Federal Register Vol. 83, No.155,
Federal Register Volume 83, Issue 155 (August 10, 2018)
Federal Register Volume 83, Issue 155 (August 10, 2018)
| Page Range | 39581-39869 | |
| FR Document |
Document Created: 2017-12-29 23:38:06
Document Modified: 2017-12-29 23:38:06
| Page and Subject | |
|---|---|
| 83 FR 39774 - Agency Information Collection Activities; National Land Remote Sensing Education, Outreach and Research Activity | |
| 83 FR 39665 - National School Lunch, Special Milk, and School Breakfast Programs, National Average Payments/Maximum Reimbursement Rates | |
| 83 FR 39657 - Child and Adult Care Food Program: National Average Payment Rates, Day Care Home Food Service Payment Rates, and Administrative Reimbursement Rates for Sponsoring Organizations of Day Care Homes for the Period July 1, 2018 Through June 30, 2019 | |
| 83 FR 39734 - Sunshine Act Meetings | |
| 83 FR 39784 - Government in the Sunshine Act Meeting Notice | |
| 83 FR 39802 - Sunshine Act Meetings | |
| 83 FR 39665 - Sunshine Act Meeting Notice | |
| 83 FR 39736 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Middle Grades Longitudinal Study of 2017-18 (MGLS:2017) Main Study Design Revision, Operational Field Test First Follow-Up (OFT2) and Second Follow-Up (OFT3), and Main Study Base Year (MS1) and Tracking for First Follow-Up (MS2) | |
| 83 FR 39596 - Special Local Regulation; Roanoke River, Plymouth, NC | |
| 83 FR 39779 - Notice of Inventory Completion: Heard Museum, Phoenix, AZ | |
| 83 FR 39781 - Notice of Inventory Completion: The American Museum of Natural History, New York, NY; Correction; Correction | |
| 83 FR 39775 - Notice of Inventory Completion: Riverside Metropolitan Museum, Riverside, CA | |
| 83 FR 39777 - Notice of Inventory Completion: American Museum of Natural History, New York, NY | |
| 83 FR 39782 - Notice of Intent To Repatriate Cultural Items: Thomas Gilcrease Institute of American History and Art, Tulsa, OK | |
| 83 FR 39752 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding Company | |
| 83 FR 39776 - Notice of Inventory Completion: Anniston Museum of Natural History, Anniston, AL | |
| 83 FR 39752 - Notice of Intent To Prepare a Supplemental Environmental Impact Statement (SEIS) for the Sale of the Plum Island and an Ancillary Support Facility at Orient Point, New York | |
| 83 FR 39753 - Notice of Availability and Announcement of Meeting for the Draft Environmental Impact Statement for the Otay Mesa Port of Entry, San Diego, California | |
| 83 FR 39781 - Establishment of a New Fee Area at Kennesaw Mountain National Battlefield Park | |
| 83 FR 39735 - Agency Information Collection Activities; Comment Request; International Resource Information System (IRIS) | |
| 83 FR 39636 - Drawbridge Operation Regulation; Hudson River, Albany and Rensselaer, NY | |
| 83 FR 39638 - Air Plan and Operating Permit Program Approval: AL, GA and SC; Revisions to Public Notice Provisions in Permitting Programs | |
| 83 FR 39816 - Creating Options for Veterans Expedited Recovery (COVER) Commission; Notice of Meeting | |
| 83 FR 39751 - Proposed CERCLA Cost Recovery Settlement for the Barrio Vietnam Superfund Site, Guaynabo, Puerto Rico | |
| 83 FR 39691 - Ripe Olives From Spain: Notice of Correction to Antidumping Duty Order | |
| 83 FR 39741 - Stillwater Wind, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization | |
| 83 FR 39740 - Alabama Power Company; Notice of Intent To File License Application, Filing of Pre-Application Document (PAD), Commencement of Pre-Filing Process, and Scoping; Request for Comments on the PAD and Scoping Document, and Identification of Issues and Associated Study Requests | |
| 83 FR 39742 - Combined Notice of Filings #1 | |
| 83 FR 39742 - Combined Notice of Filings | |
| 83 FR 39739 - Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization; Crazy Mountain Wind LLC | |
| 83 FR 39787 - Meeting of the Global Justice Information Sharing Initiative Federal Advisory Committee; Renewal of Charter | |
| 83 FR 39745 - Underground Injection Control Program; Hazardous Waste Injection Restrictions; Petition for Exemption-Class I Hazardous Waste Injection; Innophos, Inc. Geismar, Louisiana | |
| 83 FR 39743 - Privacy Act of 1974; System of Records; Correction | |
| 83 FR 39743 - Agency Information Collection Activities; Proposed Collection; Comment Request; Identification, Listing and Rulemaking Petitions (Renewal) | |
| 83 FR 39605 - Picoxystrobin; Pesticide Tolerances | |
| 83 FR 39746 - Notice of Receipt of Requests To Voluntarily Cancel Certain Pesticide Registrations and Amend Registrations To Terminate Certain Uses | |
| 83 FR 39759 - Agency Information Collection Activities: Submission for OMB Review; Comment Request | |
| 83 FR 39744 - Agency Information Collection Activities; Proposed Collection; Comment Request; National Minimum Criteria for Disposal of Coal Combustion Residuals From Electric Utilities | |
| 83 FR 39657 - Agency Information Collection Activities: Request for Extension of a Current Information Collection; Comment Request-Evaluation of Supplemental Nutrition Assistance Program (SNAP) Employment and Training (E&T) Pilots | |
| 83 FR 39709 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Pile Driving Activities for the Restoration of Pier 62, Seattle Waterfront, Elliott Bay | |
| 83 FR 39763 - HHS Approval of Entities That Certify Medical Review Officers | |
| 83 FR 39738 - Proposed Agency Information Collection | |
| 83 FR 39737 - Mexico Pacific Limited LLC; Application for Long-Term, Multi-Contract Authorization To Export Domestically Produced Natural Gas Through Mexico to Non-Free Trade Agreement Countries After Liquefaction to Liquefied Natural Gas | |
| 83 FR 39598 - Safety Zone; Ski Show Sylvan Beach, Fish Creek, Oneida, NY | |
| 83 FR 39687 - Polyethylene Terephthalate Film, Sheet, and Strip From Taiwan: Preliminary Results of Antidumping Duty Administrative Review and Preliminary Determination of No Shipments; 2016-2017 | |
| 83 FR 39667 - Polyethylene Terephthalate Film, Sheet, and Strip From India: Preliminary Results and Partial Rescission of Antidumping Duty Administrative Review; 2016-2017 | |
| 83 FR 39677 - Polyethylene Terephthalate Film, Sheet, and Strip From India: Preliminary Results and Partial Rescission of Countervailing Duty Administrative Review; 2016 | |
| 83 FR 39754 - Proposed Data Collection Submitted for Public Comment and Recommendations | |
| 83 FR 39755 - Proposed Data Collection Submitted for Public Comment and Recommendations | |
| 83 FR 39757 - Proposed Data Collection Submitted for Public Comment and Recommendations | |
| 83 FR 39770 - Agency Information Collection Activities: Free Trade Agreements | |
| 83 FR 39679 - Certain Corrosion-Resistant Steel Products From Taiwan: Preliminary Results of Antidumping Duty Administrative Review and Partial Rescission of Antidumping Duty Administrative Review; 2016-2017 | |
| 83 FR 39588 - Public Information, Freedom of Information Act and Privacy Act Regulations | |
| 83 FR 39692 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to a Marine Geophysical Survey in the Northwest Atlantic Ocean | |
| 83 FR 39806 - Notice of Determinations; Culturally Significant Objects Imported for Exhibition-Determinations: “Celebrating Tintoretto: Portrait Paintings and Studio Drawings” Exhibition | |
| 83 FR 39789 - In the Matter of Entergy Arkansas, Inc. and Entergy Operations, Inc. Arkansas Nuclear One, Units 1 and 2, and Independent Spent Fuel Storage Installation Facility | |
| 83 FR 39798 - In the Matter of Entergy Louisiana, LLC and Entergy Operations, Inc., River Bend Station, Unit 1, and Independent Spent Fuel Storage Installation Facility | |
| 83 FR 39797 - In the Matter of Entergy Louisiana, LLC and Entergy Operations, Inc. Waterford Steam Electric Station, Unit 3, and Independent Spent Fuel Storage Installation Facility | |
| 83 FR 39771 - Agency Information Collection Activities: Allegation of Counterfeiting and Intellectual Piracy; Extension Without Change, of a Currently Approved Collection | |
| 83 FR 39682 - Welded Line Pipe From the Republic of Korea: Amended Final Results of Antidumping Duty Administrative Review; 2015-2016 | |
| 83 FR 39675 - Certain Steel Nails From Taiwan: Preliminary Results of Antidumping Duty Administrative Review and Partial Rescission of Administrative Review; 2016-2017 | |
| 83 FR 39688 - Initiation of Antidumping and Countervailing Duty Administrative Reviews | |
| 83 FR 39670 - Certain Corrosion-Resistant Steel Products From India: Preliminary Results of the Countervailing Duty Administrative Review; 2015-2016 | |
| 83 FR 39683 - Certain Corrosion-Resistant Steel Products From India: Preliminary Results of Antidumping Duty Administrative Review; 2016-2017 | |
| 83 FR 39727 - Advisory Committee on Arlington National Cemetery; Notice of Federal Advisory Committee Meeting | |
| 83 FR 39726 - Advisory Committee on Arlington National Cemetery; Notice of Federal Advisory Committee Meeting | |
| 83 FR 39734 - Inland Waterways Users Board; Notice of Federal Advisory Committee Meeting | |
| 83 FR 39671 - Certain Corrosion-Resistant Steel Products From the Republic of Korea: Preliminary Results of Countervailing Duty Administrative Review, Rescission of Review, in Part, and Intent To Rescind, in Part; 2015-16 | |
| 83 FR 39666 - Corrosion-Resistant Steel Products From the Republic of Korea: Preliminary Results of Antidumping Duty Administrative Review; 2016-2017 | |
| 83 FR 39728 - Arms Sales Notification | |
| 83 FR 39732 - Arms Sales Notification | |
| 83 FR 39761 - Submission for OMB Review; Comment Request | |
| 83 FR 39807 - Notice of Determinations; Culturally Significant Objects Imported for Exhibition-Determinations: “Rembrandt: Painter as Printmaker” Exhibition | |
| 83 FR 39730 - Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces; Notice of Federal Advisory Committee Meeting | |
| 83 FR 39806 - Notice of Determinations; Culturally Significant Objects Imported for Exhibition-Determinations: Exhibition of Two Renaissance-Era Italian Paintings | |
| 83 FR 39731 - Defense Business Board; Notice of Federal Advisory Committee Meeting | |
| 83 FR 39787 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Workforce Innovation and Opportunity Act Implementation Evaluation-Site Visit Protocols | |
| 83 FR 39735 - Applications for New Awards; Special Programs for Indian Children-Demonstration Grants; Supplemental Notice | |
| 83 FR 39809 - Notice of Final Federal Agency Actions on Proposed Highway Projects in Texas | |
| 83 FR 39771 - Endangered and Threatened Wildlife and Plants; Initiation of 5-Year Status Reviews of 11 Species in the Mountain-Prairie Region | |
| 83 FR 39644 - Patient Protection and Affordable Care Act; Adoption of the Methodology for the HHS-Operated Permanent Risk Adjustment Program for the 2018 Benefit Year Proposed Rule | |
| 83 FR 39784 - Bharanidharan Padmanabhan, M.D., Ph.D.; Decision and Order | |
| 83 FR 39641 - National Emission Standards for Hazardous Air Pollutants; Delegation of Authority to Oklahoma | |
| 83 FR 39767 - Collection of Information Under Review by Office of Management and Budget; OMB Control Number: 1625-0094 | |
| 83 FR 39768 - Information Collection Request to Office of Management and Budget; OMB Control Number: 1625-0095 | |
| 83 FR 39769 - Information Collection Request to Office of Management and Budget; OMB Control Number: 1625-0014 | |
| 83 FR 39750 - Environmental Impact Statements; Notice of Availability | |
| 83 FR 39665 - Southern Region Recreation Resource Advisory Committee | |
| 83 FR 39780 - Potential National Monument Designations | |
| 83 FR 39790 - Entergy Operations, Inc.; FirstEnergy Nuclear Operating Company; Vistra Operations Company, LLC; Duke Entergy Florida, Southern Nuclear Operating Company, Inc.; Dominion Nuclear Connecticut, Inc.; Virginia Electric and Power Company; Northern States Power Company-Minnesota; South Carolina Electric & Gas Company, Inc.; STP Nuclear Operating Company; Tennessee Valley Authority | |
| 83 FR 39761 - Human Dermal (Skin) Safety Testing for Topical Drug Products: Regulatory Utility and Evaluation; Public Workshop; Request for Comments | |
| 83 FR 39807 - Actions Taken at June 15, 2018, Meeting | |
| 83 FR 39765 - Agency Information Collection Activities: Proposed Collection; Comment Request | |
| 83 FR 39766 - Agency Information Collection Activities: Proposed Collection; Comment Request | |
| 83 FR 39783 - Tapered Roller Bearings From Korea | |
| 83 FR 39800 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Modify the NYSE Arca Options Fee Schedule | |
| 83 FR 39802 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend FINRA Rule 9000 Series (Code of Procedure) To Reflect an Internal Reorganization of FINRA's Enforcement Operations | |
| 83 FR 39804 - Self-Regulatory Organizations; Cboe Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Relating to the Silexx Trading Platform Fees Schedule | |
| 83 FR 39759 - Submission for OMB Review; Comment Request | |
| 83 FR 39788 - Notice of Meeting of the Advisory Committee on Reactor Safeguards (ACRS) Subcommittee on Plant Operations and Fire Protection | |
| 83 FR 39800 - Notice of Meeting of the Advisory Committee on Reactor Safeguards (ACRS) Subcommittee on Regulatory Policies & Practices | |
| 83 FR 39764 - Chronic Pain: The Science of Complementary and Integrative Health Approaches | |
| 83 FR 39782 - Notice of Receipt of Complaint; Solicitation of Comments Relating to the Public Interest | |
| 83 FR 39657 - Grain Inspection Advisory Committee Meeting | |
| 83 FR 39808 - Notice of Final Federal Agency Actions on Proposed Highway in California | |
| 83 FR 39773 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; National Land Remote Sensing Education, Outreach and Research Activity | |
| 83 FR 39806 - Determination Under Section 7070(c)(1) of the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2018 Regarding the Government of Nauru | |
| 83 FR 39813 - Deepwater Port License Application: Texas Gulf Terminals, Inc. | |
| 83 FR 39763 - National Institute on Alcohol Abuse and Alcoholism; Notice of Meeting | |
| 83 FR 39764 - National Institute on Alcohol Abuse and Alcoholism; Notice of Closed Meeting | |
| 83 FR 39765 - National Cancer Institute Amended; Notice of Meeting | |
| 83 FR 39764 - National Institute on Aging; Notice of Closed Meeting | |
| 83 FR 39587 - Amendment of Class E Airspace; Lansing, MI | |
| 83 FR 39583 - Establishment of Class E Airspace; Freeport, PA | |
| 83 FR 39751 - Information Collection Being Reviewed by the Federal Communications Commission | |
| 83 FR 39648 - Emergency Alert System; Wireless Emergency Alerts | |
| 83 FR 39610 - Emergency Alert System; Wireless Emergency Alerts | |
| 83 FR 39586 - Revocation of Class E Airspace; St Marys, GA | |
| 83 FR 39584 - Amendment of Class D and Class E Airspace; Biloxi, MS, and Gulfport, MS | |
| 83 FR 39622 - Loans to Members and Lines of Credit to Members | |
| 83 FR 39600 - Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Adoption of Control Techniques Guidelines for Control of Volatile Organic Compound Emissions From Miscellaneous Metal Parts Surface Coating, Miscellaneous Plastic Parts Surface Coating, and Pleasure Craft Surface Coatings | |
| 83 FR 39673 - Diamond Sawblades and Parts Thereof From the People's Republic of China: Preliminary Results of Antidumping Duty Administrative Review; 2016-2017 | |
| 83 FR 39685 - Certain Pasta From Italy: Preliminary Results of Antidumping Duty Administrative Review; 2016-2017 | |
| 83 FR 39774 - Notice of Availability of the Draft Environmental Impact Statement and Environmental Impact Report and Draft Land Use Plan Amendment to the California Desert Conservation Area Plan for the Desert Quartzite Solar Project | |
| 83 FR 39581 - Airworthiness Directives; Airbus SAS Airplanes | |
| 83 FR 39628 - Airworthiness Directives; Dassault Aviation Airplanes | |
| 83 FR 39630 - Airworthiness Directives; Dassault Aviation Airplanes | |
| 83 FR 39633 - Airworthiness Directives; Airbus SAS Airplanes | |
| 83 FR 39626 - Airworthiness Directives; Dassault Aviation Airplanes | |
| 83 FR 39818 - VA Claims and Appeals Modernization |
Issue
Agricultural Marketing Service
Food and Nutrition Service
Forest Service
International Trade Administration
National Oceanic and Atmospheric Administration
Army Department
Engineers Corps
Energy Information Administration
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Children and Families Administration
Food and Drug Administration
National Institutes of Health
Substance Abuse and Mental Health Services Administration
Coast Guard
U.S. Citizenship and Immigration Services
U.S. Customs and Border Protection
U.S. Immigration and Customs Enforcement
Fish and Wildlife Service
Geological Survey
Land Management Bureau
National Park Service
Drug Enforcement Administration
Justice Programs Office
Federal Aviation Administration
Federal Highway Administration
Maritime Administration
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
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Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are adopting a new airworthiness directive (AD) for certain Airbus SAS Model A318, A319, and A320 series airplanes, and Model A321-111, -112, -131, -211, -212, -213, -231, -232, -251N, -253N, and -271N airplanes. This AD was prompted by a revision of an airworthiness limitations document that specifies more restrictive maintenance requirements and airworthiness limitations. This AD requires revising the maintenance or inspection program, as applicable, to incorporate the specified maintenance requirements and airworthiness limitations. We are issuing this AD to address the unsafe condition on these products.
This AD is effective September 14, 2018.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of September 14, 2018.
For service information identified in this final rule, contact Airbus SAS, Airworthiness Office—EIAS, Rond-Point Emile Dewoitine No: 2, 31700 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
You may examine the AD docket on the internet at
Sanjay Ralhan, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3223.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus SAS Model A318, A319, and A320 series airplanes, and Model A321-111, -112, -131, -211, -212, -213, -231, -232, -251N, -253N, and -271N airplanes. The NPRM published in the
We are issuing this AD to address the risks associated with the effects of aging on airplane systems. Such effects could change system characteristics, leading to an increased potential for failure of certain life-limited parts, and reduced structural integrity or controllability of the airplane.
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2017-0170, dated September 7, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus SAS Model A318, A319, and A320 series airplanes, and Model A321-111, -211, -212, -213, -231, -232, -251N, -253N, and -271N airplanes. The MCAI states:
The System Equipment Maintenance Requirements (SEMR) for Airbus A320 family aeroplanes, which are approved by EASA, are currently defined and published in the Airbus A318/A319/A320/A321 Airworthiness Limitations Section (ALS) Part 4 document. These instructions have been identified as mandatory for continued airworthiness.
Failure to accomplish these instructions could result in an unsafe condition.
Previously, EASA issued AD 2016-0093 [which corresponds to FAA AD 2017-19-24, Amendment 39-19054 (82 FR 44900, September 27, 2017) (“AD 2017-19-24”),] to require accomplishment of all maintenance tasks as described in ALS Part 4 at Revision 03. ALS Part 4 Revision 04 was not mandated because no significant changes were introduced with this Revision. The new ALS Part 4 Revision 05 (hereafter referred to as `the ALS' in this [EASA] AD) includes new and/or more restrictive requirements and extends the applicability to model A320-251N, A320-271N, A321-251N, A321-253N and A321-271N aeroplanes.
For the reason described above, this [EASA] AD retains the requirements of EASA AD 2016-0093, which is superseded, and requires accomplishment of all tasks as described in the ALS.
You may examine the MCAI in the AD docket on the internet at
We gave the public the opportunity to participate in developing this final rule. We have considered the comment received. United Airlines indicated that they had no objection to the NPRM.
We have revised the applicability of this AD to identify model designations as published in the most recent type certificate data sheet for the affected models.
We reviewed the relevant data, considered the comment received, and determined that air safety and the public interest require adopting this final rule as proposed, except for minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM for addressing the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
Airbus SAS has issued Airbus SAS A318/A319/A320/A321 Airworthiness Limitations Section (ALS) Part 4, “System Equipment Maintenance Requirements (SEMR),” Revision 05, dated April 6, 2017. This service information describes preventive maintenance requirements and includes updated inspections and intervals to be incorporated into the maintenance or inspection program. 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 estimate that this AD affects 1,133 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
We have determined that revising the maintenance or inspection program takes an average of 90 work-hours per operator, although this figure may vary from operator to operator. In the past, we have estimated that this action takes 1 work-hour per airplane. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), we have determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, we estimate the total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).
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 transport category airplanes and associated appliances to the Director of the System Oversight 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 the 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 September 14, 2018.
This AD affects AD 2017-19-24, Amendment 39-19054 (82 FR 44900, September 27, 2017) (“AD 2017-19-24”).
This AD applies to the Airbus SAS airplanes identified in paragraphs (c)(1) through (c)(4) of this AD, certificated in any category, with an original certificate of airworthiness or original export certificate of airworthiness issued on or before April 6, 2017.
(1) Model A318-111, -112, -121, and -122 airplanes.
(2) Model A319-111, -112, -113, -114, -115, -131, -132, and -133 airplanes.
(3) Model A320-211, -212, -214, -216, -231, -232, -233, -251N, and -271N airplanes.
(4) Model A321-111, -112, -131, -211, -212, -213, -231, -232, -251N, -253N, and-271N airplanes.
Air Transport Association (ATA) of America Code 05, Time Limits/Maintenance Checks.
This AD was prompted by a revision of an airworthiness limitations document that specifies more restrictive maintenance requirements and airworthiness limitations. We are issuing this AD to mitigate the risks associated with the effects of aging on airplane systems. Such effects could change system characteristics, leading to an increased potential for failure of certain life-limited parts, and reduced structural integrity or controllability of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Within 90 days after the effective date of this AD, revise the maintenance or inspection program, as applicable, to incorporate Airbus SAS A318/A319/A320/A321 Airworthiness Limitations Section (ALS) Part 4, “System Equipment Maintenance Requirements (SEMR),” Revision 05, dated April 6, 2017. The initial compliance time for doing the revised actions is at the applicable time specified in Airbus SAS A318/A319/A320/A321 ALS Part 4, “System Equipment Maintenance Requirements (SEMR),” Revision 05, dated April 6, 2017.
After the maintenance or inspection program has been revised as required by paragraph (g) of this AD, no alternative actions (
Accomplishing the actions required by this AD terminates all requirements of AD 2017-19-24.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2017-0170, dated September 7, 2017, for related information. This MCAI may be found in the AD docket on the internet at
(2) For more information about this AD, contact Sanjay Ralhan, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3223.
(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 this AD specifies otherwise.
(i) Airbus SAS A318/A319/A320/A321 Airworthiness Limitations Section (ALS) Part 4, “System Equipment Maintenance Requirements (SEMR),” Revision 05, dated April 6, 2017.
(ii) Reserved.
(3) For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EIAS, Rond-Point Emile Dewoitine No: 2, 31700 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
(4) You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.
(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 action establishes Class E airspace extending upward from 700 feet above the surface in Freeport, PA, to accommodate new area navigation (RNAV) global positioning system (GPS) standard instrument approach procedures serving McVille Airport. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations at this airport.
Effective 0901 UTC, November 8, 2018. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.
FAA Order 7400.11B, Airspace Designations and Reporting Points, and subsequent amendments can be viewed on line at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, 1701 Columbia Ave, College Park, GA 30337; telephone (404) 305-6364.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This proposed rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes Class E airspace at McVille Airport, Freeport, PA, to support IFR operations in standard instrument approach procedures at this airport.
The FAA published a notice of proposed rulemaking in the
Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11B dated August 3, 2017, and effective September 15, 2017, which
This document amends FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the
This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 establishes Class E airspace extending upward from 700 feet above the surface within a 7.6-mile radius of McVille Airport, Freeport, PA, providing the controlled airspace required to support the new RNAV (GPS) standard instrument approach procedures. These changes are necessary for continued safety and management of IFR operations at the airport.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 7.6-mile radius of McVille Airport.
Federal Aviation Administration (FAA), DOT.
Final rule
This action amends Class D airspace, and Class E surface airspace, in addition to removing the NOTAM part-time status from Class E airspace designated as an extension, and amending Class E airspace extending upward from 700 feet above the surface at Keesler Air Force Base (AFB), Biloxi, MS, and Gulfport-Biloxi International Airport, (formerly Gulfport-Biloxi Regional Airport), Gulfport, MS. The geographic coordinates for these airports and the Keesler TACAN navigation aid are adjusted in the associated Class D and E airspace to match the FAA's aeronautical database. Also, this action replaces the outdated term “Airport/Facility Directory” with the term “Chart Supplement” in the Class D and Class E surface area legal descriptions. This action enhances the safety and management of instrument flight rules (IFR) operations at these airports.
Effective 0901 UTC, November 8, 2018. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.
FAA Order 7400.11B, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, 1701 Columbia Ave., College Park, GA 30337; telephone (404) 305-6364.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority
The FAA published a notice of proposed rulemaking in the
Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.
Class D and E airspace designations are published in paragraph 5000, 6002, 6004, and 6005, respectively, of FAA Order 7400.11B dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR part 71.1. The Class D and E airspace designations listed in this document will be published subsequently in the Order.
This document amends FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the
This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by amending Class D airspace, and Class E surface area airspace, in addition to removing the NOTAM part-time status from Class E airspace designated as an extension to a Class D surface area, and amending Class E airspace extending upward from 700 feet or more above the surface at Keesler AFB, Biloxi, MS, and Gulfport-Biloxi International Airport (formerly Gulfport-Biloxi Regional Airport, Gulfport, MS.
This action also amends the geographic coordinates of these airports and the Keesler TACAN navigation aid in the noted airspace classes to be in concert with the FAA's aeronautical database.
Additionally, this action notes the airport name change to Gulfport-Biloxi International Airport from Gulfport-Biloxi Regional Airport.
Finally, this action makes an editorial change to the Class D and Class E surface area airspace legal descriptions replacing “Airport/Facility Directory” with “Chart Supplement” for Keesler AFB, and Gulfport-Biloxi International Airport.
Class D and Class E airspace designations are published in Paragraph 5000, 6002, 6004, and 6005, respectively, of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class D and E airspace designations listed in this document will be published subsequently in the Order.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from the surface to and including 2,500 feet MSL within a 4.2-mile radius of Keesler AFB, excluding the portion west of long. 89°00′00″ W. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Chart Supplement.
That airspace extending upward from the surface to and including 2,500 feet MSL within a 4.5-mile radius of Gulfport-Biloxi International Airport; excluding that portion of airspace within the Biloxi, MS, Class D airspace area. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Chart Supplement.
Within a 4.2-mile radius of Keesler AFB, excluding the portion west of long. 89°00′00″ W. This Class E airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Chart Supplement.
That airspace extending upward from the surface within 1.4 miles each side of the Keesler TACAN 204° radial, extending from the 4.2-mile radius of Keesler AFB to 6 miles southwest of the TACAN.
That airspace extending upward from the surface within 3.3 miles each side of Gulfport VORTAC 130° and 322° radials, extending from the 4.5-mile radius of Gulfport-Biloxi International Airport to 7 miles southeast and northwest of the VORTAC; excluding that portion within the Biloxi, MS, Class D and E airspace areas.
That airspace extending upward from 700 feet above the surface within a 7-mile radius of Gulfport-Biloxi International Airport and within a 6.5-mile radius of Keesler AFB and within 2 miles each side of Keesler TACAN 204° radial, extending from the 6.5-mile radius to 10.6 miles southwest of the TACAN.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action removes Class E airspace extending upward from 700 feet above the surface at St Marys, GA, because St Marys Airport has closed, and controlled airspace is no longer required at this location.
Effective 0901 UTC, November 8, 2018. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.
FAA Order 7400.11B, Airspace Designations and Reporting Points, and subsequent amendments can be viewed on line at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, 1701 Columbia Ave., College Park, GA 30337; telephone (404) 305-6364.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it supports removal of Class E airspace due to the closure of St Marys Airport, St Marys, GA.
The FAA published a notice of proposed rulemaking in the
Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.
This document amends FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the
This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 removes Class E airspace extending upward from 700 feet or more above the surface due to the closure of St Marys Airport, St Marys, GA. Therefore, controlled airspace is no longer necessary at this site.
Class E airspace designations are published in Paragraph 6005, of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action modifies Class E airspace extending upward from 700 feet above the surface at Capital Region International Airport, Lansing, MI. This action is the result of an airspace review due to the decommissioning of the Lansing VHF omnidirectional range (VOR) navigation aid as part of the VOR Minimum Operational Network (MON) Program. The geographic coordinates and name of the airport are also updated to coincide with the FAA's aeronautical database. An editorial change is also made to the airspace legal designation by removing the city from the airport name.
Effective 0901 UTC, November 8, 2018. The Director of the Federal Register approves this incorporation by reference action under Title 1 Code of Federal Regulations part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.
FAA Order 7400.11B, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
Jeffrey Claypool, Federal Aviation Administration, Operations Support Group, Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone (817) 222-5711.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Class E airspace extending upward from 700 feet above the surface at Capital Region International Airport, Lansing, MI, to support instrument flight rule operations.
The FAA published a notice of proposed rulemaking in the
Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.
This document amends FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the
This amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 modifies Class E airspace extending upward from 700 feet above the surface to within a 6.8-mile radius (increased from a 6.7-mile radius) at Capital Region International Airport (formerly Capital City Airport), Lansing, MI; removes the extension to the east of the airport associated with the ARTDA LOM; adds an extension within 2.0 miles each side of the 091° bearing from the airport from the 6.8-mile radius to 10.4 mile east of the airport; and adds an extension within 4.0 miles each side of the 233° from the airport from the 6.8-mile radius to 10.5 miles southwest of the airport.
The name of the airport is also updated from Capital City Airport to Capital Region International Airport, and the geographic coordinates of the airport are updated to coincide with the FAA's aeronautical database. Additionally, an editorial change is made removing the name of the city associated with the airport in the airspace legal designation to comply with a recent change to FAA Order 7400.2L, Procedures for Handling Airspace Matters.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.8-mile radius of Capital Region International Airport, and within 2.0 miles each side of the 091° bearing from the airport extending from the 6.8-mile radius to 10.4 mile east of the airport, and within 4.0 miles each side of the 233° bearing from the airport extending from the 6.8-mile radius to 10.5 miles southwest of the airport.
Department of Commerce.
Final rule.
This rule amends the Department of Commerce's (Department) regulations under the Freedom of Information Act (FOIA) and Privacy Act. The FOIA regulations are being revised to clarify, update and streamline the language of several procedural provisions, including methods for submitting FOIA requests and appeals and the time limits for filing an administrative appeal, and to incorporate certain changes brought about by the amendments to the FOIA under the FOIA Improvement Act of 2016. Additionally, the FOIA regulations are being updated to reflect developments in the case law.
These amendments are effective August 10, 2018.
Dr. Michael J. Toland, Deputy Chief Freedom of Information Act Officer and Department Privacy Act Officer, Office of Privacy and Open Government, 1401 Constitution Ave. NW, Room 61013, Washington, DC 20230.
On February 6, 2018, the Department published a proposed rule revising its existing regulations under the FOIA and Privacy Act.
Interested persons were afforded the opportunity to participate in the rulemaking process through submission of written comments to the proposed rule during the 30-day open comment period. The Department received twenty-four public submissions in response to the proposed rulemaking. Due consideration was given to each comment received and a determination was made that twenty-three of the comments were not relevant to the proposed rule.
One commenter offered that the proposed regulations should comply with guidance from the U.S. Department of Justice's Office of Information Policy (OIP) directing agencies—as part of the agency's final appeal determination—to also alert FOIA requesters of OGIS's mediation services as a nonexclusive alternative to litigation. The Department accepts this suggestion and updates § 4.10(f) with language that follows the aforementioned OIP guidance.
The same commenter further recommended that the Department add language to § 4.10(f), which clarifies for requesters the difference between formal mediation and the services OGIS provides. The Department also agrees with this suggestion and updates § 4.10(f) with appropriate clarifying language.
For the reasons stated in the preamble, the Department of Commerce amends 15 CFR part 4 as follows:
5 U.S.C. 301; 5 U.S.C. 552; 5 U.S.C. 552a; 5 U.S.C. 553; 31 U.S.C. 3717; 41 U.S.C. 3101; Reorganization Plan No. 5 of 1950.
(c) The Department has a FOIA Requester Service Center with at least one FOIA Public Liaison. Each Department component may have a FOIA Requester Service Center with at least one FOIA Public Liaison. FOIA Public Liaisons are responsible for: Working with requesters that have any concerns about the service received from a FOIA component, reducing delays in the processing of FOIA requests, increasing transparency and understanding of the status of requests, and assisting in the resolution of disputes. Contact information for the relevant component FOIA Requester Service Centers, FOIA Public Liaisons, and component FOIA offices and contacts is available at
(a) Records that the FOIA requires to be made available for public inspection and copying are accessible electronically through the Department's “Electronic FOIA Library” on the Department's website,
(c) The Department and its components shall maintain and make available electronically for public inspection:
(1) Copies of records that have been released and—
(i) That the component that maintains them determines, because of their subject matter, have become or are likely to become the subject of subsequent requests for substantially the same records by other requesters, or
(ii) That have been requested three or more times by different requesters;
(2) A general index of the records available for public inspection—for purposes of these regulations, a general index includes records available through a search capability on the Department or component's website, such as a person finder;
(3) Final opinions and orders, including concurring and dissenting opinions made in the adjudication of cases;
(4) Those statements of policy and interpretations that have been adopted by a component and are not published in the
(5) Administrative staff manuals and instructions to staff that affect a member of the public.
(d) Components shall preserve all correspondence pertaining to the requests they receive under this subpart, as well as copies of all requested records, until disposition or destruction
(a)
(b)
(c)
(2) Whenever possible, a request should include specific information about each record sought, such as the date, title or name, author, recipient, subject matter of the record, case number, file designation, or reference number, and the name and location of the office where the record(s) might be found.
(i) In addition, if records about a court case are sought, the title of the case, the court in which the case was filed, and the nature of the case should be included.
(ii) If known, any file designations or descriptions of the requested records should be included.
(iii) As a general rule, the more specifically the request describes the records sought, the greater the likelihood that the Department will be able to locate those records.
(3) Before submitting their requests, requesters may first contact the Department's or the component's FOIA contact to discuss the records they are seeking and to receive assistance in describing the records.
(4) For further assistance, requesters may also contact the relevant FOIA Requester Service Center or FOIA Public Liaison. Contact information for relevant FOIA Requester Service Centers and FOIA Public Liaisons is contained on the Department's website,
(5) If a component determines that a request does not reasonably describe the records sought, it shall inform the requester what additional information is needed or how the request is otherwise insufficient, to enable the requester to modify the request to meet the requirements of this section.
(6) Requesters who are attempting to reformulate or modify such a request may discuss their request first with the relevant FOIA Contact, or if unresolved, with the relevant Requester Service Center or FOIA Public Liaison to discuss the records they are seeking and to receive assistance in describing the records.
(7) When a requester fails to provide sufficient detail within 30 calendar days after having been asked to reasonably describe the records sought, the component shall notify the requester in writing that the request has not been properly made, that no further action will be taken, and that the FOIA request is closed. Such a notice constitutes an adverse determination under § 4.7(d) for which components shall follow the procedures for a denial letter under § 4.7(e).
(8) In cases where a requester has modified his or her request, the date of receipt for purposes of the 20-day time limit of § 4.6 shall be the date of receipt of the modified request.
(a)
(b)
(c)
(d)
(1) Components may extend the time period for processing a FOIA request only in “unusual circumstances,” as described in paragraph (d)(2) of this section, in which the component shall, before expiration of the twenty-day period to respond, notify the requester of the extension in writing of the unusual circumstances involved and the date by which processing of the request is expected to be completed. If the extension is for more than ten working days, the component shall provide the requester with an opportunity to modify the request or agree to an alternative time period for processing the original or modified request. Furthermore, the requester will be advised that the relevant FOIA Public Liaison or FOIA contact is available for this purpose and of the requester's right to seek dispute resolution services from the Office of Government Information Services (OGIS).
(2) For purposes of this section, “unusual circumstances” include:
(i) The need to search for and collect the requested agency records from field facilities or other establishments that are separate from the office processing the request;
(ii) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are the subject of a single request; or
(iii) The need to consult, which shall be conducted with all practicable speed, with another Federal agency having a substantial interest in the determination of the FOIA request or with another component of the Department which has a substantial interest in the determination of the request.
(e)
(1) A component must use two or more processing tracks by distinguishing between simple and more complex requests based on the amount of work and/or time needed to process the request, including the amount of pages involved, the need to consult with or refer to other agencies or Department components or for commercial confidential information to a third party, or whether the request qualifies for unusual circumstances as described in paragraph (d)(2) of this section, and whether the request qualifies for expedited processing as described in paragraph (f) of this section.
(a)
(b)
(c)
(i) A component shall inform the requester:
(A) Of any fees charged under § 4.11; and
(B) That the requester may contact the relevant FOIA Public Liaison or FOIA contact for further assistance.
(ii) The component shall also disclose records to the requester promptly upon payment of any applicable fees.
(iii) Records disclosed in part shall be marked or annotated to show the applicable FOIA exemption(s) and the amount of information deleted, unless doing so would harm an interest protected by an applicable exemption. The location of the information deleted shall also be indicated on the record, if feasible.
(2)
(i) An adverse determination may be a denial of a request and includes decisions that:
(A) The requested record is exempt, in whole or in part.
(B) The request does not reasonably describe the records sought and the requester is unwilling to further clarify the request.
(C) The information requested is not a record subject to the FOIA.
(D) The requested record does not exist, cannot be located, or has previously been destroyed.
(E) The requested record is not readily reproducible in the form or format sought by the requester.
(ii) Adverse determinations may also include:
(A) Denials of requested fee category status.
(B) Denials of requests for fee waivers.
(C) Denials of requests for expedited processing.
(D) Denials of requests for reduction of fees.
(3)
(i) The name and title or position of the person responsible for the denial;
(ii) A brief statement of the reason(s) for the denial, including any FOIA exemption(s) applied by the component in denying the request;
(iii) An estimate of the volume of any records or information withheld, by providing the number of pages or some other reasonable form of estimation. This estimate is not required if the volume is otherwise indicated by deletions marked on records that are disclosed in part, or if providing an estimate would harm an interest protected by an applicable FOIA exemption;
(iv) A statement advising the requester of the right to seek dispute resolution services from the Department FOIA Public Liaison, the relevant component FOIA Public Liaison or FOIA contact, or OGIS; and
(v) A statement that the denial may be appealed under § 4.10, and a list of the requirements for filing an appeal set forth in § 4.10(b).
(a)
(1)
(2)
(b)
(c)
(2) Such written notice shall be sent via certified mail, return receipt requested, or similar means.
(3) Where notification of a voluminous number of submitters is required, such notification may be accomplished by posting or publishing the notice in a place reasonably calculated to accomplish notification.
(4) The notice shall either describe the confidential commercial information requested or include copies of the requested records or portions of the records containing the information. If notification of a large number of submitters is required, notification may be made by posting or publishing the notice in a place reasonably likely to accomplish notification, instead of sending individual notifications.
(d)
(1) The submitter has designated the information in good faith as protected from disclosure under FOIA exemption (b)(4); or
(2) The component has reason to believe that the information may be protected from disclosure under FOIA exemption (b)(4), but has not yet determined whether the information is protected from disclosure.
(e)
(f)
(1) A statement of reason(s) why the submitter's objections to disclosure were not sustained;
(2) A description of the confidential commercial information to be disclosed; and
(3) A statement that the component intends to disclose the information seven working days, or ten working days if an extension is granted, from the date the submitter receives the notice.
(g)
(1) The component determines that the information is exempt and will be withheld under a FOIA exemption;
(2) The information has been lawfully published or has been officially made available to the public;
(3) Disclosure of the information is required by statute (other than the FOIA) or by a regulation issued in accordance with Executive Order 12600; or
(4) The designation made by the submitter under paragraph (b) of this
(h)
(i)
(a)(1) If a request for records to a component other than the Office of Inspector General is initially denied in whole or in part, or has not been timely determined, or if a requester receives an adverse determination regarding any other matter listed under this subpart (as described in § 4.7(c)), the requester may file an appeal. Appeals can be submitted in writing or electronically, as described in paragraph (b)(1) of this section. For requests filed on or after July 1, 2016, the appeal must be received by the Office of the General Counsel during normal business hours (8:30 a.m. to 5:00 p.m., Eastern Time, Monday through Friday) within 90 calendar days of the date of the written denial of the adverse determination or, if there has been no determination, an appeal may be submitted any time after the due date of the request, including the last extension under § 4.6(d), of a request due date. Written or electronic appeals arriving after normal business hours will be deemed received on the next normal business day. If the 90th calendar day falls on a Saturday, Sunday, or a legal public holiday, an appeal received by 5:00 p.m., Eastern Time, the next business day will be deemed timely. Appeals received after the 90-day limit will not be considered.
(2) If a request for records to the Office of Inspector General is initially denied in whole or in part, or has not been timely determined, or if a requester receives an adverse determination regarding any other matter listed under this subpart (as described in § 4.7(c)), the requester may file an appeal. Appeals can be submitted in writing or electronically, as described in paragraph (b)(2) of this section. For requests submitted on or after July 1, 2016, the appeal must be received by the Office of Inspector General, Office of Counsel, during normal business hours (8:30 a.m. to 5:00 p.m., Eastern Time, Monday through Friday) within 90 calendar days of the date of the written denial of the adverse determination or, if there has been no determination, an appeal may be submitted any time after the due date, including the last extension under § 4.6(d), of the adverse determination. Written or electronic appeals arriving after normal business hours will be deemed received on the next normal business day. If the 90th calendar day falls on a Saturday, Sunday, or a legal public holiday, an appeal received by 5:00 p.m., Eastern Time, the next business day will be deemed timely. Appeals received after the 90-day limit will not be considered.
(b)(1) Appeals, other than appeals from requests made to the Office of Inspector General, shall be decided by the Assistant General Counsel for Employment, Litigation, and Information (AGC-ELI). Written appeals should be addressed to the Assistant General Counsel for Employment, Litigation, and Information, at the U.S. Department of Commerce, Office of the General Counsel, Room 5896, 1401 Constitution Avenue NW, Washington, DC 20230. For a written appeal, both the letter and the appeal envelope should be clearly marked “Freedom of Information Act Appeal.” Appeals may also be submitted electronically either by email to
(2) Appeals of initial and untimely determinations by the Office of Inspector General shall be decided by the Counsel to the Inspector General, except that appeals of records requests that were initially denied by the Counsel to the Inspector General shall be decided by the Deputy Inspector General. Written appeals should be addressed to the Counsel to the Inspector General, or the Deputy Inspector General if the records were initially denied by the Counsel to the Inspector General. The address of both is: U.S. Department of Commerce, Office of the Inspector General, Office of Counsel, Room 7898C, 1401 Constitution Avenue NW, Washington, DC 20230. For a written appeal, both the letter and the appeal envelope should be clearly marked “Freedom of Information Act Appeal.” Appeals may also be submitted electronically either by email to
(c) Upon receipt of an appeal involving records initially denied on the basis of FOIA exemption (b)(1), the records shall be forwarded to the Deputy Assistant Secretary for Security (DAS) for a declassification review. The DAS may overrule previous classification determinations in whole or in part if continued protection in the interest of national security is no longer required, or no longer required at the same level. The DAS shall advise the AGC-ELI, the General Counsel, Counsel to the Inspector General, or Deputy Inspector General, as appropriate, of his or her decision.
(d) If an appeal is granted, the notification letter may include documents to be released or the request may be referred back to the component for further action consistent with the determination on the appeal.
(f) * * *
(3) Notification that dispute resolution services are offered by the Office of Government Information Services (OGIS) of the National Archives and Records Administration as a non-exclusive alternative to litigation, informing the requester that dispute resolution is a voluntary process, and if the Department and requester agree to participate in the dispute resolution services provided by OGIS, the Department will actively engage as a partner to the process in an attempt to resolve the dispute.
(4) Notification that judicial review of the denial is available in the district court of the United States in the district in which the requester resides, or has his or her principal place of business, or in which the agency records are located, or in the District of Columbia; and
(5) The name and title or position of the official responsible for denying the appeal.
The revisions and addition read as follows:
(a)
(b) * * *
(2)
(4)
A request from a professor or a student of geology at a university for records relating to soil erosion, written on letterhead of the Department of Geology, would be presumed to be from an educational institution.
A request from the same professor or student of geology seeking drug information from the Food and Drug Administration in furtherance of a murder mystery he is writing would not be presumed to be an institutional request, regardless of whether it was written on institutional letterhead.
A student who makes a request in furtherance of their coursework or other school-sponsored activities and provides a copy of a course syllabus or other reasonable documentation to indicate the research purpose for the request, would qualify as part of this fee category.
(6)
(7)
(8)
(c)
(2) Uniform fee schedule.
(3) * * *
(ii) For computer searches of records, requesters will be charged the direct costs of conducting the search, although certain requesters (as provided in paragraph (d)(1) of this section) will be charged no search fee and certain other requesters (as provided in paragraph (d)(3) of this section) are entitled to the cost equivalent of two hours of manual search time without charge. These direct costs will include the costs of the operator/programmer FOIA hourly processing rate apportionable to the search and any other tangible direct costs associated with a computer search.
(d) * * *
(6) No search fees shall be charged to a FOIA requester when a component does not comply with the statutory time limits at 5 U.S.C. 552(a)(6) in which to respond to a request (this section only applies to FOIA requests, not appeals), except as described in paragraph (d)(8) of this section.
(7) No duplication fees shall be charged to requesters in the fee category of a representative of the news media or an educational or noncommercial scientific institution when a component does not comply with the statutory time limits at 5 U.S.C. 552(a)(6) in which to respond to a request, except as described in paragraph (d)(8) of this section.
(8)(i) When a Department component determines that unusual circumstances, as those terms are defined in § 4.6(d)(2), apply to the processing of the request, and provides timely written notice to the requester in accordance with the FOIA, then the Department component is granted an additional ten days until the fee restrictions in paragraphs (d)(6) and (7) of this section apply.
(ii) The fee restrictions in paragraphs (d)(6) and (7) of this section do not apply:
(A) When a Department component determines that unusual circumstances, as those terms are defined in § 4.6(d)(2), apply to the processing of the request;
(B) More than 5,000 pages are necessary to respond to the request;
(C) The Department component provides timely written notice to the requester in accordance with the FOIA; and
(D) The Department component has discussed with the requester (or made three good faith attempts to do so) on how the requester can effectively limit the scope of the request.
(e)
(2) When a requester has been notified that the actual or estimated fees will amount to more than $20.00, or amount to more than the amount the requester indicated a willingness to pay, the component will do no further work on the request until the requester agrees in writing to pay the actual or estimated total fee. The component will toll the processing of the request when it notifies the requester of the actual or estimated amount of fees and this time will be excluded from the twenty (20) working day time limit (as specified in § 4.6(b)). The requester's agreement to pay fees must be made in writing, must designate an exact dollar amount the requester is willing to pay, and must be received within 30 calendar days from the date of the notification of the fee estimate. If the requester fails to submit an agreement to pay the anticipated fees within 30 calendar days from the date of the component's fee notice, the component will presume that the requester is no longer interested and
(i) * * *
(4) When the component requires advance payment or payment due under paragraphs (i)(2) and (i)(3) of this section, the component will not further process the request until the required payment is made. The component will toll the processing of the request when it notifies the requester of the advanced payment due and this time will be excluded from the twenty (20) working day time limit (as specified in § 4.6(b)). If the requester does not pay the advance payment within 30 calendar days from the date of the component's fee notice, the component will presume that the requester is no longer interested and notify the requester that the request will be closed.
(j)
(l) * * *
(2) * * *
(iii)
(3) * * *
(ii)
(5) Requests for the waiver or reduction of fees should address the factors listed in paragraphs (l)(2) and (3) of this section, insofar as they apply to each request.
(5) Economic Development Administration, Office of the Chief Counsel, U.S. Department of Commerce, 14th and Constitution Avenue NW, Room 72023, Washington, DC 20230; Ph.: (202) 482-3085; Fax: (202) 482-5671; FOIAonline:
(v) Philadelphia Regional Office, EDA, U.S. Department of Commerce, Robert N.C. Nix Federal Building, 900 Market Street, Room 602, Philadelphia, Pennsylvania 19107; Ph.: (215) 597-4603.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a special local regulation on the navigable waters of the Roanoke River in Plymouth, North Carolina. This special local regulation is intended to restrict vessel traffic on the Roanoke River during a high-speed boat race. The restriction of vessel traffic movement in the regulated area is intended to protect participants and spectators from the hazards posed by high-speed boat races. Entry of vessels or persons into this regulated area is prohibited unless specifically authorized by the Captain of the Port (COTP) North Carolina or a designated representative.
This rule is effective from 11 a.m. on August 11, 2018, through 5 p.m. on August 12, 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 Petty Officer Matthew Tyson, Waterways Management Division, U.S. Coast Guard Sector North Carolina, Wilmington, NC; telephone: 910-772-2221, 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 Coast Guard was not notified of the need for this rule until August 2, 2018, and it is impracticable and contrary to the public interest to delay this action. Waiting for a comment period to run would inhibit the Coast Guard's ability to protect the public and participants from the dangers associated with the high-speed boat race scheduled to start on August 11, 2018.
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. 1233. The COTP North Carolina has determined that potential hazards associated with the Virginia Outlaw Drag Boat Association Rumble on the Roanoke scheduled for 11 a.m. through 5 p.m. on August 11 and 12, 2018, is a safety concern for mariners during the high-speed boat race on the Roanoke River in Plymouth, North Carolina. This rule is necessary to protect safety of life from the potential hazards associated with the high-speed boat race.
This rule establishes a special local regulation on a portion of the Roanoke River from 11 a.m. on August 11, through 5 p.m. on August 12, 2018. The rule will be enforced 11 a.m. through 5 p.m. each of those days. The time of enforcement will be broadcast locally over VHF-FM marine radio. The special local regulation will include all navigable waters of the Roanoke River in Plymouth, North Carolina, from approximate positions: Latitude 35°52′25″ N, longitude 076°44′33″ W, then northwest to latitude 35°52′29″ N, longitude 076°44′37″ W, then southwest along the shoreline to latitude 35°52′00″ N, longitude 076°45′31″ W, then south to latitude 35°51′56″ N, longitude 076°45′30″ W, then northeast along the shoreline to the point of origin, a length of approximately one mile. The duration of this special local regulation is intended to protect participants and spectators on the navigable waters of the Roanoke River during the high-speed boat race. For safety reasons, no public spectators will be allowed to view the event from the waterway. Vessels may request permission to pass through the regulated area between race heats. No vessel or person will be permitted to enter the regulated area without obtaining permission from the COTP North Carolina or a designated representative.
