based on the accumulation of data from the current year's report and data collected from previous reports. The detailed reports shall contain information identified in paragraphs (e)(1) through (5) of this section.
(1) MTEs—This section shall contain the following information for MTEs conducted in the HSTT Study Area.
(i) Exercise Information (for each MTE):
(A) Exercise designator;
(B) Date that exercise began and ended;
(C) Location;
(D) Number and types of active sonar 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; and
(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) Mitigation implementation. Whether operation of sonar sensor was delayed, or sonar was powered or shut down, and how long the delay was;
(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); and
(M) Observed behavior. Lookouts shall report, in plain language and
(2) SINKEXs. This section shall include the following information for each SINKEX completed that year.
(i) Exercise information (gathered for each SINKEX);
(A) Location;
(B) Date and time exercise began and ended;
(C) Total hours of observation by lookouts before, during, and after exercise;
(D) Total number and types of explosive source bins detonated;
(E) Number and types of passive acoustic sources used in exercise;
(F) Total hours of passive acoustic search time;
(G) Number and types of vessels, aircraft, etc., participating in exercise;
(H) Wave height in feet (high, low, and average during exercise); and
(J) Narrative description of sensors and platforms utilized for marine mammal detection and timeline illustrating how marine mammal detection was conducted.
(ii) Individual marine mammal observation (by Navy lookouts) information (gathered for each marine mammal sighting) for each sighting where mitigation was implemented.
(A) Date/Time/Location of sighting;
(B) Species (if not possible, indicate whale, dolphin, or pinniped);
(C) Number of individuals;
(D) Initial detection sensor;
(E) Length of time observers maintained visual contact with marine mammal;
(F) Sea state;
(G) Visibility;
(H) Whether sighting was before, during, or after detonations/exercise, and how many minutes before or after;
(I) Distance of marine mammal from actual detonations—200 yd, 200 to 500 yd, 500 to 1,000 yd, 1,000 to 2,000 yd, or >2,000 yd (or target spot if not yet detonated);
(J) Observed behavior. Lookouts shall report, in plain language and without trying to categorize in any way, the observed behavior of the animal(s) (such as animal closing to bow ride, paralleling course/speed, floating on surface and not swimming etc.), including speed and direction and if any calves present;
(K) Resulting mitigation implementation. Indicate whether explosive detonations were delayed, ceased, modified, or not modified due to marine mammal presence and for how long; and
(L) If observation occurs while explosives are detonating in the water, indicate munition type in use at time of marine mammal detection.
(3) Summary of sources used. This section shall include the following information summarized from the authorized sound sources used in all training and testing events:
(i) Total annual hours or quantity (per the LOA) of each bin of sonar or other acoustic sources (pile driving and air gun activities);
(ii) Total annual expended/detonated rounds (missiles, bombs, sonobuoys, etc.) for each explosive bin.
(4) Humpback Whale Special Reporting Area (December 15-April 15). The Navy shall report the total hours of operation of surface ship hull-mounted mid-frequency active sonar used in the special reporting area.
(5) HSTT Mitigation Areas. The Navy shall report any use that occurred as specifically described in these areas. Information included in the classified annual reports may be used to inform future adaptive management of activities within the HSTT Study Area.
(6) Geographic information presentation. The reports shall present an annual (and seasonal, where practical) depiction of training and testing events and bin usage (as well as pile driving activities) geographically across the HSTT Study Area.
(a) To incidentally take marine mammals pursuant to these regulations in this subpart, the Navy must apply for and obtain Letters of Authorization (LOAs) in accordance with § 216.106 of this subpart, conducting the activity identified in § 218.70(c).
(b) LOAs, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of these regulations in this subpart.
(c) If an LOA(s) expires prior to the expiration date of these regulations in this subpart, the Navy may apply for and obtain a renewal of the LOA(s).
(d) In the event of projected changes to the activity or to mitigation, monitoring, reporting (excluding changes made pursuant to the adaptive management provision of § 218.77(c)(1)) required by an LOA, the Navy must apply for and obtain a modification of LOAs as described in § 218.77.
(e) Each LOA shall set forth:
(1) Permissible methods of incidental taking;
(2) Authorized geographic areas for incidental taking;
(3) Means of effecting the least practicable adverse impact (
(4) Requirements for monitoring and reporting.
(f) Issuance of the LOA(s) shall be based on a determination that the level of taking shall be consistent with the findings made for the total taking allowable under these regulations in this subpart.
(g) Notice of issuance or denial of the LOA(s) shall be published in the
(a) An LOA issued under § 216.106 of this subchapter and § 218.76 for the activity identified in § 218.70(c) shall be renewed or modified upon request by 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 in this subpart (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section); and
(2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOA(s) under these regulations in this subpart were implemented.
(b) For LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting measures (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) 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 subchapter and § 218.76 for the activity identified in § 218.70(c) may be modified by NMFS under the following circumstances:
(1) Adaptive Management—After consulting with the Navy regarding the
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA:
(A) Results from the 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 in this subpart or subsequent LOAs.
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS shall publish a notice of proposed LOA in the
(2) Emergencies—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 LOAs issued pursuant to § 216.106 of this chapter and § 217.86, an LOA may be modified without prior notice or opportunity for public comment. Notice would be published in the
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