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, location, and duration of the special local regulation. Vessel traffic will not be allowed to enter or transit a portion of the Roanoke River from 11 a.m. through 5 p.m. on both August 11 and 12, 2018. The Coast Guard will transmit a Broadcast Notice to Mariners via VHF-FM marine channel 16 regarding the special local regulation. This portion of the Roanoke River has been determined to be a low traffic area during this time of the year. This rule allows vessels to request permission to pass through the regulated area between race heats.
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 special local regulation may be small entities, for the reasons stated in section IV.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 will 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
We have analyzed this rule under Department of Homeland Security Directive 023-01, which guides 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 special local regulation lasting approximately six hours on two separate days that prohibits entry into a portion of the Roanoke River. It is categorically excluded from further review under paragraph L61 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
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:
33 U.S.C. 1233; 33 CFR 1.05-1.
(a)
(b)
(c)
(2) With the exception of participants, entry into or remaining in this special local regulation is prohibited unless authorized by the COTP North Carolina or the COTP North Carolina's Patrol Commander. All other vessels must depart the special local regulation immediately upon the start of enforcement.
(3) To request permission transit through the special local regulation, contact the COTP North Carolina or the COTP North Carolina's Patrol Commander through the Coast Guard Sector North Carolina Command Duty Officer, Wilmington, North Carolina, at telephone number 910-343-3882 or on VHF-FM marine band radio channel 13 (165.65 MHz) or channel 16 (156.8 MHz).
(d)
(e)
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for certain waters of Fish Creek during the Ski Show Sylvan Beach. This safety zone is intended to prohibit persons and vessels from a portion of Fish Creek during the Ski Show Sylvan Beach. This temporary safety zone is necessary to protect vessels and racers from the navigational hazards associated with the ski show.
This rule is effective from 12:00 p.m. until 8:00 p.m. on August 12, 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 LTJG Sean Dolan, Chief of Waterways Management, U.S. Coast Guard Sector Buffalo; telephone 716-843-9322, email
On July 13, 2018 the Coast Guard published a Notice of Proposed Rulemaking (NPRM) titled Ski Show Sylvan Beach; Fish Creek, Oneida, NY (83 FR 32604). In that we discussed why we issued the NPRM and invited comments on our proposed regulatory action related to this Standup Paddleboard race. During the comment period that ended August 2, 2018 we received no relevant comments.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for
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 ski show on a navigable waterway will pose a significant risk to participants and the boating public. This rule is necessary to protect vessels and racers during the Ski Show Sylvan Beach.
As noted above, we received no relevant comments on our NPRM published on July 13, 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 from 12:00 p.m. until 8:00 p.m. on August 12, 2018. The safety zone will cover all navigable waters of where Fish Creek meets Oneida Lake starting at position 43°11′36.6″ N, 75°43′53.8″ W then South to 43°11′33.7″ N, 75°43′51.2″ W then East to 43°11′42.4″ N, 75°43′38.6″ W then North to 43°11′44.5″ N, 75°43′39.7″ W then returning to the point of origin. The duration of the zone is intended to enhance the safety of vessels and racers on the navigable waters within the above stated points, before, during, and after the scheduled event.
No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The Captain of the Port or his designated on-scene representative may be contact 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 size, location, duration, and time-of-day of the safety zone. Vessel traffic would not be able to safely transit around this safety zone, which would impact a small designated area of Fish Creek. However, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard 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 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
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:
Authority: 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. 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).
Final rule.
The Environmental Protection Agency (EPA) is approving a revision to the Commonwealth of Pennsylvania's state implementation plan (SIP). The revision includes amendments to the Pennsylvania Department of Environmental Protection's (PADEP) regulations and addresses the requirement to adopt reasonably available control technology (RACT) for sources covered by EPA's control techniques guidelines (CTG) standards for the following categories: Miscellaneous metal parts surface coating, miscellaneous plastic parts surface coating, and pleasure craft surface coatings, as well as related cleaning activities. The SIP revision also amends regulations for graphic arts systems and mobile equipment repair and refinishing as well as making general administrative changes. This action is being taken under the Clean Air Act (CAA).
This final rule is effective on September 10, 2018.
EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2017-0437. All documents in the docket are listed on the
Gregory A. Becoat, (215) 814 2036, or by email at
On November 18, 2016, PADEP submitted a revision to the Pennsylvania SIP concerning the adoption of EPA's CTG for miscellaneous metal parts surface coating processes, miscellaneous plastic parts surface coating processes, and pleasure craft surface coatings. Specifically, PADEP has amended 25 Pennsylvania Code (Pa. Code) Chapter 129 (relating to standards for sources) to address RACT and further reduce volatile organic compounds (VOC) emissions in Pennsylvania. In accordance with sections 172(c)(1), 182(b)(2)(A) and 184(b)(1)(B) of the CAA, Pennsylvania's SIP revision submittal establishes VOC emission limitations and other requirements consistent with the recommendations of EPA's 2008 Control Techniques Guidelines for Miscellaneous Metal and Plastic Parts Coatings (MMPP) (Publication No. EPA 453/R-08-003; September 2008) and Control Techniques Guidelines for Automobile and Light-Duty Truck Assembly Coatings for these sources in the Commonwealth of Pennsylvania (Publication No. EPA 453/R-08-006).
Ground level ozone is formed in the atmosphere by photochemical reactions between volatile organic compounds (VOCs), nitrogen oxides (NO
RACT is defined as the lowest emission limitation that a particular source is capable of meeting by the application of control technology that is reasonably available considering technological and economic feasibility. 44 FR 53761 at 53762 (September 17, 1979). Section 182 of the CAA sets forth two separate RACT requirements for ozone nonattainment areas. The first requirement, contained in section 182(a)(2)(A) of the CAA, and referred to as RACT fix-up, requires the correction of RACT rules for which EPA identified deficiencies before the CAA was amended in 1990. Pennsylvania previously corrected its deficiencies under the 1-hour ozone standard and has no further deficiencies to correct under this section of the CAA. The second requirement in section 182(b)(2) of the CAA applies to moderate (or worse) ozone nonattainment areas, and pursuant to section 184(b)(1)(B), to all areas in a state that are included in an ozone transport region (OTR). Section 184 of the CAA includes all of Pennsylvania in the OTR. Sections 182(b)(2) and 184(b) require these areas to implement RACT controls on all major VOC and NO
In subsequent
The pleasure craft coating category does not include coatings that are a part of other product categories listed under Section 183(e) of the CAA for which CTGs have been published or included in other CTGs. For pleasure craft surface coatings, EPA took into account California regulations when developing the 2008 MMPP CTG. California was the only state at that time with regulations governing VOC emissions from pleasure craft surface coatings. After EPA finalized the 2008 MMPP CTG, the pleasure craft coatings industry asserted to EPA that three of the VOC emission limits in the CTG were too low considering the performance requirements of the pleasure craft coatings and that the VOC emission limits recommended did not represent RACT for the National pleasure craft coatings industry. On September 14, 2009, EPA was contacted by the pleasure craft coatings industry to reconsider some of the VOC emission limits recommended in the final 2008 MMPP CTG. In response, EPA issued a memorandum on June 1, 2010, entitled “Control Technique Guidelines for Miscellaneous Metal and Plastic Part Coatings—Industry Request for Reconsideration,” recommending that the pleasure craft industry work with state agencies during their RACT rule development process to assess what is reasonable for the specific sources regulated. EPA has stated that states can use the recommendations from the MMPP CTG to form their own determinations as to what constitutes RACT for pleasure craft coating operations. CTGs impose no legally binding requirements on any entity, including pleasure craft coating facilities. As stated in the memorandum, EPA will evaluate state-developed RACT rules and determine whether the submitted rules meet the RACT requirements of the CAA.
On November 18, 2016, PADEP submitted a SIP revision which adopted the recommendations contained in the 2008 MMPP CTG with respect to sources in the miscellaneous metal products coatings and plastic parts coatings product categories. For the pleasure craft coating industry, after evaluating what is reasonable for this source category, PADEP determined that three VOC content limits in the CTG should be revised from the limits in the CTG to represent RACT for the pleasure craft coating industry. This is based on EPA's memorandum that the pleasure craft industry should work with state agencies during their RACT rule development process to assess what is reasonable for the specific sources regulated.
The SIP revision includes an amendment to 25 Pa. Code Chapter 129—(relating to standards for sources) as follows: (1) Amended section 129.51(a)—(relating to general) in order
After evaluating the SIP revision submittal, EPA concluded that it meets CAA requirements under sections 110, 172(c)(1), 182(b)(2)(A), and 184(b)(1) by adopting EPA's CTG and continuing to address and minimize VOC emissions in the Commonwealth of Pennsylvania, as discussed in more detail in EPA's TSD for this rulemaking action. PADEP is adopting without change most of the requirements recommended by the MMPP CTG but adopting the pleasure craft industry recommendations for the following three coating categories: Antifouling Sealer/Tiecoat; Other Substrate Antifoulant; and Extreme High Gloss. For these three categories, the Commonwealth of Pennsylvania reviewed industry data and determined that for the purpose of functionality, cost, and VOC emissions, the alternative limits adopted for these three coating categories constitute RACT. EPA concludes that Pennsylvania's approach is consistent with the guidance memorandum entitled, “Control Technique Guidelines for Miscellaneous Metal and Plastic Part Coatings—Industry Request for Reconsideration,” and therefore, concludes that these regulations reflect RACT given costs and VOC emissions. The revised VOC content limits for the pleasure craft surface coatings proposed by PADEP are expected to have a de minimis impact on the amount of VOC emission reductions from the implementation of the revised VOC limits due to having no facilities with the potential to emit VOC emissions for pleasure craft surface coatings.
EPA notes that under 25 Pa. Code §§ 129.52d, PADEP is allowing the provisions of 25 Pa. Code § 129.52d to supersede the requirements of a RACT permit previously issued under 25 Pa. Code §§ 129.91-129.95 if the permit was issued prior to January 1, 2017, to the owner or operator of a source subject to section 129.52d(a), except to the extent the RACT permit contains more stringent requirements. EPA further notes that the RACT permits issued under 25 Pa. Code §§ 129.91-129.95 were issued for previous RACT determinations on a case-by-case basis; these permits were then submitted to EPA as source-specific SIP revisions and were previously acted on by EPA and would have been approved into the Pennsylvania SIP. If EPA approved those source-specific RACT determinations as meeting the requirements of RACT under the CAA, then the permits associated with those determinations were approved into the SIP as listed in 40 CFR 52.2020(d). The requirements of the source-specific RACT determination which EPA approved into the Pennsylvania SIP remain applicable requirements for the specific source unless and until Pennsylvania seeks to remove the limits from the SIP in accordance with CAA section 110(l). To the extent that the provisions of 25 Pa. Code § 129.52d are more stringent than those of a previous SIP-approved permit, PADEP will need to make a source-specific determination as to whether the requirements of the previous RACT permit apply, or those of § 129.52d, and submit that determination to EPA as a SIP revision in order to remove the previously approved permit from the SIP. Until such a SIP revision is made, EPA cannot remove the source-specific permits from the SIP and EPA is not taking such action in this rulemaking. Thus, the requirements of a previously SIP-approved permit are not superseded under the SIP. In accordance with section 110 of the CAA including 110(a) and 110(l), EPA determines that approval of this PADEP SIP revision will not interfere with reasonable further progress, attainment of any NAAQS or any other applicable CAA requirements.
On October 16, 2017 (82 FR 48034 and 82 FR 47988), EPA simultaneously published a notice of proposed rulemaking (NPR) and a direct final rule (DFR) for the Commonwealth of Pennsylvania approving the SIP revision. EPA received five adverse comments on the rulemaking and withdrew the DFR prior to the effective date of December 15, 2017.
During the comment period, EPA received several anonymous comments on the rulemaking. Of the comments, one comment generally discussed greenhouse gas from electric vehicles, a second comment generally discussed wildfires and wildland fire management policy, and a third comment generally discussed the Mercury and Air Toxics Standards. EPA believes these three comments are not germane to this rulemaking action, thus no further response is provided. The following is a summary of the comments pertinent to this rulemaking action and EPA's response to those comments.
EPA further disagrees with the commenter's assertion that VOC reductions are not needed in the entire Commonwealth of Pennsylvania, and disagrees that the state or EPA has any discretion to not implement those reductions. First, the commenter provided no evidence supporting a claim that VOC reductions are only needed in areas with “bad air” (EPA assumes this is a reference to nonattainment areas). Second, Congress has dictated through the CAA that VOC RACT is required to be implemented throughout the entire Commonwealth. CAA section 182(b)(2)(A) requires that, for each ozone nonattainment area classified as Moderate or above, the area must revise their SIPs to include RACT for each category of VOC sources covered by CTG documents issued between November 15, 1990 and the date of attainment. CAA section 184(a) further establishes a single OTR which includes the entire Commonwealth of Pennsylvania, and section 184(b)(1)(B) requires all OTR states to submit SIPs implementing RACT with respect to
EPA is approving the Commonwealth of Pennsylvania's November 2016 SIP revision submittal, which adopts EPA's CTG for miscellaneous metal parts surface coating, miscellaneous plastic parts surface coating, and pleasure craft surface coatings, and which makes other related administrative changes, because the revision meets the requirements of CAA sections 110, 172(c)(1), 182(b)(2)(A), and 184(b)(2).
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 the Pennsylvania rule discussed in section II of this preamble. 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 CAA and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• 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
• 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 (65 FR 67249, November 9, 2000), 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.
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 October 9, 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, which approves Pennsylvania's SIP revision adopting CTGs for miscellaneous metal parts surface coating, miscellaneous plastic parts surface coating, and pleasure craft surface coatings, as well as general administrative changes related to cleaning activities, may not be challenged later in proceedings to enforce its requirements (See section 307(b)(2)).
Environmental protection, Air pollution control, Incorporation by reference, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
The additions and revisions read as follows:
(c) * * *
(1) * * *
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes tolerances for residues of picoxystrobin in or on multiple commodities that are identified and discussed later in this document. E.I. DuPont De Nemours and Company requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).
This regulation is effective August 10, 2018. Objections and requests for hearings must be received on or before October 9, 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-2017-0429, is available at
Michael L. Goodis, P.E., 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-2017-0429 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 October 9, 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-2017-0429, by one of the following methods:
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Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In the
Notice of this same petition was provided again in the
Based upon review of the data supporting the petition, EPA is establishing tolerances at levels lower than requested, except for the commodities of alfalfa forage, hay, and seed, and using commodity terms consistent with the Agency's food and feed commodity vocabulary. The reasons for these changes are explained in Unit IV.D.
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 picoxystrobin including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with picoxystrobin 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 most consistently observed effects of picoxystrobin exposure across species, genders, and treatment durations were decreased body-weight, body-weight gain and food consumption, and diarrhea. The effects on body-weight and food consumption were consistent with the commonly observed findings for compounds that disrupt the mitochondria respiration system and the resulting disruption of energy production. Similar to some other strobilurins, picoxystrobin causes intestinal disturbance as indicated by increased incidence of diarrhea or duodenum mucosal thickening. These intestinal effects appeared to be related to the irritating action on the mucus membranes as demonstrated by severe eye irritation effect seen in the primary eye irritation study on picoxystrobin.
In the rat, developmental toxicity was expressed as misaligned 5th sternebrae at doses causing maternal toxicity (
There was no evidence that picoxystrobin directly affects the nervous system; behavioral changes observed in the acute and subchronic neurotoxicity studies were attributed to general malaise. Picoxystrobin has no effects on the immune system in rats and mice, and is not mutagenic or genotoxic. No adverse dermal or systemic effects were identified in the rat following dermal exposure at the limit-dose. In the inhalation toxicity study, rats showed no portal of entry, respiratory or systemic toxicity. Chronic picoxystrobin exposure induced a treatment-related increase in testicular interstitial cell benign tumors in male rats at the high-dose only. No tumors were seen in female rats or in male and female mice, and there is no mutagenic concern. Based on this information, EPA has classified picoxystrobin as “suggestive evidence of carcinogenic potential”, for which quantification of cancer risk based on a non-linear approach (
Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some
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Based on the Surface Water Concentration Calculator (SWCC) and Pesticide Root Zone Model Ground Water (PRZM GW), the estimated drinking water concentrations (EDWCs) of picoxystrobin for acute exposures are estimated to be 15.7 parts per billion (ppb) for surface water and 1.40 ppb for ground water. Chronic exposures for non-cancer assessments are estimated to be 5.53 ppb for surface water and 1.36 ppb for ground water.
Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For acute dietary risk assessment, the water concentration value of 15.7 ppb was used to assess the contribution to drinking water. For chronic dietary risk assessment, the water concentration of value 5.53 ppb was used to assess the contribution to drinking water.
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Picoxystrobin is not registered for any specific use patterns that would result in residential exposure.
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i. The toxicity database for picoxystrobin is complete, except for the lack of a NOAEL in the acute neurotoxicity test, which is used to establish a toxicological endpoint for acute dietary exposure scenarios.
ii. Although there is some effect on behavior after exposure to picoxystrobin, EPA has concluded that picoxystrobin is not a neurotoxic chemical due to lack of neuropathological findings; there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.
iii. There is no evidence that picoxystrobin results in increased susceptibility in
iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100 PCT and tolerance-level residues. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to picoxystrobin in drinking water. These assessments will not underestimate the exposure and risks posed by picoxystrobin.
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.
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Adequate enforcement methodology (high-performance liquid chromatography with tandem mass spectrometry (HPLC/ESI-MS/MS)) is available to enforce the tolerance expression.
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).
Comments were received in response to the Notices of Filing of E.I. Du Pont De Nemours and Company's petition. Two comments were filed within the comment period, one irrelevant and one expressing confusion about whether this action duplicated a previous action. The comment copied an excerpt from a tolerance rulemaking that was finalized in 2012; the tolerances requested in this petition are not the same as those finalized in 2012. Several other comments were submitted after the comment period had closed.
The Agency has revised several of the commodity definitions to be consistent with the food and feed commodity vocabulary the Agency uses to establish tolerances. The Agency is also establishing tolerance levels that are slightly lower than the petitioner requested because Agency calculated tolerances (except alfalfa and sorghum) using proportionality to extrapolate data which would be reflective of a 1x maximum annual application rate rather the exaggerated application rates in the field trial studies for the following commodities: Almond hulls at 15 ppm to almond, hulls at 7.0 ppm; cotton, gin by-products at 40 ppm to cotton gin byproducts at 20 ppm; cottonseed (Crop Subgroup 20C) at 4 ppm to cottonseed subgroup 20C at 2.0 ppm; head lettuce at 7 ppm to lettuce, head at 4.0 ppm; onion, bulb (Crop Subgroup 3-07A) at 0.8 ppm to onion, bulb, subgroup 3-07A at 0.50 ppm; onion, green (Crop Subgroup 3-07B) at 15 ppm to onion, green, subgroup 3-07B at 10 ppm; pea and bean, succulent shelled (Crop Subgroup 6B) at 3 ppm to pea and bean, succulent shelled, subgroup 6B at 0.90 ppm; peanut at 0.1 ppm to 0.05 ppm; peanut, hay at 40 ppm to 30 ppm; sunflower (Crop Subgroup 20B) at 3 ppm to sunflower subgroup 20B to 2.0 ppm; tree nut except hulls (Crop Group 14-12) at 0.15 ppm to nut, tree, group 14-12 at 0.08 ppm; vegetable, brassica head and stem (Crop Group 5-16) at 5 ppm to vegetable, brassica, head and stem, group 5-16 at 2.0 ppm; vegetable, cucurbit (Crop Group 9) at 0.7 ppm to vegetable, cucurbit, group 9 at 0.30 ppm; vegetable, fruiting (Crop Group 8-10) at 1.5 ppm to vegetable, fruiting, group 8-10 at 0.70 ppm; vegetable, leaf petiole (Crop Subgroup 22B) at 40 ppm to leaf petiole vegetable subgroup 22B at 20 ppm; vegetable, leafy except head lettuce (Crop Group 4-16) at 60 ppm to vegetable, leafy, group 4-16, except lettuce, head at 30 ppm; vegetable, leaves of root and tuber (Crop Group 2) at 40 ppm to vegetable, leaves of root and tuber, group 2 at 30 ppm; vegetable, legume, edible podded (Crop Subgroup 6A) at 4 ppm to vegetable, legume, edible podded, subgroup 6A at 2.0 ppm; vegetable, root (Crop Subgroup 1A) at 0.6 ppm to vegetable, root, subgroup 1A at 0.50 ppm; and vegetable, tuberous and corm (Crop Subgroup 1C) at 0.06 ppm to vegetable, tuberous and corm, subgroup 1C at 0.03 ppm.
For alfalfa, forage, hay, and seed, the tolerances have been modified to represent the appropriate number of significant figures; however, the numerical value is no different than requested by the petition.
The petition requested “grass, forage (Grown for Seed)” at 40 ppm and “grass, hay (Grown for Seed)” at 80 ppm. Because “grass grown for seed” is ambiguous, the Agency is establishing individual tolerances for the hay and forage forms of specific grasses for which residue data were submitted and that are grown for seed purposes: Bluegrass, forage at 30 ppm; bluegrass, hay at 60 ppm, bromegrass, forage at 30 ppm; bromegrass, hay at 60 ppm; fescue, forage at 30 ppm; fescue, hay at 60 ppm; orchardgrass, forage at 30 ppm; orchardgrass, hay at 60 ppm; ryegrass, forage at 30 ppm; ryegrass, hay at 60 ppm; switchgrass, forage at 30 ppm; and switchgrass, hay at 60 ppm.
EPA is also establishing tolerances for beet, sugar, dried pulp at 1.5 ppm and potato, wet peel at 0.10 ppm, pursuant to 40 CFR 180.40(f)(1)(i)(A). These tolerances are necessary to cover concentrated residues in processed commodities of raw agricultural commodities contained in subgroups 1A and 1C, respectively.
Therefore, tolerances are established for residues of picoxystrobin, methyl (αE)-α-(methoxymethylene)-2-[[[6-(trifluoromethyl)-2-pyridinyl]oxy]methyl]benzeneacetate, in or on alfalfa, forage at 4.0 ppm; alfalfa, hay at 5.0 ppm; alfalfa, seed at 9.0 ppm; almond, hulls at 7.0 ppm; beet, sugar, dried pulp at 1.5 ppm; bluegrass, forage at 30 ppm; bluegrass, hay at 60 ppm; bromegrass, forage at 30 ppm; bromegrass, hay at 60 ppm; cotton, gin byproducts at 20 ppm; cottonseed subgroup 20C at 2.0 ppm; fescue, forage at 30 ppm; fescue, hay at 60 ppm; leaf petiole vegetable subgroup 22B at 20 ppm; lettuce, head at 4.0 ppm; nut, tree, group 14-12 at 0.08 ppm; onion, bulb, subgroup 3-07A at 0.50 ppm; onion, green, subgroup 3-07B at 10 ppm; orchardgrass, forage at 30 ppm; orchardgrass, hay at 60 ppm; pea and bean, succulent shelled, subgroup 6B at 0.90 ppm; peanut at 0.05 ppm; peanut, hay at 30 ppm; potato, wet peel at 0.10 ppm; ryegrass, forage at 30 ppm; ryegrass, hay at 60 ppm; sunflower subgroup 20B to 2.0 ppm; switchgrass, forage at 30 ppm; switchgrass, hay at 60 ppm; vegetable, brassica, head and stem, group 5-16 at 2.0 ppm; vegetable, cucurbit, group 9 at 0.30 ppm; vegetable, fruiting, group 8-10 at 0.70 ppm; vegetable, leafy, group 4-16, except lettuce, head at 30 ppm; vegetable, leaves of root and tuber, group 2 at 30 ppm; vegetable, legume, edible podded, subgroup 6A at 2.0 ppm; vegetable, root, subgroup 1A at 0.50 ppm; and vegetable, tuberous and corm, subgroup 1C at 0.03 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 of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), nor is it considered a regulatory action under Executive Order 13771, entitled “Reducing Regulations and Controlling Regulatory Costs” (82 FR 9339, February 3, 2017). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerances 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) * * *
Federal Communications Commission.
Final rule.
In this document, the Federal Communications Commission (FCC or Commission) adopts changes to its rules governing the Emergency Alert System (EAS) to facilitate “Live Code Tests” of the EAS; permit use of the EAS Attention Signal and EAS Header Code
Effective September 10, 2018, except for the amendments to 47 CFR 11.33 and 11.56, which are effective August 12, 2019, and the amendments to 47 CFR 11.45(b) and 11.61, which contain modifications to information collection requirements that were previously approved by the Office of Management and Budget (OMB). Once OMB has approved the modifications to these collections, the Commission will publish a document in the
Gregory Cooke, Deputy Chief, Policy and Licensing Division, Public Safety and Homeland Security Bureau, at (202) 418-7452, or by email at
This is a summary of the Commission's Report and Order (
1. In the
2. The EAS is a national public warning system through which EAS Participants deliver alerts to the public to warn them of impending emergencies. The primary purpose of the EAS is to provide the President of the United States (President) with “the capability to provide immediate communications and information to the general public at the National, State and Local Area levels during periods of national emergency.” State and local authorities also use this common distribution architecture of the EAS to distribute voluntary weather-related and other emergency alerts. Further, testing of the system at the state and local level increases the proficiency of local emergency personnel, provides insight into the system's functionality and effectiveness at the federal level, and enhances the public's ability to respond to EAS alerts when they occur. The integrity of the EAS is maintained through the Commission's EAS rules, which set forth the parameters and frequency with which EAS Participants must test the system, prohibit the unauthorized use of the EAS Attention Signal and codes, and require EAS Participants to keep their EAS equipment in good working order.
3. Section 11.31(e) of the Commission's rules sets forth the event header codes that are used for alerts in specific emergency situations (
4. The
5. The Commission agrees with commenters that EAS Participants such as cable operators and broadcasters must be given sufficient notice of live code tests to benefit from them and to allow for planning and coordination to assess and mitigate the impact on downstream equipment and subscribers. Accordingly, the Commission expects test alert originators to coordinate with these stakeholders in good faith, and encourages them to provide the notice and coordination required by the rules adopted in the
6. Commenters generally support voluntary live code testing, and agree that such testing can yield important public safety benefits. The record also indicates that live code testing exercises can be tailored to improve public safety at the local or community level.
7. To avoid customer exhaustion and any dissipation of the value of alerting that could come from over-testing the system to the public, the
8. Section 11.46 of the Commission's rules provides that PSAs, while permissible, “may not be a part of alerts or tests, and may not simulate or attempt to copy alert tones or codes.” The Commission has granted requests from non-governmental organizations (NGOs) and FEMA for waivers of these rules to raise public awareness about the EAS through PSAs that use the EAS Attention Signal, and, in one instance, a simulation of header code sounds. In 2016, the Commission amended its rules to allow authorized entities to use the Attention Signal in PSAs about WEA. In the NPRM, the Commission proposed allowing EAS Participants to use EAS header codes and the Attention Signal in coordination with federal, state, and local government entities without a waiver, provided that the PSAs are presented in a non-misleading manner that does not cause technical issues for downstream equipment.
9. The
10. The Commission declines to allow live EAS header codes to be used in EAS PSAs because, as suggested by some commenters, EAS PSAs containing live EAS header codes could have unintended consequences, including triggering false alerts. However, the Commission will permit the simulation of header code audio tones developed by FEMA in PSAs to deliver the familiar sounds of live EAS header codes that the public associates with the EAS in a manner that would not trigger an actual alert. Entities that want to simulate the EAS header codes in their PSAs must do so using FEMA's simulation. The Commission observes that FEMA's simulation of the header code audio tones is subject to the restrictions of section 11.45 and therefore should not be used for purposes other than the EAS PSAs described in the
11. The Commission proposed that these rules would become effective 30 days from the date of their publication in the
12. The rule amendments for section 11.61, which cover “Live Code Tests,” will become effective on the date specified in a Commission notice published in the
13. The Commission agrees with commenters that false alert reporting would benefit ongoing EAS reliability, and that having timely information about false alerts could help identify and mitigate problems with the EAS. Accordingly, the Commission revises its rules to require that no later than twenty-four (24) hours of an EAS Participant's discovery that it has transmitted or otherwise sent a false alert to the public, the EAS Participant send an email to the FCC Ops Center (at
14. The
15. Section 11.33(a)(10) specifies certain error detection and validation requirements for decoders. Currently, the Commission's rules do not require validation of alerts based upon the time period or year parameter in the “time stamp” portion of the header code,
16.
17. The Commission observes that commenters generally support proposals that reduce the potential for repeat broadcasts of outdated alerts by validation based on specific origination and expiration times, and support a 15-minute timeframe, and believe that such requirement will require minimal software updates. Based on the record, most EAS equipment already validates the time of EAS messages, blocking alerts that have expired. Remaining equipment can achieve this capability
18.
19. The
20. The rule amendments for section 11.45(b), which address the filing of false alert reports will become effective on the date specified in a Commission notice published in the
21. The rule changes adopted in the
22. The rule changes adopted in the
23. These rule changes will also help prevent incidents of misuse and abuse of the EAS. The authentication and validation rule changes will require the use of EAS equipment's existing capabilities to help prevent misuse and abuse of the EAS, thus protecting its integrity and maintaining its credibility with the public and alerting officials. To provide an estimate of the value of the benefits of the rules adopted in the
24. The rule changes to section 11.61 for live code testing and to sections 11.45 and 11.46 for public service announcements do not impose any new costs. Rather, they codify requirements that were previously imposed on waivers granted by the Commission. Removing the requirement to file a waiver removes the need for legal and other staff time associated with filing a waiver. The new rules therefore eliminate any legal or administrative costs that were associated with filing waiver requests.
25. The Commission estimates that compliance with the alert authentication and validation rule changes will involve only minimal costs to EAS Participants. Current EAS rules require that EAS Participants must have EAS equipment that is capable of being updated via software. According to the record, most EAS equipment deployed in the field is already configured to support the validation and authentication rule changes adopted in the
26. With respect to the new false alert reporting requirement, the Commission concludes that the cost of reporting false alerts will be $11,600 per year, based upon an average of 290 EAS participants each spending 15 minutes to file one report.
27. Therefore, based on the foregoing analysis, the Commission finds it reasonable to conclude that the benefits of the rules adopted in the
28. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to
29. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice of Proposed Rulemaking (
30. In today's Report and Order (
31. With respect to building effective public safety exercises and supporting greater testing and awareness of the EAS, the Commission permits the use of “live code” EAS public safety exercises to empower communities to meet their emergency preparedness needs and to provide opportunities for system verification and proficiency training. The Commission also allows EAS Participants to use the EAS Attention Signal and simulation of the header
32. With respect to taking steps to ensure the readiness and reliability of the EAS, the Commission requires EAS Participants, upon discovery (
33. There were no comments filed that specifically addressed the proposed rules and policies presented in the IRFA.
34. Pursuant to the Small Business Jobs Act of 2010, which amended the RFA, the Commission is required to respond to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA), and to provide a detailed statement of any change made to the proposed rules as a result of those comments.
35. The Chief Counsel did not file any comments in response to the proposed rules in this proceeding.
36. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the rules adopted, herein. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.
37.
38. Next, the type of small entity described as a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of Aug. 2016, there were approximately 356,494 small organizations based on registration and tax data filed by nonprofits with the Internal Revenue Service (IRS).
39. Finally, the small entity described as a “small governmental jurisdiction” is defined generally as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” U.S. Census Bureau data from the 2012 Census of Governments indicates that there were 90,056 local governmental jurisdictions consisting of general purpose governments and special purpose governments in the United States. Of this number there were 37,132 General purpose governments (county, municipal and town or township) with populations of less than 50,000 and 12,184 Special purpose governments (independent school districts and special districts) with populations of less than 50,000. The 2012 U.S. Census Bureau data for most types of governments in the local government category shows that the majority of these governments have populations of less than 50,000. Based on this data the Commission estimates that at least 49,316 local government jurisdictions fall in the category of “small governmental jurisdictions.”
40.
41. According to Commission staff review of the BIA/Kelsey, LLC's Media Access Pro Radio Database as of January 2018, about 11,261 (or about 99.9 percent) of 11,383 commercial radio stations had revenues of $38.5 million or less and thus qualify as small entities under the SBA definition. The Commission has estimated the number of licensed commercial AM radio stations to be 4,639 stations and the number of commercial FM radio stations to be 6,744, for a total number of 11,383. The Commission notes that the Commission has also estimated the number of licensed NCE radio stations to be 4,120. Nevertheless, the Commission does not compile and otherwise does not have access to information on the revenue of NCE stations that would permit it to determine how many such stations would qualify as small entities.
42. The Commission also notes, that in assessing whether a business entity qualifies as small under the above definition, business control affiliations must be included. The Commission's estimate therefore likely overstates the number of small entities that might be affected by its action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. In addition, to be determined a “small business,” an entity may not be dominant in its field of operation. The Commission further notes, that it is difficult at times to assess these criteria in the context of media entities, and the estimate of small businesses to which these rules may apply does not exclude any radio station from the definition of a small business on this basis, thus the Commission's estimate of small businesses may therefore be over-inclusive. Also, as noted above, an additional element of the definition of “small business” is that the entity must be independently owned and operated. The Commission notes that it is difficult at times to assess these criteria in the context of media entities and the estimates of small businesses to which they apply may be over-inclusive to this extent.
43.
44.
45. The Commission has estimated the number of licensed commercial television stations to be 1,378. Of this total, 1,258 stations (or about 91 percent) had revenues of $38.5 million or less, according to Commission staff review of the BIA Kelsey Inc. Media Access Pro Television Database (BIA) on November 16, 2017, and therefore these licensees qualify as small entities under the SBA definition. In addition, the Commission has estimated the number of licensed noncommercial educational (NCE) television stations to be 395. Notwithstanding, the Commission does not compile and otherwise does not have access to information on the revenue of NCE stations that would permit it to determine how many such stations would qualify as small entities. There are also 2,367 low power television stations, including Class A stations (LPTV) and 3,750 TV translator stations. Given the nature of these services, the Commission will presume that all of these entities qualify as small entities under the above SBA small business size standard.
46. The Commission notes, however, that in assessing whether a business concern qualifies as “small” under the above definition, business (control) affiliations must be included. The Commission's estimate, therefore likely overstates the number of small entities that might be affected by the Commission's action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. In addition, another element of the definition of “small business” requires that an entity not be dominant in its field of operation. The Commission is unable at this time to define or quantify the criteria that would establish whether a specific television broadcast station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply does not exclude any television station from the definition of a small business on this basis and is therefore possibly over-inclusive. Also, as noted above, an additional element of the definition of “small business” is that the entity must be independently owned and operated. The Commission notes that it is difficult at times to assess these criteria in the context of media entities and its estimates of small businesses to which they apply may be over-inclusive to this extent.
47.
48.
49.
50.
51.
52. All
53.
54.
55.
56. The Commission's own data—available in its Universal Licensing System—indicate that, as of October 25, 2016, there are 280 Cellular licensees that will be affected by the Commission's actions today. The Commission does not know how many of these licensees are small, as the Commission does not collect that information for these types of entities. Similarly, according to internally developed Commission data, 413 carriers reported that they were engaged in the provision of wireless telephony, including cellular service, Personal Communications Service (PCS), and Specialized Mobile Radio (SMR) services. Of this total, an estimated 261 have 1,500 or fewer employees and 152 have more than 1,500 employees. Thus, using available data, the Commission estimates that the majority of wireless firms can be considered small.
57.
58. On January 26, 2001, the Commission completed the auction of 422 C- and F-Block Broadband PCS licenses in Auction No. 35. Of the 35 winning bidders in that auction, 29 claimed small business status. Subsequent events concerning Auction No. 35, including judicial and agency determinations, resulted in a total of 163 C- and F-Block licenses being available for grant. On February 15, 2005, the Commission completed an auction of 242 C-, D-, E-, and F-Block licenses in Auction No. 58. Of the 24 winning bidders in that auction, 16 claimed small business status and won 156 licenses. On May 21, 2007, the Commission completed an auction of 33 licenses in the A-, C-, and F-Blocks in Auction No. 71. Of the 12 winning bidders in that auction, five claimed small business status and won 18 licenses. On August 20, 2008, the Commission completed the auction of 20 C-, D-, E-, and F-Block Broadband PCS licenses in Auction No. 78. Of the eight winning bidders for Broadband PCS licenses in that auction, six claimed small business status and won 14 licenses.
59.
60.
61.
62. In 2007, the Commission reexamined its rules governing the 700 MHz band in the 700 MHz Second Report and Order. An auction of 700 MHz licenses commenced January 24, 2008, and closed on March 18, 2008, which included: 176 Economic Area licenses in the A-Block, 734 Cellular Market Area licenses in the B-Block, and 176 EA licenses in the E-Block. Twenty winning bidders, claiming small business status (those with attributable average annual gross revenues that exceed $15 million and do not exceed $40 million for the preceding three years) won 49 licenses. Thirty-three winning bidders claiming very small business status (those with attributable average annual gross revenues that do not exceed $15 million for the preceding three years) won 325 licenses.
63.
64.
65.
66.
67. In 2009, the Commission conducted Auction No. 86, the sale of 78 licenses in the BRS areas. The Commission offered three levels of bidding credits: (i) A bidder with attributed average annual gross revenues that exceed $15 million and do not exceed $40 million for the preceding three years (small business) received a 15 percent discount on its winning bid; (ii) a bidder with attributed average annual gross revenues that exceed $3 million and do not exceed $15 million for the preceding three years (very small business) received a 25 percent discount on its winning bid; and (iii) a bidder with attributed average annual gross revenues that do not exceed $3 million for the preceding three years (entrepreneur) received a 35 percent discount on its winning bid. Auction No. 86 concluded in 2009 with the sale of 61 licenses. Of the ten winning bidders, two bidders that claimed small business status won four licenses; one bidder that claimed very small business status won three licenses; and two bidders that claimed entrepreneur status won six licenses.
68.
69.
70.
71.
72.
73. According to Commission staff review of the BIA Kelsey Inc. Media Access Pro Television Database (BIA) as of November 16, 2017, approximately 1,258 of the 1,378 licensed commercial television stations (or about 91 percent) had revenues of $38.5 million or less, and therefore these licensees qualify as small entities under the SBA definition. The Commission also estimates that there are 395 licensed noncommercial educational NCE television stations. Notwithstanding, the Commission does not compile and otherwise does not have access to information on the revenue of NCE stations that would permit it to determine how many such stations would qualify as small entities. In addition to licensed commercial television stations and NCEs, there are also an estimated 2,367 low power television stations (LPTV), including Class A stations and 3,750 TV translator stations. Given the nature of these services, the Commission will presume that all of these entities qualify as small entities under the above SBA small business size standard.
74. The Commission notes, however, that in assessing whether a business concern qualifies as small under the above definition, business (control) affiliations must be included. The Commission's estimate, therefore, likely overstates the number of small entities that might be affected by the Commission's action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. Moreover, the definition of “small business” also requires that an entity not be dominant in its field of operation and that the entity be independently owned and operated. The estimate of small businesses to which rules may apply does not exclude any television station from the definition of a small business on these bases and is therefore over-inclusive to that extent. Further, the Commission is unable at this time to define or quantify the criteria that would establish whether a specific television station is dominant in its field of operation. The Commission further notes that it is difficult at times to assess these criteria in the context of media entities, and therefore the Commission's estimates of small businesses to which they apply may be over-inclusive to this extent.
75. The
76. The
77. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its approach, which may include the following four alternatives (among others): “(1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) and exemption from coverage of the rule, or any part thereof, for small entities.”
78. The Commission does not expect its actions in the
79. The false alert reporting rules the Commission adopts today similarly impose minimal burdens on small entities. The reporting requirement is triggered only upon discovery of the false alert, allows twenty-four hours for the submission of the report and imposes no obligation to and investigate the false report. Further, the Commission recognizes that smaller entities often face particular challenges in achieving authentication and validation of EAS messages due to limited human, financial, or technical resources. Due, in part, to the potentially significant burdens that the originally-proposed requirements would pose, the Commission declines, at this time, to adopt certain of the proposals and defer consideration of others. Those the Commission adopts are unlikely to pose burdens that are not already incurred in the normal course of business.
80. Finally, the Commission adopts implementation timeframes for each of the Commission's rules that are intended to allow EAS Participants to come into compliance with the Commission's rules in a manner that balances the need for improving EAS organization and effectiveness as soon as possible with any potential burdens that may be imposed by adoption of the Commission's proposals.
81. The Commission concludes that the adopted mandates provide small entities as well as other EAS Participants with a sufficient measure of flexibility to account for technical and cost-related concerns. The Commission has determined that implementing these improvements to the EAS is technically feasible. In the event that small entities face unique circumstances that restrict their ability to comply with the Commission's rules, the Commission can address them through the waiver process.
82. This document contains modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the PRA. OMB, the general public, and other Federal agencies will be invited to comment on the new or modified information collection requirements contained in this proceeding. In addition, the Commission notes that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission previously sought specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees.
83. The Commission will send a copy of this Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see U.S.C. 801(a)(1)(A).
84. Accordingly,
85.
86.
Radio, Television.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 11 as follows:
47 U.S.C. 151, 154(i) and (o), 303(r), 544(g) and 606.
(a) * * *
(10)
(a) No person may transmit or cause to transmit the EAS codes or Attention Signal, or a recording or simulation thereof, in any circumstance other than in an actual National, State or Local Area emergency or authorized test of the EAS; or as specified in §§ 10.520(d), 11.46, and 11.61 of this chapter.
(b) No later than twenty-four (24) hours of an EAS Participant's discovery (
EAS Participants may use the EAS Attention Signal and a simulation of the EAS codes as provided by FEMA in EAS Public Service Announcements (PSAs) (including commercially-sponsored announcements, infomercials, or programs) provided by federal, state, and local government entities, or non-governmental organizations, to raise public awareness about emergency alerting. This usage is only permitted if the PSA is presented in a non-misleading and technically harmless manner, including with the explicit statement that the Attention Signal and EAS code simulation are being used in the context of a PSA for the purpose of educating the viewing or listening public about emergency alerting.
(c) EAS Participants shall configure their systems to reject all CAP-formatted EAS messages that include an invalid digital signature.
(a) * * *
(5)
(i) Notifies the public before the test that live event codes will be used, but that no emergency is, in fact, occurring;
(ii) To the extent technically feasible, states in the test message that the event is only a test;
(iii) Coordinates the test among EAS Participants and with state and local emergency authorities, the relevant SECC (or SECCs, if the test could affect multiple states), and first responder organizations, such as PSAPs, police, and fire agencies); and,
(iv) Consistent with § 11.51, provides in widely accessible formats the notification to the public required by this subsection that the test is only a test, and is not a warning about an actual emergency.
National Credit Union Administration (NCUA).
Proposed rule.
The NCUA Board (Board) proposes to amend its regulations regarding loans to members and lines of credit to members. The proposal would reduce regulatory burden by making amendments to improve clarity and to make compliance easier. Specifically, the Board proposes to make the NCUA's loan maturity requirements more user friendly by identifying in one section all of the various maturity limits applicable to federal credit union (FCU) loans. The Board also proposes to make explicit in its regulations that the maturity date for a “new loan” under generally accepted accounting principles (GAAP) is calculated from the new date of origination. Additionally, the Board seeks comment on whether the agency should provide longer maturity limits for 1-4 family real estate loans and other loans permitted by the Federal Credit Union Act (FCU Act) such as home improvement, mobile home, and second mortgage loans. Finally, the Board proposes to more clearly express the limits for loans to a single borrower or group of associated borrowers.
Comments must be received on or before October 9, 2018.
You may submit comments by any of the following methods (Please send comments by one method only):
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Thomas I. Zells, Staff Attorney, Office of General Counsel, at 1775 Duke Street, Alexandria, VA 22314 or telephone: (703) 548-2478.
In August 2017, the Board published and sought comment on the NCUA's regulatory reform agenda (Agenda).
A number of the items in the Agenda relate to the NCUA's regulations on loans to members and lines of credit to members.
Section 107(5) of the FCU Act grants FCUs the power “to make loans, the maturities of which shall not exceed 15 years, except as otherwise provided herein. . . .”
Presently, § 701.21 of the NCUA's regulations addresses various loan maturity limits in paragraphs (c), (e), (f), and (g). Paragraph (c) provides the general rules applicable to all loans to members and, where indicated, all lines of credit (including credit cards) to members, except as otherwise provided in the remaining provisions of § 701.21. Paragraph (c)(4) implements the general 15-year maturity limit that section 107(5) of the FCU Act places on loans to members. Paragraphs (e), (f), and (g) of § 701.21 implement the three exceptions to this general 15-year limit that appear in section 107(5)(A)(i)-(iii) of the FCU Act.
Having the various maturity limits spread among numerous sections of the NCUA's regulations, often separated by large amounts of regulatory text unrelated to maturities, can be confusing to the reader and makes it more difficult to understand the lending regulations. To remedy this, the Board proposes to make the NCUA's loan maturity requirements more understandable and user-friendly by identifying in one section (§ 701.21(c)(4)), including cross-citations, all of the maturity limits applicable to FCU loans.
The proposal also clarifies that in the case of a lending action qualifying as a “new loan” under GAAP, the maturity limit is calculated from the new date of origination.
The Board is considering providing longer maturity limits for 1-4 family real estate loans and other loans (such as certain home improvement, mobile home, and second mortgage loans) as permitted by section 107(5)(A)(i)-(ii) of the FCU Act and removing the case-by-case exception the Board can grant. As discussed earlier, these maturity limits are implemented in § 701.21(f) and (g) of the NCUA's regulations. The case-by-case exception is located in § 701.21(g)(1) of the NCUA's regulations and provides that the Board can permit an FCU to make loans with maturities that exceed the regulation's 40-year limit “on a case-by-case basis, subject to the conditions of this paragraph (g).”
Currently, three provisions of the NCUA's regulations address limits on loans to a single borrower or group of associated borrowers: (1) § 701.21(c)(5) addresses the general limit; (2) § 701.22(b)(5)(iv) addresses the limit on loan participations; and (3) § 723.4(c) addresses the limit on commercial loans. Because these provisions are spread among several sections of the NCUA's regulations, some stakeholders are not aware that there are multiple limits that apply in different contexts. To rectify this, the proposal makes clear that all three of these limits exist. Rather than move the loans to one borrower or group of associated borrowers limits that specifically apply to loan participations and commercial loans from their current regulatory sections to the general limit section, the Board proposes to include cross-citations to the more specific loan participation and commercial loan limits in the general limit section (§ 701.21(c)(5)). The Board believes that inserting cross-citations is a more efficient and user friendly way to identify that there are multiple lending limits throughout the NCUA's regulations.
Section 701.21(c)(5), as part of the general rules on loans and lines of credit to members, imposes the FCU Act's ten percent limit on loans and lines of credit to any member.
The NCUA also proposes to make conforming amendments to update cross-citations to the single borrower and group of associated borrower limits in §§ 701.20(c)(2) and 701.22(b)(1).
In addition, the NCUA believes that providing a universal standard limit for loans to a single borrower or group of associated borrowers, in lieu of the current loan product specific standards, may help facilitate compliance and reduce regulatory burden. As such, the agency seeks stakeholder input on whether the agency should provide such a universal standard limit. Currently, a limit of 15 percent of a federally insured credit union's net worth exists for both commercial loans and loan participations that may be purchased with respect to a single borrower or group of associated borrowers. However, a waiver is available in the case of the loan participations limit and an alternate limit is available for commercial loans.
More specifically, the 15 percent limit on the aggregate amount of loan participations that may be purchased with respect to a single borrower or group of associated borrowers can be waived by the appropriate regional director, and, in the case of a federally insured, state-chartered credit union, with prior written concurrence of the appropriate state supervisory authority.
The Board believes that more input is necessary to determine whether a universal limit would be beneficial and should be adopted in place of the current product specific limits. As such, the Board asks that commenters provide comments addressing: (1) Whether the NCUA should provide a single universal standard limit for commercial loans and loan participations that may be purchased with respect to a single borrower or group of associated borrowers; (2) if so, the appropriate limit for such a standard; (3) if not, why not; and (4) any other issues stakeholders believe are relevant to this determination. The Board also requests that commenters consider FCU Act limitations, specifically the general limit on loans to a single borrower of “10 per centum of the credit union's unimpaired capital and surplus” in section 107(5)(A)(x), when commenting.
This proposed rule reduces regulatory burden and makes the NCUA's regulations more user-friendly for credit unions. As such, it is largely clarifying and technical in nature and would maintain most of the current language in § 701.21. The proposed changes to § 701.21 and the conforming amendments to §§ 701.20 and 701.22 are discussed in more detail below.
The proposal would make minor conforming amendments to § 701.20(c).
The proposal would make conforming amendments to the section governing requirements for suretyship or guaranty agreements by removing outdated cross-citations to the loans to one borrower or group of associated borrowers limit in §§ 723.2 and 723.8 of the member business lending regulation and adding updated cross-citations to 701.22(b)(5)(iv) of the NCUA's loan participation regulation and 723.4(c) of the NCUA's member business lending regulation.
The proposal would divide current § 701.21(c)(4) into two new subparagraphs. One paragraph, § 701.21(c)(4)(i), would state the general rule that loans carry a 15-year maturity. The other, § 701.21(c)(4)(ii), would make more explicit that there are exceptions to the general 15-year maturity limit in § 701.21 (e) through (g) for various types of credit union loans.
The proposal would maintain all of current § 701.21(c)(4) in proposed § 701.21(c)(4)(i), which articulates the general 15-year maturity limit that exists on FCU loans. However, the proposal also would add language to clarify that the maturity for a lending action that qualifies as a new loan under GAAP is calculated from the new date of origination.
Section 701.21(c)(4)(ii) of the proposal would explicitly state, in three subparagraphs, that three exceptions exist to the general 15-year maturity limit and cross-cite to §§ 701.21(e)-(g), which detail them as follows:
Paragraph (c)(4)(ii)(A) of the proposal would explicitly cross-cite to the exception to the general 15-year maturity limit that exists in § 701.21(e) regarding covered loans secured, in full or in part, by the insurance or guarantee of, or with an advance commitment to purchase the loan, in full or in part, by the Federal Government, a State government or any agency of either.
Paragraph (c)(4)(ii)(B) of the proposal would explicitly cross-cite to the exception to the general 15-year maturity limit that exists in § 701.21(f) regarding covered home improvement, mobile home, and second mortgage loans.
Paragraph (c)(4)(ii)(C) of the proposal would explicitly cross-cite to the exception to the general 15-year maturity limit that exists in § 701.21(g) regarding covered 1-4 family real estate loans.
The proposal would revise § 701.21(c)(5) to add cross-citations to the specific requirements that exist on loans to a single borrower or group of associated borrowers in the loan participation rule, § 701.22(b)(5)(iv), and member business lending rule, § 723.4(c).
The proposal would revise § 701.21(e) to make more explicit that the maturity limits applicable to loans covered by paragraph (e) are notwithstanding the general 15-year limit in paragraph (c)(4). The proposal would also add a cross-citation to paragraph (c)(4).
The proposal would retain almost all of current § 701.21(f), but would insert some additional language to improve clarity.
The proposal would revise § 701.21(f)(1) to make more explicit that the maturity limit applicable to loans covered by paragraph (f) is notwithstanding the general 15-year limit in paragraph (c)(4). The proposal would also add a cross-citation to paragraph (c)(4).
The proposal would retain almost all of current § 701.21(g), but would insert some additional language to improve clarity.
The proposal would revise § 701.21(g)(1) to make more explicit that the maturity limit applicable to loans covered by paragraph (g) is notwithstanding the general 15-year limit in paragraph (c)(4). The proposal would also add a cross-citation to paragraph (c)(4).
As described in more detail below, the proposal would make minor conforming amendments to § 701.22(b) regarding loan participations.
The proposal would update the cross-citation in § 701.22(b)(1), which provides that for a federally insured credit union to purchase a participation interest in a loan, the loan must comply with all regulatory requirements to the same extent as if the purchasing federally insured credit union had originated the loan. Specifically, the cross-reference in § 701.22(b)(1) is outdated and would be changed from § 723.8 to § 723.4(c).
The Regulatory Flexibility Act (RFA) generally requires that, in connection with a notice of proposed rulemaking, an agency prepare and make available for public comment an initial regulatory flexibility analysis that describes the impact of a proposed rule on small entities. A regulatory flexibility analysis is not required, however, if the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities (defined for purposes of the RFA to include credit unions with assets less than $100 million) and publishes its certification and a short, explanatory statement in the
The Paperwork Reduction Act of 1995 (PRA) applies to rulemakings in which an agency creates new or amends existing information collection requirements.
Executive Order 13132 encourages independent regulatory agencies to consider the impact of their actions on state and local interests. In adherence to fundamental federalism principles, the NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies with the executive order. This rulemaking will not have a substantial direct effect on the states, on the connection between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. The NCUA has determined that this proposal does not constitute a policy that has federalism implications for purposes of the executive order.
The NCUA has determined that this final rule will not affect family well-being within the meaning of Section 654 of the Treasury and General Government Appropriations Act, 1999.
Credit, Credit unions, Reporting and recordkeeping requirements.
For the reasons discussed above, the NCUA Board proposes to amend 12 CFR part 701 as follows:
12 U.S.C. 1752(5), 1755, 1756, 1757, 1758, 1759, 1761a, 1761b, 1766, 1767, 1782, 1784, 1785, 1786, 1787, 1788, 1789. Section 701.6 is also authorized by 15 U.S.C. 3717. Section 701.31 is also authorized by 15 U.S.C. 1601
(c) * * *
(4)
(ii)
(A) As specified in the law, regulations or program under which a loan is secured, in full or in part, by the insurance or guarantee of, or with an advance commitment to purchase the loan, in full or in part, by the Federal Government, a State government or any agency of either, as provided in paragraph (e) of this section;
(B) Of up to 20 years or such longer term as is provided in paragraph (f) of this section; and
(C) Of up to 40 years or such longer term as is provided in paragraph (g) of this section.
(5)
(e)
(f)
(g)
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for all Dassault Aviation Model Falcon 10 airplanes. This proposed AD was prompted by a determination that more restrictive maintenance requirements and airworthiness limitations are necessary. This proposed AD would require revising the maintenance or inspection program, as applicable, to incorporate new or more restrictive maintenance requirements and airworthiness limitations. We are proposing this AD to address the unsafe condition on these products.
We must receive comments on this proposed AD by September 24, 2018.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
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For service information identified in this NPRM, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201-440-6700; internet
You may examine the AD docket on the internet at
Tom Rodriguez, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3226.
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2018-0078, dated April 9, 2018 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Dassault Aviation Model Falcon 10 airplanes. The MCAI states:
The airworthiness limitations and certification maintenance instructions for the Dassault Falcon 10 aeroplanes, which are approved by EASA, are currently defined and published in the Dassault Falcon 10 [Airplane Maintenance Manual] AMM, Chapter 5-40. These instructions have been identified as mandatory for continued airworthiness.
Failure to accomplish these instructions could result in an unsafe condition [fatigue cracking and damage in principal structural elements, which could result in reduced structural integrity of the airplane.]
Previously, EASA issued AD 2008-0221 to require accomplishment of the maintenance tasks, and implementation of the airworthiness limitations, as specified in the Dassault Falcon 10 AMM, Chapter 5-40, at Revision 8.
Since that [EASA] AD was issued, Dassault issued the [Airworthiness Limitations Section] ALS, which introduces new and more restrictive maintenance requirements and/or airworthiness limitations.
For the reason described above, this [EASA] AD takes over the requirements for Falcon 10 aeroplanes from EASA AD 2008-0221, and requires accomplishment of the actions specified in the ALS.
You may examine the MCAI in the AD docket on the internet at
Dassault has issued Falcon 10 Maintenance Manual, Airworthiness Limitations, Chapter 5-40-00, Revision 13, dated July 2017. This service information describes repetitive mandatory maintenance tasks. 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
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop on other products of the same type design.
This proposed AD would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between this Proposed AD and the MCAI or Service Information.”
This AD requires revisions to certain operator maintenance documents to include new actions (
The MCAI specifies that if there are findings from the airworthiness limitations section (ALS) inspection tasks, corrective actions must be accomplished in accordance with Dassault maintenance documentation. However, this proposed AD does not include that requirement. Operators of U.S.-registered airplanes are required by general airworthiness and operational regulations to perform maintenance using methods that are acceptable to the FAA. We consider those methods to be adequate to address any corrective actions necessitated by the findings of ALS inspections required by this proposed AD.
We estimate that this proposed AD affects 60 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:
We have determined that revising the maintenance or inspection program takes an average of 90 work-hours per operator, although we recognize that this number may vary from operator to operator. In the past, we have estimated that this action takes 1 work-hour per airplane. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), we have determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, we estimate the total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).
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 proposed 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 transport category airplanes to the Director of the System Oversight Division.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would 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 this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the 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 proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by September 24, 2018.
None.
This AD applies to all Dassault Aviation Model Falcon 10 airplanes, certificated in any category.
Air Transport Association (ATA) of America Code 05, Time Limits/Maintenance Checks.
This AD was prompted by a determination that more restrictive maintenance requirements and airworthiness limitations are necessary. We are issuing this AD to address, among other things, fatigue cracking and damage in principal structural elements; such fatigue cracking and damage could result in reduced structural integrity of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Within 90 days after the effective date of this AD, revise the maintenance or inspection program, as applicable, to incorporate Falcon 10 Maintenance Manual, Airworthiness Limitations, Chapter 5-40-00, Revision 13, dated July 2017. The initial compliance time for accomplishing the actions is at the applicable time specified in Falcon 10 Maintenance Manual, Airworthiness Limitations, Chapter 5-40-00, Revision 13, dated July 2017; or within 90 days after the effective date of this AD; whichever occurs later.
After the maintenance or inspection program has been revised as required by paragraph (g) of this AD, no alternative actions (
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2018-0078, dated April 9, 2018, for related information. This MCAI may be found in the AD docket on the internet at
(2) For more information about this AD, contact Tom Rodriguez, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3226.
(3) For service information identified in this AD, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201-440-6700; internet
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain Dassault Aviation Model FAN JET FALCON, and FAN JET FALCON SERIES C, D, E, F, and G airplanes. This proposed AD was prompted by a determination of the need for a revision to the airplane airworthiness limitations to introduce changes to the maintenance requirements and airworthiness limitations. This proposed AD would require revising the maintenance or inspection program, as applicable, to incorporate new airworthiness limitations and maintenance requirements. We are proposing this AD to address the unsafe condition on these products.
We must receive comments on this proposed AD by September 24, 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 NPRM, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201-440-6700; internet
You may examine the AD docket on the internet at
Tom Rodriguez, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3226.
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2018-0083, dated April 16, 2018 (referred to after
The airworthiness limitations and certification maintenance instructions for the Dassault Fan Jet Falcon aeroplanes, which are approved by EASA, are currently defined and published in the Dassault Fan Jet Falcon Aircraft Maintenance Manual (AMM) chapter 5-40. These instructions have been identified as mandatory for continued airworthiness.
Failure to accomplish these instructions could result in an unsafe condition [among other things, fatigue cracking and damage in principal structural elements; such fatigue cracking and damage could result in reduced structural integrity of the airplane].
Consequently, EASA issued AD 2014-0021 [which corresponds to FAA AD 2014-26-07, Amendment 39-18058 (80 FR 2815, January 21, 2015) (“AD 2014-26-07”)] to require accomplishment of the maintenance tasks, and implementation of the airworthiness limitations, as specified in Dassault Fan Jet Falcon AMM chapter 5-40 Revision 15.
Since that [EASA] AD was issued, Dassault issued Revision 17 of the Dassault Fan Jet Falcon AMM chapter 5-40, which introduces new and more restrictive maintenance requirements and/or airworthiness limitations.
For the reason described above, this [EASA] AD retains the requirements of EASA AD 2014-0021, which is superseded, and requires accomplishment of the actions specified in Revision 17 of the Dassault Fan Jet Falcon AMM chapter 5-40, (hereafter referred to as `the ALS' in this [EASA] AD).
You may examine the MCAI in the AD docket on the internet at
This NPRM does not propose to supersede AD 2014-26-07. Rather, we have determined that a stand-alone AD would be more appropriate to address the changes in the MCAI. This proposed AD would require revising the maintenance or inspection program, as applicable, to incorporate new airworthiness limitations and maintenance requirements. Accomplishment of the proposed actions would then terminate all of the requirements of AD 2014-26-07.
Dassault has issued Chapter 5-40, Airworthiness Limitations, DGT 131028, Revision 17, dated September 2017, of the Dassault Aviation Falcon 20 Maintenance Manual. This service information includes life limits for certain components, including the engine front mounts and the legs of the nose landing gear and main landing gear. In addition, this service information describes maintenance tasks for, among other systems, the air conditioning system and the passenger/crew door warning system. 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
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop on other products of the same type design.
This proposed AD would require revising the maintenance or inspection program, as applicable, to include new airworthiness limitations and maintenance requirements.
This proposed AD would require revisions to certain operator maintenance documents to include new actions (
The MCAI specifies that if there are findings from the airworthiness limitations section (ALS) tasks, corrective actions must be accomplished in accordance with Dassault maintenance documentation. However, this proposed AD does not include that requirement. Operators of U.S.-registered airplanes are required by general airworthiness and operational regulations to perform maintenance using methods that are acceptable to the FAA. We consider those methods to be adequate to address any corrective actions necessitated by the findings of ALS inspections required by this proposed AD.
We estimate that this proposed AD affects 168 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:
We have determined that revising the maintenance or inspection program takes an average of 90 work-hours per operator, although we recognize that this number may vary from operator to operator. In the past, we have estimated that this action takes 1 work-hour per airplane. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), we have determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, we estimate the total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).
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 proposed 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 transport category airplanes to the Director of the System Oversight Division.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would 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 this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the 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 proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by September 24, 2018.
This AD affects AD 2014-26-07, Amendment 39-18058 (80 FR 2815, January 21, 2015) (“AD 2014-26-07”).
This AD applies to Dassault Aviation Model FAN JET FALCON, and FAN JET FALCON SERIES C, D, E, F, and G airplanes, certificated in any category, all serial numbers, except those on which the Dassault Fan Jet Falcon Supplemental Structural Inspection Program (Service Bulletin (SB) 730) has been embodied into the airplane's maintenance program.
Air Transport Association (ATA) of America Code 05, Time Limits and Maintenance Checks.
This AD was prompted by a determination of the need for a revision to the airplane airworthiness limitations to introduce changes to the maintenance requirements and airworthiness limitations. We are issuing this AD to address, among other things, fatigue cracking and damage in principal structural elements; such fatigue cracking and damage could result in reduced structural integrity of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Within 90 days after the effective date of this AD, revise the maintenance or inspection program, as applicable, to incorporate the airworthiness limitations specified in Chapter 5-40, Airworthiness Limitations, DGT 131028, Revision 17, dated September 2017, of the Dassault Aviation Falcon 20 Maintenance Manual (MM). The initial compliance time for accomplishing the actions is at the applicable time specified in Chapter 5-40, Airworthiness Limitations, DGT 131028, Revision 17, dated September 2017, of the Dassault Aviation Falcon 20 MM; or within 90 days after the effective date of this AD; whichever occurs later. Where the threshold column in the table in paragraph B, Mandatory Maintenance Operations, of Chapter 5-40, Airworthiness Limitations, DGT 131028, Revision 17, dated September 2017, of the Dassault Aviation Falcon 20 MM specifies a compliance time in years, those compliance times are since the date of issuance of the original French or European Aviation Safety Agency (EASA) airworthiness certificate or date of issuance of the original French or EASA export certificate of airworthiness.
After accomplishing the revision required by paragraph (g) of this AD, no alternative actions (
Accomplishing the actions required by paragraph (g) of this AD terminates all of the requirements of AD 2014-26-07.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2018-0083, dated April 16, 2018, for related information. This MCAI may be found in the AD docket on the internet at
(2) For more information about this AD, contact Tom Rodriguez, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3226.
(3) For service information identified in this AD, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201-440-6700; internet
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain Dassault Aviation Model FALCON 7X airplanes. This proposed AD was prompted by a determination that more restrictive maintenance requirements and airworthiness limitations are necessary. This proposed AD would require revising the maintenance or inspection program, as applicable, to incorporate new and more restrictive maintenance requirements and airworthiness limitations for airplane structures and systems. We are proposing this AD to address the unsafe condition on these products.
We must receive comments on this proposed AD by September 24, 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 NPRM, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; phone: 201-440-6700; internet:
You may examine the AD docket on the internet at
Tom Rodriguez, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3226.
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2018-0101, dated May 3, 2018 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Dassault Aviation Model FALCON 7X airplanes. The MCAI states:
The airworthiness limitations and certification maintenance instructions for Dassault Falcon 7X aeroplanes, which are approved by EASA, are currently defined and published in Dassault Falcon 7X AMM [airplane maintenance manual], Chapter 5-40. These instructions have been identified as mandatory for continued airworthiness.
Failure to accomplish these instructions could result in an unsafe condition [
Previously, EASA issued AD 2015-0095 [which corresponds to FAA AD 2016-16-09, Amendment 39-18607 (81 FR 52752, August 10, 2016) (“AD 2016-16-09”)] to require accomplishment of the maintenance tasks, and implementation of the airworthiness limitations, as specified in Dassault Falcon 7X AMM, Chapter 5-40, at Revision 4.
Since that [EASA] AD was issued, Dassault issued the ALS [airworthiness limitations section], which introduces new and more restrictive maintenance requirements and/or airworthiness limitations.
For the reason described above, this [EASA] AD retains the requirements of EASA AD 2015-0095, which is superseded, and requires accomplishment of the actions specified in the ALS.
You may examine the MCAI in the AD docket on the internet at
This AD requires revisions to certain operator maintenance documents to include new actions (
This NPRM does not propose to supersede AD 2016-16-09. Rather, we have determined that a stand-alone AD is more appropriate to address the changes in the MCAI. This NPRM would require revising the maintenance or inspection program, as applicable, to incorporate new and more restrictive maintenance requirements and airworthiness limitations for airplane structures and systems. Accomplishment of the proposed actions would then terminate all requirements of AD 2016-16-09.
Dassault Aviation has issued Chapter 5-40-00, Airworthiness Limitations, DGT 107838, Revision 5, dated September 1, 2016, of the Dassault Falcon 7X Maintenance Manual (MM). This service information introduces new and more restrictive maintenance requirements and airworthiness limitations for airplane structures and systems. 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
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified
This proposed AD would require revising the maintenance or inspection program, as applicable, to incorporate new and more restrictive maintenance requirements and airworthiness limitations for airplane structures and systems.
The MCAI specifies that if there are findings from the ALS inspection tasks, corrective actions must be accomplished in accordance with Dassault Aviation maintenance documentation. However, this proposed AD does not include that requirement. Operators of U.S.-registered airplanes are required by general airworthiness and operational regulations to perform maintenance using methods that are acceptable to the FAA. We consider those methods to be adequate to address any corrective actions necessitated by the findings of ALS inspections required by this proposed AD.
The FAA recently became aware of an issue related to the applicability of ADs that require incorporation of an ALS revision into an operator's maintenance or inspection program.
Typically, when these types of ADs are issued by civil aviation authorities of other countries, they apply to all airplanes covered under an identified type certificate (TC). The corresponding FAA AD typically retains applicability to all of those airplanes.
In addition, U.S. operators must operate their airplanes in an airworthy condition, in accordance with 14 CFR 91.7(a). Included in this obligation is the requirement to perform any maintenance or inspections specified in the ALS, and in accordance with the ALS as specified in 14 CFR 43.16 and 91.403(c), unless an alternative has been approved by the FAA.
When a type certificate is issued for a type design, the specific ALS, including revisions, is a part of that type design, as specified in 14 CFR 21.31(c).
The sum effect of these operational and maintenance requirements is an obligation to comply with the ALS defined in the type design referenced in the manufacturer's conformity statement. This obligation may introduce a conflict with an AD that requires a specific ALS revision if new airplanes are delivered with a later revision as part of their type design.
To address this conflict, the FAA has approved alternative methods of compliance (AMOCs) that allow operators to incorporate the most recent ALS revision into their maintenance/inspection programs, in lieu of the ALS revision required by the AD. This eliminates the conflict and enables the operator to comply with both the AD and the type design.
However, compliance with AMOCs is normally optional, and we recently became aware that some operators choose to retain the AD-mandated ALS revision in their fleet-wide maintenance/inspection programs, including those for new airplanes delivered with later ALS revisions, to help standardize the maintenance of the fleet. To ensure that operators comply with the applicable ALS revision for newly delivered airplanes containing a later revision than that specified in an AD, we plan to limit the applicability of ADs that mandate ALS revisions to those airplanes that are subject to an earlier revision of the ALS, either as part of the type design or as mandated by an earlier AD.
This proposed AD therefore would apply to Dassault Aviation Model FALCON 7X airplanes with an original certificate of airworthiness or original export certificate of airworthiness that was issued on or before the date of the ALS revision identified in this proposed AD. Operators of airplanes with an original certificate of airworthiness or original export certificate of airworthiness issued after that date must comply with the airworthiness limitations specified as part of the approved type design and referenced on the type certificate data sheet.
We estimate that this proposed AD affects 67 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:
We have determined that revising the maintenance or inspection program takes an average of 90 work-hours per operator, although we recognize that this number may vary from operator to operator. In the past, we have estimated that this action takes 1 work-hour per airplane. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), we have determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, we estimate the total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).
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 proposed 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 transport category airplanes to the Director of the System Oversight Division.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would 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 this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the 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 proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by September 24, 2018.
This AD affects AD 2014-16-23, Amendment 39-17947 (79 FR 52545, September 4, 2014) (“AD 2014-16-23”) and AD 2016-16-09, Amendment 39-18607 (81 FR 52752, August 10, 2016) (“AD 2016-16-09”).
This AD applies to Dassault Aviation Model FALCON 7X airplanes, certificated in any category, with an original certificate of airworthiness or original export certificate of airworthiness issued on or before September 1, 2016.
Model FALCON 7X airplanes with modifications M1000 and M1254 incorporated are commonly referred to as “Model FALCON 8X” airplanes as a marketing designation.
Air Transport Association (ATA) of America Code 05, Time limits/maintenance checks.
This AD was prompted by a determination that more restrictive maintenance requirements and airworthiness limitations are necessary. We are issuing this AD to prevent reduced structural integrity and reduced control of airplanes due to the failure of system components.
Comply with this AD within the compliance times specified, unless already done.
Within 90 days after the effective date of this AD, revise the maintenance or inspection program, as applicable, by incorporating the information specified in Chapter 5-40-00, Airworthiness Limitations, DGT 107838, Revision 5, dated September 1, 2016, of the Dassault Falcon 7X Maintenance Manual (MM). The initial compliance times for the tasks specified in Chapter 5-40-00, Airworthiness Limitations, DGT 107838, Revision 5, dated September 1, 2016, of the Dassault Falcon 7X MM are at the applicable compliance times specified in Chapter 5-40-00, Airworthiness Limitations, DGT 107838, Revision 5, dated September 1, 2016, of the Dassault Falcon 7X MM, or within 90 days after the effective date of this AD, whichever occurs later.
(1) Accomplishing the actions required by paragraph (g) of this AD terminates the requirements of paragraph (q) of AD 2014-16-23.
(2) Accomplishing the actions required by paragraph (g) of this AD terminates all requirements of AD 2016-16-09.
After the maintenance or inspection program, as applicable, has been revised as required by paragraph (g) of this AD, no alternative actions (
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2018-0101, dated May 3, 2018, for related information. This MCAI may be found in the AD docket on the internet at
(2) For more information about this AD, contact Tom Rodriguez, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3226.
(3) For service information identified in this AD, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; phone: 201-440-6700; internet:
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain Airbus SAS Model A330-200 Freighter, A330-200, and A330-300 series airplanes. This proposed AD was prompted by a revision of a certain airworthiness limitations item (ALI) document, which specifies new or more restrictive maintenance instructions and airworthiness limitations, and a determination that those maintenance instructions and airworthiness limitations are necessary. This proposed AD would require revising the maintenance or inspection program, as applicable, to incorporate new or revised maintenance instructions and airworthiness limitations. We are proposing this AD to address the unsafe condition on these products.
We must receive comments on this proposed AD by September 24, 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 NPRM, contact Airbus SAS, Airworthiness Office—EAL, Rond-Point Emile Dewoitine No: 2, 31700 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email
You may examine the AD docket on the internet at
Vladimir Ulyanov, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3229.
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2018-0068, dated March 26, 2018 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus SAS Model A330-200 Freighter, A330-200, and A330-300 series airplanes. The MCAI states:
The airworthiness limitations for Airbus A330 and A340 aeroplanes, which are approved by EASA, are currently defined and published in the A330 and A340 [Airworthiness Limitations Section] ALS document(s). The Damage Tolerant Airworthiness Limitation Items (DT ALI) are specified in the ALS Part 2. These instructions have been identified as mandatory actions for continued airworthiness.
Failure to comply with these instructions could result in an unsafe condition [
Previously, EASA issued AD 2016-0152 [which corresponds to FAA AD 2017-19-13, Amendment 39-19043 (82 FR 43837, September 20, 2017) (“AD 2017-19-13”)] for A330 and A340 aeroplanes to require accomplishment of all maintenance tasks as described in ALS Part 2 Revision 01 (A330 aeroplanes) and Revision 02 (A340 aeroplanes).
Since that [EASA] AD was issued, Airbus published Revision 02 of the ALS Part 2 for A330 aeroplanes, including new and/or more restrictive items.
For the reason described above, this [EASA] AD takes over the requirements from EASA AD 2016-0152 for A330 aeroplanes, and requires accomplishment of all maintenance tasks as described in the ALS. EASA AD 2016-0152 has been revised accordingly, removing A330 aeroplanes from the Applicability.
You may examine the MCAI in the AD docket on the internet at
This NPRM does not propose to supersede AD 2017-19-13. Rather, we have determined that a stand-alone AD is more appropriate to address the changes in the MCAI. This NPRM would require revising the maintenance or inspection program, as applicable, to incorporate new or revised maintenance instructions and airworthiness limitations. Accomplishment of the proposed actions would then terminate all requirements of AD 2017-19-13.
Airbus has issued Airbus A330 Airworthiness Limitations Section (ALS) Part 2—Damage Tolerant Airworthiness Limitation Items (DT-ALI), Revision 02, Issue 2, dated November 22, 2017. This service information describes maintenance instructions and airworthiness limitations applicable to the DT-ALI. 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
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop on other products of the same type design.
This proposed AD would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between this Proposed AD and the MCAI or Service Information.”
This proposed AD would require revisions to certain operator maintenance documents to include new actions (
The MCAI specifies that if there are findings from the airworthiness limitations section (ALS) inspection tasks, corrective actions must be accomplished in accordance with Airbus maintenance documentation. However, this proposed AD does not include that requirement. Operators of U.S.-registered airplanes are required by general airworthiness and operational regulations to perform maintenance using methods that are acceptable to the FAA. We consider those methods to be adequate to address any corrective actions necessitated by the findings of ALS inspections required by this proposed AD.
The FAA recently became aware of an issue related to the applicability of ADs that require incorporation of an ALS revision into an operator's maintenance or inspection program.
Typically, when these types of ADs are issued by civil aviation authorities of other countries, they apply to all airplanes covered under an identified type certificate (TC). The corresponding FAA AD typically retains applicability to all of those airplanes.
In addition, U.S. operators must operate their airplanes in an airworthy condition, in accordance with 14 CFR 91.7(a). Included in this obligation is the requirement to perform any maintenance or inspections specified in the ALS, and in accordance with the ALS as specified in 14 CFR 43.16 and 91.403(c), unless an alternative has been approved by the FAA.
When a type certificate is issued for a type design, the specific ALS, including revisions, is a part of that type design, as specified in 14 CFR 21.31(c).
The sum effect of these operational and maintenance requirements is an obligation to comply with the ALS defined in the type design referenced in the manufacturer's conformity statement. This obligation may introduce a conflict with an AD that requires a specific ALS revision if new airplanes are delivered with a later revision as part of their type design.
To address this conflict, the FAA has approved alternative methods of compliance (AMOCs) that allow operators to incorporate the most recent ALS revision into their maintenance/inspection programs, in lieu of the ALS revision required by the AD. This eliminates the conflict and enables the operator to comply with both the AD and the type design.
However, compliance with AMOCs is normally optional, and we recently became aware that some operators choose to retain the AD-mandated ALS revision in their fleet-wide maintenance/inspection programs, including those for new airplanes delivered with later ALS revisions, to help standardize the maintenance of the fleet. To ensure that operators comply with the applicable ALS revision for newly delivered airplanes containing a later revision than that specified in an AD, we plan to limit the applicability of ADs that mandate ALS revisions to those airplanes that are subject to an earlier revision of the ALS, either as part of the type design or as mandated by an earlier AD.
This proposed AD therefore would apply to Model A330 airplanes with an original certificate of airworthiness or original export certificate of airworthiness that was issued on or before the date of the ALS revision identified in this proposed AD. Operators of airplanes with an original certificate of airworthiness or original export certificate of airworthiness issued after that date must comply with the airworthiness limitations specified as part of the approved type design and referenced on the type certificate data sheet.
We estimate that this proposed AD affects 105 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:
We have determined that revising the maintenance or inspection program takes an average of 90 work-hours per operator, although we recognize that this number may vary from operator to operator. In the past, we have estimated that this action takes 1 work-hour per airplane. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), we have determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, we estimate the total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).
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 proposed 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 transport category airplanes to the Director of the System Oversight Division.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would 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 this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the 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 proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by September 24, 2018.
This AD affects AD 2017-19-13, Amendment 39-19043 (82 FR 43837, September 20, 2017) (“AD 2017-19-13”).
This AD applies to the Airbus SAS airplanes specified in paragraphs (c)(1), (c)(2), and (c)(3) of this AD, certificated in any category, with an original certificate of airworthiness or original export certificate of airworthiness issued on or before November 22, 2017.
(1) Model A330-223F and -243F airplanes.
(2) Model A330-201, -202, -203, -223, and -243 airplanes.
(3) Model A330-301, -302, -303, -321, -322, -323, -341, -342, and -343 airplanes.
Air Transport Association (ATA) of America Code 05, Time Limits/Maintenance Checks.
This AD was prompted by a revision of a certain airworthiness limitations item (ALI) document, which specifies new or more restrictive maintenance instructions and airworthiness limitations, and a determination that those maintenance instructions and airworthiness limitations are necessary. We are issuing this AD to address fatigue cracking, damage, and corrosion in principal structural elements; such fatigue cracking, damage, and corrosion could result in reduced structural integrity of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Within 90 days after the effective date of this AD, revise the maintenance or inspection program, as applicable, to incorporate the information specified in Airbus A330 Airworthiness Limitations Section (ALS) Part 2—Damage Tolerant Airworthiness Limitation Items (DT-ALI), Revision 02, Issue 2, dated November 22, 2017. The initial compliance time for accomplishing the tasks is at the applicable times specified in Airbus A330 Airworthiness Limitations Section (ALS) Part 2—Damage Tolerant Airworthiness Limitation Items (DT-ALI), Revision 02, Issue 2, dated November 22, 2017, or within 90 days after the effective date of this AD, whichever occurs later.
After the maintenance or inspection program has been revised as required by paragraph (g) of this AD, no alternative actions (
Accomplishing the action required by paragraph (g) of this AD terminates all requirements of AD 2017-19-13.
The following provisions also apply to this AD:
(1)
(i) 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.
(ii) AMOC letter AIR-676-18-111 R1, dated January 29, 2018, approved previously for AD 2017-19-13, is approved as an AMOC for the corresponding provisions of this AD.
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2018-0068, dated March 26, 2018, for related information. This MCAI may be found in the AD docket on the internet at
(2) For more information about this AD, contact Vladimir Ulyanov, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3229.
(3) For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAL, Rond-Point Emile Dewoitine No: 2, 31700 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to modify the operating schedule that governs the CSX Transportation Bridge across the Hudson River, mile 146.2, between Albany and Rensselaer, New York. The bridge owner, National Railroad Passenger Corporation (Amtrak), submitted a request to allow the bridge to require four hours' notice for bridge openings. This proposed rule would extend the notice required for bridge opening during the summer months due to the infrequent number of requests, and reduce burden on the bridge tender.
Comments and related material must reach the Coast Guard on or before October 9, 2018.
You may submit comments identified by docket number USCG-2017-0926 using Federal e-Rulemaking Portal at
See the “Public Participation and Request for Comments” portion of the
If you have questions on this proposed rule, call or email Miss Stephanie E. Lopez, Bridge Management Specialist, First Coast Guard District, telephone (212) 514-4335, email
The CSX Transportation (Livingston Ave) Bridge at mile 146.2, across the Hudson River, between Albany and Rensselaer, New York, has a vertical clearance of 25 feet at mean high water and 32 feet at mean low water. Vertical clearance is unlimited when the draw is open. Horizontal clearance is approximately 98 feet. The waterway users include recreational and commercial vessels including tugboat/barge combinations as well as tour/dinner boats.
The existing drawbridge operating regulation, 33 CFR 117.791(c), requires the draw of CSX Transportation Bridge to open on signal; except that, from December 16 through March 31, the draw shall open on signal if at least 24 hours' notice is given.
The owner of the bridge, National Railroad Passenger Corporation, requested a change to the drawbridge operating regulations to allow the bridge owner to require 4 hours' notice before the draw opens on signal between April 1 and December 15, from 11 p.m. to 7 a.m., due to infrequent requests to open the bridge. This rule change will allow for more efficient and economical operation of the bridge while still meeting the reasonable needs of navigation.
Review of the bridge logs in the last three years shows that the bridge averages a total of 24 openings annually during the period from April 1 to December 15, between 11 p.m. and 7 a.m. A preliminary notice sent September 8, 2017, to various stakeholders and agencies indicated no objection to the proposed rule change from mariners or other stakeholders. The Coast Guard proposes to permanently change the drawbridge operating regulation 33 CFR 117.791(c).
The proposed rule would provide that, from April 1 through December 15, between the hours 7 a.m. and 11 p.m., the draw shall open on signal, and between the hours of 11 p.m. and 7 a.m., the draw shall open on signal if at least 4 hours notice is given. It is our opinion that this rule meets the reasonable needs of marine and rail traffic.
We developed this proposed rule after considering numerous statutes and Executive Orders related to rulemaking. Below we summarize our analyses based on 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 Office of Management and Budget (OMB) has not reviewed the NPRM and pursuant to OMB guidance, it is exempt from the requirements of Executive Order 13771.
This regulatory action determination is based on the ability that vessels can still open the draw and transit the bridge given advanced notice. We believe that this proposed change to the drawbridge operation regulations at 33 CFR 117.791(c) will meet the reasonable needs of navigation.
The Regulatory Flexibility Act of 1980 (RFA), 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.
The bridge provides 25 feet of vertical clearance at mean high water that should accommodate all the present vessel traffic except deep draft vessels. The bridge will continue to open on signal for any vessel provided at least 4 hour advance notice is given. While some owners or operators of vessels intending to transit the bridge 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 call for no 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
We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This proposed rule simply promulgates the operating regulations or procedures for drawbridges. Normally, such actions are categorically excluded from further review, under figure 2-1, paragraph (32)(e), of the instruction.
A preliminary Record of Environmental Consideration and a Memorandum for the Record are not required for this proposed rule. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.
We encourage you to submit comments through the Federal e-Rulemaking Portal at
We accept anonymous comments. All comments received will be posted without change to
Documents mentioned in this NPRM as being available in this docket and all public comments, will be in our online docket at
Bridges.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 117 as follows:
33 U.S.C. 499; 33 CFR 1.05-1; Department of Homeland Security Delegation No. 0170.1.
(c) The draw of the CSX Transportation Bridge, mile 146.2, between Albany and Rensselaer, shall open on signal; except that, from April 1 through December 15, from 11 p.m. to 7 a.m., the draw shall open on signal if at least 4 hours notice is given and, from December 16 through March 31, the draw shall open on signal if at least 24 hours notice is given.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve portions of State Implementation Plan (SIP) revisions and the Title V Operating Permit Program revisions submitted on May 19, 2017, by the State of Alabama, through the Alabama Department of Environmental Management (ADEM); submitted on November 29, 2017, by the State of Georgia, through the Georgia Environmental Protection Division (Georgia EPD); and submitted on September 5, 2017, by the State of South Carolina, through the South Carolina Department of Health and Environmental Control (SC DHEC). These revisions address the public notice rule provisions for the New Source Review (NSR) and Title V Operating Permit programs (Title V) of the Clean Air Act (CAA or Act) that remove the mandatory requirement to provide public notice of a draft air permit in a newspaper and that allow electronic notice (“e-notice”) as an alternate noticing option. EPA is proposing to approve these revisions pursuant to the CAA and implementing federal regulations.
Written comments must be received on or before September 10, 2018.
Submit your comments, identified by Docket ID No. EPA-R04-OAR-2018-0296 at
Ms. Kelly Fortin of the Air Permitting Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia 30303-8960. Ms. Fortin can be reached by telephone at (404) 562-9117 or via electronic mail at
On October 5, 2016, EPA finalized revised public notice rule provisions for the NSR, Title V, and Outer Continental Shelf permitting programs of the CAA.
EPA anticipates that e-notice, which is already being practiced by many permitting authorities, will enable permitting authorities to communicate permitting and other affected actions to the public more quickly and efficiently and will provide cost savings over newspaper publication. EPA further anticipates that e-access will expand access to permit-related documents. A full description of the e-notice and e-access provisions are contained in EPA's October 18, 2016 (81 FR 71613), publication.
Chapter 335-3-14,
Chapters 335-3-14 (Air Permits) and 335-3-15 (Synthetic Minor Operating Permits) are SIP elements and the public notice revisions to these SIP-approved rules are proposed to be incorporated into the Alabama SIP, which also applies to permits issued by Jefferson County Department of Health and the City of Huntsville, Alabama.
Rule 391-3-1-.02(7)(a)1,
Rule 391-3-1-.02(7)(a)1,
Rule 391-3-1-.03(10),
Regulation 61-62.5, Standard No. 7,
SC DHEC's revisions add language allowing the Department to use e-notice and requiring e-access if e-notice is used as the consistent noticing method. Based on a review of the proposed revisions, EPA has preliminarily determined that SC DHEC's revisions meet the requirements of the revised federal e-notice provisions. SC DHEC's revised rules require that for all proposed PSD and Title V permits, the Department will use a “consistent noticing method.” SC DHEC has indicated that they intend to use a public website identified by the Department as their consistent noticing method.
Regulation 61-62.5, Standard No. 7,
In this rule, EPA is proposing to include in a final EPA rule, regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference the following provisions that all address the public notice requirements for CAA permitting: Alabama Chapter 335-3-14, “Air Permits” at 335-3-14-.01, -.04, -.05 and -.06 and Chapter 335-3-15 “Synthetic Minor Operating Permits” at 335-3-15-.05 effective December June 9, 2017; Georgia Rule 391-3-1-.02, “Prevention of Significant Deterioration of Air Quality” at 391-3-1-.02(7)(a)1, effective July 20, 2017; and South Carolina Regulation 61-62.5, Standard No. 7, “Prevention of Significant Deterioration” at Sections (q) and (w)(4), effective August 25, 2017. EPA has made, and will continue to make, these materials generally available through
EPA is proposing to approve the portions of Alabama's May 19, 2017, Georgia's November 29, 2017, and South Carolina's September 5, 2017, SIP and Title V program revisions addressing the public notice requirements for CAA permitting. EPA has preliminarily concluded that the States' submissions meet the plan revisions requirements of CAA section 110 and the SIP requirements of 40 CFR 51.161, 51.165, and 51.166, as well as the public notice and revisions requirements of 40 CFR 70.4 and 70.7.
In reviewing SIP and Title V submissions, EPA's role is to approve such submissions, provided that they meet the criteria of the CAA and EPA's implementing regulations. These actions merely propose to approve state law as meeting Federal requirements and do not impose additional requirements beyond those imposed by state law. For that reason, these proposed actions:
• Are not significant regulatory actions subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Are not Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory actions because the actions are not significant under Executive Order 12866;
• Do not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Are certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Do not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Are not economically significant regulatory actions based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Are not significant regulatory actions subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Are not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Do 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).
Furthermore, the proposed rules regarding Title V Operating Permit programs do not have tribal implications because they are not approved to apply to any source of air pollution over which an Indian Tribe has jurisdiction, nor will these proposed rules impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Administrative practice and procedure, Air pollution control, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements.
Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Operating Permits, Reporting and recordkeeping requirements.
Environmental Protection Agency (EPA).
Proposed rule.
The Oklahoma Department of Environmental Quality (ODEQ) has submitted updated regulations for receiving delegation and approval of its program for the implementation and enforcement of certain National Emission Standards for Hazardous Air Pollutants (NESHAP) for all sources (both part 70 and non-part 70 sources), as provided for under previously approved delegation mechanisms. The updated state regulations incorporate by reference certain NESHAP promulgated by the EPA at parts 61 and 63, as they existed through September 1, 2016. The EPA is proposing to approve ODEQ's requested delegation update.
Written comments on this proposed rule must be received on or before September 10, 2018.
Submit your comments, identified by Docket ID No. EPA-R06-OAR-2008-0063, at
Mr. Rick Barrett (6MM-AP), (214) 665-7227; email:
Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA.
EPA is proposing to update its approval of Oklahoma's program for the implementation and enforcement of certain NESHAP. If finalized, the delegation will provide ODEQ with the primary responsibility to implement and enforce the delegated standards.
Section 112(l) of the CAA and 40 CFR part 63, subpart E, authorize the EPA to delegate authority for the implementation and enforcement of emission standards for hazardous air pollutants to a State or local agency that satisfies the statutory and regulatory requirements in subpart E. The hazardous air pollutant standards are codified at 40 CFR parts 61 and 63.
Section 112(l)(5) of the CAA requires the EPA to disapprove any program submitted by a State for the delegation
(A) The authorities contained in the program are not adequate to assure compliance by the sources within the State with respect to each applicable standard, regulation, or requirement established under section 112;
(B) adequate authority does not exist, or adequate resources are not available, to implement the program;
(C) the schedule for implementing the program and assuring compliance by affected sources is not sufficiently expeditious; or
(D) the program is otherwise not in compliance with the guidance issued by the EPA under section 112(l)(2) or is not likely to satisfy, in whole or in part, the objectives of the CAA.
In carrying out its responsibilities under section 112(l), the EPA promulgated regulations at 40 CFR part 63, subpart E setting forth criteria for the approval of submitted programs. For example, in order to obtain approval of a program to implement and enforce Federal section 112 rules as promulgated without changes (straight delegation) for part 70 sources, a State must demonstrate that it meets the criteria of 40 CFR 63.91(d). 40 CFR 63.91(d)(3) provides that interim or final Title V program approval will satisfy the criteria of 40 CFR 63.91(d).
As to the NESHAP standards in 40 CFR parts 61 and 63, as part of its Title V submission ODEQ stated that it intended to use the mechanism of incorporation by reference to adopt unchanged Federal section 112 into its regulations. This commitment applied to both existing and future standards as they applied to part 70 sources. EPA's final interim approval of Oklahoma's Title V operating permits program delegated the authority to implement certain NESHAP, effective March 6, 1996 (61 FR 4220, February 5, 1996). On December 5, 2001, EPA granted final full approval of the State's operating permits program (66 FR 63170). These interim and final Title V program approvals satisfy the up-front approval criteria of 40 CFR 63.91(d). Under 40 CFR 63.91(d)(2), once a State has satisfied up-front approval criteria, it needs only to reference the previous demonstration and reaffirm that it still meets the criteria for any subsequent submittals for delegation of the section 112 standards. ODEQ has affirmed that it still meets the up-front approval criteria. With respect to non-part 70 sources, the EPA has previously approved delegation of NESHAP authorities to ODEQ after finding adequate authorities to implement and enforce the NESHAP for such sources.
By letter dated June 25, 2018, the EPA received a request from ODEQ to update its existing NESHAP delegation.
All authorities not affirmatively and expressly proposed for delegation by this action will not be delegated. These include the following part 61 and 63 authorities listed below:
• 40 CFR part 61, subpart B (National Emission Standards for Radon Emissions from Underground Uranium Mines);
• 40 CFR part 61, subpart H (National Emission Standards for Emissions of Radionuclides Other Than Radon From Department of Energy Facilities);
• 40 CFR part 61, subpart I (National Emission Standards for Radionuclide Emissions from Federal Facilities Other Than Nuclear Regulatory Commission Licensees and Not Covered by Subpart H);
• 40 CFR part 61, subpart K (National Emission Standards for Radionuclide Emissions from Elemental Phosphorus Plants);
• 40 CFR part 61, subpart Q (National Emission Standards for Radon Emissions from Department of Energy facilities);
• 40 CFR part 61, subpart R (National Emission Standards for Radon Emissions from Phosphogypsum Stacks);
• 40 CFR part 61, subpart T (National Emission Standards for Radon Emissions from the Disposal of Uranium Mill Tailings);
• 40 CFR part 61, subpart W (National Emission Standards for Radon Emissions from Operating Mill Tailings); and
• 40 CFR part 63, subpart J (National Emission Standards for Polyvinyl Choride and Copolymers Production).
In addition, the EPA regulations provide that we cannot delegate to a State any of the Category II Subpart A authorities set forth in 40 CFR 63.91(g)(2). These include the following provisions: § 63.6(g), Approval of Alternative Non-Opacity Standards; § 63.6(h)(9), Approval of Alternative Opacity Standards; § 63.7(e)(2)(ii) and (f), Approval of Major Alternatives to Test Methods; § 63.8(f), Approval of Major Alternatives to Monitoring; and § 63.10(f), Approval of Major Alternatives to Recordkeeping and Reporting. Also, some part 61 and part 63 standards have certain provisions that cannot be delegated to the States. Furthermore, no authorities are being proposed for delegation that require rulemaking in the
If finalized, all questions concerning implementation and enforcement of the excluded standards in the State of Oklahoma should be directed to the EPA Region 6 Office.
EPA is proposing a determination that the NESHAP program submitted by Oklahoma meets the applicable requirements of CAA section 112(l)(5) and 40 CFR part 63, subpart E. This delegation to ODEQ to implement and enforce certain NESHAP does not extend to sources or activities located in Indian country, as defined in 18 U.S.C. 1151. Oklahoma is not seeking delegation for such areas, and neither the EPA nor ODEQ is aware of any existing facilities in Indian country subject to the NESHAP being delegated. ODEQ may submit a request to expand this program to non-reservation areas of Indian country in the future, at which time the EPA would evaluate the request through the appropriate process.
If this NESHAP delegation is finalized, ODEQ will obtain concurrence from the EPA on any matter involving the interpretation of section 112 of the CAA or 40 CFR parts 61 and 63 to the extent that implementation or enforcement of these provisions have not been covered by prior EPA determinations or guidance.
We retain the right, as provided by CAA section 112(l)(7) and 40 CFR 63.90(d)(2), to enforce any applicable emission standard or requirement under section 112. In addition, the EPA may enforce any federally approved State rule, requirement, or program under 40 CFR 63.90(e) and 63.91(c)(1)(i). The EPA also has the authority to make certain decisions under the General Provisions (subpart A) of parts 61 and 63. We are proposing to delegate to the ODEQ some of these authorities, and retaining others, as explained in sections V and VI above. In addition, the EPA may review and disapprove State determinations and subsequently require corrections.
Furthermore, we retain any authority in an individual emission standard that may not be delegated according to provisions of the standard. Finally, we retain the authorities stated in the original delegation agreement.
ODEQ must provide any additional compliance related information to EPA, Region 6, Office of Enforcement and Compliance Assurance within 45 days of a request under 40 CFR 63.96(a). In receiving delegation for specific General Provisions authorities, ODEQ must submit to EPA Region 6 on a semi-annual basis, copies of determinations issued under these authorities.
The EPA oversees ODEQ's decisions to ensure the delegated authorities are being adequately implemented and enforced. We will integrate oversight of the delegated authorities into the existing mechanisms and resources for oversight currently in place. If, during oversight, we determine that ODEQ made decisions that decreased the stringency of the delegated standards, then ODEQ shall be required to take corrective actions and the source(s) affected by the decisions will be notified, as required by 40 CFR 63.91(g)(1)(ii) and (b). We will initiate withdrawal of the program or rule if the corrective actions taken are insufficient.
For the delegated NESHAP standards and authorities covered by this proposed action, if finalized, sources would submit all of the information required pursuant to the general provisions and the relevant subpart(s) of the delegated NESHAP (40 CFR parts 61 and 63) directly to the ODEQ at the following address: State of Oklahoma, Department of Environmental Quality, Air Quality Division, P.O. Box 1677, Oklahoma City, Oklahoma 73101-1677. The ODEQ is the primary point of contact with respect to delegated NESHAP. Sources do not need to send a copy to the EPA. The EPA Region 6 proposes to waive the requirement that notifications and reports for delegated standards be submitted to EPA in addition to ODEQ in accordance with 40 CFR 63.9(a)(4)(ii) and 63.10(a)(4)(ii).
As stated in previous NESHAP delegation actions, the EPA has approved Oklahoma's mechanism of incorporation by reference of NESHAP standards into ODEQ regulations, as they apply to both part 70 and non-part 70 sources.
In today's action, the EPA is proposing to approve an update to the Oklahoma NESHAP delegation that would provide the ODEQ with the authority to implement and enforce certain newly incorporated NESHAP promulgated by the EPA and amendments to existing standards currently delegated, as they existed though September 1, 2016. As requested in ODEQ's June 25, 2018 letter, this proposed delegation to ODEQ does not extend to sources or activities located in Indian country, as defined in 18 U.S.C. 1151.
Under the CAA, the Administrator has the authority to approve section 112(l) submissions that comply with the provisions of the Act and applicable Federal regulations. In reviewing section 112(l) submissions, the EPA's role is to approve state choices, provided that they meet the criteria and objectives of the CAA and of the EPA's implementing regulations. Accordingly, this proposed action would merely approve the State's request 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 Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
Environmental protection, Administrative practice and procedure, Air pollution control, Arsenic, Benzene, Beryllium, Hazardous substances, Mercury, Intergovernmental relations, Reporting and recordkeeping requirements, Vinyl chloride.
Environmental protection, Administrative practice and procedure, Air pollution control, Hazardous substances, Intergovernmental relations, Reporting and recordkeeping requirements.
42 U.S.C. 7401
Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services (HHS).
Proposed rule.
This rule proposes to adopt the risk adjustment methodology that HHS previously established for the 2018 benefit year. In February 2018, a district court vacated the use of statewide average premium in the HHS-operated risk adjustment methodology for the 2014 through 2018 benefit years. HHS is proposing to adopt the HHS-operated risk adjustment methodology for the 2018 benefit year as established in the final rules published in the March 23, 2012
To be assured consideration, comments must be received at one of the addresses provided below, no later than 5:00 p.m. on September 7, 2018.
In commenting, please refer to file code CMS-9919-P. Because of staff and resource limitations, we cannot accept comments by facsimile (FAX) transmission.
Comments, including mass comment submissions, must be submitted in one of the following three ways (please choose only one of the ways listed):
1.
2.
Please allow sufficient time for mailed comments to be received before the close of the comment period.
3.
For information on viewing public comments, see the beginning of the
Krutika Amin, (301) 492-5153; Jaya Ghildiyal, (301) 492-5149; or Adrianne Patterson, (410) 786-0686.
Comments received timely will also be available for public inspection as they are received, generally beginning approximately 3 weeks after publication of a document, at the headquarters of the Centers for Medicare & Medicaid Services, 7500 Security Boulevard, Baltimore, Maryland 21244, Monday through Friday of each week from 8:30 a.m. to 4 p.m. To schedule an appointment to view public comments, phone 1-800-743-3951.
The Patient Protection and Affordable Care Act (Pub. L. 111-148) was enacted on March 23, 2010; the Health Care and Education Reconciliation Act of 2010 (Pub. L. 111-152) was enacted on March 30, 2010. These statutes are collectively referred to as “PPACA” in this document. Section 1343 of the PPACA established an annual permanent risk adjustment program under which payments are collected from health insurance issuers that enroll relatively low-risk populations, and payments are made to health insurance issuers that enroll relatively higher-risk populations. Consistent with section 1321(c)(1) of the PPACA, the Secretary is responsible for operating the risk adjustment program on behalf of any state that elected not to do so. For the 2018 benefit year, HHS is responsible for operation of the risk adjustment program in all 50 states and the District of Columbia.
HHS sets the risk adjustment methodology that it uses in states that elect not to operate the program in advance of each benefit year through a notice-and-comment rulemaking process with the intention that issuers will be able to rely on the methodology to price their plans appropriately (see 45 CFR 153.320; 76 FR 41930, 41932 through 41933; 81 FR 94058, 94702 (explaining the importance of setting rules ahead of time and describing comments supporting that practice)).
In the July 15, 2011
In the December 2, 2013
In the November 26, 2014
In the December 2, 2015
In the September 6, 2016
In the November 2, 2017
In the July 30, 2018
On February 28, 2018, in a suit brought by the health insurance issuer New Mexico Health Connections, the United States District Court for the District of New Mexico (the district court) vacated the use of statewide average premium in the HHS-operated risk adjustment methodology for the 2014, 2015, 2016, 2017, and 2018 benefit years. The district court reasoned that HHS had not adequately explained its decision to adopt a methodology that used statewide
This rule proposes to adopt the HHS-operated risk adjustment methodology that was previously published at 81 FR 94058 for the 2018 benefit year with an additional explanation regarding the use of statewide average premium and the budget neutral nature of the risk adjustment program. This rule does not propose to make any changes to the previously published HHS-operated risk adjustment methodology for the 2018 benefit year.
The risk adjustment program provides payments to health insurance issuers that enroll higher-risk populations, such as those with chronic conditions, thereby reducing incentives for issuers to structure their plan benefit designs or marketing strategies to avoid these enrollees and lessening the potential influence of risk selection on the premiums that issuers charge. Instead, issuers are expected to set rates based on average risk and compete based on plan features rather than selection of healthier enrollees. The program applies to any health insurance issuer offering plans in the individual or small group markets, with the exception of grandfathered health plans, group health insurance coverage described in 45 CFR 146.145(c), individual health insurance coverage described in 45 CFR 148.220, and any plan determined not to be a risk adjustment covered plan in the applicable Federally certified risk adjustment methodology.
As stated in the 2014 Payment Notice final rule, the Federally certified risk adjustment methodology developed and used by HHS in states that elect not to operate the program is based on the premise that premiums for that state market should reflect the differences in plan benefits, quality, and efficiency—not the health status of the enrolled population.
As explained above, the district court vacated the use of statewide average premium in the HHS-operated risk adjustment methodology for the 2014 through 2018 benefit years on the ground that HHS did not adequately explain its decision to adopt that aspect of the risk adjustment methodology. The district court recognized that use of statewide average premium maintained the budget neutrality of the program, but concluded that HHS had not adequately explained the underlying decision to adopt a methodology that kept the program budget neutral, that is, that ensured that amounts collected from issuers would equal payments made to issuers for the applicable benefit year. Accordingly, HHS is providing additional explanation herein.
First, Congress designed the risk adjustment program to be implemented and operated by states if they chose to do so. Nothing in section 1343 of the PPACA requires a state to spend its own funds on risk adjustment payments, or allows HHS to impose such a requirement. Thus, while section 1343 may have provided leeway for states to spend additional funds on the program if they voluntarily chose to do so, HHS could not have required such additional funding.
Second, while the PPACA did not include an explicit requirement that the risk adjustment program be operated in a budget neutral manner, it also did not prohibit HHS from designing the program in that manner. In fact, although the statutory provisions for many other PPACA programs appropriated or authorized amounts to be appropriated from the U.S. Treasury, or provided budget authority in advance of appropriations,
Furthermore, if HHS elected to adopt a risk adjustment methodology that was contingent on appropriations from
Moreover, relying on each year's budget process for appropriation of additional funds to HHS that could be used to supplement risk adjustment transfers would have required HHS to delay setting the parameters for any risk adjustment payment proration rates until well after the plans were in effect for the applicable benefit year. Any later-authorized program management appropriations made to CMS, moreover, were not intended to be used for supplementing risk adjustment payments, and were allocated by the agency for other, primarily administrative, purposes.
In light of the budget neutral framework discussed above, HHS also chose not to use a different parameter for the payment transfer formula under the HHS-operated methodology, such as each plan's own premium, that would not have automatically achieved equality between risk adjustment payments and charges in each benefit year. As set forth in prior discussions,
Although HHS has not yet calculated risk adjustment payments and charges for the 2018 benefit year, immediate administrative action is imperative to maintain the stability and predictability in the individual and small group insurance markets. This proposed rule would ensure that collections and payments may be made for the 2018 benefit year in a timely manner. Without this administrative action, the uncertainty related to the HHS-operated risk adjustment methodology for the 2018 benefit year could add uncertainty to the individual and small group markets, as issuers are now in the process of determining the extent of their market participation and the rates and benefit designs for plans they will offer for the 2019 benefit year. Issuers file rates for the 2019 benefit year during the summer of 2018, and if there is uncertainty as to whether payments for the 2018 benefit year will be made, there is a serious risk that issuers will substantially increase 2019 premiums to account for the uncompensated risk associated with high-risk enrollees. Consumers enrolled in certain plans could see a significant premium increase, which could make coverage in those plans particularly unaffordable for unsubsidized enrollees. Furthermore, issuers are currently making decisions on whether to offer qualified health plans (QHPs) through the Exchanges for the 2019 benefit year, and, for the Federally-facilitated Exchange (FFE), this decision must be made before the August 2018 deadline to finalize QHP agreements. In states with limited Exchange options, a QHP issuer exit would restrict consumer choice, and put additional upward pressure on Exchange premiums, thereby increasing the cost of coverage for unsubsidized individuals and federal spending for premium tax credits. The combination of these effects could lead to significant, involuntary coverage losses in certain state market risk pools.
Additionally, HHS's failure to make timely risk adjustment payments could impact the solvency of plans providing coverage to sicker (and costlier) than average enrollees that require the influx of risk adjustment payments to continue operations. When state regulators determine issuer solvency, any uncertainty surrounding risk adjustment transfers jeopardizes regulators' ability to make decisions that protect consumers and support the long-term health of insurance markets.
In light of the district court's decision to vacate the use of statewide average premium in the risk adjustment methodology on the ground that HHS did not adequately explain its decision to adopt that aspect of the methodology, we offer an additional explanation in this rule and are proposing to maintain the use of statewide average premium in the applicable state market risk pool for the payment transfer formula under the HHS-operated risk adjustment methodology for the 2018 benefit year. Therefore, HHS proposes to adopt the methodology previously established for the 2018 benefit year in the
This document does not impose information collection requirements, that is, reporting, recordkeeping, or third-party disclosure requirements. Consequently, there is no need for review by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501,
This rule proposes to maintain statewide average premium as the cost-scaling factor in the HHS-operated risk adjustment methodology and continue the operation of the program in a budget neutral manner for the 2018 benefit year to protect consumers from the effects of adverse selection and premium increases due to issuer uncertainty. The Premium Stabilization Rule, previous Payment Notices, and other rulemakings noted above provided detail on the implementation of the risk adjustment program, including the specific parameters applicable for the 2018 benefit year.
We have examined the impact of this rule as required by Executive Order 12866 on Regulatory Planning and Review (September 30, 1993), Executive Order 13563 on Improving Regulation and Regulatory Review (January 18, 2011), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), section 1102(b) of the Social Security Act, section 202 of the Unfunded Mandates Reform Act of 1995 (March 22, 1995; Pub. L. 104-4), Executive Order 13132 on Federalism (August 4, 1999), the Congressional Review Act (5 U.S.C. 804(2)), and Executive Order 13771 on Reducing Regulation and Controlling Regulatory Costs. Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any one year).
OMB has determined that this proposed rule is “economically significant” within the meaning of section 3(f)(1) of Executive Order 12866, because it is likely to have an annual effect of $100 million in any 1 year. In addition, for the reasons noted above, OMB has determined that this is a major rule under the Congressional Review Act.
This proposed rule offers further explanation of budget neutrality and the use of statewide average premium in the risk adjustment payment transfer formula when HHS is operating the permanent risk adjustment program established in section 1343 of the PPACA on behalf of a state for the 2018 benefit year. We note that we previously estimated transfers associated with the risk adjustment program in the Premium Stabilization Rule and the 2018 Payment Notice, and that the provisions of this proposed rule do not change the risk adjustment transfers previously estimated under the HHS-operated risk adjustment methodology established in those final rules. The approximate estimated risk adjustment transfers for the 2018 benefit year are $4.8 billion. As such, we also incorporate into this proposed rule the RIA in the 2018 Payment Notice proposed and final rules.
Because of the large number of public comments we normally receive on
Federal Communications Commission.
Further motice of proposed rulemaking.
In this document, the Federal Communications Commission (FCC or Commission) seeks comment on whether additional alert reporting measures are needed; whether State EAS Plans should be required to include procedures to help prevent false alerts, or to swiftly mitigate their consequences should a false alert occur; and on factors that might delay or prevent delivery of Wireless Emergency Alerts (WEA) to members of the public and measures the Commission could take to address inconsistent WEA delivery.
Comments are due on or before September 10, 2018 and reply comments are due on or before October 9, 2018.
You may submit comments, identified by PS Docket Nos. 15-94, 15-91 by any of the following methods:
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For detailed instructions for submitting comments and additional information on the rulemaking process, see the
Gregory Cooke, Deputy Chief, Policy and Licensing Division, Public Safety and Homeland Security Bureau, at (202) 418-7452, or by email at
This is a summary of the Commission's Further Notice of Proposed Rulemaking (FNPRM) in PS Docket Nos. 15-94 and 15-91, FCC 18-94, adopted on July 12, 2018, and released on July 13, 2018. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257), 445 12th Street SW, Washington, DC 20554. The full text may also be downloaded at:
1. In the FNPRM, to further enhance the efficacy and utility of the EAS and WEA, the Commission seeks comment on whether to adopt false alert reporting measures; proposals to require that State EAS Plans include procedures to help prevent and mitigate the consequences of false alerts; factors that might delay or prevent delivery of WEA alerts to the public; and measures the Commission could take to address inconsistent WEA delivery.
2. The EAS is a national public warning system through which EAS Participants deliver alerts to the public to warn them of impending emergencies. The primary purpose of the EAS is to provide the President of the United States (President) with “the capability to provide immediate communications and information to the general public at the National, State and Local Area levels during periods of national emergency.” State and local authorities also use this common distribution architecture of the EAS to distribute voluntary weather-related and other emergency alerts. Further, testing of the system at the state and local level increases the proficiency of local emergency personnel, provides insight into the system's functionality and effectiveness at the federal level, and enhances the public's ability to respond to EAS alerts when they occur. The integrity of the EAS is maintained through the Commission's EAS rules, which set forth the parameters and frequency with which EAS Participants must test the system, prohibit the unauthorized use of the EAS Attention Signal and codes, and require EAS Participants to keep their EAS equipment in good working order.
3. In the FNPRM, the Commission seeks further comment on whether there is a need for additional false alert and lockout reporting beyond the reporting rule adopted in the companion
4. Alternatively, the Commission seeks comment on whether, in lieu of adopting a dedicated reporting mechanism for false EAS or WEA alerts or EAS lockouts, it should instead implement a process by which EAS Participants, Participating CMS Providers, emergency managers, and members of the public could inform the Commission about false alerts through currently available means other than that adopted in the companion Report and Order (also in PS Docket Nos. 15-94 and 15-91, FCC 18-94, adopted on July 12, 2018, and released on July 13, 2018). Regardless of what type of system might be used to facilitate false alert reporting, could and should the Commission incorporate reporting parameters to minimize reports concerning the same EAS or WEA false alert, or are there benefits from receiving different descriptions, times, locations and reporting identities covering the same false alert?
5. The Commission seeks comment on the costs and benefits of this proposal. What burdens, if any, would a dedicated false alert reporting system impose on anyone who might want to make such a report? Would incorporating some kind of feedback mechanism into the false alert reporting system on false alerts already reported be helpful to reduce burdens on other entities that might otherwise make identical reports covering the same false alert? What quantifiable benefits might be expected to result from implementation of such reporting? To the extent offering a standard way to report on false alerts could speed corrective action, would the benefits of such an outcome outweigh whatever burdens might be associated with making the false alert report?
6. Section 11.21 of the Commission's EAS rules specifies that State EAS Plans include “procedures for State emergency management and other State officials, the NWS, and EAS Participants' personnel to transmit emergency information to the public during a State emergency using the EAS.” Section 11.21, however, does not specify that these procedures include those to prevent and correct false alerts.
7. In the Public Safety & Homeland Security Bureau's (Bureau) report released in April 2018 concerning the false ballistic missile alert issued in Hawaii on January 13, 2018 (
8. In light of the foregoing, the Commission proposes ways it can aid states and localities in implementing the Bureau's recommendations in the
• The standard operating procedures that state and local alert initiators follow to prepare for “live code” and other public facing EAS tests and alerts.
• The standard operating procedures that state and local alert initiators have developed for the reporting and correction of false alerts, including how the alert initiator would issue any corrections to false alerts over the same systems used to issue the false alert, including the EAS and WEA.
• The procedures agreed upon by the SECC and state emergency management agency or other State-authorized alert initiator by which they plan to consult with each other on a regular basis—at least annually—to ensure that EAS procedures, including initiation and cancellation of actual alerts and tests, are mutually understood, agreed upon, and documented in the State EAS Plan.
• The procedures ensuring redundant and effective lines of communication between the SECC and key stakeholders during emergencies.
• Other information that could prevent or mitigate the issuance of false alerts.
Would inclusion of this information in State EAS Plans be beneficial to alert originators and state and local emergency management authorities in preventing and correcting false alerts, and conducting tests of the EAS? Would this action spur greater communication between alert originators and state and local emergency management authorities and their respective SECCs? Would its inclusion provide a single source of information to which state, local, Tribal and territorial emergency alert originators and managers might refer if the need arose? Alternatively, are there reasons why such information should not be included in State EAS Plans? The Commission seeks comment on these proposals. As to the development of the false alert procedures themselves, the FNPRM asks which agency or agencies are best situated to require their creation or otherwise have oversight over these processes. Is the FCC best positioned to take action with respect to helping prevent the transmission of false alerts, or is this better left to other agencies, such as DHS/FEMA or local alert originators?
9. The Commission seeks comment on the costs and benefits of this proposal. What costs or burdens, if any, would fall on SECCs or state, local, Tribal and territorial emergency alert originators and managers, by the inclusion of the state and local alerting procedures in State EAS Plans, as described above? What quantifiable benefits might be expected to result from such action? To the extent including state and local alerting procedures in State EAS Plans might prevent false alerts from occurring, and speed corrective action with respect to any false alerts that might issue, would the potential benefits of such outcomes, such as minimizing public confusion and disruptions caused by false alerts, outweigh whatever burdens might be associated with that process? Would the inclusion of this information in State EAS Plans more generally enhance the efficacy of state and local alerting?
10. In the
11. How should WEA performance be measured and reported? The Commission seeks comment regarding WEA delivery issues that stakeholders have encountered or are aware of, either in connection with a live alert or with a regional end-to-end test.
12. The Commission also seeks comment on how stakeholders could report WEA performance. Commenters should discuss the technical feasibility, usefulness, and desirability of this option. Are there other technical ways to get feedback automatically from a WEA recipient? What might the appropriate data points look like? Who should receive such data, and how would it be protected? Should the Commission develop a testing template for state and local governments that want to test the effectiveness of WEA alerts, including how precisely WEA alerts geotarget the desired area for various carriers?
13. The Commission also seeks comment on whether and if so, how, it should take measures to address inconsistent WEA delivery. For example, should the Commission adopt technical standards (or benchmarks) for WEA performance and delivery? What form should these take? Should these be focused on internal network performance or mobile device performance, or both? Is there any practical way to ameliorate the impact of external factors (such as interference, building or natural obstructions, etc.) on WEA delivery? Should the Commission adopt rules related to WEA performance
14. The proceeding this FNPRM initiates shall be treated as “permit-but-disclose” proceedings in accordance with the Commission's
15. Pursuant to Sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS).
Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW, Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of
Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701.
U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW, Washington, DC 20554.
16. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to
17. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in the Further Notice of Proposed Rulemaking (FNPRM). Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the FNPRM. The Commission will send a copy of the FNPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the FNPRM and IRFA (or summaries thereof) will be published in the
18. In the FNPRM, the Commission proposes actions to prevent and correct false alerts and to otherwise improve the effectiveness of the EAS and WEA. First, the Commission seeks comment on whether to adopt a dedicated reporting system, or use currently available means, such as the Commission's Operations Center or Public Safety Support Center, so that EAS Participants, Participating CMS Providers, emergency managers, and members of the public can inform the Commission about false alerts. Second, the Commission proposes to revise its rules governing State EAS Plans to require the inclusion of standard operating procedures implemented within states to prevent and correct false alerts, where such information has been provided by state and local emergency management authorities. Finally, the Commission seeks comment on whether to adopt technical benchmarks or best practices to help ensure effective delivery of WEA alerts to the public. These proposed and contemplated actions and rule revisions potentially would enhance the Commission's awareness of false alerts issued over the EAS and WEA, and provide state, local, Tribal and territorial emergency alert originators and managers with a common source to find standard operating procedure applicable within their jurisdictions to conduct EAS tests and correct false alerts. To the extent these proposed and contemplated actions may prevent the transmittal of false alerts and hasten corrective action of any false alerts issued, they would benefit the public by minimizing confusion and disruption caused by false alerts.
19. The proposed action is taken pursuant to Sections 1, 2, 4(i), 4(o), 301, 303(r), 303(v), 307, 309, 335, 403, 624(g),706, and 715 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 154(o), 301, 303(r), 303(v), 307, 309, 335, 403, 544(g), 606, and 615, as well as by sections 602(a), (b), (c), (f), 603, 604 and 606 of the WARN Act, 47 U.S.C. 1202(a), (b), (c), (f), 1203, 1204 and 1206.
20. The RFA directs agencies to provide a description of and, where feasible, an estimate of, the number of small entities that may be affected by the proposed actions, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.
21.
22. Next, the type of small entity described as a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of August 2016, there were approximately 356,494 small organizations based on registration and tax data filed by nonprofits with the Internal Revenue Service (IRS).
23. Finally, the small entity described as a “small governmental jurisdiction” is defined generally as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” U.S. Census Bureau data from the 2012 Census of Governments indicate that there were 90,056 local governmental jurisdictions consisting of general purpose governments and special purpose governments in the United States. Of this number there were 37,132 General purpose governments (county, municipal and town or township) with populations of less than 50,000 and 12,184 Special purpose governments (independent school districts and special districts) with populations of less than 50,000. The 2012 U.S. Census Bureau data for most types of governments in the local government category show that the majority of these governments have populations of less than 50,000. Based on this data the Commission estimates that at least 49,316 local government jurisdictions fall in the category of “small governmental jurisdictions.”
24.
25. According to Commission staff review of the BIA/Kelsey, LLC's Media Access Pro Radio Database as of January 2018, about 11,261 (or about 99.9 percent) of 11,383 commercial radio stations had revenues of $38.5 million or less and thus qualify as small entities under the SBA definition. The Commission has estimated the number of licensed commercial AM radio stations to be 4,639 stations and the number of commercial FM radio stations to be 6,744, for a total number of 11,383. The Commission notes that the Commission has also estimated the number of licensed noncommercial (NCE) FM radio stations to be 4,120. Nevertheless, the Commission does not compile and otherwise does not have access to information on the revenue of NCE stations that would permit it to determine how many such stations would qualify as small entities.
26. The Commission also notes, that in assessing whether a business entity qualifies as small under the above definition, business control affiliations must be included. The Commission's estimate therefore likely overstates the number of small entities that might be affected by its action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. In addition, to be determined a “small business,” an entity may not be dominant in its field of operation. The Commission further notes that it is difficult at times to assess these criteria in the context of media entities, and the estimate of small businesses to which these rules may apply does not exclude any radio station from the definition of a small business on these basis, thus our estimate of small businesses may therefore be over-inclusive. Also, as noted above, an additional element of the definition of “small business” is that the entity must be independently owned and operated. The Commission notes that it is difficult at times to assess these criteria in the context of media entities and the estimates of small businesses to which they apply may be over-inclusive to this extent.
27.
28.
29. The Commission has estimated the number of licensed commercial television stations to be 1,378. Of this total, 1,258 stations (or about 91 percent) had revenues of $38.5 million or less, according to Commission staff review of the BIA Kelsey Inc. Media Access Pro Television Database (BIA) on November 16, 2017, and therefore these licensees qualify as small entities under the SBA definition. In addition, the Commission has estimated the number of licensed noncommercial educational television stations to be 395. Notwithstanding, the Commission does not compile and otherwise does not have access to information on the revenue of NCE stations that would permit it to determine how many such stations would qualify as small entities. There are also 2,367 low power television stations, including Class A stations (LPTV) and 3,750 TV translator stations. Given the nature of these services, the Commission will presume that all of these entities qualify as small entities under the above SBA small business size standard.
30. The Commission notes, however, that in assessing whether a business concern qualifies as “small” under the above definition, business (control) affiliations must be included. Our estimate, therefore likely overstates the number of small entities that might be affected by our action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. In addition, another element of the definition of “small business” requires that an entity not be dominant in its field of operation. The Commission is unable at this time to define or quantify the criteria that would establish whether a specific television broadcast station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply does not exclude any television station from the definition of a small business on this basis and is therefore possibly over-inclusive. Also, as noted above, an additional element of the definition of “small business” is that the entity must be independently owned and operated. The Commission notes that it is difficult at times to assess these criteria in the context of media entities and its estimates of small businesses to which they apply may be over-inclusive to this extent.
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38. In 2009, the Commission conducted Auction 86, the sale of 78 licenses in the BRS areas. The Commission offered three levels of bidding credits: (i) A bidder with attributed average annual gross revenues that exceed $15 million and do not exceed $40 million for the preceding three years (small business) received a 15 percent discount on its winning bid; (ii) a bidder with attributed average annual gross revenues that exceed $3 million and do not exceed $15 million for the preceding three years (very small business) received a 25 percent discount on its winning bid; and (iii) a bidder with attributed average annual gross revenues that do not exceed $3 million for the preceding three years (entrepreneur) received a 35 percent discount on its winning bid. Auction 86 concluded in 2009 with the sale of 61 licenses. Of the ten winning bidders, two bidders that claimed small business status won 4 licenses; one bidder that claimed very small business status won three licenses; and two bidders that claimed entrepreneur status won six licenses.
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41. The Commission expects the actions proposed in the FNPRM, if adopted, will impose additional reporting, recordkeeping and/or other compliance obligations on small as well as other entities who inform the Commission about false alerts, and who submit additional information in State EAS Plans about the procedures they are using to prevent and correct false alerts. More specifically, the FNPRM seeks comment on implementing a mechanized process, or utilizing currently available means, such as the Public Safety Support Center reporting portal, to enable EAS Participants, Participating CMS Providers, emergency managers, and members of the public to inform the Commission about false alerts. Additionally, the FNPRM seeks comment on whether the Commission
42. The FNPRM also proposes to amend its rules governing State EAS Plans to allow them to include procedures implemented by alert originators within states to prevent and correct false alerts. This information includes standard operating procedures that alert initiators follow to prepare for “live code” and other public facing EAS tests and alerts; standard operating procedures that alert initiators have developed for the reporting and correction of false alerts; procedures agreed upon by the SECC and state emergency management agency or other State-authorized alert initiator by which they plan to consult with each other on a regular basis; and the procedures ensuring redundant and effective lines of communication between the SECC and key stakeholders during emergencies.
43. Finally, the FNPRM seeks comment on whether to adopt technical benchmarks or best practices to help ensure effective delivery of WEA alerts to the public.
44. The RFA requires an agency to describe any significant, specifically small business alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): “(1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) and exemption from coverage of the rule, or any part thereof, for small entities.”
45. The Commission does not expect the actions in the FNPRM to have a significant economic impact on small entities. Although the Commission seeks further comment on additional requirements regarding false alert reporting in light of the Hawaii false alert and the recommendations in the Report on Hawaii False Alert, the comments are designed to be minimally burdensome to all affected entities, including small businesses. A potential burden associated filing a false alert report would likely be limited to the time expended to make such report—which would entail entering false alert information into an online filing portal. Given the relatively rare occurrence of false alerts, however, the number of individuals or entities that might ultimately use the online filing portal is likely to be extremely small.
46. The proposed changes to the State EAS Plan requirements will enable state and local alert originators to include procedures implemented by alert originators within states to prevent and correct false alerts, standard operating procedures that alert initiators follow to prepare for “live code” and other public facing EAS tests and alerts; standard operating procedures that alert initiators have developed for the reporting and correction of false alerts. To the extent that there are costs associated with submitting this information to SECCs, and to the Commission, these costs are expected to be
47. None.
48. The Commission notes that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, the Commission previously sought specific comment on how the Commission might “further reduce the information collection burden for small business concerns with fewer than 25 employees.” In addition, the Commission have described impacts that might affect small businesses, which includes most businesses with fewer than 25 employees, in the IRFA,
49. The FNPRM in this document contains proposed new and modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995 (PRA). Public and agency comments are due 60 days after publication of this document in the
50. The Commission specifically seek comment on the time and cost burdens associated with the voluntary false alert and lockout, and State EAS Plan reporting proposals contained in the FNPRM and whether there are ways of minimizing the costs burdens associated therewith.
51. Accordingly,
52.
53.
Radio, Television.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 11 as follows:
47 U.S.C. 151, 154(i) and (o), 303(r), 544(g) and 606.
(g) The State EAS Plan must contain procedures implemented within the state to prevent and correct false alerts initiated over the EAS and Wireless Emergency Alert systems, including:
(1) The standard operating procedures that state and local alert initiators follow to prepare for “live code” and other public facing EAS tests and alerts.
(2) The standard operating procedures that state and local alert initiators have developed for the reporting and correction of false alerts, including how the alert initiator would issue any corrections to false alerts over the same systems used to issue the false alert, including the EAS and WEA.
(3) The procedures agreed upon by the SECC and state emergency management agency or other State-authorized alert initiator by which they plan to consult with each other on a regular basis to ensure that EAS procedures, including initiation and cancellation of actual alerts and tests, are mutually understood, agreed upon, and documented in the State EAS Plan.
(4) The procedures ensuring redundant and effective lines of communication between the SECC and key stakeholders during emergencies.
(5) Other information that could prevent or mitigate the issuance of false alerts.
Where the state and local emergency management authorities either do not have or will not share the foregoing information with the SECC, the SECC must specifically note that in the EAS Plan.
Agricultural Marketing Service, USDA.
Notice.
Pursuant to the Federal Advisory Committee Act, this constitutes notice of the upcoming meeting of the Agricultural Marketing Service (AMS) Grain Inspection Advisory Committee (Advisory Committee). The Advisory Committee meets no less than once annually to advise the AMS on the programs and services delivered under the U.S. Grain Standards Act. Recommendations by the Advisory Committee help AMS better meet the needs of its customers who operate in a dynamic and changing marketplace. The realignment of offices within the U.S. Department of Agriculture authorized by the Secretary's Memorandum dated November 14, 2017, eliminates the Grain Inspection, Packers and Stockyards Administration (GIPSA) as a standalone agency. The grain inspection activities formerly part of GIPSA are now organized under AMS.
September 5-6, 2018, 8:00 a.m. to 4:30 p.m.
The Advisory Committee meeting will take place at AMS National Grain Center, 10383 N Ambassador Drive, Kansas City, Missouri 64153.
Requests to orally address the Advisory Committee during the meeting or written comments to be distributed during the meeting may be sent to: Kendra Kline, AMS-FGIS, U.S. Department of Agriculture, 1400 Independence Avenue SW, STOP 3614, Washington, DC 20250-3601. Requests and comments may also be emailed to
Kendra Kline by phone at (202) 690-2410 or by email at
The purpose of the Advisory Committee is to provide advice to AMS with respect to the implementation of the U.S. Grain Standards Act (7 U.S.C. 71-87k). Information about the Advisory Committee is available on the AMS website at
The agenda will include service delivery overview, quality assurance and compliance updates, field management overview, international program updates as they relate to outreach, technology and science initiatives, and other relevant grain inspection topics.
Public participation will be limited to written statements and interested parties who have registered to present comments orally to the Advisory Committee. If interested in submitting a written statement or presenting comments orally, please contact Kendra Kline at the telephone number or email listed above. Oral commenting opportunities will be first come, first serve. The meeting will be open to the public.
Persons with disabilities who require alternative means of communication of program information or related accommodations should contact Kendra Kline at the telephone number or email listed above.
In notice document 2018-15464, appearing on pages 34108 through 34110, in the issue of Thursday, July 19, 2018, make the following correction:
On page 34110, in the table, in the “Lunch and supper” column, under “Tier II”, under “Next 150”, in the last row, “195” should read “105”.
Food and Nutrition Service (FNS), USDA.
Notice.
In accordance with the Paperwork Reduction Act of 1995, this notice invites the public and other public agencies to comment on this proposed information collection. This is a request for an extension of a current information collection for the purpose of evaluating the Fiscal Year 2015 Pilot Projects to Reduce Dependency and Increase Work Requirements and Work Effort Under the Supplemental Nutrition Assistance Program (SNAP).
Written comments must be received on or before October 9, 2018.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate
Comments may be sent to: Danielle Deemer, Food and Nutrition Service, U.S. Department of Agriculture, 3101 Park Center Drive, Room 1014, Alexandria, VA 22302. Comments may also be submitted via fax to the attention of Danielle Deemer at 703-305-2576 or via email to
All written comments will be open for public inspection at the Office of the Food and Nutrition Service during regular business hours (8:30 a.m. to 5 p.m. Monday through Friday) at 3101 Park Center Drive, Room 1014, Alexandria, Virginia 22302.
All responses to this notice will be summarized and included in the request for Office of Management and Budget approval. All comments will be a matter of public record.
Requests for additional information or copies of this information collection should be directed to Danielle Deemer, Office of Policy Support, Food and Nutrition Service, USDA, 3101 Park Center Drive, Room 1014, Alexandria, VA 22302.
The Agriculture Act of 2014 (Pub. L. 113-79, Section 4022), otherwise known as the 2014 Farm Bill, authorized grants for up to 10 pilot sites to develop and rigorously test innovative SNAP E&T strategies for engaging more SNAP work registrants in unsubsidized employment, increasing participants' earnings, and reducing reliance on public assistance. The pilots' significant funding can expand the reach of employment and training services and enable States to experiment with promising strategies to increase engagement and promote employment. An evaluation of the pilot sites will be critical in helping Congress and FNS identify strategies that effectively assist SNAP participants to succeed in the labor market and become self-sufficient.
The 10 States receiving grants to fund pilot projects are California, Delaware, Georgia, Kansas, Kentucky, Illinois, Mississippi, Vermont, Virginia and Washington State. The evaluation will collect data from all 10 pilot sites in 2015-2016 (baseline), 2016-2018 (12-month follow-up) and 2018-2020 (36-month follow-up). The data collected for this evaluation will be used for implementation, impact, participant and cost-benefit analyses for each pilot site. Research objectives include: (1) Documenting the context and operations of each pilot, identifying lessons learned, and helping to interpret and understand impacts within each pilot and across pilots, (2) identifying the impacts on employment, earnings, and reliance on public assistance and food security and other outcomes to determine what works and what works for whom, (3) examining the characteristics of service paths of pilot participants and the control group to assess whether the mere presence of the pilots and their offer of services or participation requirements influence whether people apply for SNAP (entry effects), and (4) estimating the total and component costs of each pilot to provide an estimate of the return to each dollar invested in the pilot services.
Primary outcomes will be participant employment, earnings, and participation in public assistance programs, which will be measured through State administrative records, a baseline survey administered during enrollment into the study, and follow-up telephone surveys conducted at approximately 12 months and 36 months after participants enroll in the pilot. Impacts on secondary outcomes, such as food security, health status, and self-esteem will be measured through the follow-up telephone surveys as well. The end products (interim and final reports) will provide scientifically valid evidence of the pilot project impacts.
In notice document 2018-15465, appearing on pages 34105 through 34108, in the issue of Thursday, July 19, 2018, make the following correction:
On page 34107, in the table, in the “Maximum Rate” column, in the first row, “0.30” should read “0.39”.
Forest Service, USDA.
Notice of meeting.
The Southern Region Recreation Resource Advisory Committee (Recreation RAC) will hold its next meeting in Asheville, North Carolina. The meeting is open to the public. The purpose of the meeting is to receive recommendations concerning recreation fee proposals on areas managed by the Forest Service in Florida, Georgia, Arkansas, Oklahoma, North Carolina, Texas and South Carolina. A summary of the proposals that may be discussed at this meeting will be posted at least 15 days prior to the meeting at
The Southern Region Recreation RAC is established consistent with the Federal Advisory Committee Act of 1972 (FACA) (5 U.S.C. App. II), and Federal Lands Recreation Enhancement Act of 2004 (the Act) (Pub. L. 108-447). Additional information concerning the Southern Region Recreation RAC can be found by visiting the committee's website noted above.
The meeting will be held August 27 and August 28, 2018, 8:30 a.m.-5:30 p.m. Eastern Standard Time. All Recreation RAC meetings are subject to cancellation. For status of the meeting, please contact the
The meeting will be held in Asheville, North Carolina and the address of the meeting location will be posted on the committee's website:
Tiffany Williams, Southern Region Recreation RAC Coordinator by phone at 404-347-2769, or by email at
The meeting is open to the public. An agenda will be posted on
All comments, including names and addresses, when provided, are placed in the record and available for public inspection and copying. The public may inspect comments at the USDA Forest Service, 1720 Peachtree Road NW, Atlanta, GA 30309. Visitors are encouraged to call ahead at 404-347-2769 to facilitate entry into the USDA Forest Service building.
United States Commission on Civil Rights.
Notice of Commission Public Business meeting.
Friday, August 17, 2018, 10:00 a.m. EST.
Place: National Place Building, 1331 Pennsylvania Ave. NW, 11th Floor, Suite 1150, Washington, DC 20425. (Entrance on F Street NW.)
Brian Walch: (202) 376-8371; TTY: (202) 376-8116;
This business meeting is open to the public. There will also be a call-in line for individuals who desire to listen to the presentations: 877-260-1479; Conference ID 3752191. The event will also live-stream at
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) preliminary determines that Dongkuk Steel Mill Co., Ltd. (Dongkuk) and Hyundai Steel Company (Hyundai), producers/exporters of merchandise subject to this administrative review, made sales of subject merchandise at less than normal value. The period of review (POR) is January 4, 2016, through June 30, 2017.
Applicable August 10, 2018.
Lingjun Wang (Dongkuk) or Elfi Blum-Page (Hyundai), AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: 202-482-2316 or (202) 482 -0197.
The merchandise covered by the order is certain corrosion-resistant steel products. For a complete description of the scope of the order,
Commerce is conducting this review in accordance with section 751(a) of the Tariff Act of 1930, as amended (the Act). Export price and constructed export price are calculated in accordance with section 772 of the Act. NV is calculated in accordance with section 773 of the Act.
For a full description of the methodology underlying our conclusions,
As a result of this review, we preliminarily determine the following weighted-average dumping margins for the period January 4, 2016, through June 30, 2017:
Review-Specific Average Rate Applicable to the Following Companies:
Upon completion of the administrative review, Commerce shall determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries.
Pursuant to 19 CFR 351.212(b)(1), where the mandatory respondents reported the entered value for their U.S. sales, we calculated importer-specific
For the companies which were not selected for individual review, we will assign an assessment rate based on the average
We intend to issue liquidation instructions to CBP 15 days after publication of the final results of this review.
The following deposit requirements will be effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for each specific company listed above will be that established in the final results of this
Commerce intends to disclose the calculations performed in connection with these preliminary results to interested parties within five days after the date of publication of this notice.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance, filed electronically via ACCESS. An electronically-filed request for a hearing must be received successfully in its entirety by ACCESS by 5 p.m. Eastern Time within 30 days after the date of publication of this notice.
Commerce intends to issue the final results of this administrative review, including the results of its analysis of issues raised in any written briefs, not later than 120 days after the publication of these preliminary results in the
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce.
The Department of Commerce (Commerce) is conducting an administrative review of the antidumping duty order on polyethylene terephthalate film, sheet, and strip (PET film) from India. The period of review (POR) is July 1, 2016, through June 30, 2017. This review covers mandatory respondents Jindal Poly Films Ltd. (India) and SRF Limited of India, producers and exporters of PET film from India. Commerce preliminarily determines that sales of subject merchandise have been made below normal value by Jindal Poly Films Ltd. (India), and that sales of subject merchandise have not been made below normal value by SRF Limited of India during the POR. Interested parties are invited to comment on these preliminary results.
Applicable August 10, 2018.
Jacqueline Arrowsmith, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-5255.
On July 3, 2017, Commerce published in the
Subsequently, on September 13, 2017, in accordance with 19 CFR 351.222(c)(1)(i), Commerce published a notice of initiation of an administrative review of the antidumping duty order on PET film from India.
On September 27, 2017, we released U.S. Customs and Border Protection (CBP) import data to eligible parties under the Administrative Protective Order and invited interested parties to submit comments with respect to the selection of respondents for individual examination.
On November 20, 2017, Commerce determined to limit the number of companies subject to individual examination in this administrative review, and selected Jindal Poly Films Ltd. (India) (Jindal) and SRF Limited of India (SRF) as mandatory respondents.
We issued our initial questionnaires to Jindal and SRF on November 24, 2017, and November 27, 2017, respectively. The deadline for withdrawal requests was December 12, 2017.
On January 23, 2018, Commerce issued a memorandum tolling all deadlines for this investigation by three days due to the shutdown of the federal government.
The products covered by this order are all gauges of raw, pretreated, or primed polyethylene terephthalate film, sheet and strip, whether extruded or coextruded. Excluded are metallized films and other finished films that have had at least one of their surfaces modified by the application of a performance-enhancing resinous or inorganic layer of more than 0.00001 inches thick. Imports of PET film are classifiable in the Harmonized Tariff Schedule of the United States (HTSUS) under item number 3920.62.00.90. HTSUS subheadings are provided for convenience and customs purposes. The written description of the scope of the order is dispositive.
Commerce initiated a review of ten companies in this proceeding.
Commerce is conducting this review in accordance with section 751(a)(2) of the Act. Export price is calculated in accordance with section 772 of the Act. Normal value is calculated in accordance with section 773 of the Act.
For a full description of the methodology underlying our conclusions,
In accordance with section 735(c)(5) of the Tariff Act of 1930, as amended (the Act), we preliminarily assign to those companies not selected for individual review the rate calculated for Jindal in this review, because SRF's rate is
As a result of this review, we preliminarily determine the following weighted-average dumping margins for the period July 1, 2016, through June 30, 2017.
We intend to disclose the calculations performed to parties in this proceeding within five days after public announcement of the preliminary results in accordance with 19 CFR 351.224(b). Pursuant to 19 CFR 351.309(c), interested parties may submit case briefs not later than 30 days after the date of publication of this notice. Rebuttal briefs, limited to issues raised in the case briefs, may be filed not later than five days after the date for filing case briefs.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, must submit a written request to the Acting Assistant Secretary for Enforcement and Compliance, filed electronically via ACCESS. An electronically filed document must be received successfully in its entirety by Commerce's electronic records system, ACCESS, by 5 p.m. Eastern Time within 30 days after the date of publication of this notice. Requests should contain: (1) The party's name, address and telephone number; (2) the number of participants; and (3) a list of issues to be discussed. Issues raised in the hearing will be limited to those raised in the respective case briefs. Commerce intends to issue the final results of this administrative review, including the results of its analysis of the issues raised in any written briefs, not later than 120 days after the date of publication of this notice, unless extended, pursuant to section 751(a)(3)(A) of the Act.
Upon completion of this administrative review, Commerce shall determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries. If a respondent's weighted-average dumping margin is not zero or
Commerce clarified its “automatic assessment” regulation on May 6, 2003.
We intend to issue instructions to CBP 15 days after publication of the final results of this review.
The following deposit requirements will be effective for all shipments of PET film from India entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this administrative review, as provided for by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for the company under review will be the rate established in the final results of this review (except, if the rate is zero or
This notice also serves as a preliminary 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 result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.213(h)(1).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) preliminarily determines that certain corrosion-resistant steel products (CORE) from India are being, or are likely to be, sold in the United States at less than normal value during the period of review (POR) November 6, 2015, through December 31, 2016.
Applicable August 10, 2018.
Justin Neuman or Matthew Renkey, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-0486 or (202) 482-2312, respectively.
On September 13, 2017, Commerce initiated this administrative review on CORE from India covering JSW Steel Limited and Uttam Galva Steels Limited.
The products covered by the order are certain corrosion-resistant steel products from India. For a full description of the scope, see the Preliminary Decision Memorandum.
Commerce is conducting this review in accordance with section 751(a)(l)(A) of the Tariff Act of 1930, as amended (the Act). For each of the subsidy programs found countervailable, we preliminarily determine that there is a subsidy,
The Preliminary Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at
We preliminarily determine the total estimated net countervailable subsidy rates for the period November 6, 2015, through December 31, 2016 to be:
Commerce intends to disclose to parties to this proceeding the calculations performed in reaching the preliminary results within five days of the date of publication of these preliminary results in the
Interested parties who wish to request a hearing must do so within 30 days of publication of these preliminary results by submitting a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, using Enforcement and Compliance's ACCESS system.
Unless the deadline is extended pursuant to section 751(a)(3)(A) of the Act, Commerce intends to issue the final results of this administrative review, including the results of our analysis of the issues raised by the parties in their
Upon issuance of the final results, Commerce shall determine, and U.S. Customs and Border Protection (CBP) shall assess, countervailing duties on all appropriate entries covered by this review. We intend to issue instructions to CBP 15 days after publication of the final results of review.
Pursuant to section 751(a)(2)(C) of the Act, Commerce also intends to instruct CBP to collect cash deposits of estimated countervailing duties, in the amounts shown above, for each of the respective companies shown above, on shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this review. For all non-reviewed firms, we will instruct CBP to continue to collect cash deposits at the most-recent company-specific or all-others rate applicable to the company, as appropriate. These cash deposit requirements, when imposed, shall remain in effect until further notice.
These preliminary results of review are issued and published in accordance with sections 751(a)(l) and 777(i)(l) of the Act and 19 CFR 351.221(b)(4).
Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce.
The Department of Commerce (Commerce) is conducting an administrative review of the countervailing duty (CVD) order on certain corrosion-resistant steel products (CORE) from the Republic of Korea (Korea). The period of review (POR) is November 6, 2015, through December 31, 2016. We preliminarily determine that Dongbu Steel Co., Ltd/Dongbu Incheon Steel Co., Ltd. (Dongbu) and Hyundai Steel Company (Hyundai Steel) received countervailable subsidies during the POR. Interested parties are invited to comment on these preliminary results.
Applicable August 10, 2018.
Myrna Lobo or Jun Jack Zhao, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-2371 and (202) 482-1396, respectively.
On September 13, 2017, Commerce published a notice of initiation of an administrative review of the CVD order on CORE from Korea.
The merchandise covered by the order is certain corrosion-resistant steel products. For a complete description of the scope of the order,
Commerce initiated a review of 22 companies in this segment of the proceeding.
Based on information submitted by Mitsubishi International Corporation after the initiation of this administrative review, and because there is no evidence on the record to indicate that
Commerce is conducting this review in accordance with section 751(a)(l)(A) of the Tariff Act of 1930, as amended (the Act). For each of the subsidy programs found countervailable, we preliminarily determine that there is a subsidy,
For the companies not selected for individual review, because the rates calculated for Dongbu and Hyundai Steel were above
In accordance with 19 CFR 351.224(b)(4)(i), we preliminarily determine that the following subsidy rates exist for the 2015 and 2016 periods. The 2015 rate applies to the November 6, 2015, through December 31, 2015, period when liquidation of entries was suspended. The 2016 rate applies to entries suspended during 2016 and to establish the cash deposit rate for exports of subject merchandise subsequent to the final results.
Consistent with section 751(a)(2)(C) of the Act, upon issuance of the final results, Commerce shall determine, and Customs and Border Protection (CBP) shall assess, countervailing duties on all appropriate entries covered by this review. We intend to issue instructions to CBP 15 days after publication of the final results of this review. For companies for which this review is rescinded, Commerce will instruct CBP to liquidate entries without regard to countervailing duties. Commerce intends to issue appropriate assessment instructions directly to CBP 15 days after publication of this notice.
Pursuant to section 751(a)(1) of the Act, Commerce intends to instruct CBP to collect cash deposits of estimated countervailing duties in the amount indicated above with regard to shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this review. For all non-reviewed firms, we will instruct CBP to continue to collect cash deposits of estimated countervailing duties at the most recent company-specific or all-others rate applicable to the company, as appropriate. These cash deposit instructions, when imposed, shall remain in effect until further notice.
We will disclose to parties to this proceeding the calculations performed in reaching the preliminary results within five days of the date of publication of these preliminary results.
Interested parties who wish to request a hearing must do so within 30 days of publication of these preliminary results by submitting a written request to the Assistant Secretary for Enforcement and Compliance using Enforcement and Compliance's ACCESS system.
Parties are reminded that all briefs and hearing requests must be filed electronically using ACCESS and received successfully in their entirety by 5 p.m. Eastern Time on the due date.
Unless the deadline is extended pursuant to section 751(a)(3)(A) of the Act, Commerce intends to issue the final results of this administrative review, including the results of our analysis of the issues raised by the parties in their comments, within 120 days after publication of these preliminary results.
This administrative review and notice are in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.213.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) preliminarily finds that certain companies covered by this administrative review made sales of subject merchandise at less than normal value.
Applicable August 10, 2018.
Yang Jin Chun or Joshua Poole, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-5760 and (202) 482-1293, respectively.
Commerce is conducting an administrative review of the antidumping duty order on diamond sawblades and parts thereof (diamond sawblades) from the People's Republic of China (China). The period of review (POR) is November 1, 2016, through October 31, 2017. Commerce has preliminarily determined that certain companies covered by this review made sales of subject merchandise at less than normal value. Interested parties are invited to comment on these preliminary results.
The merchandise subject to the order is diamond sawblades and parts thereof. The diamond sawblades subject to the order are currently classifiable under subheadings 8202 to 8206 of the Harmonized Tariff Schedule of the United States (HTSUS), and may also enter under 6804.21.00. While the HTSUS subheadings are provided for convenience and customs purposes, the written description is dispositive. A full description of the scope of the order is contained in the Preliminary Decision Memorandum.
Six companies that received a separate rate in previous segments of the proceeding and are subject to this review reported that they did not have any exports of subject merchandise during the POR.
Commerce preliminarily determines that 14 respondents are eligible to receive separate rates in this review.
Because we denied the separate rate eligibility for the two respondents selected for individual examination, Danyang Huachang Diamond Tools Manufacturing Co., Ltd. (Danyang Huachang) and Jiangsu Youhe Tool Manufacturer Co., Ltd. (Jiangsu Youhe), and treated them as part of the China-wide entity, we preliminarily applied to non-selected respondents the separate rate assigned to eligible respondents in the last completed administrative review, which is 82.05 percent.
Under Commerce's current policy regarding the conditional review of the
Commerce conducted this review in accordance with section 751(a)(1)(B) of the Tariff Act of 1930, as amended (the Act). For Danyang Huachang and Jiangsu Youhe, we denied the separate rate eligibility and treated them as part of the China-wide entity.
For a full description of the methodology underlying our conclusions,
Commerce preliminarily determines that the following weighted-average dumping margins exist:
Normally, Commerce discloses to interested parties the calculations performed in connection with a preliminary results of review within five days after public announcement of the preliminary results of review in accordance with 19 CFR 351.224(b). Because Commerce preliminarily denied the separate rate eligibility for the two respondents selected for individual examination and treated them as part of the China-wide entity, there are no calculations to disclose.
Pursuant to 19 CFR 351.309(c), interested parties may submit case briefs no later than 30 days after the date of publication of these preliminary results of review.
Interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, filed electronically using ACCESS. An electronically filed document must be received successfully in its entirety by Commerce's ACCESS by 5:00 p.m. Eastern Time within 30 days after the date of publication of this notice.
Upon issuing the final results of review, Commerce will determine, and CBP shall assess, antidumping duties on
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for shipments of the subject merchandise from China entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by section 751(a)(2)(C) of the Act: (1) For subject merchandise exported by the companies listed above that have separate rates, the cash deposit rate will be that established in the final results of review (except, if the rate is zero or
This notice serves as a preliminary 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 POR. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.213.
Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce.
The Department of Commerce (Commerce) preliminarily determines that Bonuts Logistics Co., LLC made U.S. sales of subject merchandise below normal value. Commerce preliminarily determines that Unicatch Industrial Co. Ltd., PT Enterprise, Inc. and its affiliated producer Pro-Team Coil Nail Enterprise, Inc. did not make U.S. sales of subject merchandise below normal value. We are rescinding the review with respect to 92 companies for which the request for review was timely withdrawn. Interested parties are invited to comment on these preliminary results.
Applicable August 10, 2018.
Scott Hoefke or Chelsey Simonovich, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington DC 20230; telephone: (202) 482-4947 or (202) 482-1979, respectively.
Commerce is conducting an administrative review of the antidumping duty order on certain steel nails from Taiwan. The period of review (POR) is July 1, 2016, to June 30, 2017. This review covers Bonuts Logistics Co., LLC (Bonuts); PT Enterprise, Inc. (PT Enterprise) and its affiliated producer Pro-Team Coil Nail Enterprise, Inc. (Pro-Team) (collectively, PT); and Unicatch Industrial Co. Ltd. (Unicatch). Commerce published the notice of initiation of this administrative review
On January 23, 2018, Commerce exercised its discretion to toll all deadlines for the duration of the closure of the Federal Government from January 20, 2018, through January 22, 2018.
For a complete description of the events that followed the initiation of this administrative review,
The merchandise covered by this order is certain steel nails. The certain steel nails subject to the order are currently classifiable under HTSUS subheadings 7317.00.55.02, 7317.00.55.03, 7317.00.55.05, 7317.00.55.07, 7317.00.55.08, 7317.00.55.11, 7317.00.55.18, 7317.00.55.19, 7317.00.55.20, 7317.00.55.30, 7317.00.55.40, 7317.00.55.50, 7317.00.55.60, 7317.00.55.70, 7317.00.55.80, 7317.00.55.90, 7317.00.65.30, 7317.00.65.60 and 7317.00.75.00. Certain steel nails subject to these orders also may be classified under HTSUS subheadings 7907.00.60.00, 8206.00.00.00 or other HTSUS subheadings.
The full description of the scope of the order is contained in the memorandum, “Decision Memorandum for Preliminary Results of Antidumping Duty Administrative Review: Certain Steel Nails from Taiwan; 2016-2017” (Preliminary Decision Memorandum), which is hereby adopted by this notice. The written description of the scope of the order is dispositive.
For PT and Unicatch, Commerce has conducted this review in accordance with section 751(a)(1) of the Tariff Act of 1930, as amended (the Act). Normal value (NV) is calculated in accordance with section 773 of the Act. Export price or constructed export price is calculated in accordance with section 772 of the Act.
For a full description of the methodology underlying our conclusions,
Pursuant to section 776(a) and (b) of the Act, Commerce has preliminarily relied upon facts otherwise available with adverse inferences (AFA) for Bonuts because this respondent did not respond to Commerce's antidumping duty questionnaire, and thus failed to cooperate to the best of its ability in responding to Commerce's requests for information. For a complete explanation of the methodology and rationale underlying our preliminary application of AFA,
Commerce received timely requests to conduct an administrative review of certain exporters covering the POR. On December 8, 2017, Mid Continent Steel & Wire, Inc. (Mid Continent), a domestic producer and interested party, timely withdrew its review requests for certain companies. 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 date of publication of the notice of initiation of the requested review. Accordingly, we are rescinding this administrative review with respect to the companies for which all review requests have been withdrawn.
As a result of this review, we preliminarily determine that the following weighted-average dumping margins exist:
Commerce intends to disclose to interested parties the calculations performed in connection with these preliminary results within five days of the date of publication of this notice.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a
Unless otherwise extended, Commerce intends to issue the final results of this administrative review, including the results of its analysis of the issues raised in any written briefs, not later than 120 days after the date of publication of this notice, pursuant to section 751(a)(3)(A) of the Act.
Upon completion of the administrative review, Commerce shall determine, and CBP shall assess, antidumping duties on all appropriate entries in accordance with 19 CFR 351.212(b)(1). We intend to issue instructions to CBP 15 days after the date of publication of the final results of this review.
Where the respondent reported reliable entered values, we calculated importer- (or customer-) specific
Consistent with Commerce's assessment practice, for entries of subject merchandise during the POR produced by Bonuts, PT, or Unicatch, for which the producer did not know that its merchandise was destined for the United States, we will instruct CBP to liquidate unreviewed entries at the all-others rate if there is no rate for the intermediate company(ies) involved in the transaction.
For the firms covered by this review, we intend to issue liquidation instructions to CBP 15 days after publication of the final results of this review. For the non-reviewed firms for which we are rescinding this administrative review, Commerce intends to instruct CBP 15 days after publication of these preliminary results of review to assess antidumping duties at rates equal to the rates of cash deposits for estimated antidumping duties required at the time of entry, or withdrawn from warehouse, for consumption, during the period May 20, 2016, through June 30, 2017, in accordance with 19 CFR 351.212(c)(2).
The following cash deposit requirements will be effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for Bonuts, PT, and Unicatch will be equal to the weighted-average dumping margin established in the final results of this review, except if the rate is zero or
This notice also serves as a preliminary 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 result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
1. Summary
2. Background
3. Scope of the Order
4. Partial Rescission of Administrative Review
5. Duty Absorption
6. Use of Facts Available With an Adverse Inference
7. Comparisons to Normal Value
8. Date of Sale
9. Export Price and Constructed Export Price
10. Normal Value
11. Currency Conversion
12. Verification
13. Recommendation
Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce.
The Department of Commerce (Commerce) is conducting an administrative review of the
Applicable August 10, 2018.
Elfi Blum and Kathryn Wallace, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-0197 and (202) 482-6251, respectively.
On July 3, 2017, Commerce published in the
Subsequently, on September 13, 2017, in accordance with 19 CFR 351.222(c)(1)(i), Commerce published a notice of initiation of an administrative review of the antidumping duty order on PET Film from India.
On October 3, 2017, we placed on the record U.S. Customs and Border Protection (CBP) import data for purposes of respondent selection, and invited parties to comment.
On January 23, 2018, Commerce issued a memorandum tolling all deadlines for this investigation by three days due to the shutdown of the federal government.
The products covered by this order are all gauges of raw, pretreated, or primed polyethylene terephthalate film, sheet and strip, whether extruded or coextruded. Excluded are metallized films and other finished films that have had at least one of their surfaces modified by the application of a performance-enhancing resinous or inorganic layer of more than 0.00001 inches thick. Imports of PET film are classifiable in the Harmonized Tariff Schedule of the United States (HTSUS) under item number 3920.62.00.90. HTSUS subheadings are provided for convenience and customs purposes. The written description of the scope of the order is dispositive.
Commerce initiated a review of ten companies in this segment of the proceeding.
Commerce is conducting this review in accordance with section 751(a)(l)(A) of the Act. For each of the subsidy programs found countervailable, we preliminarily determine that there is a subsidy,
The Preliminary Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at
For the companies not selected for individual review, because the rates calculated for Jindal and SRF were above
We preliminarily determine the total estimated net countervailable subsidy rates for the period January 1, 2016, through December 31, 2016 to be:
Commerce will disclose to parties to this proceeding the calculations performed in reaching the preliminary results within five days of the date of publication of these preliminary results.
Interested parties who wish to request a hearing must do so within 30 days of publication of these preliminary results by submitting a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, using Enforcement and Compliance's ACCESS system.
Unless the deadline is extended pursuant to section 751(a)(3)(A) of the Act, Commerce intends to issue the final results of this administrative review, including the results of our analysis of the issues raised by the parties in their comments, within 120 days after publication of these preliminary results.
Upon issuance of the final results, Commerce shall determine, and U.S. Customs and Border Protection (CBP) shall assess, countervailing duties on all appropriate entries covered by this review. We intend to issue instructions to CBP 15 days after publication of the final results of review.
Pursuant to section 751(a)(2)(C) of the Act, Commerce also intends to instruct CBP to collect cash deposits of estimated countervailing duties, in the amounts shown above for each of the respective companies shown above, on shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this review. For all non-reviewed firms, we will instruct CBP to continue to collect cash deposits at the most-recent company-specific or all-others rate applicable to the company, as appropriate. These cash deposit requirements, when imposed, shall remain in effect until further notice.
These preliminary results of review are issued and published in accordance with sections 751(a)(l) and 777(i)(l) of the Act and 19 CFR 351.213 and 351.221(b)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) preliminarily determines that producers/exporters subject to this review made sales of subject merchandise at less than normal value. We invite interested parties to comment on these preliminary results.
Applicable August 10, 2018.
Paul Stolz, Shanah Lee, or Emily Halle, 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) 482-4474, (202) 482-6386, and (202) 482-0176, respectively.
Commerce is conducting an administrative review of the antidumping duty (AD) order on certain corrosion-resistant steel products (CORE) from Taiwan.
We initiated the instant review on eight companies (including companies collapsed and collectively treated as a single entity in the LTFV investigation).
The product covered by the order is flat-rolled steel products, either clad, plated, or coated with corrosion-resistant metals such as zinc, aluminum, or zinc-, aluminum-, nickel- or iron-based alloys, whether or not corrugated or painted, varnished, laminated, or coated with plastics or other non-metallic substances in addition to the metallic coating. The subject merchandise is currently classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) subheadings: 7210.30.0030, 7210.30.0060, 7210.41.0000, 7210.49.0030, 7210.49.0091, 7210.49.0095, 7210.61.0000, 7210.69.0000, 7210.70.6030, 7210.70.6060, 7210.70.6090, 7210.90.6000, 7210.90.9000, 7212.20.0000, 7212.30.1030, 7212.30.1090, 7212.30.3000, 7212.30.5000, 7212.40.1000, 7212.40.5000, 7212.50.0000, and 7212.60.0000. The products subject to the orders may also enter under the following HTSUS item numbers: 7210.90.1000, 7215.90.1000, 7215.90.3000, 7215.90.5000, 7217.20.1500, 7217.30.1530, 7217.30.1560, 7217.90.1000, 7217.90.5030, 7217.90.5060, 7217.90.5090, 7225.91.0000, 7225.92.0000, 7225.99.0090, 7226.99.0110, 7226.99.0130, 7226.99.0180, 7228.60.6000, 7228.60.8000, and 7229.90.1000. The HTSUS subheadings above are provided for convenience and customs purposes only. The written description of the scope of the order is dispositive.
Commerce is conducting this review in accordance with section 751(a)(1) and (2) of Tariff Act of 1930, as amended (the Act). Export and constructed export price were calculated in accordance with section 772 of the Act. Normal value is calculated in accordance with section 773 of the Act.
For a full description of the methodology underlying our conclusions,
We preliminarily determine the following weighted-average dumping margins exist for the POR:
Upon issuance of the final results, Commerce shall determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries covered by this review.
If the weighted-average dumping margin for the mandatory respondents (
For the companies which were not selected for individual review (
In accordance with Commerce's “automatic assessment” practice, for entries of subject merchandise during the POR produced by each respondent for which they did not know that their merchandise was destined for the United States, we will instruct CBP to liquidate entries not reviewed at the all-others rate of 10.34 percent if there is no rate for the intermediate company(ies) involved in the transaction.
The following deposit requirements will be effective upon publication of the notice of final results of administrative review for all shipments of CORE from Taiwan entered, or withdrawn from warehouse, for consumption on or after the date of publication provided by section 751(a)(2) of the Act: (1) The cash deposit rate for each company listed above will be equal to the dumping margins established in the final results of this review except if the ultimate rates are
Commerce will disclose to parties to this proceeding the calculations performed in reaching the preliminary results within five days of the date of publication of these preliminary results.
Interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, using Enforcement and Compliance's ACCESS system within 30 days of publication of this notice.
Unless the deadline is extended pursuant to section 751(a)(3)(A) of the Act and 19 CFR 351.213(h)(2), Commerce will issue the final results of this administrative review, including the results of our analysis of the issues raised by the parties in their case briefs, within 120 days after issuance of these preliminary results.
This notice also serves as a preliminary 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 result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
These preliminary results of review is are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.213(h).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) is amending its final results of the administrative review of the antidumping duty (AD) order on welded line pipe from the Republic of Korea to correct a ministerial error in the calculation of the weighted-average dumping margin of SeAH Steel Corporation (SeAH). Correction of the error results in revised margins for SeAH and the companies not selected for individual examination. Finally, in correcting this error, we also discovered an error in the assessment rates calculated for Hyundai Steel Company (Hyundai Steel), which did not affect Hyundai Steel's final dumping margin. The amended final dumping margins are listed below in the section entitled, “Amended Final Results.”
Applicable August 10, 2018.
David Goldberger or Ross Belliveau, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-4136 or (202) 482-4952, respectively.
On July 18, 2018, Commerce published the
The merchandise subject to the order is welded line pipe.
Section 751(h) of the Tariff Act of 1930, as amended (the Act), defines “ministerial errors” as including “errors in addition, subtraction, or other arithmetic function, clerical errors resulting from inaccurate copying, duplication, or the like, and any other type of unintentional error which the administering authority considers ministerial.”
Finally, in correcting this error, we also discovered an error in the assessment rates calculated for Hyundai Steel. This error did not affect the final dumping margin calculated for Hyundai Steel.
As a result of correcting
Review-Specific Average Rate Applicable to the Following Companies:
We intend to disclose the calculations performed within five days of the date of publication of this notice to parties in this proceeding, in accordance with 19 CFR 351.224(b).
Pursuant to section 751(a)(2)(C) of the Act, and 19 CFR 351.212(b)(1), Commerce has determined, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries of subject merchandise in accordance with the amended final results of this review.
Pursuant to 19 CFR 351.212(b)(1), where Hyundai Steel and SeAH reported the entered value of their U.S. sales, we calculated importer-specific
For the companies which were not selected for individual review, we will assign an assessment rate based on the average
We intend to issue liquidation instructions to CBP for Hyundai Steel, SeAH, and the companies subject to the review-specific average rate 15 days after publication of these amended final results of this administrative review.
The following cash deposit requirements will be effective retroactively for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after July 18, 2018, the date of publication date of 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 result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice serves as the only 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 return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
These amended final results and notice are issued and published in accordance with sections 751(h) and 777(i) of the Act and 19 CFR 351.224(e).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) preliminarily determines that certain corrosion-resistant steel products (CORE) from India are being, or are likely to be sold, at less than normal value during the period of review (POR), January 4, 2016, through June 30, 2017. We invite interested parties to comment on these preliminary results.
Applicable August 10, 2018.
Rachel Greenberg or Kabir Archuletta, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-0652 or (202) 482-2593, respectively.
Commerce is conducting an administrative review of the antidumping duty order on CORE from India in accordance with section 751(a)(1)(B) of the Tariff Act of 1930, as amended (the Act).
Commerce exercised its discretion to toll all deadlines affected by the closure of the Federal Government from January 20 through 22, 2018.
The products covered by this order are CORE from India. For a full description of the scope, see the Preliminary Decision Memorandum dated concurrently with and hereby adopted by this notice.
Commerce is conducting this review in accordance with section 751(a)(1)(B) of the Act. For a full description of the methodology underlying our conclusions,
We preliminarily determine that, for the period of January 4, 2016, through June 30, 2017, the following weighted-average dumping margin exists:
We intend to disclose the calculations performed to parties within five days after public announcement of the preliminary results. Pursuant to 19 CFR 351.309(c), interested parties may submit case briefs not later than 30 days after the date of publication of this notice. Rebuttal briefs, limited to issues raised in the case briefs, may be filed not later than five days after the date for filing case briefs. Parties who submit case briefs or rebuttal briefs in this proceeding are encouraged to submit with each argument: (1) A statement of the issue, (2) a brief summary of the argument, and (3) a table of authorities. Case and rebuttal briefs should be filed using ACCESS.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance, filed electronically via ACCESS. An electronically filed document must be received successfully in its entirety by Commerce's electronic records system, ACCESS, by 5:00 p.m. Eastern Time within 30 days after the date of publication of this notice. Requests should contain: (1) The party's name, address and telephone number; (2) the number of participants; and (3) a list of issues to be discussed. Issues raised in the hearing will be limited to those raised in the respective case briefs. Commerce intends to issue the final results of this administrative review, including the results of its analysis of the issues raised in any written briefs, not later than 120 days after the date of publication of this notice, pursuant to section 751(a)(3)(A) of the Act and 19 CFR 351.213(h)(1).
Upon issuance of the final results, Commerce shall determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries covered by this review. If JSW's weighted-average dumping margin is not zero or
In accordance with Commerce's “automatic assessment” practice, for entries of subject merchandise during the POR produced by JSW for which it did not know that the merchandise was destined for the United States, we will instruct CBP to liquidate those entries at the all-others rate if there is no rate for the intermediate company(ies) involved in the transaction. We intend to issue instructions to CBP 15 days after the publication date of the final results of this review.
The following cash deposit requirements will be effective upon publication of the notice of final results of administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for JSW will be the rate established in the final results
This notice serves as a preliminary 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 POR. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and increase the subsequent assessment of the antidumping duties by the amount of the antidumping duties reimbursement.
The preliminary results of review are issued and published in accordance with sections 751(a)(1) and 777(i) of the Act and sections 19 CFR 351.213(h)(1) and 351.221(b)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) preliminarily finds that Ghigi 1870 S.p.A. (previously known as Ghigi lndustria Agroalimentare Srl) (Ghigi) and Pasta Zara S.p.A. (Pasta Zara) (collectively Ghigi/Zara) made sales of subject merchandise at less than normal value during the period of review (POR) and that Industria Alimentare Colavita S.p.A. (Indalco) did not. We invite interested parties to comment on these preliminary results.
Effective Applicable August 10, 2018.
Joy Zhang or George McMahon, 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) 482-1168 or (202) 482-1167, respectively.
Commerce is conducting an administrative review of the antidumping duty order on certain pasta (pasta) from Italy. The period of review (POR) is July 1, 2016, through June 30, 2017.
The merchandise subject to the
Commerce is conducting this review in accordance with section 751(a)(2) of the Tariff Act of 1930, as amended (the Act). Constructed export price or export price is calculated in accordance with section 772 of the Act. Normal value is calculated in accordance with section 773 of the Act. For a full description of the methodology underlying our preliminary results,
As a result of this review, we calculated a weighted-average dumping margin of 5.97 percent for Ghigi/Zara and a
We intend to disclose
Pursuant to 19 CFR 351.309(c)(ii), interested parties may submit case briefs not later than 30 days after the date of publication of this notice. Rebuttal briefs, limited to issues raised in the case briefs, may be filed no later than five days after the date for filing case briefs.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Enforcement and Compliance. All documents must be filed electronically using ACCESS, which is available to registered users at
We intend to issue the final results of this administrative review, including the results of our analysis of the issues raised in any written briefs, not later than 120 days after the date of publication of this notice, pursuant to section 751(a)(3)(A) of the Act.
Upon issuance of the final results, Commerce shall determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries covered by this review. If the weighted-average dumping margin for Ghigi/Zara or Indalco is above
For entries of subject merchandise during the POR produced by each respondent for which they did not know that their merchandise was destined for the United States, we will instruct CBP to liquidate unreviewed entries at the all-others rate if there is no rate for the intermediate company(ies) involved in the transaction.
We intend to issue instructions to CBP 15 days after publication of the final results of this review.
The following cash deposit requirements will be effective upon publication of the notice of final results of administrative review for all shipments of pasta from Italy entered, or withdrawn from warehouse, for consumption on or after the publication of the final results of this administrative review, as provided by section 751(a)(2) of the Act: (1) The cash deposit rate for respondents noted above will be the rate established in the final results of this administrative review; (2) for merchandise exported by producers or exporters not covered in this administrative review but covered in a prior segment of the proceeding, the cash deposit rate will continue to be the company-specific rate published for the most recently completed segment of this proceeding; (3) if the exporter is not a firm covered in this review, a prior review, or the original investigation, but the producer is, the cash deposit rate will be the rate established for the most recently completed segment of this proceeding for the producer of the subject merchandise; and (4) the cash deposit rate for all other producers or exporters will continue to be 15.45 percent, the all-others rate established in the antidumping investigation as modified by the section 129 determination.
This notice serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping and/or countervailing duties prior to liquidation of the relevant entries during this review
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.213(h)(1).
Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce.
The Department of Commerce (Commerce) is conducting an administrative review of the antidumping duty order on polyethylene terephthalate film, sheet, and strip (PET Film) from Taiwan. The period of review (POR) is July 1, 2016, through June 30, 2017. We preliminarily determine that Nan Ya Plastics Corporation (Nan Ya) did not make sales below normal value (NV) and that Shinkong Materials Technology Corporation (SMTC) had no shipments during the POR. Interested parties are invited to comment on these preliminary results.
Applicable August 10, 2018.
Jacqueline Arrowsmith at (202) 482-5255, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230.
The merchandise subject to the order is PET Film. The PET Film subject to the order is currently classifiable under subheading 3920.62.00.90 of the Harmonized Tariff Schedule of the United States.
Based on our analysis of U.S. Customs and Border Protection (CBP) information and information provided by SMTC and its affiliate, Shinkong Synthetic Fibers Corp. (SSFC), we preliminarily determine that SMTC had no shipments of the subject merchandise during the POR.
Commerce is conducting this review in accordance with section 751(a)(2) of the Tariff Act of 1930, as amended (the Act). Export price is calculated in accordance with section 772 of the Act. NV is calculated in accordance with section 773 of the Act.
For a full description of the methodology underlying our conclusions,
As a result of this review, we preliminarily determine the following weighted-average dumping margin for the period July 1, 2016, through June 30, 2017.
We intend to disclose the calculations performed to parties in this proceeding within five days after public announcement of the preliminary results in accordance with 19 CFR 351.224(b). Pursuant to 19 CFR 351.309(c), interested parties may submit case briefs not later than 30 days after the date of publication of this notice. Rebuttal briefs, limited to issues raised in the case briefs, may be filed not later than five days after the date for filing case briefs.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, must submit a written request to the Acting Assistant Secretary for Enforcement and Compliance, filed electronically via ACCESS. An electronically filed document must be received successfully in its entirety by Commerce's electronic records system, ACCESS, by 5 p.m. Eastern Time within 30 days after the date of publication of this notice. Requests should contain: (1) The party's name, address and
Upon completion of this administrative review, Commerce shall determine and U.S. Customs and Border Protection (CBP) shall assess antidumping duties on all appropriate entries. If a respondent's weighted-average dumping margin is not zero or
Commerce clarified its “automatic assessment” regulation on May 6, 2003.
We intend to issue instructions to CBP 15 days after publication of the final results of this review.
The following deposit requirements will be effective for all shipments of PET Film from Taiwan entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this administrative review, as provided for by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for the company under review will be the rate established in the final results of this review (except, if the rate is zero or
This notice also serves as a preliminary 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 result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing these preliminary results in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.213(h)(1).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) has received requests to conduct administrative reviews of various antidumping and countervailing duty orders and findings with June anniversary dates. In accordance with Commerce's regulations, we are initiating those administrative reviews.
Applicable August 10, 2018.
Brenda E. Brown, Office of AD/CVD Operations, Customs Liaison Unit, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230, telephone: (202) 482-4735.
Commerce has received timely requests, in accordance with 19 CFR 351.213(b), for administrative reviews of various antidumping and countervailing duty orders and findings with June anniversary dates.
All deadlines for the submission of various types of information, certifications, or comments or actions by Commerce discussed below refer to the number of calendar days from the applicable starting time.
If a producer or exporter named in this notice of initiation had no exports, sales, or entries during the period of review (POR), it must notify Commerce within 30 days of publication of this notice in the
In the event Commerce limits the number of respondents for individual
In the event Commerce decides it is necessary to limit individual examination of respondents and conduct respondent selection under section 777A(c)(2) of the Act:
In general, Commerce has found that determinations concerning whether particular companies should be “collapsed” (
Pursuant to 19 CFR 351.213(d)(1), a party that has requested a review may withdraw that request within 90 days of the date of publication of the notice of initiation of the requested review. The regulation provides that Commerce may extend this time if it is reasonable to do so. Determinations by Commerce to extend the 90-day deadline will be made on a case-by-case basis.
In proceedings involving non-market economy (NME) countries, Commerce begins with a rebuttable presumption that all companies within the country are subject to government control and, thus, should be assigned a single antidumping duty deposit rate. It is Commerce's policy to assign all exporters of merchandise subject to an administrative review in an NME country this single rate unless an exporter can demonstrate that it is sufficiently independent so as to be entitled to a separate rate.
To establish whether a firm is sufficiently independent from government control of its export activities to be entitled to a separate rate, Commerce analyzes each entity exporting the subject merchandise. In accordance with the separate rates criteria, Commerce assigns separate rates to companies in NME cases only if respondents can demonstrate the absence of both
All firms listed below that wish to qualify for separate rate status in the administrative reviews involving NME countries must complete, as appropriate, either a separate rate application or certification, as described below. For these administrative reviews, in order to demonstrate separate rate eligibility, Commerce requires entities for whom a review was requested, that were assigned a separate rate in the most recent segment of this proceeding in which they participated, to certify that they continue to meet the criteria for obtaining a separate rate. The Separate Rate Certification form will be available on Commerce's website at
Entities that currently do not have a separate rate from a completed segment of the proceeding
For exporters and producers who submit a separate-rate status application or certification and subsequently are selected as mandatory respondents, these exporters and producers will no longer be eligible for separate rate status
In accordance with 19 CFR 351.221(c)(1)(i), we are initiating administrative reviews of the following antidumping and countervailing duty orders and findings. We intend to issue the final results of these reviews not later than June 30, 2019.
None.
During any administrative review covering all or part of a period falling between the first and second or third and fourth anniversary of the publication of an antidumping duty order under 19 CFR 351.211 or a determination under 19 CFR 351.218(f)(4) to continue an order or suspended investigation (after sunset review), the Secretary, if requested by a domestic interested party within 30
For the first administrative review of any order, there will be no assessment of antidumping or countervailing duties on entries of subject merchandise entered, or withdrawn from warehouse, for consumption during the relevant provisional-measures “gap” period, of the order, if such a gap period is applicable to the POR.
Interested parties must submit applications for disclosure under administrative protective orders in accordance with the procedures outlined in Commerce's regulations at 19 CFR 351.305. Those procedures apply to administrative reviews included in this notice of initiation. Parties wishing to participate in any of these administrative reviews should ensure that they meet the requirements of these procedures (
Commerce's regulations identify five categories of factual information in 19 CFR 351.102(b)(21), which are summarized as follows: (i) Evidence submitted in response to questionnaires; (ii) evidence submitted in support of allegations; (iii) publicly available information to value factors under 19 CFR 351.408(c) or to measure the adequacy of remuneration under 19 CFR 351.511(a)(2); (iv) evidence placed on the record by Commerce; and (v) evidence other than factual information described in (i)-(iv). These regulations require any party, when submitting factual information, to specify under which subsection of 19 CFR 351.102(b)(21) the information is being submitted and, if the information is submitted to rebut, clarify, or correct factual information already on the record, to provide an explanation identifying the information already on the record that the factual information seeks to rebut, clarify, or correct. The regulations, at 19 CFR 351.301, also provide specific time limits for such factual submissions based on the type of factual information being submitted. Please review the final rule, available at
Any party submitting factual information in an antidumping duty or countervailing duty proceeding must certify to the accuracy and completeness of that information.
Parties may request an extension of time limits before a time limit established under Part 351 expires, or as otherwise specified by the Secretary.
These initiations and this notice are, in accordance with section 751(a) of the Act (19 U.S.C. 1675(a)) and 19 CFR 351.221(c)(1)(i).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Applicable August 1, 2018.
Bryan Hansen or Peter Zukowski, AD/CVD Operations Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-3683 or (202) 482-0189, respectively.
On August 1, 2018, the Department of Commerce (Commerce) published the
Commerce has corrected AG's weighted-average antidumping duty margin percentage to 17.46 percent and AG's cash deposit rate to 17.45 percent. The weighted-average antidumping duty margin percentages and cash deposit rates remain unchanged from the
This correction to the
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 USGS to incidentally harass, by Level B harassment only, marine mammals during geophysical survey activities associated with a the USGS's Mid-Atlantic Resource Imaging Experiment (MATRIX) survey project in the Northwest Atlantic Ocean.
This Authorization is effective from August 1, 2018 to July 31, 2019.
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 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.”
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 March 20, 2018, NMFS received a request from USGS for an IHA to take marine mammals incidental to a marine geophysical survey in the northwest Atlantic Ocean. On April 11, 2018, we deemed USGS's application for authorization to be adequate and complete. USGS requests to take small numbers of 29 species of marine mammals by Level B harassment only during the survey. Neither USGS nor NMFS expects serious injury or mortality to result from this activity; and, therefore, an IHA is appropriate.
The USGS will conduct a seismic survey aboard the
The purpose of the MATRIX survey is to collect data to constrain the lateral and vertical distribution of gas hydrates and shallow natural gas in marine sediments relative to seafloor gas seeps, slope failures, and geological and erosional features.
The seismic survey's airgun operations are scheduled to occur for up to 19 days during a cruise that may be as long as 22 days, departing port on August 8, 2018. Some minor deviation from these dates is possible, depending on logistics and weather.
The survey will involve only one source vessel, the
The Optimal Survey (GG mode) (See Table 1) for the Proposed Action would acquire the portion of the solid lines in Figure 1 of the IHA application at water depths greater than 1000 m using the GI-guns in “GG” mode. In this mode, the four GI guns would produce a total of 840 in
The Base Survey (GI mode) (See Table 1) assumes that all of the solid lines in Figure 1, as well as all of the interseismic connecting lines, would be acquired using four GI guns operating in normal mode (GI mode), producing a total air volume of 420 in
During the cruise, the USGS would continuously use an echosounder (EK60/EK80) with 38 kHz transducer at water depths less than ~1,800 m to locate water column anomalies associated with seafloor seeps emitting gas bubbles. The 38 kHz transducer would be mounted in the
A more detailed description of USGS's MATRIX survey is provided in the
NMFS published a notice of proposed IHA in the
Despite JASCO's AASM model predicting acoustic signatures of seismic airgun arrays up to 25 kHz, often their transmission loss calculations do not directly use these data to account for frequencies above 5 kHz because it is computationally intensive (Zeddies et al. 2015). While NMFS agrees that the spectral levels above 3 kHz should not necessarily be assumed zero, better data are needed to evaluate if and how airguns at these frequencies are significantly contributing to noise-induced hearing loss for these two marine mammal hearing groups.
For both MF and HF cetaceans, the TTS onset impulsive thresholds NMFS currently relies upon are derived directly from individual exposed to seismic sources (Finneran et al. 2002; Lucke et al. 2009). A more recent TTS study on harbor porpoises exposed to multiple airgun shots further supports the current TTS onset thresholds used to evaluate impulsive sources (Kastelein et al. 2017).
The available TTS onset data do not indicate that airguns are contributing significantly to noise-induced hearing loss at higher frequencies in these two hearing groups. Specifically, Lucke et al. (2009) measured harbor porpoise hearing at 4, 32, and 100 kHz after exposure to a single airgun shot, with TTS onset only occurring at 4 kHz. Similarly, Kastelein et al. (2017) measured a ~4.4 dB threshold shift only at 4 kHz, with hearing tested up to 8 kHz, for a harbor porpoise exposed to multiple airgun shots. Finally, Finneran et al. (2015) exposed bottlenose dolphins to multiple airgun shots and measured hearing thresholds up to 64 kHz, without measurable TTS onset observed. All these studies had measurements demonstrating spectral levels above 3 kHz for their airgun sources. For these reasons, NMFS believes that LDEO's use of the Nucleus source model is appropriate. NMFS appreciates the Commission's interest in this matter and will continue to evaluate the available information regarding spectral levels of airgun signals above 3 kHz.
In summary, LDEO acquired field measurements for several array configurations at shallow, intermediate, and deep-water depths during acoustic verification studies conducted in the northern Gulf of Mexico (Tolstoy
In 2015, LDEO explored the question of whether the Gulf of Mexico calibration data described above adequately informs the model to predict harassment isopleths in other areas by conducting a retrospective sound power analysis of one of the lines acquired during LDEO's seismic survey offshore New Jersey in 2014 (Crone, 2015). NMFS presented a comparison of the predicted radii (
The following is a summary of two additional analyses of in-situ data that support LDEO's use of the modeled Level A and Level B harassment zones in this particular case. In 2010, LDEO assessed the accuracy of their modeling approach by comparing the sound levels of the field measurements acquired in the Gulf of Mexico study to their model predictions (Diebold
NMFS continues to work with LDEO to address the issue of incorporating site-specific information for future authorizations for seismic surveys. However, LDEO's current modeling approach (supported by the three studies discussed previously) represents the best available information for NMFS to reach determinations for this IHA. As described earlier, the comparisons of LDEO's model results and the field data collected at multiple locations (
LDEO has conveyed to NMFS that additional modeling efforts to refine the process and conduct comparative analysis may be possible with the availability of research funds and other resources. Obtaining research funds is typically accomplished through a competitive process, including those submitted to U.S. Federal agencies. The use of models for calculating Level A and Level B harassment zones and for developing take estimates is not a requirement of the MMPA incidental take authorization process. Further, NMFS does not provide specific guidance on model parameters nor prescribe a specific model for applicants as part of the MMPA incidental take authorization process at this time, although we do review methods to ensure that they are adequate for reasonable prediction of take. There is a level of variability not only with parameters in the models, but also the uncertainty associated with data used in models, and therefore, the quality of the model results submitted by applicants. NMFS considers this variability when evaluating applications and the take estimates and mitigation measures that the model informs. NMFS takes into consideration the model used, and its results, in determining the potential impacts to marine mammals; however, it is just one component of the analysis during the MMPA authorization process as NMFS also takes into consideration other factors associated with the activity (
A detailed description of the species likely to be affected by USGS's geophysical survey, including brief introductions to the species and relevant stocks as well as available information regarding population trends and threats, and information regarding local occurrence, were provided in the
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 will inform both NMFS's consideration of “small numbers” 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 will be by Level B harassment only, in the form of disruption of behavioral patterns for individual marine mammals resulting from exposure to airguns. Based on the nature of the activity, the cryptic behavior and low density for
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 will be behaviorally harassed or incur some degree of 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 of activities. Below, we describe these components in more detail and present the take estimate.
Using the best available science, NMFS has developed acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals will be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur PTS of some degree (equated to Level A harassment).
Level B Harassment for non-explosive sources—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 (
Level A harassment for non-explosive sources—NMFS' 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 marine mammal groups (based on hearing sensitivity) as a result of exposure to noise from two different types of sources (impulsive or non-impulsive). As described above, USGS's activity includes the use of intermittent and impulsive seismic sources. These thresholds 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:
Here, we describe operational and environmental parameters of the activity that will feed into identifying the area ensonified above the acoustic thresholds
The survey will entail the use of a 4-airgun array with a total maximum discharge of 840 cubic inches (in
For modeling of radial distances to predicted isopleths corresponding to harassment thresholds in deep water (>1,000 m), LDEO used the deep-water radii for various SELs obtained from LDEO model results down to a
Predicted distances to Level A harassment isopleths, which vary based on marine mammal functional hearing groups (Table 3), were calculated based on modeling performed by LDEO using the Nucleus software program and the NMFS User Spreadsheet, described below. The updated acoustic thresholds for impulsive sounds (such as airguns) contained in the Technical Guidance (NMFS, 2016) were presented as dual metric acoustic thresholds using both SEL
The values for SEL
In order to more realistically incorporate the Technical Guidance's weighting functions over the seismic array's full acoustic band, unweighted spectrum data for the
Note that because of some of the assumptions included in the methods used, isopleths produced may be overestimates to some degree. 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 will qualitatively address the output where appropriate. For mobile sources, such as this seismic survey, the User Spreadsheet predicts the closest distance at which a stationary animal would not incur PTS if the sound source traveled by the animal in a straight line at a constant speed.
In this section we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculations. The best available scientific information was considered in conducting marine mammal exposure estimates (the basis for estimating take). For all cetacean species, densities calculated by Roberts
In addition to the density information provided by Roberts
Here we describe how the information provided above is brought together to produce a quantitative take estimate. To estimate marine mammal exposures, the USGS used published, quantitative density models by Roberts
To determine takes, the USGS combined the Duke density grids with the zones corresponding to the Level A and Level B harassment thresholds (See Tables 4 and 6) arrayed on either side of each exemplary seismic line and linking/interseismic line. The takes by Level B and Level A harassment for each species in each 10 km x 10 km block of the IMG density grids were calculated based on the fractional area of each block intersected by the Level A and Level B harassment zones for LF, MF, and HF cetaceans. Summing takes along all of the lines yields the total take for each species for the action for the Base (Configuration 1) and Optimal (Configuration 2) surveys. The method also yields take for each survey line individually, allowing examination of those exemplary lines that will yield the largest or smallest take. No Level A harassment takes were calculated while using this method.
As indicated earlier, estimated numbers of individuals potentially exposed to sound above the Level B harassment threshold are based on the 160-dB re 1μPa (rms) criterion for all cetaceans. It is assumed that marine mammals exposed to airgun sounds that strong could change their behavior sufficiently to be considered taken by harassment. Table 7 shows the estimates of the number of cetaceans that potentially could be exposed to ≥160 dB re 1 μPa (rms) during the action for the Base Survey and the Optimal Survey. The takes in Table 7 represents 25 percent more than the number of takes calculated using the ArcGIS-based quantitative method devised by the USGS. This was used to account for potential additional seismic operations that may occur after repeat coverage of any areas where initial data quality is sub-standard.
Also, as shown in Table 7, rough toothed dolphin, sei whale, and humpback whale calculated takes were increased to account for the average size of one group for each species. Takes for rare species of marine mammals in the action area were also increased to the average size of one group. Rare species that could be encountered and taken during the surveys are not presented in Table 7, but are presented in Table 8. These species were omitted from Table 7 due to low calculated incidents of potential exposures (
The calculated takes in Table 7 and 8 also assume that the surveys will be completed. However, it is unlikely that the entire survey pattern (exemplary lines plus 50 percent of the interseismic, linking lines) will be completed given the limitations on ship time, likely logistical challenges (compressor and GI gun repairs), time spent on transits and refueling, and the historical problems with weather during August in the western North Atlantic. The USGS's calculated timelines indicate that 25 days, including contingency, could be required to complete the full survey pattern. However, only 22 days or fewer will be scheduled for this USGS survey. The lines that are actually acquired will be dependent on weather, strength of the Gulf Stream (affects ability to tow the streamer in the appropriate geometry), and other considerations.
Certain species potentially present in the survey areas are expected to be encountered only extremely rarely, if at all. Although Roberts
In order to issue an IHA under Section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (latter not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).
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 will 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 and impact on operations.
USGS has reviewed mitigation measures employed during seismic research surveys authorized by NMFS under previous incidental harassment authorizations, as well as recommended best practices in Richardson
To reduce the potential for disturbance from acoustic stimuli associated with the activities, USGS will implement the following mitigation measures for marine mammals:
(1) Vessel-based visual mitigation monitoring;
(2) Establishment of a marine mammal exclusion zone (EZ);
(3) Shutdown procedures;
(4) Ramp-up procedures; and
(5) Vessel strike avoidance measures.
In addition, USGS will establish a marine mammal buffer zone.
Protected Species Observer (PSO) observations will take place during all daytime airgun operations and nighttime start ups (if applicable) of the airguns. If airguns are operating throughout the night, observations will begin 30 minutes prior to sunrise. If airguns are operating after sunset, observations will continue until 30 minutes following sunset. Following a shutdown for any reason, observations will occur for at least 30 minutes prior to the planned start of airgun operations. Observations will also occur for 30 minutes after airgun operations cease for any reason. Observations will also be made during daytime periods when the
During seismic operations, three visual PSOs will be based aboard the
The
The PSOs must have no tasks other than to conduct observational effort, record observational data, and communicate with and instruct relevant vessel crew with regard to the presence of marine mammals and mitigation requirements. PSO resumes will be
An EZ is a defined area within which occurrence of a marine mammal triggers mitigation action intended to reduce the potential for certain outcomes,
The 100 m radial distance of the standard EZ is precautionary in the sense that it will be expected to contain sound exceeding injury criteria (Level A harassment thresholds) for all marine mammal hearing groups (Table 6) while also providing a consistent, reasonably observable zone within which PSOs will typically be able to conduct effective observational effort.
Our intent in prescribing a standard EZ distance is to (1) encompass zones within which auditory injury could occur on the basis of instantaneous exposure; (2) provide additional protection from the potential for more severe behavioral reactions (
PSOs will also establish and monitor an additional 100 m buffer zone beginning from the outside extent of the 100 m EZ. During use of the acoustic source, occurrence of marine mammals within the 100 m buffer zone will be communicated to the USGS scientist-in-charge or his/her designee to prepare for potential shutdown of the acoustic source. The 100 m buffer zone is discussed further under
If a marine mammal is detected outside the EZ but is likely to enter the EZ, the airguns will be shut down before the animal is within the EZ. Likewise, if a marine mammal is already within the EZ when first detected, the airguns will be shut down immediately.
Following a shutdown, airgun activity will not resume until the marine mammal has cleared the 100 m EZ. The animal will be considered to have cleared the 100 m EZ if the following conditions have been met:
• It is visually observed to have departed the 100 m EZ;
• it has not been seen within the 100 m EZ for 15 min in the case of small odontocetes; or
• it has not been seen within the 100 m EZ for 30 min in the case of mysticetes and large odontocetes, including sperm, pygmy and dwarf sperm, beaked whales, and large delphinids.
This shutdown requirement will be in place for all marine mammals, with the exception of small delphinoids under certain circumstances. This exception to the shutdown requirement will apply solely to specific genera of small dolphins—
We include this small delphinoid exception because shutdown requirements for small delphinoids under all circumstances represent practicability concerns without likely commensurate benefits for the animals in question. Small delphinoids are generally the most commonly observed marine mammals in the specific geographic region and will typically be the only marine mammals likely to intentionally approach the vessel. As described below, auditory injury is extremely unlikely to occur for mid-frequency cetaceans (
A large body of anecdotal evidence indicates that small delphinoids commonly approach vessels and/or towed arrays during active sound production for purposes of bow riding, with no apparent effect observed in those delphinoids (
Shutdown of the acoustic source will also be required upon observation beyond the 100 m EZ of any of the following:
• A large whale (
• An aggregation of large whales of any species (
• A marine mammal species not authorized (
• An authorized marine mammal species that has reached its total allotted Level B harassment take that is approaching or entering the Level B harassment zone.
These will be the only four potential situations that will require shutdown of the array for marine mammals observed beyond the 100 m EZ.
Ramp-up of an acoustic source is intended to provide a gradual increase in sound levels following a shutdown, enabling animals to move away from the source if the signal is sufficiently aversive prior to its reaching full intensity. Ramp-up will be required after the array is shut down for any reason. Ramp up to the full array will take 20 minutes, starting with operation of a single airgun and with one additional airgun added every 5 minutes.
At least two PSOs will be required to monitor during ramp-up. During ramp up, the PSOs will monitor the 100 m EZ, and if marine mammals were observed within or approaching the 100 m EZ, a shutdown will be implemented as though the full array were operational. If airguns have been shut down due to PSO detection of a marine mammal within or approaching the 100 m EZ, ramp-up will not be initiated until all marine mammals have cleared the EZ, during the day or night. Criteria for clearing the EZ will be as described above.
Thirty minutes of pre-clearance observation are required prior to ramp-up for any shutdown of longer than 30 minutes (
The USGS scientist-in-charge or his/her designee will be required to notify a designated PSO of the planned start of ramp-up as agreed-upon with the lead PSO; the notification time will not be less than 60 minutes prior to the planned ramp-up. A designated PSO must be notified again immediately prior to initiating ramp-up procedures and the USGS scientist-in-charge or his/her designee must receive confirmation from the PSO to proceed. The USGS scientist-in-charge or his/her designee must provide information to PSOs documenting that appropriate procedures were followed. Following deactivation of the array for reasons other than mitigation, the USGS scientist-in-charge or his/her designee will be required to communicate the near-term operational plan to the lead PSO with justification for any planned nighttime ramp-up.
Vessel strike avoidance measures are intended to minimize the potential for collisions with marine mammals. These requirements do not apply in any case where compliance will create an imminent and serious threat to a person or vessel or to the extent that a vessel is restricted in its ability to maneuver and, because of the restriction, cannot comply.
The measures include the following: The USGS scientist-in-charge or his/her designee, the vessel operator (The University of Delaware) and crew will maintain a vigilant watch for all marine mammals and slow down or stop the vessel or alter course to avoid striking any marine mammal. A visual observer aboard the vessel will monitor a vessel strike avoidance zone around the vessel according to the parameters stated below. Visual observers monitoring the vessel strike avoidance zone will be either third-party observers or crew members, but crew members responsible for these duties will be provided sufficient training to distinguish marine mammals from other phenomena. Vessel strike avoidance measures will be followed during surveys and while in transit.
The vessel will maintain a minimum separation distance of 100 m from large whales (
In the event of a live stranding (or near-shore atypical milling) event within 50 km of the survey operations, where the NMFS stranding network is engaged in herding or other interventions to return animals to the water, the Director of OPR, NMFS (or designee) will advise the IHA-holder of the need to implement shutdown procedures for all active acoustic sources operating within 50 km of the stranding. Shutdown procedures for live stranding or milling marine mammals include the following:
• If at any time, the marine mammal(s) die or are euthanized, or if herding/intervention efforts are stopped, the Director of OPR, NMFS (or designee) will advise the IHA-holder that the shutdown is no longer needed.
• Otherwise, shutdown procedures will remain in effect until the Director of OPR, NMFS (or designee) determines and advises the IHA-holder that all live animals involved have left the area (either of their own volition or following an intervention).
• If further observations of the marine mammals indicate the potential for re-stranding, additional coordination with the IHA-holder will be required to determine what measures are necessary to minimize that likelihood (
Shutdown procedures are not related to the investigation of the cause of the stranding and their implementation is not intended to imply that the specified activity is the cause of the stranding. Rather, shutdown procedures are intended to protect marine mammals exhibiting indicators of distress by minimizing their exposure to possible additional stressors, regardless of the factors that contributed to the stranding.
Based on our evaluation of the applicant's measures, NMFS determined that the mitigation measures provide the means effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
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 will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the action area. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring.
Monitoring and reporting requirements prescribed by NMFS will 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.
USGS submitted a marine mammal monitoring and reporting plan in their IHA application. Monitoring that is designed specifically to facilitate mitigation measures, such as monitoring of the EZ to inform potential shutdowns of the airgun array, are described above and are not repeated here.
USGS's monitoring and reporting plan includes the following measures:
As described above, PSO observations will take place during daytime airgun operations and nighttime start-ups (if applicable) of the airguns. During seismic operations, three visual PSOs will be based aboard the
PSOs will record data to estimate the numbers of marine mammals exposed to various received sound levels and to document apparent disturbance reactions or lack thereof. Data will be used to estimate numbers of animals potentially taken by harassment. They will also provide information needed to order a shutdown of the airguns when a marine mammal is within or near the EZ. When a sighting is made, the following information about the sighting will be recorded:
(1) Species, group size, age/size/sex categories (if determinable), behavior when first sighted and after initial sighting, heading (if consistent), bearing and distance from seismic vessel, sighting cue, apparent reaction to the airguns or vessel (
(2) Time, location, heading, speed, activity of the vessel, sea state, visibility, and sun glare.
All observations and shutdowns will be recorded in a standardized format. Data will be entered into an electronic database. The accuracy of the data entry will be verified by computerized data validity checks as the data are entered and by subsequent manual checking of the database. These procedures will allow initial summaries of data to be prepared during and shortly after the field program and will facilitate transfer of the data to statistical, graphical, and other programs for further processing and archiving. The time, location, heading, speed, activity of the vessel, sea state, visibility, and sun glare will also be recorded at the start and end of each observation watch, and during a watch whenever there is a change in one or more of the variables.
Results from the vessel-based observations will provide:
(1) The basis for real-time mitigation (
(2) Information needed to estimate the number of marine mammals potentially taken by harassment, which must be reported to NMFS;
(3) Data on the occurrence, distribution, and activities of marine mammals in the area where the seismic study is conducted;
(4) Information to compare the distance and distribution of marine mammals relative to the source vessel at times with and without seismic activity; and
(5) Data on the behavior and movement patterns of marine mammals seen at times with and without seismic activity.
• Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);
• Species identification (if known) or description of the animal(s) involved;
• Condition of the animal(s) (including carcass condition if the animal is dead);
• Observed behaviors of the animal(s), if alive;
• If available, photographs or video footage of the animal(s); and
• General circumstances under which the animal was discovered.
• Time, date, and location (latitude/longitude) of the incident;
• Species identification (if known) or description of the animal(s) involved;
• Vessel's speed during and leading up to the incident;
• Vessel's course/heading and what operations were being conducted (if applicable);
• Status of all sound sources in use;
• Description of avoidance measures/requirements that were in place at the time of the strike and what additional measures were taken, if any, to avoid strike;
• Environmental conditions (
• Estimated size and length of animal that was struck;
• Description of the behavior of the marine mammal immediately preceding and following the strike;
• If available, description of the presence and behavior of any other marine mammals immediately preceding the strike;
• Estimated fate of the animal (
• To the extent practicable, photographs or video footage of the animal(s).
• Status of all sound source use in the 48 hours preceding the estimated time of stranding and within 50 km of the discovery/notification of the stranding by NMFS; and
• If available, description of the behavior of any marine mammal(s) observed preceding (
Examples of circumstances that could trigger the additional information request include, but are not limited to, the following:
• Atypical nearshore milling events of live cetaceans;
• Mass strandings of cetaceans (two or more individuals, not including cow/calf pairs);
• Beaked whale strandings;
• Necropsies with findings of pathologies that are unusual for the species or area; or
• Stranded animals with findings consistent with blast trauma.
In the event that the investigation is still inconclusive, the investigation of the association of the survey activities is still warranted, and the investigation is still being pursued, NMFS may provide additional information requests, in writing, regarding the nature and location of survey operations prior to the time period above.
A report will be submitted to NMFS within 90 days after the end of the survey. The report will describe the operations that were conducted and sightings of marine mammals near the operations. The report will provide full documentation of methods, results, and interpretation pertaining to all monitoring and will summarize the dates and locations of seismic operations, and all marine mammal sightings (dates, times, locations, activities, associated seismic survey activities). The report will also include estimates of the number and nature of exposures that occurred above the harassment threshold based on PSO observations, including an estimate of those on the trackline but not detected.
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 (
NMFS does not anticipate that serious injury or mortality will occur as a result of USGS's seismic survey, even in the absence of mitigation. Thus, the authorization does not authorize any mortality.
Potential impacts to marine mammal habitat were discussed previously in the
The acoustic “footprint” of the survey will be very small relative to the ranges of all marine mammals that will potentially be affected. Sound levels will increase in the marine environment in a relatively small area surrounding the vessel compared to the range of the marine mammals within the survey area. The seismic array will be active 24 hours per day throughout the duration of the survey. However, the very brief overall duration of the survey (22 days with 19 days of airgun operations) will further limit potential impacts that may occur as a result of the activity.
The mitigation measures are expected to reduce the number and/or severity of takes by allowing for detection of marine mammals in the vicinity of the vessel by visual and acoustic observers, and by minimizing the severity of any potential exposures via shutdowns of the airgun array.
Of the marine mammal species that are likely to occur in the project area during the survey timeframe, the following species are listed as endangered under the ESA; fin, sei, and sperm whales. There are currently insufficient data to determine population trends for these species (Hayes
NMFS concludes that exposures to marine mammal species due to USGS's seismic survey will result in only short-term (temporary and short in duration) effects to individuals exposed. Marine mammals may temporarily avoid the immediate area but are not expected to permanently abandon the area. Major shifts in habitat use, distribution, or foraging success are not expected. NMFS does not anticipate the take estimates to impact annual rates of recruitment or survival.
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 injury (Level A take), serious injury or mortality is anticipated or authorized;
• The anticipated impacts of the activity on marine mammals will primarily be temporary behavioral changes due to avoidance of the area around the survey vessel. The relatively short duration of the survey (22 days with 19 days of airgun operations) will further limit the potential impacts of any temporary behavioral changes that will occur;
• The availability of alternate areas of similar habitat value for marine mammals to temporarily vacate the survey area during the survey to avoid exposure to sounds from the activity;
• The project area does not contain areas of significance for feeding, mating or calving;
• The potential adverse effects on fish or invertebrate species that serve as prey species for marine mammals from the survey will be temporary and spatially limited; and
• The mitigation measures, including visual and acoustic monitoring and shutdowns, are expected to minimize potential impacts to marine mammals.
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 will have a negligible impact on all affected marine mammal species or stocks.
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.
Please see Tables 6 and 7 and the related text for information relating to the basis for our small numbers analyses. Table 7 provides the numbers of predicted exposures above specified received levels, while Table 7 provides the numbers of take authorized. For the northern bottlenose whale, Fraser's dolphin, melon-headed whale, false killer whale, pygmy killer whale, killer whale, spinner dolphin, and white-sided dolphin, we authorize take resulting from a single exposure of one group of each species or stock, as appropriate (using average group size), for each applicant. We believe that a single incident of take of one group of any of these species represents take of small numbers for that species. Due to the scarcity, broad spatial distributions, and habitat preferences of these species relative to the areas where the surveys will occur, NMFS concludes that the authorized take of a single group of these species likely represent small numbers relative to the affected species' overall population sizes. Therefore, based on the analyses contained herein of the specified activity, we find that small numbers of marine mammals will be taken for each of these eight affected species or stocks for the specified activity. We do not discuss these eight species further in this small numbers analysis.
As shown in Table 6, we used mean abundance estimates from Roberts (2016) to calculate the percentage of population that is estimated to be taken during the activities for non-rare species. The activity is expected to impact a very small percentage of all marine mammal populations. As presented in Table 6, take of all 21 marine mammal species authorized for take is less than three percent of the abundance estimate.
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 will 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 will not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 U.S.C. 1531
NMFS's ESA Interagency Cooperation Division issued a Biological Opinion on August 6, 2018 to NMFS Office of Protected Resources which concluded that the USGS's MATRIX survey is not likely to jeopardize the continued existence of the sei whale, fin whale, sperm whale, and north Atlantic right whale or adversely modify critical habitat.
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 USGS for conducting the described seismic survey activities from August 1, 2018 through July 31, 2019 provided the previously described mitigation, monitoring, and reporting requirements are incorporated.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
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 Seattle Department of Transportation (DOT) to incidentally harass, by Level A and B harassment, marine mammals during pile driving and removal activities associated with the restoration of Pier 62, Seattle Waterfront, Elliott Bay in Seattle, Washington (Season 2).
This Authorization is applicable from August 1, 2018 through February 28, 2019.
Stephanie Egger, 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 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.
The MMPA states that the term “take” means to harass, hunt, capture, or 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).
In compliance with NOAA policy, the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321
On January 27, 2018, NMFS received a request from the Seattle DOT for a second IHA to take marine mammals incidental to pile driving and removal activities for the restoration of Pier 62, Seattle Waterfront, Elliott Bay in Seattle, Washington. A revised request was submitted on May 18, 2018, which was deemed adequate and complete. Seattle DOT's request is for take of 12 species of marine mammals, by Level B harassment and Level A harassment (three species only). Neither Seattle DOT nor NMFS expects serious injury or mortality to result from this activity and, therefore, an IHA is appropriate.
NMFS previously issued an IHA to Seattle DOT for related work for Season 1 of this activity (82 FR 47176; October 11, 2017). Seattle DOT complied with all the requirements (
This IHA will cover the second season of work for the Seattle DOT Pier 62 project and provides take authorization for these subsequent facets of the project. The second season of the larger project is expected to primarily involve the remaining pile driving for Pier 62 and Pier 63. If the Seattle DOT encounters delays due to poor weather conditions, difficult pile driving, or other unanticipated challenges, an additional in-water work season may be necessary. If so, a separate IHA may be prepared for the third season of work.
The planned project will replace Pier 62 and make limited modifications to Pier 63 on the Seattle waterfront of Elliott Bay, Seattle, Washington. The existing piers are constructed of creosote-treated timber piles and treated timber decking, which are failing. The planned project would demolish and remove the existing timber piles and decking of Pier 62, and replace them with concrete deck planks, concrete pile caps, and steel piling. The majority of the timber pile removal required by the project occurred during the 2017-2018 in-water work season (Season 1).
A total of 831 piles were removed from Pier 62 and Pier 63 during Season 1 (see Table 1 below). Timber pile removal work in Season 2 (2018-2019 in-water work window) may occur for an estimated 10 days (49 remaining timber piles), if the contractor encounters deteriorated piles that pose a safety hazard or are within the area where grated decking or habitat improvements are to be installed. Pile installation will occur via vibratory and impact hammers. Seattle DOT estimates 10 days will be needed to remove the old timber piles, 53 days for vibratory installation of steel piles, and 64 days for impact installation of steel piles for a total of 127 in-water construction days for both Pier 62 and Pier 63 (see Table 1 below). Seattle DOT expects most days for vibratory and impact installation of steel piles will overlap, for a total of fewer than 127 days. The 14-inch (in) timber piles will be removed with a vibratory hammer or pulled with a clamshell bucket. The 30-in steel piles will be installed with a vibratory hammer to the extent possible. The maximum extent of pile removal and installation activities are described in Table 1. An impact hammer will be used for proofing steel piles or when encountering obstructions or difficult ground conditions. In addition, a pile template will be installed to ensure the piles are placed properly. It is anticipated that the contractor will complete the pile installation during the 2018-2019 in-water work window. In-water work may occur within a modified or shortened work window (September through February) to reduce or minimize effect on juvenile salmonids.
The contractor may elect to operate multiple pile crews for the Seattle DOT Pier 62 Project. As a result, more than one vibratory or impact hammer may be active at the same time. For the Pier 62 Project, there is a low likelihood that multiple impact hammers would operate in a manner that piles would be struck simultaneously; however, as a conservative approach we used a multiple-source decibel (dB) rule when determining the Level A and Level B harassment zones for this project. Table 2 provides guidance on adding dBs to account for multiple sources (WSDOT 2015a):
A detailed description of Seattle DOT's planned Pier 62 (Season 2) project is provided in the
A notice of NMFS' proposal to issue an IHA was published in the
Importantly, such renewals would be limited to circumstances where: The activities are identical or nearly identical to those analyzed in the proposed IHA; monitoring does not indicate impacts that were not previously analyzed and authorized; and, the mitigation and monitoring requirements remain the same, all of which allow the public to comment on the appropriateness and effects of a renewal at the same time the public provides comments on the initial IHA. NMFS has, however, modified the language for future proposed IHAs to clarify that all IHAs, including renewal IHAs, are valid for no more than one year and that the agency would consider only one renewal for a project at this time. In addition, notice of issuance or denial of a renewal IHA would be published in the
The marine mammal species under NMFS's jurisdiction that have the potential to occur in the construction area include Pacific harbor seal (
A detailed description of the species likely to be affected by the Seattle DOT Pier 62 (Season 2) project, including brief introductions to the species and relevant stocks as well as available information regarding population trends and threats, and information regarding local occurrence, were provided in the
The effects of underwater noise from the planned activities for the Seattle DOT Pier 62 (Season 2) project have the potential to result in Level B behavioral harassment of marine mammals in the vicinity of the action area. There is also some potential for auditory injury (Level A harassment) to result, primarily for high frequency species, due to larger predicted auditory injury zones. Auditory injury is unlikely to occur for mid-frequency species and most pinnipeds. The mitigation and monitoring measures (
The project would not result in permanent impacts to habitats used directly by marine mammals, such as haulout sites, but may have potential short-term impacts to food sources such as marine invertebrates and fish species. Construction will also have temporary effects on salmonids and other fish species in the project area due to disturbance, turbidity, noise, and the potential resuspension of contaminants during the Pier 62 project. The
This section provides an estimate of the number of incidental takes authorized through this IHA, which informed both NMFS's consideration of whether the number of takes is “small” and the negligible impact determination. Based on public comment, since the Proposed Notice, a few minor changes have been made to this section, including modifications to the density and take estimates for species. These changes are reflected in the tables and narrative below.
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 would primarily be by Level B harassment, as exposure to pile driving and removal activities has the potential to result in disruption of behavioral patterns for individual marine mammals. There is also some potential for auditory injury (Level A harassment) to result, primarily for high frequency species due to larger predicted auditory injury zones. Auditory injury is unlikely to occur for mid-frequency species and most pinnipeds. The planned mitigation and monitoring measures (
Generally speaking, we estimate take by considering: (1) Acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of 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 of activities. Below, we describe these components in more detail and present the take estimates.
Using the best available science, NMFS has developed acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur permanent threshold shift (PTS) of some degree (equated to Level A harassment).
Level B Harassment for non-explosive sources—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 (
Level A harassment for non-explosive sources—NMFS's Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (NMFS, 2016a) identifies dual criteria to assess auditory injury (Level A harassment) to five different marine mammal groups (based on hearing sensitivity) as a result of exposure to noise from two different types of sources (impulsive or non-impulsive). Seattle DOT's planned activity includes the use of continuous (vibratory pile driving and removal) and impulsive (impact pile driving) sources.
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 4 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:
Here, we describe operational and environmental parameters of the activity that fed into identifying the area ensonified above the acoustic thresholds.
Background noise is the sound level that would exist without the planned activity (pile driving and removal, in this case), while ambient sound levels are those without human activity (NOAA 2009). The marine waterway of Elliott Bay is very active, and human factors that may contribute to background noise levels include ship traffic. Natural actions that contribute to ambient noise include waves, wind, rainfall, current fluctuations, chemical composition, and biological sound sources (
The source level of vibratory removal of 14-in timber piles is based on hydroacoustic monitoring measurements conducted at the Pier 62 project site during Season 1 vibratory removal (Greenbusch Group 2018). The recorded source level ranged from 140 to 169 dB rms re 1 micropascal (μPa) at 10 meters (m) from the pile, with the 75th percentile at 161 dB rms. This level, 161 dB rms, was chosen as the source value for vibratory timber removal in Season 2 because it is a conservative estimate of potential noise generation; 75 percent of the timber pile removal noise generated in Season 1 was on average lower than 161 dB rms. The sound source levels for installation of the 30-in steel piles and 24-in template piles are based on surrogate data compiled by the Washington State Department of Transportation (WSDOT). This value was also used for other pile driving projects (
The method of incidental take requested is Level B acoustical harassment of marine mammals within the 160 dB rms disturbance threshold (impact pile driving); the 120 dB rms disturbance threshold (vibratory pile driving); and the 120 dB rms disturbance threshold for vibratory removal of piles. Therefore, three different Level B Harassment/Monitoring Zones were established and must be in place during pile driving installation or removal (Table 5).
For the Level B Harassment/Monitoring Zones, sound waves propagate in all directions when they travel through water until they dissipate to background levels or encounter barriers that absorb or reflect their energy, such as a landmass. Therefore, the area of the Level B Harassment/Monitoring Zones was determined using land as the boundary on the north, east and south sides of the project. On the west, land was also used to establish the zone for vibratory driving. From Alki on the south and Magnolia on the north, a straight line of transmission was established out to Bainbridge Island. For impact driving (and vibratory removal), sound dissipates much quicker and the impact zone stays within Elliott Bay. Pile-related construction noise would extend throughout the nearshore and open water environments to just west of Alki Point and a limited distance into the East Waterway of the Lower Duwamish River, a highly industrialized waterway. Because landmasses block in-water construction noise, a “noise shadow” created by Alki Point is expected to be present immediately west of this feature (refer to Seattle DOT's application for maps depicting the Level B Harassment/Monitoring Zones).
When NMFS Technical Guidance (NMFS 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, we 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 will result in some degree of overestimate of Level A harassment 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 will qualitatively address the output where appropriate. For stationary sources such as vibratory and impact pile driving, NMFS's User Spreadsheet predicts the closest distance at which, if a marine mammal remained at that distance the whole duration of the activity, it would not incur PTS. Inputs used in the User Spreadsheet, and the resulting isopleths/Level A Harassment Zones are reported below.
The PTS isopleths were identified for each hearing group for impact and vibratory installation and removal methods that must be used in the Pier 62 Project. The PTS isopleth distances were calculated using the NMFS acoustic threshold calculator (NMFS 2016), with inputs based on measured and surrogate noise measurements taken during the Elillott Bay Seawall Project and from WSDOT, and estimating conservative working durations (Table 6 and Table 7).
In this section we provide the information about the presence, density, or group dynamics of marine mammals that informed the take calculation and we describe how the marine mammal occurrence information is brought together to produce a quantitative take estimate. In some cases (
Where species density is available, take estimates are based on average marine mammal density in the project area multiplied by the area size of ensonified zones within which received noise levels exceed certain thresholds (
Unless otherwise described, incidental take is estimated by the following equation:
However, adjustments were made for nearly every marine mammal species, whenever their local abundance is known through monitoring during Season 1 activities and other monitoring efforts. In those cases, the local abundance data was used for take calculations for the authorized take instead of general animal density (see below).
The take estimate for harbor seals for Pier 62 is based on local seal abundance information using the maximum number of seals (13) sighted in one day during the 2016 Seattle Test Pile project multiplied by the total of 127 pile driving and removal days for the Seattle DOT Pier 62 Project Season 2 for 1,651 seals. Fifty-three of the 127 days of activity would involve installation by vibratory pile driving, which has a much larger Level A Harassment Zone (306.8 m) than the Level A Harassment Zones for vibratory removal (16.6 m) and impact pile driving (47.4 m). Harbor seals may be difficult to observe at greater distances, therefore, during vibratory pile driving, it may not be known how long a seal is present in the Level A Harassment Zone. We conservatively estimate that 53 instances of take by Level A harassment may occur during these 53 days. Fifty-three instances of potential take by Level A harassment was calculated as follows: 1 harbor seal per day × 53 days of vibratory pile driving within the 307 m Level A Harassment Zone. The instances of take by Level B harassment (1,651 seals) was adjusted to exclude those already counted for instances of take by Level A harassment, so the authorized instances of take by Level B harassment is 1,598 harbor seals.
As a comparison, using U.S. Navy species density estimates (U.S. Navy 2015) for the inland waters of Puget Sound, potential take of harbor seal is shown in Table 8. Based on these calculations, instances of take by Level A harassment is estimated at 10 harbor seals from vibratory pile driving and instances of take by Level B harassment is estimated at 6,177 harbor seals from all sound sources. However, observational data from previous projects on the Seattle waterfront have documented only a fraction of what is calculated using the Navy density estimates for Puget Sound. For example, between zero and seven seals were observed daily for the EBSP and 56 harbor seals were observed over 10 days in the area with the maximum number of 13 harbor seals sighted during the 2016 Seattle Test Pile project (WSF 2016). During marine mammal monitoring for Season 1 of the Seattle DOT Pier 62 Project, 10 harbor seals were observed within the Level B Harassment/Monitoring Zone during vibratory activity. Project activities in Season 1, primarily timber vibratory removal, had a smaller Level B Harassment/Monitoring Zone than vibratory steel installation (the primary activity for Seasons 2), so it is expected that harbor seal observations and takes in Season 2 will be greater and will more closely resemble observational data from other monitoring efforts such as EBSP and Seattle Test Pile Project.
For the Northern elephant seal, the Whale Museum (as cited in WSDOT 2016a) reported one sighting in the relevant area between 2008 and 2014. In addition, based on U.S. Navy species density estimates (U.S. Navy 2015), potential take of northern elephant seal is expected to be zero. Therefore, to be conservative. NMFS is authorizing two instances of take by Level B harassment of northern elephant seals.
The take estimate of California sea lions for Pier 62 is based on Season 1 marine mammal monitoring for the Seattle DOT Pier 62 Project and four seasons of local sea lion abundance information from the EBSP. Marine mammal visual monitoring during the EBSP indicates that a maximum of 15 sea lions were observed in a day during 4 years of project monitoring (Anchor QEA 2014, 2015, 2016, 2017). Based on a total of 127 pile driving and removal days for the Seattle Pier 62 project Season 2, it is estimated that up to 1,905 California sea lions (15 sea lions multiplied by 127 days) could be exposed to noise levels associated with “take.” Since the calculated Level A Harassment Zones of otariids are all very small (Table 7), we do not consider it likely that any sea lions would be taken by Level A harassment. Therefore, all California sea lion takes estimated here are expected to be takes by Level B harassment and NMFS is authorizing instances of take by Level B harassment of 1,905 California sea lions.
As a comparison, using the U.S. Navy species density estimates (U.S. Navy 2015) for the inland waters of Washington, including Eastern Bays and Puget Sound, potential take of California sea lion is shown in Table 9. The estimated instances of take by Level B harassment is 643 California sea lions. However, the Seattle DOT believes that this estimate is unrealistically low, based on local marine mammal monitoring.
No local monitoring data of Steller sea lions is available. Therefore, the estimated take for Steller sea lions is based on U.S. Navy species density estimates (U.S. Navy 2015), and is shown in Table 10. Since the calculated Level A Harassment Zones of otariids are all very small (Table 7), we do not consider it likely that any Steller sea lions would be taken by Level A harassment. NMFS is authorizing instances of take by Level B harassment of 187 Steller sea lions.
The take estimate of SRKW for Pier 62 is based on local data and information from the Center for Whale Research (CWR). J-pod is the pod most likely to appear in the lower Puget Sound near Seattle with a group size of approximately 23 SRKW in 2017, 24 in 2016, and 29 in 2015. (CWR 2017). Therefore, NMFS is authorizing instances of take by Level B harassment of 23 SRKW based on a single occurrence of one pod (
The Seattle DOT must coordinate with the Orca Network and the CWR in an attempt to avoid all take of SRKW, but it may be possible that a group may enter the Level B Harassment/Monitoring Zones before Seattle DOT could shut down due to the larger size of the Level B Harassment/Monitoring Zones particularly during vibratory pile driving (installation).
As a comparison, using the U.S. Navy species density estimates (U.S. Navy 2015) the density for the SRKW is variable across seasons and across the range. The inland water density estimates vary from 0.000000 to 0.000090/km
The take estimate of transient killer whales for Pier 62 is based on local data. Seven transients were reported in the project area (Orca Network Archive Report 2016a). Therefore, NMFS is authorizing instances of take by Level B harassment of 42 transient killer whales, which would cover up to 2 groups of up to 7 transient whales entering into the project area and remaining there for three days. Since the Level A Harassment Zones of mid-frequency cetaceans are small (Table 7), we do not consider it likely that any transient killer whales would be taken by Level A harassment.
As a comparison, based on U.S. Navy species density estimates (U.S. Navy 2015), potential take of transient killer whale is shown in Table 12. As with the SRKW, the density estimate of transient killer whales is variable between seasons and regions. Density estimates range from 0.000575 to 0.001582/km
The take estimate of long-beaked common dolphin for Pier 62 is based on local monitoring data. The earliest documented sighting of long-beaked common dolphins in Puget Sound was July 2003. In June 2011, two long-beaked common dolphins were sighted in South Puget Sound. Sightings continued in 2012, and in 2016-17. Four to twelve sightings were reported regularly, with confirmed sightings of up to 30 individuals. Four to six dolphins have remained in Puget Sound since June 2016 and four animals with distinct markings have been seen multiple times and in every season of the year as of October 2017 (CRC 2017b). In 2016, the Orca Network (2016c) reported a pod of up to 20 long-beaked common dolphins. Therefore, NMFS is authorizing instances of take by Level B harassment of 7 long-beaked common dolphins per month for a total of 49 dolphins. Since the Level A Harassment Zones of mid-frequency cetaceans are all very small (Table 7), we do not consider it likely that the long-beaked common dolphin would be taken by Level A harassment. Based on U.S. Navy species density estimates (U.S. Navy 2015), potential instances of take of long-beaked common dolphin is expected to be zero; therefore, we believe it more appropriate to use local monitoring data.
The take estimate of bottlenose dolphin for Pier 62 is based on local monitoring data. In 2017 the Orca Network (2017) reported sightings of a bottlenose dolphin in Puget Sound and in Elliott Bay, and WSDOT observed two bottlenose dolphins in one week during monitoring for the Colman Dock Multimodal Project (WSDOT 2017). In addition, a group of seven dolphins were observed in 2017 and were positively identified as part of the CA coastal stock (Cascadia Research Collective, 2017). Bottlenose dolphins typically travel in groups of 2 to 15 in coastal waters (NOAA 2017). Therefore, NMFS is authorizing instances of takes by Level B harassment of 7 bottlenose dolphins per month for a total of 49 dolphins. Since the Level A Harassment Zones of mid-frequency cetaceans are all very small (Table 7), we do not consider it likely that the common bottlenose dolphin would be taken by Level A harassment. Based on U.S. Navy species density estimates (U.S. Navy 2015), instances of potential take by Level B harassment of bottlenose dolphin is expected to be zero; therefore, we believe it more appropriate to use local monitoring data.
Species density estimates from Smultea
No local monitoring data of Dall's porpoise is available. Therefore, the estimated instances of take for Dall's porpoise is based on U.S. Navy species density estimates (U.S. Navy 2015), as shown in Table 14. Based on these calculations, NMFS is authorizing instances of take by Level A harassment of two Dall's porpoise and instances of take by Level B harassment of 196 Dall's porpoise.
Based on U.S. Navy species density estimates (U.S. Navy 2015), potential take of humpback whale is shown in Table 15. Although the standard take calculations would result in an estimated take of less than one humpback whale, to be conservative, NMFS is authorizing instances of take by Level B harassment of five humpback whales based on take during previous work in Elliott Bay where two humpback whales were observed, including one take, during the 175 days of work during the previous four years (Anchor QEA 2014, 2015, 2016, and 2017). Since the Level A Harassment Zones of low-frequency cetaceans are smaller during vibratory removal (27.3 m) or impact installation (88.6 m) compared to the Level A Harassment Zone for vibratory installation (504.8 m) (Table 7), we do not consider it likely that any humpbacks would be taken by Level A harassment during removal or impact installation. We also do not believe any humpbacks would be taken during vibratory installation due to the ability to see humpbacks easily during monitoring and additional coordination with the Orca Network and the CWR which would enable the work to be shut down before a humpback would be taken by Level A harassment.
No local monitoring data of gray whales is available. Therefore, the instances of estimated take for gray whales is based on U.S. Navy species density estimates (U.S. Navy 2015), as shown in Table 16. Therefore, NMFS is authorizing instances of take by Level B harassment of four gray whales. Since the Level A Harassment Zones of low-frequency cetaceans are smaller during vibratory removal (27.3 m) or impact installation (88.6 m) compared to the Level A Harassment Zone for vibratory installation (504.8 m) (Table 7), we do
Between 2008 and 2014, the Whale Museum (as cited in WSDOT 2016a) reported one sighting of a minke whale in the relevant area. As a comparison, based on U.S. Navy species density estimates (U.S. Navy 2015), the instance of potential take of minke whales is expected to be ten (Table 17). To be conservative NMFS is authorizing the take of 10 minkes by Level B harassment. Based on the low probability that a minke whale would be observed during the project and then also enter into a Level A zone, we do not consider it likely that any minke whales would be taken by Level A harassment.
The summary of the authorized take by Level A and Level B Harassment is described below in Table 18.
In order to issue an IHA under Section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (latter not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).
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 will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned) and 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 and impact on operations.
Several measures for mitigating effects on marine mammals and their habitat from the pile installation and removal activities at Pier 62 are described below.
All work must be conducted during daylight hours.
Seattle DOT must conduct briefings for construction supervisors and crews, the monitoring team, and Seattle DOT staff prior to the start of all pile driving and removal activity, and when new personnel join the work, in order to explain responsibilities, communication procedures, the marine mammal monitoring protocol, and operational procedures.
A bubble curtain must be used during pile driving activities with an impact hammer to reduce sound levels. Seattle DOT has stated as part of their specified activity that they have agreed to employ a bubble curtain during impact pile driving of steel piles and must implement the following bubble curtain performance standards:
(i) The bubble curtain must distribute air bubbles around 100 percent of the piling perimeter for the full depth of the water column.
(ii) The lowest bubble curtain ring must be deployed on or as close to the mudline for the full circumference of the ring as possible, without causing turbidity.
(iii) Seattle DOT must require that construction contractors train personnel in the proper balancing of air flow to the bubblers, and must require that construction contractors submit an inspection/performance report for approval by Seattle DOT within 72 hours following the performance test. Corrections to the attenuation device to meet the performance standards must occur prior to impact driving.
Shutdown Zones must be implemented to protect marine mammals from Level A harassment (Table 19 below). The PTS isopleths described in Table 7 were used as a starting point for calculating the shutdown zones; however, Seattle DOT must implement a minimum shutdown zone of a 10 m radius around each pile for all construction methods for all marine mammals. Therefore, in some cases the shutdown zone must be slightly larger than was calculated for the PTS isopleths as described in Table 7 (
For in-water heavy machinery activities other than pile driving, if a marine mammal comes within 10 m, operations must cease and vessels must reduce speed to the minimum level required to maintain steerage and safe working conditions.
Seattle DOT must implement shutdown measures if the cumulative total number of individuals observed within the Level B Harassment/
Seattle DOT must monitor the Level B Harassment/Monitoring Zones as described in Table 20.
Each day at the beginning of impact pile driving or any time there has been cessation or downtime of 30 minutes or more without impact pile driving, Seattle DOT must use the soft-start technique by providing an initial set of three strikes from the impact hammer at 40 percent energy, followed by a 30-second waiting period, then two subsequent three-strike sets. Soft start must be implemented at the start of each day's impact pile driving and at any time following cessation of impact pile driving for a period of thirty minutes or longer.
The project team must monitor and coordinate with local marine mammal networks on a daily basis (
During Season 1, Seattle DOT carried out additional voluntary mitigation measures during pile driving and removal activities to minimize impacts from noise on the Seattle Aquarium's captive marine mammals as well as for air and water quality concerns. These measures were successfully coordinated and implemented, and Seattle DOT will implement the same measures during Season 2 work, as follows:
1. If aquarium animals are determined by the Aquarium veterinarian to be distressed, Seattle DOT will coordinate with Aquarium staff to determine appropriate next steps, which may include suspending pile driving work for 30 minutes, provided that suspension does not pose a safety issue for the Pier 62 project construction crews.
2. Seattle DOT will make reasonable efforts to take at least one regularly scheduled 20-minute break in pile driving each day.
3. Seattle DOT will regularly communicate with the Aquarium staff when pile driving is occurring.
4. Seattle DOT will further coordinate with the Aquarium to determine appropriate methods to avoid and minimize impacts to water quality.
5. Seattle DOT does not anticipate the project resulting in impacts associated with airborne dust. If, during construction, odors associated with the project are an issue, Seattle DOT will coordinate with its contractor to determine appropriate mitigation measures.
Based on our evaluation of the applicant's mitigation measures, as well as other measures considered by NMFS, NMFS has determined that the mitigation measures provide the means of effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
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 will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the action area. Effective reporting is critical both to 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.
Marine mammal monitoring must be conducted at all times during in-water pile driving and pile removal activities
During pile removal or installation with a vibratory hammer, three to four monitors would be used, positioned such that each monitor has a distinct view-shed and the monitors collectively have overlapping view-sheds (refer to Appendix A, Figures 1-3 of the Seattle DOT's application).
During pile driving activities with an impact hammer, one monitor must be based at or near the construction site, and in addition, two to three additional monitors would be used, positioned such that each monitor has a distinct view-shed and the monitors collectively have overlapping view-sheds (refer to Appendix A, Figures 1-3 of the Seattle DOT's application).
In the case(s) where visibility becomes limited, additional land-based monitors and/or boat-based monitors may be deployed.
Monitors must record take when marine mammals enter the relevant Level B Harassment/Monitoring Zones based on type of construction activity.
If a marine mammal approaches or enters the Shutdown Zone during activities or pre-activity monitoring, all pile driving or removal activities at that location must be halted or delayed, respectively. If pile driving or removal is halted or delayed due to the presence of a marine mammal, the activity may not resume or commence until either the animal has voluntarily left and been visually confirmed beyond the Shutdown Zone or 15 minutes have passed without re-detection of the animal. 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.
Seattle DOT must employ NMFS-approved protected species observers (PSOs) to conduct marine mammal monitoring for its Pier 62 Project. The PSOs must observe and collect data on marine mammals in and around the project area for 30 minutes before, during, and for 30 minutes after all pile removal and pile installation work. NMFS-approved PSOs must meet the following requirements:
1. Independent PSOs (
2. At least one PSO must have prior experience working as a marine mammal observer during construction activities.
3. Other PSOs may substitute education (degree in biological science or related field) or training for experience.
4. Where a team of three or more PSOs are required, one observer should be designated as lead observer or monitoring coordinator. The lead observer must have prior experience working as a marine mammal observer during construction.
5. NMFS must require submission and approval of observer CVs.
Seattle DOT must ensure that observers have the following additional qualifications:
1. Ability to conduct field observations and collect data according to assigned protocols.
2. Experience or training in the field identification of marine mammals, including the identification of behaviors.
3. Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations.
4. 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, times, and reason for implementation of mitigation (or why mitigation was not implemented when required); and marine mammal behavior.
5. 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.
PSOs must monitor marine mammals around the construction site using high-quality binoculars (
1. Date and time that monitored activity begins or ends for each day conducted (monitoring period);
2. Construction activities occurring during each observation period, including how many and what type of piles driven;
3. Deviation from initial proposal in pile numbers, pile types, average driving times, etc.
4. Weather parameters in each monitoring period (
5. Water conditions in each monitoring period (
6. For each marine mammal sighting:
a. Species, numbers, and, if possible, sex and age class of marine mammals;
b. Description of any observable marine mammal behavior patterns, including bearing and direction of travel and distance from pile driving or removal activity;
c. Location and distance from pile driving or removal activities to marine mammals and distance from the marine mammals to the observation point; and
d. Estimated amount of time that the animals remained in the Level B Harassment Zone.
7. Description of implementation of mitigation measures within each monitoring period (
8. Other human activity in the area within each monitoring period
9. A summary of the following:
a. Total number of individuals of each species detected within the Level B Harassment/Monitoring Zone, and estimated as taken if correction factor appropriate.
b. Total number of individuals of each species detected within the Shutdown Zone and the average amount of time that they remained in that zone.
c. Daily average number of individuals of each species (differentiated by month as appropriate) detected within the Level B Harassment/Monitoring Zone, and estimated as taken, if appropriate.
In addition, acoustic monitoring must occur on up to six days per in-water work season to evaluate, in real time, sound production from construction activities and must capture all hammering scenarios that may occur under the planned project.
The results and conclusions of the acoustic monitoring must be summarized and presented to NMFS with recommendations on any modifications to this plan or Shutdown Zones.
Seattle DOT must submit a draft marine mammal monitoring report within 90 days after completion of the in-water construction work, the expiration of the IHA, or 60 days prior to the requested date of issuance of any subsequent IHA, whichever is earliest. The report would include data from marine mammal sightings as described: Date, time, location, species, group size, and behavior, any observed reactions to construction, distance to operating pile hammer, and construction activities
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 (Level A harassment), serious injury, or mortality, Seattle DOT would immediately cease the specified activities and immediately report the incident to the Permits and Conservation Division, Office of Protected Resources, NMFS and the NMFS' West Coast Stranding Coordinator. The report must include the following information:
• Time, date, and location (latitude/longitude) of the incident;
• Name and type of vessel involved;
• Vessel's speed during and leading up to the incident;
• Description of the incident;
• Status of all sound source use in the 24 hrs preceding the incident;
• Water depth;
• Environmental conditions (
• Description of all marine mammal observations in the 24 hrs preceding the incident;
• Species identification or description of the animal(s) involved;
• Fate of the animal(s); and
• Photographs or video footage of the animal(s) (if equipment is available).
Activities would not resume until NMFS is able to review the circumstances of the prohibited take. NMFS would work with Seattle DOT to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. Seattle DOT may not resume their activities until notified by NMFS via letter, email, or telephone.
In the event that Seattle DOT 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 Seattle DOT 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 (
Seattle DOT must submit an Acoustic Monitoring Report within 90 days after completion of the in-water construction work or the expiration of the IHA, whichever comes earlier. The report must provide details on the monitored piles, method of installation, monitoring equipment, and sound levels documented during both the sound source measurements and the background monitoring. NMFS must have an opportunity to provide comments on the report or changes in monitoring for a third season (if needed), and if NMFS has comments, Seattle DOT must address the comments and submit a final report to NMFS within 30 days. If no comments are received from NMFS within 30 days, the draft report must be considered final. Any comments received during that time must be addressed in full prior to finalization of the report.
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 (
No serious injury or mortality is anticipated or authorized for the Pier 62 Project (Season 2). Takes that are anticipated and authorized are expected to be limited to short-term Level A and Level B (behavioral) harassment. Marine mammals present in the vicinity of the action area and taken by Level A and Level B harassment would most likely show overt brief disturbance (startle reaction) and avoidance of the area from elevated noise levels during pile driving and pile removal. However, many marine mammals showed no observable changes during Season 1 of the Pier 62 project and similar project activities for the EBSP.
A fair number of instances of takes are expected to be repeat takes of the same animals. This is particularly true for harbor porpoise, because they generally use sub-regions of Puget Sound, and the abundance of the Seattle sub-region from the Puget Sound Study was estimated to be 147 animals, which is much lower than the calculated take. Very few harbor porpoises have been observed during past projects in Elliott Bay (ranging from one to five harbor porpoises).
There are two endangered species that may occur in the project area,
There is ESA-designated critical habitat in the vicinity of Seattle DOT's Pier 62 Project for SRKW. However, this IHA is authorizing the harassment of marine mammals, not the production of sound, which is what would result in adverse effects to critical habitat for SRKW.
There is one documented harbor seal haulout area near Bainbridge Island, approximately 6 miles (9.66 km) from Pier 62. The haulout, which is estimated at less than 100 animals, consists of intertidal rocks and reef areas around Blakely Rocks and is at the outer edge of potential effects at the outer extent near Bainbridge Island (Jefferies
The project also is not expected to have significant adverse effects on affected marine mammal habitat, as analyzed in the “Potential Effects of Specified Activities on Marine Mammals and their Habitat” section. Project activities would not permanently modify existing marine mammal habitat. The activities may kill some fish and cause other fish to leave the area temporarily, thus impacting marine mammals' foraging opportunities in a limited portion of the foraging range; but, because of the short duration of the activities and the relatively small area of the habitat that may be affected, the impacts to marine mammal habitat are not expected to cause significant or long-term negative consequences. Therefore, given the consideration of potential impacts to marine mammal prey species and their physical environment, Seattle DOT's Pier 62 Project would not adversely affect marine mammal habitat.
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 stocks through effects on annual rates of recruitment or survival:
• No serious injury or mortality is anticipated or authorized.
• Takes that are anticipated and authorized are expected to be limited to short-term Level B harassment (behavioral) and a small number of takes of Level A harassment for three species.
• The project also is not expected to have significant adverse effects on affected marine mammals' habitat.
• There are no known important feeding or pupping areas. There are haulouts for California sea lions, harbor seals and Steller sea lions. However, they are at the most outer edge of the potential effects and approximately 6.6 miles from Pier 62. There are no other known important areas for marine mammals.
• For nine of the twelve species, take is less than one percent of the stock abundance. Instances of take for the other three species (harbor seals, killer whales, and harbor porpoise) range from about 15-28 percent of the stock abundance. One occurrence of J-pod of SRKW would account for 28 percent of the stock abundance. However, when the fact that a fair number of these instances are expected to be repeat takes of the same animals is considered, particularly for harbor porpoise, the number of individual marine mammals taken is significantly lower.
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 planned activity will have a negligible impact on all affected marine mammal species or stocks.
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 factors may be considered in the analysis, such as the temporal or spatial scale of the activities.
Take of nine of the twelve species is less than one percent of the stock abundance. Instances of take for the SRKW and transient killer whales, harbor seals, and harbor porpoise ranges from about 15-28 percent of the stock abundance, all of which NMFS has determined comprise small numbers of these stocks. Additionally, when the fact that a fair number of these instances are expected to be repeat takes of the same animals is considered, the number of individual marine mammals taken is significantly lower. Specifically, Smultea
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 would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
Section 7(a)(2) of the ESA of 1973 (16 U.S.C. 1531
The Permit and Conservation Division consulted under section 7 of the ESA with the WCRO for the issuance of this IHA. The WCRO concluded that the take of marine mammals authorized here is not likely to jeopardize the continued existence of SRKW and humpback whales and will not result in the destruction or adverse modification of designated critical habitat.
NMFS has issued an IHA to the Seattle DOT for the harassment of small numbers of marine mammals incidental to pile driving and removal activities for the Pier 62 Project (Season 2) within Elliott Bay, Seattle, Washington from August 1, 2018 to February 28, 2019, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated.
Department of the Army, DoD.
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 Advisory Committee on Arlington National Cemetery will take place.
The Committee will meet on Friday, September 7, 2018 from 10:30 a.m. to 2:00 p.m.
The Committee will meet in the Welcome Center Conference Room, Arlington National Cemetery, Arlington, VA 22211.
Mr. Timothy Keating, Alternate Designated Federal Officer for the Committee, 1-877-907-8585 (Voice), (703) 607-8551 (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.
Department of the Army, DoD.
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 Advisory Committee on Arlington National Cemetery, Honor Subcommittee and Remember and Explore Subcommittee will take place.
The Honor subcommittee will meet on Wednesday September 5, 2018 from 9:00 a.m. to 12:00 p.m. The Remember and Explore subcommittee will meet on Thursday September 6, 2018 from 8:30 a.m. to 10:30 a.m.
The Honor Subcommittee will meet in the Conference Room of the Spates Community Conference Center, Joint Base Myer—Henderson Hall, 214 McNair Road, Fort Myer, VA 22211. The Remember and Explore Subcommittee will meet in the Welcome Center Conference Room, Arlington National Cemetery, Arlington, VA 22211.
Mr. Timothy Keating, Alternate Designated Federal Officer for the Committee, 1-877-907-8585 (Voice), (703) 607-8551 (Facsimile),
These subcommittee meetings are 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 primary purpose of the Honor subcommittee is to accomplish an independent assessment of methods to address the long-term future of the Army national cemeteries, including how best to extend the active burials and what ANC should focus on once all available space is used.
The primary purpose of the Remember & Explore Subcommittee is to recommend methods to maintain the Tomb of the Unknown Soldier Monument, including the cracks in the large marble sarcophagus, the adjacent marble slabs, and the potential replacement marble stone for the sarcophagus already gifted to the Army; accomplish an independent assessment of requests to place commemorative monuments; and identify means to capture and convey ANC's history, including Section 60 gravesite mementos, and improve the quality of visitors' experiences now and for generations to come.
The Remember and Explore subcommittee will receive an update regarding ongoing maintenance efforts for the Memorial Amphitheater and review current requests for placement of commemorative monuments within ANC.
Defense Security Cooperation Agency, Department of Defense.
Arms sales notice.
The Department of Defense is publishing the unclassified text of an arms sales notification.
DSCA at
This 36(b)(5)(C) arms sales notification is published to fulfill the requirements of section 155 of Public Law 104-164 dated July 21, 1996. The following is a copy of a letter to the Speaker of the House of Representatives, Transmittal 18-0B.
(i)
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This transmittal reports the retrofit of MQ-9s to become weapons capable, and the inclusion of 100 GBU-49 Enhanced Paveway dual mode GPS and laser guided bomb kits comprised of MXU-650 Air Foil Group (AFG) and MAU-210 Enhanced Computer Control Group (ECCG); 200 FMU-152 fuzes; 650 AGM-114R Hellfire missiles, with active warheads; 45 AGM-114R Hellfire training missiles, without active warheads; and 6 Hellfire Captive Air Training Missiles.
The retrofit and inclusion of MDE not enumerated in the original notification will result in an increase in the cost of MDE by $210 million. The total case value will increase to $1.71 billion.
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a. The AGM-114R Hellfire is a rail-launched guided missile. The guidance system employs a Semi-Active Laser (SAL) seeker and an analogue autopilot. The SAL missiles home on the laser energy reflected off a target that has been illuminated by a laser designator. The laser designator can be on either the launch platform or another platform. The Hellfire uses a pulse-coded laser illumination so that the missile will only lock on to its chosen target, and has a multi-purpose selectable warhead. The weapon system hardware, as an “all Up Round” is UNCLASSIFIED. The highest level of classified information to be disclosed regarding the AGM-114R Hellfire missile is SECRET, based upon the software.
b. The Captive Air Training Missiles (CATM) consists of a functional guidance section coupled to an inert missile bus and is used for flight training but cannot be launched. The missile has an operational SAL seeker that can search for and lock-on to laser-designated targets. It functions like a tactical missile (without launch capability) during captive carry on the aircraft, making it suitable for training aircrew in simulated Hellfire missile target acquisition and lock.
c. GBU-49 Enhanced Paveway II (EP II) is a maneuverable, free-fall Laser Guided Bomb (LGB) that guides to the target using a GPS-aided INS and dual mode laser seeker. The GBU-49 consists of an Electronic Computer Control Group (ECCG) with laser detector sensor and a warhead specific Air Foil Group (AFG) that attaches to the nose and tail of a GP bomb body respectively. The GBU-49 uses a 5001b (Mk-82 or BLU-111) GP bomb body fitted with the MXU-650 AFG and MAU-210 ECCG to guide to its laser designated target. The hardware is UNCLASSIFIED; technical data and documents are classified up to SECRET.
d. FMU-152 is the Joint Programmable Bomb Fuze; a multi-function hard/soft target fuze that is used on for multiple different Mk-series bombs. The fuze can be programmed on the wing or in flight and is used with the JDAM, Paveway, and Enhanced Paveway bombs. The hardware is UNCLASSIFIED; technical data and documents are UNCLASSIFED.
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General Counsel of the Department of Defense, Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces, Department of Defense.
Notice of Federal Advisory Committee meeting.
The Department of Defense (DoD) is publishing this notice to announce that the following Federal Advisory Committee meeting of the Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces will take place.
Open to the public Thursday August 23, 2018 from 2:00 p.m. to 4:00 p.m.
One Liberty Center, 875 N Randolph Street, Suite 1432, Arlington, Virginia 22203.
Dwight Sullivan, 703-695-1055 (Voice), 703-693-3903 (Facsimile),
Due to circumstances beyond the control of the Department of Defense (DoD) and the Designated Federal Officer, the Defense Business Board was unable to provide public notification required by 41 CFR 102-3.150(a) concerning the meeting on August 8, 2018 of the Defense Business Board. Accordingly, the Advisory Committee Management Officer for the Department of Defense, pursuant to 41 CFR 102-3.150(b), waives the 15-calendar day notification requirement. 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.
Chief Management Officer, Department of Defense.
Notice of Federal Advisory Committee meeting.
The Department of Defense (DoD) is publishing this notice to announce that the following Federal Advisory Committee meeting of the Defense Business Board (“the Board”) will take place.
Closed to the public Wednesday, August 8, 2018 from 8:00 a.m. to 1:00 p.m.
Rooms 3E155 & 3E863 in the Pentagon, Washington, DC.
Roma Laster, (703) 697-2168 (Voice), (703) 614-4365 (Facsimile),
Due to circumstances beyond the control of the Department of Defense (DoD) and the Designated Federal Officer, the Defense Business Board was unable to provide public notification required by 41 CFR 102-3.150(a) concerning the meeting on August 8, 2018 of the Defense Business Board. Accordingly, the Advisory Committee Management Officer for the Department of Defense, pursuant to 41 CFR 102-3.150(b), waives the 15-calendar day notification requirement. This meeting is being held under the provisions of the Federal Advisory Committee Act (FACA) (5 U.S.C., Appendix), the Government in the Sunshine Act (5 U.S.C. 552b), and 41 CFR 102-3.140 and 102-3.150.
The U.S.C. 552b(c)(1) determination is based on the consideration that the Secretary and the Deputy Secretary of Defense discussions will involve classified matters of national defense or foreign policy. Such classified material is so intertwined with the unclassified material that it cannot reasonably be segregated into separate discussions without disclosing secret or otherwise classified material. The 5 U.S.C. 552b(c)(4) determination is based on the fact that both the Boston Consulting Group and McKinsey & Company. Inc. will disclose commercial information that is privileged or confidential. To permit the meeting to be open to the public would preclude discussion of such matters and would greatly diminish the ultimate utility of the Board's advice and recommendations to the DoD.
Defense Security Cooperation Agency, Department of Defense.
Arms sales notice.
The Department of Defense is publishing the unclassified text of an arms sales notification.
DSCA at
This 36(b)(1) arms sales notification is published to fulfill the requirements of section 155 of Public Law 104-164 dated July 21, 1996. The following is a copy of a letter to the Speaker of the House of Representatives, Transmittal 18-07 with attached Policy Justification.
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* As defined in Section 47(6) of the Arms Export Control Act.
The Government of Bahrain has requested to buy items and services in support of Follow-On Technical Support (FOTS) for the Royal Bahrain Navy Ship SABHA (FFG-90), formerly the USS Jack Williams (FFG-24), transferred as Excess Defense Article on September 13, 1996. Also includes engineering, technical, and logistics services, documentation, and modification material for U.S. Navy supplied systems and equipment and other related elements of logistics and program support. The estimated program value is $70 million.
This proposed sale will contribute to the foreign policy and national security objectives of the United States by helping to improve the security of a regional partner which is an important security partner in the region.
Bahrain intends to use this support in order to keep the ship in operational readiness status for coastal defense and security. Bahrain will have no difficulty absorbing this support into its armed forces.
The proposed sale of this equipment and support will not alter the basic military balance in the region.
There is no prime contractor involved in this proposed sale. There are no known offset agreements proposed in connection with this potential sale.
Implementation of this proposed sale will require approximately three (3) U.S. Government and six (6) contractor representatives to travel to Bahrain for an extended period for equipment fielding, systems checkout, training and technical and logistics support.
There will be no adverse impact on U.S. defense readiness as a result of this proposed sale.
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice; correction.
The notice of an open meeting scheduled for August 30, 2018 published in the
The Inland Waterways Users Board will meet from 1:00 p.m. to 5:00 p.m. on August 28, 2018. Public registration will begin at 12:15 p.m.
Mr. Mark R. Pointon, the Designated Federal Officer (DFO) for the committee, in writing at the Institute for Water Resources, U.S. Army Corps of Engineers, ATTN: CEIWR-GM, 7701 Telegraph Road, Casey Building, Alexandria, VA 22315-3868; by telephone at 703-428-6438; and by email at
None.
Session 1: 9:00 a.m.-9:50 a.m., Session 2: 10:00 a.m.-11:30 a.m., Session 3: 11:30 a.m.-12:30 p.m., August 28, 2018.
625 Indiana Avenue, Room 352, Washington, DC 20004.
Open. While the Government in the Sunshine Act does not require that the scheduled hearing be conducted in a meeting, the Defense Nuclear Facilities Safety Board has determined that an open meeting and hearing furthers the public interests underlying both the Government in the Sunshine Act and the Board's enabling legislation.
Pursuant to the provisions of the “Government in the Sunshine Act” (5 U.S.C. 552b), and as authorized by 42 U.S.C. 2286b, notice is hereby given of the Board's public hearing on August 28, 2018. The goal for the hearing is to gather information on (1) the objectives of and intended improvements to be accomplished by DOE Order 140.1, Interface with the Defense Nuclear Facilities Safety Board; (2) DNFSB access to information, facilities, and personnel; and (3) potential impacts to the DNFSB resident inspector program.
In session 1, the Board will hear the Secretary of Energy's (or his designee's) position on interface between the DNFSB and DOE. The Board and the Secretary of Energy will discuss the objectives and intended improvements for accomplishment through the development of Order 140.1. In session 2, the Board will hear testimony regarding access to information, facilities, and personnel including potential impacts to the DNFSB resident inspector program. The Board and the panel of participants will discuss changes in access to information, facilities, and personnel as a result of DOE Order 140.1; intended changes from the DOE interface manual to the Order and execution challenges; and potential impacts to the DNFSB resident inspector program as a result of DOE Order 140.1.
The agenda for the hearing is posted on the Board's website (
The hearing will be presented live through internet video streaming. A link to the presentation will be available on the Board's website, and a recording will be posted soon after. A transcript of these sessions and the associated correspondence will be made available on the Board's website. The Board specifically reserves its right to further schedule and otherwise regulate the course of the hearing, to recess, reconvene, postpone, or adjourn the hearing, conduct further reviews, and otherwise exercise its authority under the Atomic Energy Act of 1954, as amended.
Office of Postsecondary Education (OPE), 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 October 9, 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 Sara Starke, 202-453-7681.
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 Elementary and Secondary Education, Department of Education.
Supplemental notice.
On June 26, 2018, we published in the
Ms. 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.
On June 26, 2018 we published in the
Applicants that have already submitted timely applications may resubmit their applications but are not required to do so.
Applicants must submit their applications in
All information in the NIA remains the same.
You may also access documents of the Department published in the
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 a currently approved information collection.
Interested persons are invited to submit comments on or before September 10, 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 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 Fossil Energy, DOE.
Notice of application.
The Office of Fossil Energy (FE) of the Department of Energy (DOE) gives notice of receipt of an application (Application), filed on June 18, 2018, by Mexico Pacific Limited LLC (MPL). MPL requests long-term, multi-contract authorization to export domestically produced natural gas in a volume equivalent to 12 million metric tons per annum of liquefied natural gas (LNG)—or approximately 621 billion cubic feet (Bcf) per year (1.7 Bcf per day) of natural gas. Specifically, MPL seeks to export this natural gas to its proposed LNG production and storage facility to be constructed in the state of Sonora, Mexico (MPL Facility), using existing cross-border natural gas transmission pipelines. At the MPL Facility, MPL plans to liquefy the U.S.-sourced natural gas into LNG. MPL requests authorization to export the U.S.-sourced LNG by vessel from Mexico to any country with which the United States does not have a free trade agreement (FTA) requiring national treatment for trade in natural gas, and with which trade is not prohibited by U.S. law or policy (non-FTA countries). Only MPL's proposed export of LNG produced from U.S.-sourced natural gas to non-FTA countries is subject to this Notice. MPL requests this non-FTA authorization for a 20-year term to commence on the earlier of the date of first export or five years from date of the requested authorization. MPL requests this authorization on its own behalf and as agent for other entities who hold title to the LNG at the time of export. MPL filed the Application under section 3 of the Natural Gas Act (NGA). Additional details can be found in MPL's Application, posted on the DOE/FE website at:
Protests, motions to intervene or notices of intervention, as applicable, requests for additional procedures, and written comments are to be filed using procedures detailed in the Public Comment Procedures section no later than 4:30 p.m., Eastern time, October 9, 2018.
Benjamin Nussdorf or Larine Moore, U.S. Department of Energy (FE-34), Office of Regulation and International Engagement, Office of Fossil Energy, Forrestal Building, Room 3E-042, 1000 Independence Avenue SW, Washington, DC 20585, (202) 586-7970; (202) 586-9478.
Cassandra Bernstein or Ronald (R.J.) Colwell, U.S. Department of Energy (GC-76), Office of the Assistant General Counsel for Electricity and Fossil Energy, Forrestal Building, 1000 Independence Avenue SW, Washington, DC 20585, (202) 586-9793; (202) 586-8499.
In the Application, MPL requests authorization to export U.S.-sourced natural gas in the form of LNG from the proposed MPL Facility, to be located in Mexico, to both FTA countries and non-FTA countries. This Notice applies only to the non-FTA portion of the Application filed under section 3(a) of the NGA, 15 U.S.C. 717b(a). DOE/FE will review MPL's request for a FTA export authorization separately
In reviewing this Application, DOE will consider any issues required by law or policy. DOE will consider domestic need for the natural gas, as well as any other issues determined to be appropriate, including whether the arrangement is consistent with DOE's policy of promoting competition in the marketplace by allowing commercial parties to freely negotiate their own trade arrangements. As part of this analysis, DOE will consider one or more of the following studies examining the cumulative impacts of exporting domestically produced LNG:
•
•
•
Additionally, DOE will consider the following environmental documents:
•
•
Parties that may oppose this Application should address these issues and documents in their comments and/or protests, as well as other issues deemed relevant to the Application.
The National Environmental Policy Act (NEPA), 42 U.S.C. 4321
In response to this Notice, any person may file a protest, comments, or a motion to intervene or notice of intervention, as applicable. Interested parties will be provided 60 days from the date of publication of this Notice in which to submit comments, protests, motions to intervene, or notices of intervention.
Any person wishing to become a party to the proceeding must file a motion to intervene or notice of intervention. The filing of comments or a protest with respect to the Application will not serve to make the commenter or protestant a party to the proceeding, although protests and comments received from persons who are not parties will be considered in determining the appropriate action to be taken on the Application. All protests, comments, motions to intervene, or notices of intervention must meet the requirements specified by the regulations in 10 CFR part 590.
Filings may be submitted using one of the following methods: (1) Emailing the filing to
A decisional record on the Application will be developed through responses to this notice by parties, including the parties' written comments and replies thereto. Additional procedures will be used as necessary to achieve a complete understanding of the facts and issues. If an additional procedure is scheduled, notice will be provided to all parties. If no party requests additional procedures, a final Opinion and Order may be issued based on the official record, including the Application and responses filed by parties pursuant to this notice, in accordance with 10 CFR 590.316.
The Application is available for inspection and copying in the Office of Regulation and International Engagement docket room, Room 3E-042, 1000 Independence Avenue SW, Washington, DC 20585. The docket room is open between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays. The Application and any filed protests, motions to intervene or notice of interventions, and comments will also be available electronically by going to the following DOE/FE web address:
U.S. Energy Information Administration (EIA), Department of Energy (DOE).
Notice and request for comments.
EIA requests a three-year extension, with changes, to the Oil and Gas Reserves System Survey Program as required by the Paperwork Reduction Act of 1995. This survey system includes: Form EIA-64A,
EIA must receive all comments on this proposed information collection no later than October 9, 2018. If you anticipate difficulties in submitting your comments by the deadline, contact the person listed in the below
Send your comments to Steven Grape, U.S. Energy Information Administration, 1000 Independence Avenue SW, EI-24 Washington, DC 20585.
Requests for additional information or copies of the information collection instrument and instructions should be directed to Steven Grape, telephone 202-586-1868, fax at (202) 586-4420, or by email at
This information collection request contains:
(1)
(2)
(3)
(4)
Congress and other federal agencies rely on the objective analysis, quality, reliability, and usefulness of EIA's crude oil and natural gas reserves estimates. These federal agencies include: The U.S. Department of Energy; Bureau of Ocean Energy Management, Department of Interior; Internal Revenue Service, Department of the Treasury; and the Securities and Exchange Commission. Each federal agency uses EIA's estimates on proved reserves for their official use to meet their data needs. EIA's published estimates on proved reserves of domestic crude oil and natural gas are essential to the development, implementation, and evaluation of energy policy and legislation. There are no proposed changes to Forms EIA-23L and EIA-23S.
(4a)
• Section 2. Add Item 2.1 to collect the total outlet volume of residue natural gas produced and add Item 2.3 to collect the volume of residue natural gas sent to a pipeline. Add Item 2.4: The amount of electricity consumed annually at the natural gas plant. The number of natural gas processing plants that are 100% electrically-powered is increasing. Federal air quality restrictions imposed on sources of combustion emissions is one reason for the increasing trend in using electricity as a power source rather than relying on natural gas as a fuel for processing and other plant operations.
• Section 3.0, Add Item 3.1C: The annual total of natural gas liquids (NGL) reported separately by components or products produced at the natural gas processing plant by Area of Origin in Section 3 of Form EIA-64A. Currently, only the total plant NGL volume shown on Line 4.8 is reported by Area of Origin.
• Delete the data element Gas Shrinkage Resulting from Natural Gas Liquids Extracted currently shown as Item 5.0 on Form EIA-64A. Respondents currently report their estimate of the volumes of gas shrinkage in millions of cubic feet (MMCF) caused from the removal of natural gas liquids from the natural gas received at the plant. Respondents will no longer need to report this information. The shrinkage volumes for a respondent will be calculated by EIA using the component data reported in Section 3.
• The burden per response for Form EIA-64A changed from 6 hours to 4 hours. Cognitive research showed that the weighted average time estimate to gather and report information on the proposed modified new Form EIA-64A was less than 3 hours. The majority of the information reported on this form is information that companies customarily track in the normal course of their business activities. Some companies may take longer than 3 hours to complete Form EIA-64A so EIA extended the burden per response estimate to 4 hours to account for some companies that may require additional time.
The mode of reporting information will also change. Operators will be required to log in to the
(5)
(6)
(7)
(8)
Comments are invited on these proposed changes and: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
15 U.S.C. 772(b), 15 U.S.C. 790(a), and the DOE Organization Act of 1977, 42 U.S.C. 7101
This is a supplemental notice in the above-referenced proceeding of Crazy Mountain Wind LLC's application for market-based rate authority, with an accompanying rate tariff, noting that
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is August 27, 2018.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the website that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
k. With this notice, we are initiating informal consultation with: (a) The U.S. Fish and Wildlife Service and/or NOAA Fisheries under section 7 of the Endangered Species Act and the joint agency regulations thereunder at 50 CFR, Part 402 and (b) the State Historic Preservation Officer, as required by section 106, National Historic Preservation Act, and the implementing regulations of the Advisory Council on Historic Preservation at 36 CFR 800.2.
l. With this notice, we are designating Alabama Power as the Commission's non-federal representative for carrying out informal consultation, pursuant to section 7 of the Endangered Species Act and section 106 of the National Historic Preservation Act.
m. Alabama Power filed with the Commission a Pre-Application Document (PAD; including a proposed process plan and schedule), pursuant to 18 CFR 5.6 of the Commission's regulations.
n. A copy of the PAD is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's website (
Register online at
o. With this notice, we are soliciting comments on the PAD and Commission staff's Scoping Document 1 (SD1), as well as study requests. All comments on the PAD and SD1, and study requests should be sent to the address above in paragraph h. In addition, all comments on the PAD and SD1, study requests, requests for cooperating agency status, and all communications to and from Commission staff related to the merits of the potential application must be filed with the Commission.
The Commission strongly encourages electronic filing. Please file all documents using the Commission's eFiling system at
All filings with the Commission must bear the appropriate heading: “Comments on Pre-Application Document,” “Study Requests,” “Comments on Scoping Document 1,” “Request for Cooperating Agency Status,” or “Communications to and from Commission Staff.” Any individual or entity interested in submitting study requests, commenting on the PAD or SD1, and any agency requesting cooperating status must do so by September 29, 2018.
p. We intend to prepare either an environmental assessment (EA) or Environmental Impact Statement (EIS). The meetings listed below will satisfy the NEPA scoping requirements, irrespective of whether an EA or EIS is issued by the Commission.
Commission staff will hold two scoping meetings in the vicinity of the project at the times and places noted below. The daytime meeting will focus on resource agency, Indian tribes, and non-governmental organization concerns, while the evening meeting is primarily for receiving input from the public. We invite all interested individuals, organizations, and agencies to attend one or both of the meetings, and to assist staff in identifying particular study needs, as well as the scope of environmental issues to be addressed in the environmental document. The times and locations of these meetings are as follows:
Please RSVP to
Scoping Document 1 (SD1), which outlines the subject areas to be addressed in the environmental document, was mailed to the individuals and entities on the Commission's mailing list. Copies of SD1 will be available at the scoping meetings, or may be viewed on the web at
The potential applicant and Commission staff will conduct an Environmental Site Review (site visit) of the project on Tuesday, August 28, 2018, starting at 9:00 a.m., and ending at or about 4:30 p.m. All participants should meet at the R.L. Harris Dam located at 2761 County Road 100, Lineville, AL 36266. Directions to the R.L. Harris Dam are available at
At the scoping meetings, staff will: (1) Initiate scoping of the issues; (2) review and discuss existing conditions and resource management objectives; (3) review and discuss existing information and identify preliminary information and study needs; (4) review and discuss the process plan and schedule for pre-filing activity that incorporates the time frames provided for in Part 5 of the Commission's regulations and, to the extent possible, maximizes coordination of federal, state, and tribal permitting and certification processes; and (5) discuss the appropriateness of any federal or state agency or Indian tribe acting as a cooperating agency for development of an environmental document.
Meeting participants should come prepared to discuss their issues and/or concerns. Please review the PAD in preparation for the scoping meetings. Directions on how to obtain a copy of the PAD and SD1 are included in item n. of this document.
The meetings will be recorded by a stenographer and will be placed in the public records of the project.
This is a supplemental notice in the above-referenced proceeding of Stillwater Wind, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is August 27, 2018.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's
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:
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following public utility holding company 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 a New System of Records; correction.
The Environmental Protection Agency's (EPA) Office of Environmental Information (OEI), Office of Enterprise Information Programs (OEIP), eDiscovery Division, published a document in the
Brian K. Thompson, Acting Director, 202-564-4256.
In the
Persons wishing to comment on this system of records notice must do so by August 27, 2018. If no comments are received, the systems of records notice will become effective by August 27, 2018.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) is planning to submit the information collection request (ICR), Identification, Listing and Rulemaking Petitions (Renewal) (EPA ICR No. 1189.27, OMB Control No. 2050-0053) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (PRA). Before doing so, the EPA is soliciting public comments on specific aspects of the proposed information collection as described below. This is a proposed extension of the ICR, which is currently approved through November 30, 2018. The burden associated with 2015 Coal Combustion Residuals final rule (CCR) is being moved from this ICR into a separate ICR entitled “Disposal of Coal Combustion Residuals from Electric Utilities” (EPA ICR No. 2571.01, OMB Control No. 2050-NEW). An Agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
Comments must be submitted on or before October 9, 2018.
Submit your comments, referencing by Docket ID No. EPA-HQ-OLEM-2018-0534, online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
Narendra Chaudhari, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: 703-308-0454; fax number: 703-308-0514; email address:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Pursuant to section 3506(c)(2)(A) of the PRA, the EPA is soliciting comments and information to enable it to: (i) 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; (ii) 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; (iii) enhance the quality, utility, and clarity of the information to be collected; and (iv) 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,
40 CFR parts 260 and 261 contain provisions that allow regulated entities to apply for petitions, variances, exclusions, and exemptions from various RCRA requirements.
The following are some examples of information required from petitioners under 40 CFR part 260. Under 40 CFR 260.20(b), all rulemaking petitioners must submit basic information with their demonstrations, including name, address, and statement of interest in the proposed action. Under § 260.21, all petitioners for equivalent testing or analytical methods must include specific information in their petitions and demonstrate to the satisfaction of the Administrator that the proposed method is equal to, or superior to, the corresponding method in terms of its sensitivity, accuracy, and reproducibility. Under § 260.22, petitions to amend part 261 to exclude a waste produced at a particular facility (more simply, to delist a waste) must meet extensive informational requirements. When a petition is submitted, the Agency reviews materials, deliberates, publishes its tentative decision in the
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) is planning to submit the information collection request (ICR), National Minimum Criteria for Disposal of Coal Combustion Residuals from Electric Utilities (EPA ICR No. 2571.01, OMB Control No. 2050-NEW) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (PRA). Before doing so, the EPA is soliciting public comments on specific aspects of the proposed information collection as described below. The burden associated with this ICR was previously covered by the Identification, Listing and Rulemaking Petitions ICR (EPA ICR No. 1189.26, OMB Control No. 2050-0053) and is currently approved through November 30, 2018. An Agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
Comments must be submitted on or before October 9, 2018.
Submit your comments, referencing by Docket ID No. EPA-HQ-OLEM-2018-0082, online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other
Kirsten Hillyer, Office of Resource Conservation and Recovery (mail code 5304P), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: 703-347-0369; fax number: 703-308-0514; email address:
Supporting documents which explain in detail the information the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Pursuant to section 3506(c)(2)(A) of the PRA, the EPA is soliciting comments and information to enable it to: (i) 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; (ii) 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; (iii) enhance the quality, utility, and clarity of the information to be collected; and (iv) 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,
In December 2016, the President signed the Water Infrastructure Improvements for the Nation (WIIN) Act. The WIIN Act amended RCRA Subtitle D and established new statutory provisions applicable to CCR landfills and CCR surface impoundments. In particular, the WIIN Act provides that states may, but are not required to, develop and submit a permit (or other system of prior approval) program for CCR disposal to EPA for approval. Such a program does not have to be identical to the requirements in the CCR rule (40 CFR part 257, subpart D), but must be at least as protective as the CCR rule. EPA developed an interim final guidance document that provides information about the provisions of the 2016 WIIN Act related to CCR as well as the process and procedures EPA will generally use to review and make determinations on state CCR permit programs. The release of this interim final guidance was announced on August 15, 2017 (82 FR 38685), and EPA accepted public comment for thirty days.
On June 14, 2016, the U.S. Court of Appeals for the District of Columbia (D.C. Circuit) ordered a partial vacatur. As a consequence of the vacatur, EPA published a direct final rule on August 5, 2016 (81 FR 51802), to remove 40 CFR 257.100(b), (c), and (d), which provided “early closure” provisions for certain inactive CCR surface impoundments. It also extended compliance deadlines for those units.
On July 17, 2018, EPA signed a rule to finalize certain revisions to the 2015 CCR regulations to: provide states with approved CCR permit programs under the WIIN Act, or EPA where EPA is the permitting authority, the ability to use alternate performance standards; to revise the groundwater protection standard for constituents which do not have an established drinking water standard (known as a maximum contaminant level or MCL); and to provide facilities triggered into closure additional time to cease receiving waste and initiate closure.
Environmental Protection Agency (EPA).
Notice of a final decision on a UIC no migration petition.
Notice is hereby given that an exemption to the Land Disposal Restrictions, under the 1984 Hazardous and Solid Waste Amendments to the Resource Conservation and Recovery Act, has been granted to Innophos for two Class I hazardous waste injection wells located at their Geismar, Louisiana facility. The company has adequately demonstrated to the satisfaction of the EPA by the petition application and supporting documentation that, to a reasonable degree of certainty, there will be no migration of hazardous constituents from the injection zone for as long as the waste remains hazardous. This final decision allows the underground injection by Innophos of the specific restricted hazardous wastes identified in this exemption request, into Class I hazardous waste injection wells DW#1 and DW#2 until July 12, 2048, unless
This action is effective as of July 12, 2018.
Copies of the petition and all pertinent information relating thereto are on file at the following location: Environmental Protection Agency, Region 6, Water Division, Safe Drinking Water Branch (6WQ-S), 1445 Ross Avenue, Dallas, Texas 75202-2733.
Philip Dellinger, Chief Ground Water/UIC Section, EPA—Region 6, telephone (214) 665-8324.
Environmental Protection Agency (EPA).
Notice.
In accordance with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), EPA is issuing a notice of receipt of requests by the registrants to voluntarily cancel certain pesticide product registrations and to amend certain product registrations to terminate uses. EPA intends to grant these requests at the close of the comment period for this announcement unless the Agency receives substantive comments within the comment period that would merit its further review of the requests, or unless the registrants withdraw their requests. If these requests are granted, any sale, distribution, or use of products listed in this notice will be permitted after the registrations have been cancelled and uses terminated only if such sale, distribution, or use is consistent with the terms as described in the final order.
Comments must be received on or before September 10, 2018.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2018-0014, by one of the following methods:
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Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
Christopher Green, Information Technology and Resources Management Division (7502P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; telephone number: (703) 347-0367; email address:
This action is directed to the public in general, and may be of interest to a wide range of stakeholders including environmental, human health, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. Since others also may be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action.
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2.
This notice announces receipt by EPA of requests from pesticide registrants to cancel certain pesticide products and amend product registrations to terminate certain uses. The affected products and the registrants making the requests are identified in Tables 1, 1A, 2 & 3 of this unit. The cancellations of the two triforine products, EPA Reg. Nos. 239-2435 and 82534-1, are the last registered products containing this active ingredient. The cancellation of the ten siduron products listed in Table 1A, are the last registered products containing this active ingredient.
Unless a request is withdrawn by the registrant or if the Agency determines that there are substantive comments that warrant further review of this request, EPA intends to issue an order in the
The registrants for the pesticide product registrations listed in Table 1A have requested to the Agency via letter, that the cancellations become effective December 31, 2020.
The registrant for the pesticide product registration listed in Table 1B has requested to the Agency via letter, that the cancellation becomes effective at the federal level on December 31, 2018.
Table 3 of this unit includes the names and addresses of record for the registrants of the products listed in Table 1, Table 1A, Table 1B and Table 2 of this unit, in sequence by EPA company number. This number corresponds to the first part of the EPA registration numbers of the products listed in Table 1, Table 1A, Table 1B and Table 2 of this unit.
Section 6(f)(1) of FIFRA (7 U.S.C. 136d(f)(1)) provides that a registrant of a pesticide product may at any time request that any of its pesticide registrations be canceled or amended to terminate one or more uses. FIFRA further provides that, before acting on the request, EPA must publish a notice of receipt of any such request in the
Section 6(f)(1)(B) of FIFRA (7 U.S.C. 136d(f)(1)(B)) requires that before acting on a request for voluntary cancellation, EPA must provide a 30-day public comment period on the request for voluntary cancellation or use termination. In addition, FIFRA section 6(f)(1)(C) (7 U.S.C. 136d(f)(1)(C)) requires that EPA provide a 180-day comment period on a request for voluntary cancellation or termination of any minor agricultural use before granting the request, unless:
1. The registrants request a waiver of the comment period, or
2. The EPA Administrator determines that continued use of the pesticide would pose an unreasonable adverse effect on the environment.
The registrants listed in Table 3 of Unit II have requested that EPA waive the 180-day comment period. Accordingly, EPA will provide a 30-day comment period on the proposed requests.
Registrants who choose to withdraw a request for product cancellation or use termination should submit the withdrawal in writing to the person listed under
Existing stocks are those stocks of registered pesticide products that are currently in the United States and that were packaged, labeled, and released for shipment prior to the effective date of the action. If the requests for voluntary cancellation and amendments to terminate uses are granted, the Agency intends to publish the cancellation order in the
In any order issued in response to these requests for cancellation of product registrations and for amendments to terminate uses, EPA proposes to include the following provisions for the treatment of any existing stocks of the products listed in Tables 1, 1A, 1B and 2 of Unit II.
The registrant has requested to the Agency via letter, an 18-month sell thru period.
For all other voluntary product cancellations, identified in Table 1, Table 1A and Table 1B of Unit II, registrants will be permitted to sell and distribute existing stocks of voluntarily canceled products for 1 year after the effective date of the cancellation, which will be the date of publication of the cancellation order in the
Once EPA has approved product labels reflecting the requested amendments to terminate uses, identified in Table 2 of Unit II, registrants will be permitted to sell or distribute products under the previously approved labeling for a period of 18 months after the date of
Persons other than the registrant may sell, distribute, or use existing stocks of canceled products and products whose labels include the terminated uses until supplies are exhausted, provided that such sale, distribution, or use is consistent with the terms of the previously approved labeling on, or that accompanied, the canceled products and terminated uses.
7 U.S.C. 136
Section 309(a) of the Clean Air Act requires that EPA make public its comments on EISs issued by other Federal agencies. EPA's comment letters on EISs are available at:
Environmental Protection Agency (EPA).
Notice; request for public comment.
In accordance with the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (“CERCLA”), notice is hereby given by the U.S. Environmental Protection Agency (“EPA”), Region 2, of a proposed cost recovery settlement agreement pursuant to CERCLA, with Ecolab Manufacturing Inc., Olay LLC, and The Procter & Gamble Company (collectively “Settling Parties”) related to the Barrio Vietnam Superfund Site (“Site”), located in Guaynabo, Puerto Rico. This notice informs the public of its opportunity to comment on the settlement.
Comments must be submitted on or before September 10, 2018.
Written comments should be addressed to the EPA employee identified below. The proposed settlement is available for public inspection at EPA Region 2 offices at 290 Broadway, New York, New York 10007-1866. Comments should reference the Barrio Vietnam Superfund Site, located in Guaynabo, Puerto Rico, Index No. II-CERCLA-02-2018-2014. To request a copy of the proposed settlement agreement, please contact the EPA employee identified below.
Argie Korkidis Cirillo, Attorney, Office of Regional Counsel, New York/Caribbean Superfund Branch, U.S. Environmental Protection Agency, 290 Broadway, 17th Floor, New York, NY 10007-1866. Email:
EPA alleges that Settling Parties are responsible parties pursuant to Section 107(a) of CERCLA, 42 U.S.C. 9607(a), and are jointly and severally liable for response costs incurred or to be incurred at or in connection with the Site. Within 30 days of the Effective Date of this Settlement Agreement, Settling Parties shall pay to the EPA Hazardous Substance Superfund the amount of $1,084,864.29. The settlement includes a covenant by EPA not to sue or to take administrative action against the Settling Parties pursuant to Section 107(a) of CERCLA, 42 U.S.C. 9607(a), for EPA's response costs paid in connection with the Site through the Effective Date of the Agreement. For thirty (30) days following the date of publication of this notice, EPA will receive written comments relating to the settlement. EPA will consider all comments received and may modify or withdraw its consent to the settlement if comments received disclose facts or considerations that indicate that the proposed settlement is inappropriate, improper, or inadequate. EPA's response to any comments received will be available for public inspection at EPA Region 2, 290 Broadway, New York, New York 10007-1866.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995, the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before October 9, 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, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Nicole Ongele, FCC, via email
For additional information about the information collection, contact Nicole Ongele at (202) 418-2991.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
On June 29, 2016, the Commission adopted a Second Report and Order, in ET Docket No. 10-236 and 06-155; FCC 16-86, which updates Part 5 of the CFR—“Experimental Radio Service” (ERS).
(a) Licensees may operate in any frequency band, including those above 38.6 GHz, except for frequency bands exclusively allocated to the passive services (including the radio astronomy service). In addition, licensees may not use any frequency or frequency band below 38.6 GHz that is listed in § 15.205(a) of this chapter.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than August 28, 2018.
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Office of Real Property Utilization & Disposal, General Services Administration (GSA).
Notice of intent.
The U.S. General Services Administration (GSA) as the operational Joint Lead Agency, announces its Notice of Intent (NOI) to prepare a Supplemental Environmental Impact Statement (SEIS) for the sale of Plum Island, New York and an ancillary support facility at Orient Point, New York (hereinafter collectively referred to as Plum Island). That sale is now anticipated to occur no sooner than 2023. The U.S. Department of Homeland Security (DHS) will act as a Joint Lead Agency in ongoing consultation with GSA for the NEPA and associated regulatory compliance activities. The SEIS prepared during this process will supersede the Final EIS (FEIS) issued on June 25, 2013. After publication of the
Mr. John L.A. Dugan, Real Property Utilization & Disposal Division, General Services Administration, 10 Causeway Street, Room 1100, Boston, MA 02222, or email
Plum Island is an 840-acre island located approximately 1.5 miles off the northeast tip of Orient Point, Long Island, New York. Plum Island is formerly the home of the U.S. Army's Fort Terry, and was transferred to the United States Department of Agriculture (USDA) in 1954 to establish a research facility for foot-and-mouth disease. In 2003, Plum Island was transferred to DHS, and DHS now, in cooperation with the USDA, operates Plum Island Animal Disease Center (PIADC). In addition to the buildings and facilities that support the PIADC mission, other assets on Plum Island include natural undeveloped land, the Plum Island Lighthouse constructed in 1869, and buildings and structures associated with the former Fort Terry.
Pursuant to the requirements of the National Environmental Policy Act of 1969 (NEPA), and the President's Council on Environmental Quality Regulations (40 CFR 1500-1508), as implemented by the GSA Order PBS P 1095.4C, GSA and DHS will prepare the SEIS for the sale of Plum Island. The sale is mandated in Section 540 of the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act of 2009, United States Public Law 110-329. United States Public Law 110-329 requires the Secretary of the DHS to liquidate the Plum Island asset by directing the Administrator of the GSA to sell through public sale all real and related personal property and transportation assets which support Plum Island operations, subject to such terms and conditions as necessary to protect government interests and meet program requirements. The Public Law mandates the public sale as a result of the determination by DHS to construct and operate a new National Bio and Agro Defense Facility (NBAF) in Manhattan, Kansas and move its operations to the NBAF (Record of Decision dated January 16, 2009).
The purpose of the SEIS will be to document conditions that have changed and new information that has become available since the publication of the FEIS and ROD, and will provide a thorough analysis of those conditions and the new information. Items to be studied and analyzed in the SEIS will include, but are not limited to the following: The biological inventory known as the “Biodiversity and Ecological Potential of Plum Island, New York”, also known as the Four-Seasons Study; any activities undertaken by the U.S. Fish and Wildlife Service on Plum Island; the zoning plan for Plum Island adopted by the Town of Southold in August 2013; the completion by DHS of a descriptive interpretation of Plum Island's environmental condition, known as a Conceptual Site Model; ongoing environmental remediation and mission closure activities by DHS; activity undertaken by the Army Corps of Engineers under the Formerly Used Defense Site program; progress by DHS under Section 110 of the National Historic Preservation Act; and, the availability of more definitive dates for the transfer of the PIADC mission off Plum Island and the sale of Plum Island.
The Joint Lead Agencies anticipate scoping for the SEIS will begin in 2019. When the scoping process is initiated, a notice will be posted in the
Public Building Service (PBS), General Services Administration (GSA).
Notice of availability; announcement of meeting.
This notice announces the availability of the Draft Environmental Impact Statement (DEIS), which examines the potential impacts of a proposal by the General Services Administration (GSA) to modernize and expand the existing Otay Mesa Land Port of Entry (LPOE) located at the United States (U.S.)-Mexico border in the City of San Diego community of Otay Mesa, in San Diego County, California. The DEIS describes the reason the project is being proposed, the alternatives being considered, the potential impacts of each of the alternatives on the existing environment, and avoidance, minimization, and/or mitigation measures.
As the lead agency in this undertaking, GSA is acting on behalf of its major tenant at this facility, the Department of Homeland Security's (DHS) Customs and Border Protection (CBP).
A public meeting for the DEIS will be held on Thursday, August 9th, 2018, from 4:00 p.m. to 7:00 p.m., Pacific Time (PT). Interested parties are encouraged to attend and provide written comments on the DEIS. The comment period for the DEIS ends Friday, August 31, 2018. After this date, GSA will prepare the Final EIS.
The meeting will be held at the Holiday Inn Express and Suites San Diego, 2296 Niels Bohr Court, San Diego, CA, 92154, telephone 619-710-0900.
Further information, including an electronic copy of the DEIS, may be found online on the following website:
Osmahn A. Kadri, NEPA Project Manager, GSA, at 415-522-3617. Please also call this number if special assistance is needed to attend and participate in the public meeting.
The Otay Mesa LPOE is located approximately 17 miles southeast of downtown San Diego, just north of the U.S. border and the Baja California Peninsula of Mexico. When it was constructed in 1983, its primary purpose was to divert growing commercial truck traffic from the increasingly busy San Ysidro LPOE to the west, at the southern terminus of Interstate 5. The Otay Mesa LPOE processes commercial and privately-owned vehicle and pedestrian traffic. Since the LPOE opened, vehicle and pedestrian traffic and the population and general development in the area have grown. It is now one of the ten busiest land ports in the country and is the busiest commercial port on the California-Mexico border, processing the second highest volume of trucks, and third highest dollar volume of trade among all U.S.-Mexico LPOEs. Ever-increasing traffic loads and new security initiatives require increased capacity and new inspection technology to be installed and implemented at existing facilities.
The Project's purpose is to improve the efficiency, effectiveness, security and safety at the existing Otay Mesa LPOE. The Project's need, or the need to which the GSA is responding, is to increase the LPOE's capacity due to increased demand, and to address public and employee safety and border security concerns.
The DEIS considers two “action” alternatives and one “no action” alternative. The Preferred Alternative would include the development of an approximately 10-acre GSA-owned plot of land to the immediate east of the existing commercial import lot. The new lot would be used to construct commercial inspection buildings and additional commercial import lanes. It would also include improvements to existing pedestrian lanes and personal vehicle inspection lanes; relocation of personnel currently housed in the Pedestrian, Commercial Import and Commercial Export buildings; renovation of existing facilities throughout the Otay Mesa LPOE; and demolition of facilities that would no longer be needed would also occur. New construction would include commercial import and exit booths, six additional pedestrian lanes in the Pedestrian Building, a Commercial Annex Building (CAB), a return-to-Mexico lane for commercial traffic, a pedestrian ramp and parking areas for the new commercial lot. Building renovations would include the installation of energy conservation measures and water conservation measures across the Otay Mesa LPOE, the correction of deficiencies throughout existing facilities (
The Reduced Build Alternative would include many of the same activities as under the Preferred Alternative; however, the overall activity level would be lower. Notably, no new construction would occur on the 10-acre GSA-owned plot of land, and the Commercial Annex Building would not be constructed; instead, the plot of land would be paved and used as additional space for the commercial vehicle inspection booths which would be reconfigured to increase traffic flow. Renovation of existing facilities would still occur, but activities would be limited to updating security and HVAC systems and repainting interiors.
The No Action alternative assumes that modernization and expansion of the existing LPOE would not occur and that a new facility would not be constructed adjacent to the existing LPOE. The LPOE would continue to operate under current conditions.
The meeting will be conducted in an open house format, where project information will be presented and distributed. Comments must be received by August 31, 2018, and emailed to
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing effort to reduce public burden and maximize the utility of government information, invites the general public and other Federal agencies the opportunity to comment on a proposed and/or continuing information collection, as required by the Paperwork Reduction Act of 1995. This notice invites comment on a proposed information collection project titled FoodNet Population Survey. The FoodNet Population Survey is conducted in 10 states and collects data on the prevalence of acute gastrointestinal illness in the United States and exposures associated with foodborne illness.
CDC must receive written comments on or before October 9, 2018.
You may submit comments, identified by Docket No. CDC-2018-0072 by any of the following methods:
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To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact Jeffrey M. Zirger, Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE, MS-D74, Atlanta, Georgia 30329; phone: 404-639-7570; Email:
Under the Paperwork Reduction Act of 1995 (PRA)
The OMB is particularly interested in comments that will help:
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,
5. Assess information collection costs.
FoodNet Population Survey—Extension ICR—National Center for Emerging and Zoonotic Infectious Diseases (NCEZID), Centers for Disease Control and Prevention (CDC).
Foodborne illnesses represent a significant public health burden in the United States. It is estimated that each year, 48 million Americans (1 in 6) become ill, 128,000 are hospitalized, and 3,000 die as the result of a foodborne illness. Since 1996, the Foodborne Diseases Active Surveillance Network (FoodNet) has conducted active population-based surveillance for Campylobacter, Cryptosporidium, Cyclospora, Listeria, Salmonella, Shiga toxin-producing Escherichia coli O157 and non-O157, Shigella, Vibrio, and Yersinia infections. Data from FoodNet serves as the nation's “report card” on food safety by monitoring progress toward CDC Healthy People 2020 objectives.
Since the previous OMB approval, pilot testing has been completed and data collection began in all states. As of July 10, 2018 a total of 11,657 surveys have been completed between all survey modes including landline, cell phone, web, and mail. CDC is seeking two years of OMB clearance for an extension of control number 0920-1112.
Evaluation of efforts to control foodborne illnesses can only be done effectively if there is an accurate estimate of the total number of illnesses that occur, and if these estimates are recalculated and monitored over time. Estimates of the total burden start with accurate and reliable estimates of the number of acute gastrointestinal illness episodes that occur in the general community. To more precisely estimate this and to describe the frequency of important exposures associated with illness, FoodNet created the Population Survey.
The FoodNet Population Survey is a survey of persons residing in the surveillance area. Data are collected on the prevalence and severity of acute gastrointestinal illness in the general population, describe common symptoms associated with diarrhea, and determine the proportion of persons with diarrhea who seek medical care. The survey also collects data on exposures (
CDC seeks approval for an OMB extension to continue this important work. The total estimated Burden Hours for this collection is 6,067 annually. There is no cost to the respondents other than their time.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing effort to reduce public burden and maximize the utility of government information, invites the general public and other Federal agencies the opportunity to comment on a proposed and/or continuing information collection, as required by the Paperwork Reduction Act of 1995. This notice invites comment on a proposed information collection project titled the National Ambulatory Medical
CDC must receive written comments on or before October 9, 2018.
You may submit comments, identified by Docket No. CDC-2018-0073 by any of the following methods:
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•
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact Jeffrey M. Zirger, Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE, MS-D74, Atlanta, Georgia 30329; phone: 404-639-7570; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires Federal agencies to provide a 60-day notice in the
The OMB is particularly interested in comments that will help:
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,
5. Assess information collection costs.
National Ambulatory Medical Care Survey (NAMCS) (OMB Control No. 0920-0234, Exp. Date 03/31/2019)—Revision- National Center for Health Statistics (NCHS), Centers for Disease Control and Prevention (CDC).
The National Ambulatory Medical Care Survey (NAMCS) was conducted intermittently from 1973 through 1985, and annually since 1989. The survey is conducted under authority of Section 306 of the Public Health Service Act (42 U.S.C. 242k).
NAMCS is part of the ambulatory care component of the National Health Care Surveys (NHCS), a family of provider-based surveys that capture health care utilization from a variety of settings, including hospital inpatient and long-term care facilities. NCHS surveys of health care providers include NAMCS, the National Hospital Ambulatory Medical Care Survey (NHAMCS) (OMB No. 0920-0278, Exp. Date 06/30/2021), the National Hospital Care Survey (OMB No. 0920-0212, Exp. Date 01/31/2019), and National Study of Long-term Care Providers (OMB No. 0920-0943, Exp. Date 12/31/2019).
An overarching purpose of NAMCS is to meet the needs and demands for statistical information about the provision of ambulatory medical care services in the United States; this fulfills one of NCHS missions, to monitor the nation's health. In addition, NAMCS provides ambulatory medical care data to study: (1) The performance of the U.S. health care system, (2) care for the rapidly aging population, (3) changes in services such as health insurance coverage change, (4) the introduction of new medical technologies, and (5) the use of EHRs. Ongoing societal changes have led to considerable diversification in the organization, financing, and technological delivery of ambulatory medical care. This diversification is evidenced by the proliferation of insurance and benefit alternatives for individuals, the development of new forms of physician group practices and practice arrangements (such as office-based practices owned by hospitals), and growth in the number of alternative sites of care.
Ambulatory services are rendered in a wide variety of settings, including physician offices and hospital outpatient and emergency departments. Since more than 80% of all direct ambulatory medical care visits occur in physician offices, NAMCS provides data on the majority of ambulatory medical care services.
In addition to health care provided in physician offices and outpatient and emergency departments, community health centers (CHCs) play an important role in the health care community by providing care to people who might not be able to afford it otherwise. CHCs are local, non-profit, community-owned health care settings, which serve approximately 23 million individuals throughout the United States. Prior to 2006, visits made to CHCs, although captured in NAMCS, were not purposely included in the sampling plan; at that time, CHCs did not represent a separate NAMCS stratum. In an attempt to obtain a more accurate picture of health care provided in the United States, a sample of 104 CHCs was included in the 2006 NAMCS panel. There has been annual data collection from CHCs since that time, and these settings will continue to be sampled in 2019-2021. The total estimated annual number of Burden Hours are 4,953. There is no cost to respondents other than their time.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing effort to reduce public burden and maximize the utility of government information, invites the general public and other Federal agencies the opportunity to comment on a proposed and/or continuing information collection, as required by the Paperwork Reduction Act of 1995. This notice invites comment on a proposed information collection project titled “Dental Survey: Improving outpatient antibiotic use through implementation and evaluation of Core Elements of Outpatient Antibiotic Stewardship.” This information collection request will generate data to assess knowledge, attitudes, practices and perceived barriers to appropriate antibiotic prescribing in a representative sample of dental providers. Results will be used to inform interventions for this specific provider population and support our efforts to improve antimicrobial stewardship within outpatient clinics.
CDC must receive written comments on or before October 9, 2018.
You may submit comments, identified by Docket No. CDC-2018-0066 by any of the following methods:
•
•
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact Jeffrey M. Zirger, Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE, MS-D74, Atlanta, Georgia 30329; phone: 404-639-7570; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also
The OMB is particularly interested in comments that will help:
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,
5. Assess information collection costs.
Dental Survey: Improving outpatient antibiotic use through implementation and evaluation of Core Elements of Outpatient Antibiotic Stewardship—New Information Collection Request—National Center for Emerging and Zoonotic Infectious Diseases (NCEZID), Centers for Disease Control and Prevention (CDC).
Antibiotic resistance is a growing problem that has been shown to be a result of wide-spread antibiotic use and misuse. While efforts to improve antibiotic use to date have been primarily implemented in the inpatient setting, the majority of antibiotics are prescribed in the outpatient setting. Up to 50% of all antibiotics prescribed for acute respiratory tract infections (ARI) are proposed to be inappropriate. Interventions that have been demonstrated to decrease inappropriate use include audit-and-feedback, academic detailing, clinical decision support systems (CDSS), provider-focused public commitments to reduce inappropriate antibiotic use, and delayed antibiotic prescriptions. However, current data is limited due to short study timeframes and lack of sustainability.
In a pilot project, phone interviews were conducted with six dental providers and three pediatricians, specifically those who could speak to the knowledge, attitudes and behaviors of their peers. PRA was deemed not applicable by the NCEZID PRA representative for this pilot. We identified six dental providers that were recruited for a phone interview with our team's healthcare psychologist. Semi-structured interviews were used to assess: (1) Knowledge about antibiotic prescribing (what constitutes appropriate and inappropriate prescribing); (2) the providers current antibiotic prescribing practices; (3) beliefs about the consequences of inappropriate and appropriate prescribing (
During the analysis of the six dental interviews it was determined by the team that these interviews contained very unique information in terms of knowledge, attitudes and behaviors compared to other non-dental providers. Therefore, it was also determined that information saturation was not reached during this first data collection phase. We want to continue our data collect efforts within this specific population. This information will be crucial in future design of scalable and sustainable outpatient antibiotic stewardship interventions that incorporate all Core Elements of Outpatient Antibiotic Stewardship and to be able to implement it across a network of dental outpatient facilities.
The total estimated annual Burden Hours are 50. There will be no anticipated costs to respondents other than their time.
Centers for Medicare & Medicaid Services, HHS.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (PRA), federal agencies are required to publish notice in the
Comments on the collection(s) of information must be received by the OMB desk officer by September 10, 2018.
When commenting on the proposed information collections, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be received by the OMB desk officer via one of the following transmissions: OMB, Office of Information and Regulatory Affairs, Attention: CMS Desk Officer, Fax Number: (202) 395-5806
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' website address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786-1326.
Reports Clearance Office at (410) 786-1326.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires federal agencies to publish a 30-day notice in the
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The current Notice is specific to data collection efforts needed to address the MUSE aims. Quantitative and qualitative data will be collected from program staff and parent program participants at each program site. Program sites will also submit local administrative data to the evaluation team. After obtaining informed consent from all respondents, data collection will include: (1) A Caregiver Enrollment Form, (2) a survey of caregivers receiving home visiting services at enrollment (baseline), (3) a follow-up survey of caregivers receiving home visiting services at 6 and 12 months, (4) a Rapid Reflect self-completed questionnaire completed by caregivers after selected home visits; (5) a Rapid Reflect self-completed questionnaire completed by home visitors after selected home visits; (6) a one-time survey of home visitors; (7) a one-time survey of program coordinators/managers; (8) a one-time survey of program directors; (9) a one-time survey of local program evaluators; (10) a one-time survey for program managers on program implementation, (11) qualitative interviews of home visitors at each site; (12) qualitative interviews of program coordinators/managers and program directors at each site; (13) qualitative interviews of local program evaluators at each site; (14) qualitative interviews of caregivers receiving home visiting services; (15) a log of implementation activities completed by program coordinators/managers on training, family group activities, and supervision; and 156 electronic compilation and submission of administrative program data.
All data collection will be used to generate information about how tribal home visiting program services are planned and delivered, and about what individual, organizational, community, and external factors support successful program implementation.
The Office of Management and Budget (OMB) requires OCSE to periodically report performance measurements demonstrating how the use of information in the NDNH supports OCSE's strategic mission, goals, and objectives. OCSE will provide the annual SNAP performance outcomes to OMB.
The information collection activities for the SNAP performance outcomes reports are authorized by: (1) Subsection 453(j)(10) of the Social Security Act (42 U.S.C. 653(j)(10)), which allows the Secretary of the U.S. Department of Health and Human Services to disclose information maintained in the NDNH to state agencies administering SNAP under the Nutrition Act of 2008, as amended by the Agriculture Act of 2014; (2) the Privacy Act of 1974, as amended by the Computer Matching and Privacy Protection Act of 1988 (5 U.S.C. 552a), which sets forth the terms and conditions of a computer matching program; and, (3) the Government Performance and Results Modernization Act of 2010 (Pub. L. 111-352), which requires agencies to report program performance outcomes to the Office of Management and Budget and for the reports to be available to the public.
Food and Drug Administration, HHS.
Notice of public workshop; request for comments.
The Food and Drug Administration (FDA, Agency, or we) is announcing the following 1-day public workshop entitled “Human Dermal (Skin) Safety Testing for Topical Drug Products: Regulatory Utility and Evaluation.” The purpose of the public workshop is to provide a forum to discuss the current state and future directions of the collection of human data on the potential skin toxicity with the use of medications applied topically. The workshop will review current approaches to the collection of human data during the clinical development of topical drug products. The workshop will also address the impact of human skin toxicity studies on drug labeling and consider alternative approaches to providing information about skin toxicity.
The public workshop will be held on September 10, 2018, from 8:30 a.m. to 4 p.m. Eastern Time. Submit either electronic or written comments on this public workshop by October 10, 2018. See the
The public workshop will be held at the FDA White Oak Campus, 10903 New Hampshire Ave., Building 31 Conference Center, the Great Room (Rm. 1503, Section A), Silver Spring, MD 20993-0002. Entrance for the public workshop participants (non-FDA employees) is through Building 1, where routine security check procedures will be performed. For parking and security information, please refer to
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before October 10, 2018. The
Submit electronic comments in the following way:
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• 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:
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• 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.” The Agency 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
Tisha Washington, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Silver Spring, MD 20993-0002, 301-796-1019,
FDA is announcing a public workshop entitled “Human Dermal (Skin) Safety Testing for Topical Drug Products: Regulatory Utility and Evaluation” to discuss the current state and future directions of the collection of human data on the potential skin risks from use of topical drug products, including irritancy, sensitization, phototoxicity, and photoallergenicity.
The morning session of the workshop will focus on review and discussion of current approaches for the collection of human skin toxicity data, limitations of these approaches, and their impact on labeling of topical drug products. The afternoon session of the workshop will be a panel discussion by individuals with different perspectives about alternative approaches to provide information about skin toxicity. Thirty minutes of the afternoon session will be allocated to an open public hearing. The Agency encourages health care providers, industry representatives, and other interested persons to attend this public workshop.
Registration is free and based on space availability, with priority given to early registrants. Persons interested in attending this public workshop must register by 5 p.m. Eastern Time, September 4, 2018. Early registration is recommended because seating is limited; therefore, FDA may limit the number of participants from each organization. Registrants will receive confirmation when they have been accepted. Seating will be available on a first-come, first-served basis. If time and space permit, onsite registration on the day of the workshop will be provided beginning at 8:15 a.m. Eastern Time; FDA will let the public know whether onsite registration is available before the day of the public workshop.
An agenda for the workshop and any other background materials will be made available 5 days before the workshop at
If you need special accommodations due to a disability, please contact Tisha
If you have never attended a Connect Pro event before, test your connection at
Substance Abuse and Mental Health Services Administration, HHS.
Notice.
This notice publishes a list of the Department of Health and Human Services (HHS) approved Medical Review Officers certification entities. The HHS Mandatory Guidelines for Federal Workplace Drug Testing Programs (Mandatory Guidelines), applicable on October 1, 2017, addresses the role and qualifications of Medical Review Officers (MROs) and HHS approval of entities that certify MROs.
Sean J. Belouin, Pharm.D., CAPT, United States Public Health Service, Senior Pharmacology and Regulatory Policy Advisor, Substance Abuse and Mental Health Services Administration, 5600 Fishers Lane, Room 16N06D, Rockville, Maryland 20857; Telephone: (240) 276-2716; Email:
Subpart M—Medical Review Officer (MRO), Section 13.2 of the Mandatory Guidelines, “How are nationally recognized entities or subspecialty boards that certify MROs approved?” states as follows: “All nationally recognized entities or subspecialty boards which seek approval by the Secretary to certify physicians as MROs for federal workplace drug testing programs must submit their qualifications, a sample examination, and other necessary supporting examination materials (
HHS has completed its review of entities that certify MROs, in accordance with requests submitted by such entities to HHS.
The HHS Secretary approves the following MRO certifying entities that offer MRO certification through examination:
HHS approval is effective July 31, 2018.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the National Advisory Council on Alcohol Abuse and Alcoholism.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public 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,
Information is also available on the Institute's/Center's home page:
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.
National Institutes of Health, HHS.
Notice.
This symposium on September 11, 2018, sponsored by the National Center for Complementary and Integrative Health, will bring leading researchers to discuss the science and potential uses of complementary and integrative health approaches in treating chronic pain.
The meeting will be held on September 11, 2018, from 8:30 a.m. to 5:30 p.m.
The meeting will be held at the Boston Convention and Exhibition Center, 415 Summer Street, Boston, MA 02210.
For information concerning this meeting, see the NCCIH website,
This symposium, sponsored by the National Center for Complementary and Integrative Health, will bring leading researchers from multiple disciplines to discuss the science and potential uses of complementary and integrative health approaches in treating chronic pain. The symposium will highlight current concerns regarding the opioid epidemic and the potential roles of complementary and integrative health approaches in addressing this crisis. The objectives of the symposia are to: Present the past, present, and future of natural products research and pain management, focusing on our current understanding of the ascending and descending neural mechanisms by which different natural products may contribute to analgesia; ascertain the mechanisms by which a variety of mind and body approaches may modulate pain; and discuss translational potential for complementary and integrative approaches for individual-based chronic pain management.
Interested individuals can register for the symposia at:
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.
Notice is hereby given of a change in the meeting of the National Cancer Advisory Board, August 14, 2018, 1:00 p.m. to August 14, 2018, 4:00 p.m., National Cancer Institute Shady Grove, 9609 Medical Center Drive, Conference Room TE406, Rockville, MD 20850 which was published in the
The meeting notice is being amended to change the meeting times for the open and closed sessions. The open session will be held from 1:00 p.m. to 3:45 p.m. The closed session will be held from 3:50 p.m. to 4:30 p.m. The meeting is partially closed to the public.
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 concerning opportunity for public comment on proposed collections of information, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the information collection plans, call the SAMHSA Reports Clearance Officer at (240) 276-1243.
Comments are invited on: (a) Whether the proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
The Substance Abuse and Mental Health Services Administration (SAMHSA) is authorized under Section 1003 of the 21st Century Cures Act, as amended, to support a grant program, for up to 2 years, that addresses the supplemental activities pertaining to opioids currently undertaken by the state agency or territory and will support a comprehensive response to the opioid epidemic.
SAMHSA received approval from OMB in September 2017 to collect performance data from Opioid State Targeted Response (STR) grantees (OMB No. 0930-0378). However, SAMHSA omitted a data collection table (Table E) in the original OMB request. This data table is currently in use by Opioid STR grantees, who are reporting Table E data to SAMHSA on a semi-annual basis. In order to correct this violation, SAMHSA is now seeking OMB approval for a new data collection package that includes not only the instruments originally approved by OMB in September 2017, but also this additional data collection table. It is important for SAMHSA to continue to collect this information in order to assess the impact of funding from the Opioid STR program on increasing access to prevention strategies, as well as treatment and recovery services to address the opioid crisis. Additionally, this data will provide SAMHSA with critical information to effectively manage the Opioid STR program, to help states and territories adopt, or scale-up, effective practices and policies, and to help prepare to implement the new State Opioid Response grant program.
The primary purpose of the Opioid STR program is to address the opioid crisis by increasing access to treatment, reducing unmet treatment need, and reducing opioid overdose related deaths through the provision of prevention, treatment and recovery activities for opioid use disorder (OUD) (including prescription opioids as well as illicit drugs such as heroin).
There are 57 (states and jurisdictions) award recipients in this program. All funded states and jurisdictions report on their implementation and performance through an online data collection system. Award recipients report performance on the following measures specific to this program: number of people who receive OUD treatment, number of people who receive OUD recovery services, number of providers implementing medication-assisted treatment, and the number of OUD prevention and treatment providers trained, to include nurse practitioners, physician assistants, as well as physicians, nurses, counselors, social workers, case managers, etc. This information is collected at the mid-point and conclusion of each grant award year. Additionally, each award recipient describes the purposes for which the grant funds received were expended and the activities implemented under the program.
Send comments to Summer King, SAMHSA Reports Clearance Officer, 5600 Fishers Lane, Room 15E57-B, Rockville, Maryland 20857,
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 concerning opportunity for public comment on proposed collections of information, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the information collection plans, call the SAMHSA Reports Clearance Officer at (240) 276-1243.
Comments are invited on: (a) Whether the proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
The Substance Abuse and Mental Health Services Administration (SAMHSA), Center for Substance Abuse Prevention (CSAP) is requesting from the Office of Management and Budget (OMB) approval for the revision of Minority AIDS Initiative (MAI) monitoring tools, which includes both youth and adult questionnaires as well as the quarterly progress report. This revision includes the inclusion of new cohorts, substantial revisions to the youth and adult questionnaires, updates to the data used to estimate response rates and expected numbers of participants by service duration (see Table 1 below).
The cohorts of grantees funded by the MAI and included in this clearance request are:
The target population for the CBI grantees will be at-risk minority adolescents and young adults. All MAI grantees are expected to report their monitoring data using SAMHSA's Strategic Prevention Framework (SPF) and to target minority populations, as well as other high risk groups residing in communities of color with high prevalence of Substance Abuse and HIV/AIDS. The primary objectives of the monitoring tools include:
Revisions to the monitoring tools include the following:
The following two tools have been added to this data collection, but were approved under OMB No. 0930-0347 with the exception of the new items listed below. Items that were removed are due to their not being central to the evaluation.
In addition to all items listed above, on the youth questionnaire, SAMHSA also removed non-essential questions related to:
The following two tools have been deleted from this data collection:
Send comments to Summer King, SAMHSA Reports Clearance Officer, 5600 Fishers Lane, Room 15E57-B, Rockville, Maryland 20857,
Coast Guard, DHS.
Thirty-day notice requesting comments.
In compliance with the Paperwork Reduction Act of 1995 the U.S. Coast Guard is forwarding an Information Collection Request (ICR), abstracted below, to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs (OIRA), requesting an extension of its approval for the following collection of information: 1625-0094, Ships Carrying Bulk Hazardous Liquids; without change. Our ICR describes the information we seek to collect from the public. Review and comments by OIRA ensure we only impose paperwork burdens commensurate with our performance of duties.
Comments must reach the Coast Guard and OIRA on or before September 10, 2018.
You may submit comments identified by Coast Guard docket number [USCG-2018-0281] to the Coast Guard using the Federal eRulemaking Portal at
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A copy of the ICR is available through the docket on the internet at
Mr. Anthony Smith, Office of Information Management, telephone 202-475-3532, or fax 202-372-8405, for questions on these documents.
This Notice relies on the authority of the Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended. An ICR is an application to OIRA seeking the approval, extension, or renewal of a Coast Guard collection of information (Collection). The ICR contains information describing the Collection's purpose, the Collection's likely burden on the affected public, an explanation of the necessity of the Collection, and other important information describing the Collection. There is one ICR for each Collection.
The Coast Guard invites comments on whether this ICR should be granted based on the Collection being necessary for the proper performance of Departmental functions. In particular, the Coast Guard would appreciate comments addressing: (1) The practical utility of the Collection; (2) the accuracy of the estimated burden of the Collection; (3) ways to enhance the quality, utility, and clarity of information subject to the Collection; and (4) ways to minimize the burden of the Collection on respondents, including the use of automated collection techniques or other forms of information technology. These comments will help OIRA determine whether to approve the ICR referred to in this Notice.
We encourage you to respond to this request by submitting comments and related materials. Comments to Coast Guard or OIRA must contain the OMB Control Number of the ICR. They must also contain the docket number of this request, [USCG-2018-0281], and must be received by September 10, 2018.
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
OIRA posts its decisions on ICRs online at
This request provides a 30-day comment period required by OIRA. The Coast Guard published the 60-day notice (83 FR 24133, May 24, 2018) required by 44 U.S.C. 3506(c)(2). That Notice elicited one comment. The comment was unrelated to this Information Collection request. Accordingly, no changes have been made to the Collection.
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended.
Coast Guard, DHS.
Sixty-day notice requesting comments.
In compliance with the Paperwork Reduction Act of 1995, the U.S. Coast Guard intends to submit an Information Collection Request (ICR) to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs (OIRA), requesting an extension of its approval for the following collection of information: 1625-0095, Oil and Hazardous Material Pollution Prevention and Safety Records, Equivalents/Alternatives and Exemptions, without change. Our ICR describes the information we seek to collect from the public. Before submitting this ICR to OIRA, the Coast Guard is inviting comments as described below.
Comments must reach the Coast Guard on or before October 9, 2018.
You may submit comments identified by Coast Guard docket number [USCG-2018-0785] to the Coast Guard using the Federal eRulemaking Portal at
A copy of the ICR is available through the docket on the internet at
Mr. Anthony Smith, Office of Information Management, telephone 202-475-3532, or fax 202-372-8405, for questions on these documents.
This Notice relies on the authority of the Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended. An ICR is an application to OIRA seeking the approval, extension, or renewal of a Coast Guard collection of information (Collection). The ICR contains information describing the Collection's purpose, the Collection's likely burden on the affected public, an explanation of the necessity of the Collection, and other important information describing the Collection. There is one ICR for each Collection.
The Coast Guard invites comments on whether this ICR should be granted based on the Collection being necessary for the proper performance of Departmental functions. In particular, the Coast Guard would appreciate comments addressing: (1) The practical utility of the Collection; (2) the accuracy of the estimated burden of the Collection; (3) ways to enhance the quality, utility, and clarity of information subject to the Collection; and (4) ways to minimize the burden of the Collection on respondents, including the use of automated collection techniques or other forms of information technology. In response to your comments, we may revise this ICR or decide not to seek an extension of approval for the Collection. We will consider all comments and material received during the comment period.
We encourage you to respond to this request by submitting comments and related materials. Comments must contain the OMB Control Number of the ICR and the docket number of this request, [USCG-2018-0785], and must be received by October 9, 2018.
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
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended.
Coast Guard, DHS.
Sixty-day notice requesting comments.
In compliance with the Paperwork Reduction Act of 1995, the U.S. Coast Guard intends to submit an Information Collection Request (ICR) to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs (OIRA), requesting an extension of its approval for the following collection of information: 1625-0014, Request for Designation and Exemption of Oceanographic Research Vessel, without change. Our ICR describes the information we seek to collect from the public. Before submitting this ICR to OIRA, the Coast Guard is inviting comments as described below.
Comments must reach the Coast Guard on or before October 9, 2018.
You may submit comments identified by Coast Guard docket number [USCG-2018-0784] to the Coast Guard using the Federal eRulemaking Portal at
A copy of the ICR is available through the docket on the internet at
Contact Mr. Anthony Smith, Office of Information Management, telephone 202-475-3532, or fax 202-372-8405, for questions on these documents.
This Notice relies on the authority of the Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended. An ICR is an application to OIRA seeking the approval, extension, or renewal of a Coast Guard collection of information (Collection). The ICR contains information describing the Collection's purpose, the Collection's likely burden on the affected public, an explanation of the necessity of the Collection, and other important information describing the Collection. There is one ICR for each Collection.
The Coast Guard invites comments on whether this ICR should be granted based on the Collection being necessary for the proper performance of Departmental functions. In particular, the Coast Guard would appreciate comments addressing: (1) The practical utility of the Collection; (2) the accuracy of the estimated burden of the Collection; (3) ways to enhance the quality, utility, and clarity of information subject to the Collection; and (4) ways to minimize the burden of the Collection on respondents, including the use of automated collection techniques or other forms of information technology. In response to your comments, we may revise this ICR or decide not to seek an extension of approval for the Collection. We will consider all comments and material received during the comment period.
We encourage you to respond to this request by submitting comments and related materials. Comments must contain the OMB Control Number of the ICR and the docket number of this request, [USCG-2018-0784], and must be received by October 9, 2018.
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
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended.
U.S. Customs and Border Protection (CBP), Department of Homeland Security.
30-Day notice and request for comments; extension of an existing collection of information.
The Department of Homeland Security, U.S. Customs and Border Protection will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (PRA). The information collection is published in the
Comments are encouraged and will be accepted (no later than September 10, 2018) to be assured of consideration.
Interested persons are invited to submit written comments on this proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the OMB Desk Officer for Customs and Border Protection, Department of Homeland Security, and sent via electronic mail to
Requests for additional PRA information should be directed to Seth Renkema, Chief, Economic Impact Analysis Branch, U.S. Customs and Border Protection, Office of Trade, Regulations and Rulings, 90 K Street NE, 10th Floor, Washington, DC 20229-1177, Telephone number (202) 325-0056 or via email
CBP invites the general public and other Federal agencies to comment on the proposed and/or continuing information collections pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The U.S. has entered into the following Free Trade Agreements: United States-Chile Free Trade Agreement (US-CFTA) (Pub. L. 108-77); the Republic of Singapore (Pub. L. 108-78, 117 Stat. 948,19 U.S.C. 3805 note); Australia (Pub. L. 108-286); Morocco (Pub. L. 108-302); Jordan (Pub. L. 107-43); Bahrain (Pub. L. 109-169); Oman (Pub. L. 109-283); Peru (Pub. L. 110-138, 121 Stat. 1455); Korea (Pub. L. 112-41); Colombia (Pub. L. 112-42, 125 Stat. 462); Panama (Pub. L. 112-43); and Costa Rica, the Dominican Republic, El Salvador, Guatemala, Honduras, and Nicaragua (CAFTA-DR) (Pub. L. 109-53, 119 Stat. 462).
These free trade agreements involve collection of data elements such as information about the importer and exporter of the goods, a description of the goods, tariff classification number, and the preference criterion in the Rules of Origin.
Respondents can obtain information on how to make claims under these Free Trade Agreements by going to
U.S. Immigration and Customs Enforcement, Department of Homeland Security.
60-Day notice.
The Department of Homeland Security, U.S. Immigration and Customs Enforcement (USICE), will be submitting the following information collection request for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection is published in the
Comments are encouraged and will be accepted for sixty days until October 9, 2018.
Written comments and suggestions regarding items contained in this notice and especially with regard to the estimated public burden and associated response time should be directed to the Office of Chief Information Office, Forms Management Office, U.S. Immigrations and Customs Enforcement, 801 I Street NW, Mailstop 5800, Washington, DC 20536-5800.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information 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 agencies 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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Fish and Wildlife Service, Interior.
Notice of initiation of reviews; request for information.
We, the U.S. Fish and Wildlife Service, are initiating 5-year status reviews under the Endangered Species Act of 1973, as amended (Act), of six animal and five plant species. A 5-year status review is based on the best scientific and commercial data available at the time of the review; therefore, we are requesting submission of any new information on these species that has become available since the last review of the species.
To ensure consideration in our reviews, we are requesting submission of new information no later than October 9, 2018. However, we will continue to accept new information about any listed species at any time.
For information on a particular species, contact the appropriate person or office listed in the table in the
Under the Act (16 U.S.C. 1531
A 5-year status review considers all new information available at the time of the review. In conducting these reviews, we consider the best scientific and commercial data that have become available since the listing determination or most recent status review, such as:
(A) Species biology, including but not limited to population trends, distribution, abundance, demographics, and genetics;
(B) Habitat conditions, including but not limited to amount, distribution, and suitability;
(C) Conservation measures that have been implemented that benefit the species;
(D) Threat status and trends in relation to the five listing factors (as defined in section 4(a)(1) of the Act); and
(E) Other new information, data, or corrections, including but not limited to taxonomic or nomenclatural changes, identification of erroneous information contained in the List, and improved analytical methods.
Any new information will be considered during the 5-year status review and will also be useful in evaluating the ongoing recovery programs for the species.
This notice announces our active review of the eleven species listed in the tables below.
To ensure that a 5-year status review is complete and based on the best available scientific and commercial information, we request new information from all sources. See “What information do we consider in our review?” for specific criteria. If you submit information, please support it with documentation such as maps, bibliographic references, methods used to gather and analyze the data, and/or copies of any pertinent publications, reports, or letters by knowledgeable sources.
If you wish to provide information for any species listed above, please submit your comments and materials to the appropriate contact in the table above. You may also direct questions to those contacts. Individuals who are hearing impaired or speech impaired may call the Federal Relay Service at 800-877-8339 for TTY assistance.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Comments and materials received will be available for public inspection, by appointment, during normal business hours at the offices where the comments are submitted.
Please make your comments as specific as possible. Please 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 be relevant to 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.
A list of all completed and currently active 5-year status reviews addressing species for which the Mountain-Prairie Region of the U.S. Fish and Wildlife Service has lead responsibility is available at
This document is published under the authority of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
U.S. Geological Survey, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the U.S. Geological Survey (USGS) are proposing to renew an information collection.
Interested persons are invited to submit comments on or before September 10, 2018.
Send written comments on this information collection request (ICR) to the Office of Management and Budget's Desk Officer for the Department of the Interior by email at
To request additional information about this ICR, contact Sarah Cook by email at
We, the USGS, in accordance with the Paperwork Reduction Act of 1995, provide the general public and other Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection requirements and minimize the public's reporting burden. It also helps the public understand our information collection requirements and provide the requested data in the desired format.
A
We are again soliciting comments on the proposed ICR that is described below. We are especially interested in public comment addressing the following issues: (1) Is the collection necessary to the proper functions of the USGS; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the USGS enhance the quality, utility, and clarity of the information to be collected; and (5) how might the USGS minimize the burden of this collection on the respondents, including through the use of information technology.
Comments that you submit in response to this notice are a matter of public record. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire
This notice concerns the collection of information that is sufficient and relevant to evaluate and select proposals for funding. We will protect information from respondents considered proprietary under the Freedom of Information Act (5 U.S.C. 552) and its implementing regulations (43 CFR part 2), and under regulations at 30 CFR 250.197, “Data and information to be made available to the public or for limited inspection.” Responses are voluntary. No questions of a “sensitive” nature are asked. We intend to release the project abstracts and primary investigators for awarded/funded projects only.
An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501,
Notice document 2018-16986 appearing on pages 39115 through 39116, in the issue of August 8, 2018, was inadvertently published in error and is hereby withdrawn.
Bureau of Land Management, Interior.
Notice of availability.
In accordance with the National Environmental Policy Act (NEPA) of 1969, as amended, and the Federal Land Policy and Management Act of 1976, as amended, the Bureau of Land Management (BLM) has prepared a draft Environmental Impact Statement (EIS), and, in collaboration with Riverside County, a draft Environmental Impact Report (EIR) for the Desert Quartzite Solar Project (DQSP). A draft Land Use Plan Amendment to the California Desert Conservation Area Plan (CDCA) is also included. This notice announces the opening of the public comment period, following the date the Environmental Protection Agency (EPA) publishes its Notice of Availability (NOA) in the
To ensure that all comments will be considered, the BLM must receive written comments on the draft plan amendment and draft EIS/EIR by November 8, 2018. The BLM will announce future meetings or hearings and any other public involvement activities at least 15 days in advance through public notices, media releases, the project website, and/or mailings.
The public may submit comments related to the project during the public comment period by using any of the following methods:
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•
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Copies of the draft EIS/EIR and draft plan amendment are available at the
Brandon G. Anderson, BLM project manager, telephone: (760) 833-7140; email:
Persons who use telecommunication devices for the deaf may call the Federal Relay Service (FRS) at (307) 775-6115 to contact the above individual during normal business hours. The FRS is available 24 hours a day, 7 days a week, to leave a message or questions with the above individual regarding the project. You will receive a reply during normal business hours.
Desert Quartzite LLC, a wholly owned subsidiary of First Solar Development LLC, applied for a right-of-way (ROW) grant for a photovoltaic solar project, application number CACA-049397, with the Bureau of Land Management. The Applicant proposes to construct, operate, maintain, and decommission the DQSP in the southern California inland desert. The Project would generate up to 450 megawatts (MW) using solar photovoltaic (PV) technology.
The ROW grant application was originally filed for 7,245 acres on September 28, 2007, but has since been revised. The total project area under application for BLM and County approval is 5,275 acres, including 5,115 acres of BLM-administered lands for the ROW grant, and 160 acres of private land for the Riverside County Conditional Use Permit. Within this application area, the Applicant has proposed a project that would occupy 3,831 acres. This includes 3,560 acres for the portion of the solar facility on BLM-managed public lands; 54 acres for the proposed 230 kilovolt (kV) generation interconnection [gen-tie] line on BLM public lands, two acres for the offsite portion of a buried telecommunications line on BLM public lands, 56.8 acres of temporary projects, 4.5 acres for the external access road and 154 acres for the portion of the solar facility on private lands. The larger acreage under application would allow the BLM and the County to consider various site layouts as project alternatives in the environmental analyses for the proposed project.
Although the Notice of Intent (NOI) to prepare an Environmental Impact Statement for the Desert Quartzite Solar Project and a possible amendment to the California Desert Conservation Area (CDCA) plan, 80 FR 12195 (March 6, 2015), stated that the Project would be capable of generating 300 MW, advances in photovoltaic solar technology will allow the generation of additional megawatts on the same footprint proposed in the project's Plan of Development.
In addition to the proposed action, the draft EIS/EIR considers a “no action” alternative and two action alternatives. Alternative 2, Resource Avoidance, would authorize a 450-MW PV array on approximately 2,845 acres, and Alternative 3, Reduced Project Alternative, would authorize a 285-MW PV array on approximately 2,112 acres. Like the Proposed Action, under each of these alternatives, the BLM would amend the CDCA plan to allow the project. Under the No Action Alternative, the BLM would deny the ROW application, and would not amend the CDCA plan to allow the project.
The BLM has identified Alternative 2, Resource Avoidance, as the BLM Preferred Alternative for the draft EIS. The BLM and its cooperating agencies are seeking comments on the draft EIS, including the comparison of alternatives presented in the document.
Riverside County is the lead agency for the State under the California Environmental Quality Act (CEQA). The draft plan amendment EIS/EIR was prepared as a joint Federal/State environmental document that analyzes the impacts of the Project under both NEPA and CEQA.
Public input is important and will be considered in the environmental and land-use planning analysis. Please note that public comments and information submitted (including names, street addresses, and email addresses of persons who submit comments) will be available for public review and disclosure at the above address during regular business hours (8:00 a.m. to 4:00 p.m.), Monday through Friday, except holidays.
Before including your address, phone number, email address, or other personally identifiable information in your comment, you should be aware that your entire comment—including your personally identifiable information—may be made publicly available at any time. While you can ask the BLM in your comment to withhold your personally identifiable information from public review, we cannot guarantee that we will be able to do so.
40 CFR 1506.6, 40 CFR 1506.10, 43 CFR 1610.2.
National Park Service, Interior.
Notice.
The Riverside Metropolitan Museum has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian Tribes or Native Hawaiian organizations, and has determined that there is a cultural affiliation between the human remains and associated funerary objects and present-day Indian Tribes or Native Hawaiian organizations. Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request to the Riverside Metropolitan Museum. If no additional requestors come forward, transfer of control of the human remains and associated funerary objects to the lineal descendants, Indian Tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to the Riverside Metropolitan Museum at the address in this notice by September 10, 2018.
Robyn G. Peterson, Ph.D., Museum Director, Riverside Metropolitan Museum, 3580 Mission Inn Avenue, Riverside, CA 92501, telephone (951) 826-5792, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains and associated funerary objects was made by the Riverside Metropolitan Museum professional staff in consultation with Clint Linton, a member of the Kumeyaay Cultural Repatriation Committee and representative of the following Indian Tribes: The Campo Band of Diegueno Mission Indians of the Campo Indian Reservation, California; Capitan Grande Band of Diegueno Mission Indians of California (Barona Group of Capitan Grande Band of Mission Indians of the Barona Reservation, California; Viejas (Baron Long) Group of Capitan Grande Band of Mission Indians of the Viejas Reservation, California); Ewiiaapayp Band of Kumeyaay Indians of California; Iipay Nation of Santa Ysabel, California (previously listed as the Santa Ysabel Band of Diegueno Mission Indians of the Santa Ysabel Reservation); Inaja Band of Diegueno Mission Indians of the Inaja and Cosmit Reservation, California; Jamul Indian Village of California; La Posta Band of Diegueno Mission Indians of the La Posta Indian Reservation, California; Manzanita Band of Diegueno Mission Indians of the Manzanita Reservation, California; Mesa Grande Band of Diegueno Mission Indians of Mesa Grande Reservation, California; San Pasqual Band of Diegueno Mission Indians of California; and Sycuan Band of the Kumeyaay Nation, hereafter referred to as “The Tribes.”
At an unknown date, human remains representing, at minimum, one individual were removed from an unknown cremation site in the Mason Valley, San Diego County, CA. In 1972, the Riverside Metropolitan Museum purchased the cremated human remains together with associated funerary objects from Charles F. Irwin of Long Beach, CA. No known individuals were identified. The six associated funerary objects include: Three lumps of burned asphaltum, one length of 14 fused glass beads, one burned fiber cloth, and one piece of asphaltum with burned plant remains and 3-ply cordage inclusions.
It was determined through collections research and geographic location that the cremated human remains and associated funerary objects are of Kumeyaay/Diegueno origin from Mason Valley, San Diego County, CA. Museum records indicate “Indian Cremation Remains.” Mason Valley extends through San Diego and Imperial Counties as well as Baja Norte. While the nation of original inhabitants has been called “Southern Diegueno,” “Diegueno-Kamia Ipai-Tipai,” and “Mission Indians,” the tribes prefer to be called Kumeyaay. The Kumeyaay are a federation of autonomous self-governing bands that have clearly defined territories and are represented by The Tribes.
Officials of the Riverside Metropolitan Museum have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the six objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary objects and The Tribes.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Robyn G. Peterson, Ph. D., Museum Director, Riverside Metropolitan Museum 3580 Mission Inn Avenue, Riverside, CA 92501, telephone (951) 826-5792, email
The Riverside Metropolitan Museum is responsible for notifying The Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The Anniston Museum of Natural History has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian Tribes or Native Hawaiian organizations, and has determined that there is no cultural affiliation between the human remains and associated funerary objects and any present-day Indian Tribes or Native Hawaiian organizations. Representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request to the Anniston Museum of Natural History. If no additional requestors come forward, transfer of control of the human remains and associated funerary objects to the Indian Tribes or Native Hawaiian organizations stated in this notice may proceed.
Representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to the Anniston Museum of Natural History at the address in this notice by September 10, 2018.
Daniel D. Spaulding, Anniston Museum of Natural History, 800 Museum Drive, Anniston, AL 36206, telephone (256) 237-6766, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains and associated funerary objects was made by the Anniston Museum of Natural History professional staff in consultation with representatives of the Cherokee Nation; Eastern Band of Cherokee Indians; The Choctaw Nation of Oklahoma; The Muscogee (Creek) Nation; and United Keetoowah Band of Cherokee Indians in Oklahoma.
In 1933-1937, human remains representing, at minimum, two individuals were removed from Moundville in Tuscaloosa County, AL. These human remains and funerary objects were removed by Philip James Fitzgerald, an excavator with the Civilian Conservation Corps, during the excavation of the Moundville site. Upon Fitzgerald's death, the human remains and funerary objects were transferred to his daughter, Phyllis Fitzgerald Richardson. In May 1990, Mrs. Richardson donated the human remains and funerary objects to the Anniston Museum of Natural History. The human remains include one human skull with mandible, four neck vertebrae, and one human molar tooth. The human remains have been dated to the Moundville Period (ca. A.D. 1200-1500). No genders are known. No known individuals were identified. The 10 associated funerary objects are one incised pottery jar, one incised pottery bowl, four game stones of varying size and stone type, one unperforated, oblong stone pendant, one stone projectile point, one perforated bone awl, and one unperforated bone awl.
Officials of the Anniston Museum of Natural History have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice are Native American based on their being excavated from a known Native American burial site and dated to the time period during which the site is known to have been occupied by Native Americans.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of two individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the 10 objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and associated funerary objects and any present-day Indian Tribe.
• According to final judgments of the Indian Claims Commission or the Court of Federal Claims, the land from which the Native American human remains and associated funerary objects were removed is the aboriginal land of The Choctaw Nation of Oklahoma and The Muscogee (Creek) Nation.
• Treaties, Acts of Congress, or Executive Orders, indicate that the land from which the Native American human remains and associated funerary objects were removed is the aboriginal land of The Choctaw Nation of Oklahoma and The Muscogee (Creek) Nation.
• Pursuant to 43 CFR 10.11(c)(1), the disposition of the human remains and associated funerary objects may be to The Choctaw Nation of Oklahoma and The Muscogee (Creek) Nation.
Representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Daniel D. Spaulding, Anniston Museum of Natural History, 800 Museum Drive, Anniston, AL 36206, telephone (256) 237-6766, email
The Anniston Museum of Natural History is responsible for notifying the Cherokee Nation; Eastern Band of Cherokee Indians; The Choctaw Nation of Oklahoma; The Muscogee (Creek) Nation; and United Keetoowah Band of Cherokee Indians in Oklahoma that this notice has been published.
National Park Service, Interior.
Notice.
The American Museum of Natural History has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian Tribes or Native Hawaiian organizations, and has determined that there is cultural affiliation between the human remains and associated funerary objects and present-day Indian Tribes or Native Hawaiian organizations. Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request to the American Museum of Natural History. If no additional requestors come forward, transfer of control of the human remains and associated funerary objects to the lineal descendants, Indian Tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to the American Museum of Natural History at the address in this notice by September 10, 2018.
Nell Murphy, American Museum of Natural History, Central Park West at 79th Street, New York, NY 10024, telephone (212) 769-5837, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the American Museum of Natural History professional staff in consultation with representatives of the Delaware Nation, Oklahoma, and the Delaware Tribe of Indians. The Delaware Nation, Oklahoma, and the Delaware Tribe of Indians invited the Stockbridge Munsee Community, Wisconsin, to attend the consultation meeting, but they did not participate.
In 1897, human remains representing, at minimum, three individuals were removed from the top soil of Trench D in Lalor Field, Lalor Estate, South of Trenton, Mercer County, NJ. The human remains were excavated by Ernest Volk during an American Museum of Natural History (AMNH) sponsored expedition. The AMNH acquired the individuals that same year. No known individuals were identified. The human remains include a sub-adult who is represented by a single element and two adults who are represented by cranial and post-cranial elements. The sex of these individuals cannot be determined. Two associated funerary objects—two pieces of pottery—were found with these human remains. One of these pottery pieces is a spall with no markings on its surface, and the other is small and fragmentary.
The top soil of Trench D at Lalor Field consists of late Middle Woodland, Late Woodland, and early historic deposits. Thus, it is highly likely that these human remains can be assigned to the Terminal Middle Woodland or later. These human remains were determined to be Native American based on their archeological context and collection history.
In 1909, human remains, representing at minimum, 16 individuals, were removed from the Bowman's Brook site, Mariner's Harbor, Staten Island, Richmond County, NY, by Alanson Skinner. The AMNH acquired these individuals as a gift that same year. No known individuals were identified. These individuals include three sub-adults, one adult male, 10 adults of indeterminate sex and two individuals of indeterminate sex and age. There are no associated funerary objects.
Bowman's Brook is a multi-component site, comprising part of the larger Mariner's Harbor site complex on the northwestern shore of Staten Island. Consisting of five distinguishable levels, its occupation spans the Middle and Late Archaic, Early and Middle Woodland, and the Late Woodland component for which the site is best known, the Bowman's Brook phase. Skinner's excavations were focused on the uppermost level. Radiocarbon dates obtained in 1986 indicate that the burials belong to the Late Woodland period; and date from A.D. 1083±153 to A.D. 1340±70. These human remains were determined to be Native American based on their archeological context and collection history.
In 1895, human remains representing at minimum, 24 individuals and 167 associated funerary objects were removed from Burial Ridge, Tottenville, Staten Island, Richmond County, NY. These individuals were collected by George H. Pepper and M.H. Saville as part of an AMNH sponsored expedition. The museum accessioned the human remains and funerary objects that same year. No known individuals were identified. The human remains include one adult female, six adult males, two adults who may be male, 10 adults of indeterminate sex and five sub-adults. The 167 associated funerary objects include: 14 bone points, three stone points; eight turtle shells; five sherds; 24 pieces of animal bone; two pieces of worked bone; one antler piece; one flint arrow; two pieces of mica; one flint implement; six flint blanks for arrowheads; 13 leaf-shaped flint pieces; 11 flint pieces; three stone implements; one piece of smoky quartz; seven pieces of deer antler; five deer bones; one lynx mandible; one piece of red clay; 53 pieces of beaver teeth; one block of sand with shells; two valves of clam shells and two oyster shells.
Around 1895, human remains representing, at minimum, two individuals, were removed from a location presumed to be Burial Ridge, Tottenville, Staten Island, Richmond County, New York, NY. These human remains were probably collected by George H. Pepper and M.H. Saville as part of an AMNH sponsored expedition. The museum likely accessioned the human remains that same year. No known individuals were identified. The human remains include two adults of indeterminate sex. There are no associated funerary objects.
In 1900, human remains, representing at minimum two individuals and one associated funerary object were removed from Burial Ridge, Tottenville, Staten Island, Richmond County, NY by Mark Raymond Harrington. The AMNH acquired the human remains and funerary objects as a gift from F.W. Putnam in 1909. No known individuals were identified. The human remains include one sub-adult and one adult of indeterminate age. The one associated funerary object is a piece of deer bone.
The human remains from Burial Ridge, Tottenville, were determined to be Native American based on archeological context, associated funerary objects and collection history. While Burial Ridge at Tottenville, Staten Island has Archaic through early Contact Period components, contextual information and scholarly literature indicate that the human remains date to the Terminal Middle Woodland and Late Woodland Periods. Radiocarbon dates reinforce this interpretation: One individual dates to the Terminal Middle Woodland, three additional individuals and two nearby features date to the Late Woodland. The individuals and associated funerary objects described in this Notice date to the Terminal Middle Woodland or Late Middle Woodland periods.
Oral tradition recounts the Delaware migration into the region from the west or northwest. Archeological and linguistic evidence indicates the arrival of Delawarean-speakers in the Delaware Valley and Staten Island no earlier than the Terminal Middle Woodland (A.D. 500-800). Information presented by the Delaware Nation, Oklahoma and the Delaware Tribe of Indians indicates that these three locales were traditionally occupied by the Delaware until progressive removals westward began in the early 1700s.
Based on oral tradition, linguistic and archeological evidence and information presented during multiple consultations, the American Museum of Natural History has determined that a cultural affiliation exists between the human remains and associated funerary objects and the Delaware (Lenape) people.
Officials of the American Museum of Natural History have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of 47 individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the 170 objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary objects and Delaware Nation, Oklahoma; Delaware Tribe of Indians; and Stockbridge Munsee Community, Wisconsin.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Nell Murphy, American Museum of Natural History, Central Park West at 79th Street, New York, NY 10024, telephone (212) 769-5837, email
The American Museum of Natural History is responsible for notifying the Delaware Nation, Oklahoma; Delaware Tribe of Indians; and Stockbridge-Munsee Community, Wisconsin, that this notice has been published.
National Park Service, Interior.
Notice.
The Heard Museum has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian Tribes or Native Hawaiian organizations, and has determined that there is a cultural affiliation between the human remains and associated funerary objects and present-day Indian Tribes or Native Hawaiian organizations. Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request to the Heard Museum. If no additional requestors come forward, transfer of control of the human remains and associated funerary objects to the lineal descendants, Indian Tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to the Heard Museum at the address in this notice by September 10, 2018.
David Roche, Director/CEO, Heard Museum, 2301 North Central Avenue, Phoenix, AZ 85004, telephone (602) 252-8840, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects under the control of the Heard Museum, Phoenix, AZ. The human remains and associated funerary objects were removed from Central and possibly Southern Arizona.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the Heard Museum professional staff in consultation with representatives of Ak-Chin Indian Community (previously listed as the Ak Chin Indian Community of the Maricopa (Ak Chin) Indian Reservation, Arizona); Gila River Indian Community of the Gila River Indian Reservation, Arizona; Hopi Tribe of Arizona; Salt River Pima-Maricopa Indian Community of the Salt River Reservation, Arizona; Tohono O'odham Nation of Arizona; and Zuni Tribe of the Zuni Reservation, New Mexico.
Between 1935 and 1960, human remains representing, at minimum, one individual were removed by Mr. Cross from an unknown site in Maricopa County, AZ. The human remains together with associated funerary objects, were acquired by Claud Black, then acquired by Harold Kennedy, and finally acquired by the Heard Museum in 1970, which assigned them catalog number NA-SW-SD-A1-30. The human remains are of a large individual, probably male. No known individuals were identified. The four associated funerary objects are: one piece of shell, two animal bone shafts, and one jar. The cultural affiliation of the jar and cremation has been changed from Salado to Hohokam, based on an updated pottery type identification of Salt Red.
Prior to 1982, human remains representing, at minimum, one individual were removed from an unknown site in central or southern AZ. The human remains were found in museum storage in 1982, and bore a Hohokam catalog number, NA-SW-HH-T-1. The human remains are those of a middle-aged adult of unknown gender. No known individuals were identified. No associated funerary objects are present. The Hohokam attribution is based on the catalog number and the typical Hohokam dentition exhibited by the human remains.
Prior to 1960, human remains representing, at minimum, one individual were removed from alternatively, Sacaton, Pinal County, AZ; Cashion, Maricopa County, AZ; or La Ciudad Ruin, Phoenix, Maricopa County, AZ. The human remains consist of a small bag of cremated bone fragments weighing less than 1 gram. In 1990, the human remains were found in a box which contained a returned loan; the bag was assigned catalog number 3288-1. The returned loan comprised two jars (NA-SW-HH-A4-14 and NA-SW-HH-A4-16) that had been collected by Carl A. Moosberg, from Sacaton, Pinal County, AZ; one jar (NA-SW-HH-A4-46) that had been collected by Russell Cross from Cashion, Maricopa County, AZ; and one jar (NA-SW-HH-A1-10) that had been collected by Frank Mitalsky, a.k.a. Frank Midvale, from La
The Hohokam lived in central and southern Arizona from about A.D. 1 to 1450. In 1990, the Ak-Chin Indian Community, Gila River Indian Community, Salt River Pima-Maricopa Community, and Tohono O'odham Nation jointly asserted a cultural affiliation to ancestors described as “Hohokam.” In 1994, the Hopi Tribe asserted its cultural affiliation to Hohokam followed by the Pueblo of Zuni in 1995.
Officials of the Heard Museum have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of three individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the four objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary objects and Ak-Chin Indian Community (previously listed as the Ak Chin Indian Community of the Maricopa (Ak Chin) Indian Reservation, Arizona); Gila River Indian Community of the Gila River Indian Reservation, Arizona; Hopi Tribe of Arizona; Salt River Pima-Maricopa Indian Community of the Salt River Reservation, Arizona; Tohono O'odham Nation of Arizona; and Zuni Tribe of the Zuni Reservation, New Mexico (hereafter referred to as “The Tribes.”)
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to David Roche, Director/CEO, Heard Museum, 2301 North Central Avenue, Phoenix, AZ 85004, telephone (602) 252-8840, email
The Heard Museum is responsible for notifying The Tribes that this notice has been published.
National Park Service, Interior.
Request for comments.
The National Park Service is seeking public comments on three potential national monument designations: The Medgar and Myrlie Evers Home, Mississippi; Mill Springs Battlefield, Kentucky; and Camp Nelson, Kentucky.
Written comments will be accepted until September 10, 2018.
Written comments may be sent to the National Park Service online at
Charles Laudner, Senior Advisor—Office of Congressional and Legislative Affairs, National Park Service, 1849 C Street NW, Washington, DC 20240. Phone (202) 513-7212. Email:
Medgar Evers was an important national figure in the Civil Rights Movement of the 1950s and 1960s. The assassination of Medgar Evers on June 12, 1963, in the carport of his home in Jackson, Mississippi, was one of the catalysts for the passage of the Civil Rights Act of 1964. Both Medgar and Myrlie, his wife, were major contributors to advancing the goals of the civil rights movement on a national level. The Secretary of the Interior designated the Evers' house a National Historic Landmark on December 23, 2016.
On January 19, 1862, Union and Confederate forces met in the Battle of Mill Springs in Kentucky. The result was an important victory for the Union in the American Civil War which opened the door to Federal invasion of southern states. The battlefield has been designated as a National Historic Landmark. The Mill Springs Battlefield Visitor Center and Museum is located in Nancy, Kentucky.
During the American Civil War, Camp Nelson in Jessamine County, Kentucky, served as an important training area for African Americans who joined the Union Army to fight for their freedom. The camp began as a fortified U.S. Army supply depot, hospital, and garrison in 1863. As well as becoming one of the largest recruitment and training centers for African American soldiers, it served as a refugee camp for their wives and children. In 2013, the Secretary of the Interior designated Camp Nelson a National Historic Landmark.
A potential National Monument designation of these sites by the President through the Antiquities Act, 54 U.S.C. 320301, may serve to preserve their nationally significant historic resources.
The Antiquities Act has been used to preserve and protect natural and historical resources on Federal lands for future generations. President Theodore Roosevelt signed the Antiquities Act in 1906 providing a foundation for natural resource conservation and cultural preservation. It requires that such monuments be limited to “the smallest area of land compatible” with the proper care and management for the protection of the identified objects.
Before including your name, address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you may ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
National Park Service, Interior.
Notice.
This notice is to comply with section 804 of the Federal Lands Recreation Enhancement Act of 2004. The act requires agencies to give the public advance notice (6 months) of the establishment of a new recreation fee area.
We will begin collecting fees on February 6, 2019.
Nancy Walther, Superintendent, 900 Kennesaw Mountain Drive, Kennesaw, GA 30152. 770-427-4686, extension 223, or via email at
Kennesaw Mountain National Battlefield Park plans to collect the following recreation fees at the park beginning in six months: $5 per vehicle per day; $1 per pedestrian per day and $40 park annual pass. Revenue will be used to cover the cost of collections at the park and address the park's deferred maintenance backlog. These fees were determined by the National Park Service's group pricing model and comments from the public and stakeholders. In accordance with NPS public involvement guidelines, the park engaged numerous individuals, organizations, and local, state, and Federal government representatives while planning for the implementation of this fee.
National Park Service, Interior.
Notice; correction.
The American Museum of Natural History has corrected an inventory of human remains and associated funerary objects, published in a Notice of Inventory Completion in the
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to the American Museum of Natural History at the address in this notice by September 10, 2018.
Nell Murphy, American Museum of Natural History, Central Park West at 79th Street, New York, NY 10024, telephone (212) 769-5837, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the correction of an inventory of human remains and associated funerary objects under the control of the American Museum of Natural History, New York, NY. The human remains and associated funerary objects were removed from the Sebonac site, Shinnecock Hills, Suffolk County, NY.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
This notice corrects the minimum number of individuals published in a correction to a Notice of Inventory Completion in the
In the
In 1902, human remains representing, at minimum, 20 individuals, including 1 adult female, 3 adults of unknown sex, and 16 subadults of unknown sex, were removed from the Sebonac site, Shinnecock Hills, Suffolk County, NY, during Raymond M. Harrington's excavations, sponsored by Frederick Ward Putnam and the American Museum of Natural History.
In the
Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of 20 individuals of Native American ancestry.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Nell Murphy, American Museum of Natural History, Central Park West at 79th Street, New York, NY 10024, telephone (212) 769-5837, email
The American Museum of Natural History is responsible for notifying the Shinnecock Indian Nation that this notice has been published.
National Park Service, Interior.
Notice.
The Thomas Gilcrease Institute of American History and Art (Gilcrease Museum), in consultation with the appropriate Indian Tribes or Native Hawaiian organizations, has determined that the cultural item listed in this notice meets the definition of unassociated funerary object. Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to claim this cultural item should submit a written request to the Gilcrease Museum. If no additional claimants come forward, transfer of control of the cultural item to the lineal descendants, Indian Tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to claim this cultural item should submit a written request with information in support of the claim to the Gilcrease Museum at the address in this notice by September 10, 2018.
Laura Bryant, Anthropology Collections Manager, Thomas Gilcrease Institute of American History and Art, 1400 North Gilcrease Museum Road, Tulsa, OK 74127, telephone (918) 596-2747, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate a cultural item under the control of the Gilcrease Museum, Tulsa, OK, that meets the definition of unassociated funerary object under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American cultural item. The National Park Service is not responsible for the determinations in this notice.
In the early to mid-1900s, one cultural item was removed from a burial in Lee County, MS. A note with the item includes the name W. C. Wyman. Wyman's relationship to the burial site is unclear. The note also states that the item in question was found “with other relics, silver, brass” and that it had been “150 years since burial.” None of these other items is in Gilcrease Museum's possession. Through the Gilcrease Foundation, Thomas Gilcrease purchased the item from Dr. T. Hugh Young of Nashville, TN prior to 1962. In 1963 or 1964, Young donated the item to the Gilcrease Museum, which is owned by the City of Tulsa. The unassociated funerary object in question is a Carters Quarter style whelk shell gorget (accession number 90.456).
Though this shell gorget lacks a clear provenience, the details included in the note are consistent for Tupelo, MS, a well-known Chickasaw village site from the 18th century. The Carters Quarter style of gorget is often found in eastern Tennessee, in pre-18th century contexts. Consultation on Chickasaw customary practice indicated that this item was most likely manufactured in Tennessee and later when it had become an heirloom, that it was placed in the burial of a Chickasaw ancestor at Tupelo, Mississippi.
Officials of the Gilcrease Museum have determined that:
• Pursuant to 25 U.S.C. 3001(3)(B), the one cultural item described above is reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony and are believed, by a preponderance of the evidence, to have been removed from a specific burial site of a Native American individual.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the unassociated funerary object and The Chickasaw Nation.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to claim this cultural item should submit a written request with information in support of the claim to Laura Bryant, Gilcrease Museum, 1400 North Gilcrease Museum Road, Tulsa, OK 74127, telephone (918) 596-2747, email
The Gilcrease Museum is responsible for notifying The Chickasaw Nation that this notice has been published.
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 Sipco LLC on August 6, 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 wireless mesh networking products and related components thereof. The complaint names as respondents: Emerson Electric Co. of St. Louis, MO; Emerson Process Management LLLP of Bloomington, MN; Emerson Process Management Asia Pacific Private Limited of Singapore; Emerson Process Management Manufacturing (M) Sdn. Bhd. of Malaysia; Fisher-Rosemount Systems, Inc. of Round Rock, TX; Rosemount Inc. of Shakaopee, MN; Analog Devices, Inc. of Norwood, MA; Linear Technology LLC of Milpitas, CA; Dust Networks, Inc. of Union City, CA; Tadiran Batteries Inc. of Lake Success, NY; and Tadiran Batteries Ltd. of Israel. The complainant requests that the Commission issue a limited exclusion order, cease and desist orders and impose a bond during the 60-day 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 relating to the requested remedial orders;
(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 on the public interest 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. 3333”) 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.
On the basis of the record
The Commission, pursuant to section 735(b) of the Act (19 U.S.C. 1673d(b)), instituted this investigation effective June 28, 2017, following receipt of a petition filed with the Commission and Commerce by The Timken Company, North Canton, Ohio. The Commission scheduled the final phase of the investigation following notification of a preliminary determination by Commerce that imports of tapered roller bearings from Korea were being sold at LTFV within the meaning of section 733(b) of the Act (19 U.S.C. 1673b(b)). Notice of the scheduling of the final phase of the Commission's investigation and of a public hearing to be held in connection therewith was given by posting copies of the notice in the Office of the Secretary, U.S. International Trade Commission, Washington, DC, and by publishing the notice in the
The Commission made this determination pursuant to section 735(b) of the Act (19 U.S.C. 1673d(b)). It completed and filed its determination in this investigation on August 6, 2018. The views of the Commission are contained in USITC Publication 4806 (August 2018), entitled
By order of the Commission.
United States International Trade Commission.
August 24, 2018 at 9:00 a.m.
Room 101, 500 E Street SW, Washington, DC 20436, Telephone: (202) 205-2000.
Open to the public.
1. Agendas for future meetings: None.
2. Minutes.
3. Ratification List.
4. Vote on Inv. Nos. 731-TA-678-679 and 681-682 (Fourth Review) (Stainless Steel Bar from Brazil, India, Japan, and Spain). The Commission is currently scheduled to complete and file its determinations and views of the Commission by September 11, 2018.
5. Outstanding action jackets: None.
In accordance with Commission policy, subject matter listed above, not disposed of at the scheduled meeting, may be carried over to the agenda of the following meeting.
By order of the Commission.
On October 20, 2017, the Acting Assistant Administrator, Diversion Control Division, Drug Enforcement Administration (hereinafter, DEA or Government), issued an Order to Show Cause to Bharanidharan Padmanabhan, M.D., Ph.D. (hereinafter, Respondent), of Brookline, Massachusetts. Order to Show Cause (hereinafter, OSC), at 1. The Show Cause Order proposes the revocation of Respondent's Certificate of Registration on the ground that he does “not have authority to handle controlled substances in the Commonwealth of Massachusetts, the state in which . . . [he is] registered with the DEA.”
Regarding jurisdiction, the Show Cause Order alleges that Respondent holds DEA Certificate of Registration No. BP7993290 at the registered address of 30 Gardner Road #6A, Brookline, Massachusetts 02445. OSC, at 1. This registration authorizes Respondent to dispense controlled substances in schedules II through V as a practitioner. The Show Cause Order alleges that this registration expires on March 31, 2020.
The substantive ground for the proceeding, as alleged in the Show Cause Order, is that Respondent is “without authority to handle controlled substances in the Commonwealth of Massachusetts, the state in which . . . [he is] registered . . . with the DEA.”
The Show Cause Order notifies Respondent of his right to request a hearing on the allegations or to submit a written statement while waiving his right to a hearing, the procedures for electing each option, and the consequences for failing to elect either option.
By letter dated November 13, 2017, Respondent requested a hearing. Hearing Request, at 1. According to the Hearing Request, Respondent “wish[es] to show why . . . [he] should retain” Certificate of Registration No. BP7993290.
The Office of Administrative Law Judges put the matter on the docket and assigned it to Administrative Law Judge Mark M. Dowd (hereinafter, ALJ). I adopt the following statement of procedural history from the ALJ's Order Denying The Respo[n]dent's Request for Abeyance, Granting the Government's Motion for Summary Disposition, and Recommended Rulings, Findings of Fact, Conclusions of Law, and Decision of the Administrative Law Judge dated January 26, 2018 (hereinafter, R.D.).
On November 20, 2017, this tribunal ordered the Government to file evidence to support the allegations that the Respondent lacked state authority to handle controlled substances.
On December 4, 2017, the Government filed a Motion for Summary Disposition . . . . The Government submitted evidence that the Commonwealth of Massachusetts Board of Registration in Medicine indefinitely suspended the Respondent's medical license on May 11, 2017, in the form of the Final Decision and Order from Commonwealth of Massachusetts Board of Registration . . . . Gov't Mot. at Ex. 2, a. The Suspension was stayed for sixty days [a period which has since expired] to allow the
The Respondent . . . timely filed his Opposition to the Government's Submission of Evidence and Request for Summary Disposition on December 15, 2017. In his reply, the Respondent avers three claims. First, “Respondent does indeed possess a Massachusetts medical license.”
On December 19, 2017, this tribunal ordered the Government to respond to the Respondent's reply opposing the Government's submission of evidence and summary disposition request. The Order directed the Government to file a copy of the Respondent's Massachusetts CSR Certificate and evidence of its present status, as well as any evidence of official state action that may have been taken regarding the Registration in 2017. Moreover, the Government was ordered to brief relevant Massachusetts case law, statutory law, and regulations, as well as relevant federal case law, statutory law and regulations.
The Government filed its response in further support of its request for summary disposition on January 5, 2018. The Government argued that “the formal status of Respondent's Massachusetts CSR Certificate is irrelevant to these proceedings, as any Massachusetts CSR Certificate which Respondent possessed became void as a matter of law the moment that Respondent's medical license was suspended” pursuant to 105 Code of Massachusetts Regulations § 700.120 and Massachusetts General Laws Ch. 94C §§ 7(f), 9(a). Gov't Resp. Mot. at 4. On January 26, 2018, the Government filed a copy of Respondent's Massachusetts CSR Certificate. Gov't Mot for Leave, at . . . [5]. The Government does not “dispute Respondent's assertion that he is in [physical] possession of a Massachusetts CSR Certificate and that the Massachusetts Department of Public Health has not yet taken action to revoke his certificate.” . . . [Gov't Resp. Mot. at 5.] Rather, the Government argues that “it is irrelevant whether formal action has been taken to revoke Respondent's Massachusetts CSR Certificate as it is already void . . . [for] the pendency of Respondent's [medical license] suspension.”
The Respondent replied to the Government's Response further supporting summary disposition on January 24, 2018. The Respondent argues that the Government falsely defamed him as a liar, the Government deliberately flouted a clear order from this tribunal, the Respondent's medical license suspension is void ab initio,
I further note that the ALJ specifically granted Respondent “leave to file notice and proof regarding (but limited to) any restoration of his state medical license prior to the transmission of the matter to the Administrator.” R.D., at 7. According to the ALJ's certification and transmittal of the record dated February 21, 2018, the Respondent had not filed notice and proof regarding any restoration of his State medical license by that time. The record, therefore, contains no evidence that Respondent is currently authorized to practice medicine in Massachusetts.
The ALJ granted the Government's Motion for Summary Disposition and recommended that Respondent's registration be revoked.
At this juncture, no dispute exists over the fact that the Respondent currently lacks state authority to handle controlled substances in the Commonwealth of Massachusetts because the Medical Board suspended his medical license, thus voiding his Massachusetts CSR Certificate. Because the Respondent lacks state authority at the present time, Agency precedent dictates that he is not entitled to maintain his DEA registration. Simply put, there is no contested factual matter that could be introduced at a hearing that would, in the Agency's view, provide authority to allow the Respondent to continue to hold his DEA . . . [registration].
I issue this Decision and Order based on the entire, legible record before me.
Respondent is the holder of DEA Certificate of Registration No. BP7993290, pursuant to which he is authorized to dispense controlled substances in schedules II through V as a practitioner, at the registered address of 30 Gardner Road #6A, Brookline, Massachusetts 02445. Government's Submission of Evidence and Request for Summary Disposition dated December 4, 2017 (hereinafter, Government Motion), Exh. 01 (Facsimile of Registration No. BP7993290). Respondent's registration expires on March 31, 2020.
By Final Decision and Order dated May 11, 2017, the Massachusetts Board indefinitely suspended Respondent's medical license number 209168. According to the Final Decision and Order, “the record demonstrates that the Respondent has rendered substandard care to two patients, maintained substandard medical records for seven patients, and dispensed controlled substances after his Massachusetts Controlled Substances Registration . . . expired.” Government Motion, Exh. 02, Attachment A, at 1 [footnotes omitted]. The Massachusetts Board's Final Decision and Order afforded Respondent the opportunity to stay the indefinite suspension by entering into a Board-approved Probation Agreement and complying with its terms.
Further, according to Massachusetts' online records, of which I also take official notice, Respondent is not listed among those authorized to handle controlled substances in Massachusetts.
Accordingly, I find that Respondent currently is without authority to engage in the practice of medicine or to handle controlled substances in the Commonwealth of Massachusetts, the State in which he is registered.
Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized to suspend or revoke a registration issued under section 823 of the Controlled Substances Act (hereinafter, CSA), “upon a finding that the registrant . . . has had his State license or registration suspended . . . [or] revoked . . . by competent State authority and is no longer authorized by State law to engage in the . . . dispensing of controlled substances.” With respect to a practitioner, the DEA has also long held that the possession of authority to dispense controlled substances under the laws of the State in which a practitioner engages in professional practice is a fundamental condition for obtaining and maintaining a practitioner's registration.
This rule derives from the text of two provisions of the CSA. First, Congress defined the term “practitioner” to mean “a physician . . . or other person licensed, registered, or otherwise permitted, by . . . the jurisdiction in which he practices . . . , to distribute, dispense, . . . [or] administer . . . a controlled substance in the course of professional practice.” 21 U.S.C. 802(21). Second, in setting the requirements for obtaining a practitioner's registration, Congress directed that “[t]he Attorney General shall register practitioners . . . if the applicant is authorized to dispense . . . controlled substances under the laws of the State in which he practices.” 21 U.S.C. 823(f). Because Congress has clearly mandated that a practitioner possess State authority in order to be deemed a practitioner under the CSA, the DEA has held repeatedly that revocation of a practitioner's registration is the appropriate sanction whenever he is no longer authorized to dispense controlled substances under the laws of the State in which he practices.
According to the Massachusetts Controlled Substances Act, “every person who . . . dispenses . . . any controlled substance within the commonwealth shall . . . register with the commissioner of public health, in accordance with his regulations.” Mass. Gen. Laws ch. 94C, § 7(a) (Westlaw, current through Chapter 122 of the 2018 2nd Annual Session). Further, the automatic issuance of a controlled substances registration to a physician is only required when the physician is “duly authorized to practice his profession in the commonwealth.” Mass. Gen. Laws ch. 94C § 7(f) (Westlaw, current through Chapter 122 of the 2018 2nd Annual Session).
Here, the undisputed evidence in the record is that Respondent's medical license has been suspended. In addition, as already noted, Respondent's medical license expired a few months ago. According to Massachusetts law, Respondent is not eligible to be issued a controlled substances registration if he is not authorized to practice medicine. Indeed, as noted above, Respondent is not on the list of those currently authorized to dispense controlled substances. This lack of authorization is consistent with the regulations that implement the Massachusetts Controlled Substances Act: “A registration is void if the registrant's underlying professional licensure on which the registration is based is suspended or revoked.” 105 Mass. Code Regs. § 700.120 (Westlaw, current
In sum, Respondent currently lacks authority in Massachusetts to practice medicine and to handle controlled substances. He is not, therefore, eligible for a DEA registration. As such, I will order that Respondent's DEA registration be revoked.
Pursuant to 28 CFR 0.100(b) and the authority thus vested in me by 21 U.S.C. 824(a), I order that DEA Certificate of Registration No. BP7993290 issued to Bharanidharan Padmanabhan, M.D., Ph.D., be, and it hereby is, revoked. This Order is effective September 10, 2018.
Office of Justice Programs (OJP), Justice.
Notice of meeting and announcement of renewal of charter.
This is an announcement of a meeting of the Global Justice Information Sharing Initiative (Global) Federal Advisory Committee (GAC) to discuss the Global Initiative, as described at
The meeting will take place on Wednesday, August 29, 2018, from 9:00 a.m. ET to 4:30 p.m. ET.
The meeting will take place at the Office of Justice Programs offices (in the Main Conference Room), 810 7th Street, Washington, DC, 20531; Phone: (202) 514-2000 [note: this is not a toll-free number].
Tracey Trautman, Global Designated Federal Official (DFO), Bureau of Justice Assistance, Office of Justice Programs, 810 7th Street, Washington, DC 20531; Phone (202) 305-1491 [note: this is not a toll-free number]; Email:
This meeting is open to the public. Due to security measures, however, members of the public who wish to attend this meeting must register with Ms. Tracey Trautman at the above address at least (7) days in advance of the meeting. Registrations will be accepted on a space available basis. Access to the meeting will not be allowed without registration. All attendees will be required to sign in at the meeting registration desk. Please bring photo identification and allow extra time prior to the meeting.
Anyone requiring special accommodations should notify Ms. Trautman at least seven (7) days in advance of the meeting.
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting the information collection request (ICR) proposal titled, “Workforce Innovation and Opportunity Act Implementation Evaluation—Site Visit Protocols,” to the Office of Management and Budget (OMB) for review and approval for use in accordance with the Paperwork Reduction Act (PRA) of 1995. Public comments on the ICR are invited.
The OMB will consider all written comments that agency receives on or before September 10, 2018.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the
Submit comments about this request by mail to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-OS, Office of Management and Budget, Room 10235, 725 17th Street NW, Washington, DC 20503; by Fax: 202-395-5806 (this is not a toll-free number); or by email:
Michel Smyth by telephone at 202-693-4129 (this is not a toll-free number) or by email at
This ICR seeks PRA authority for the Workforce Innovation and Opportunity Act (WIOA) Implementation Evaluation—Site Visit Protocols information collection. More specifically, this ICR seeks clearance for two data collection activities conducted as part of the WIOA evaluation's implementation analyses: (1) Site visit interviews with state-level staff; and (2) site visit interviews with local-level staff. WIOA section 169 authorizes this information collection.
This proposed information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information if the collection of information does not display a valid Control Number.
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
44 U.S.C. 3507(a)(1)(D).
The ACRS Subcommittee on Plant Operations and Fire Protection will hold a meeting on August 24, 2018 at U.S. Nuclear Regulatory Commission, 11545 Rockville Pike, Room T-2B1, Rockville, Maryland 20852.
The entire meeting will be open to public attendance. The agenda for the subject meeting shall be as follows:
The Subcommittee will conduct an information briefing regarding the NRC Office of Nuclear Regulatory Research test plan for Phase 2 of its High Energy Arc Fault Test Program. The Subcommittee will hear presentations by and hold discussions with NRC staff and other interested persons regarding this matter. The Subcommittee will gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the Full Committee.
Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official (DFO), Kent Howard (Telephone 301-415-2989 or Email:
Detailed meeting agendas and meeting transcripts are available on the NRC website at
If attending this meeting, please enter through the One White Flint North Building, 11555 Rockville Pike, Rockville, Maryland 20852. After registering with Security, please contact Mr. Theron Brown (Telephone 301-415-6702) to be escorted to the meeting room.
Nuclear Regulatory Commission.
Direct and indirect transfer of license; order.
The U.S. Nuclear Regulatory Commission (NRC) is issuing an order to permit the direct transfer of Renewed Facility Operating License Nos. DPR-51 and NPF-6 for Arkansas Nuclear One, Units 1 and 2, and the general license for the independent spent fuel storage installation facility, to a new limited liability company named Entergy Arkansas, LLC. In addition, the order permits an associated indirect license transfer of membership interest of Entergy Arkansas, LLC to an intermediate company, Entergy Utility Holding Company, LLC. Entergy Corporation will remain as the ultimate parent company, but the intermediate company, Entergy Utility Holding Company, LLC, will be the direct parent company of the newly formed Entergy Arkansas, LLC. The NRC will issue conforming amendments to the renewed facility operating licenses for administrative purposes to reflect the change in the owner licensee.
The order was issued on August 1, 2018, and is effective for one year.
Please refer to Docket ID NRC-2017-0239 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:
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•
•
Margaret W. O'Banion, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington DC 20555-0001; telephone: 301-415-1233; email:
The text of the order is attached.
For the Nuclear Regulatory Commission.
Entergy Arkansas, Inc. (EAI) and Entergy Operations, Inc. (EOI) (together, the licensees) are co-holders of Renewed Facility Operating License (RFOL) Nos. DPR-51 and NPF-6 for Arkansas Nuclear One (ANO), Units 1 and 2, and the general license for the independent spent fuel storage installation (ISFSI). EAI is the owner and EOI is authorized to possess, use, and operate ANO, Units 1 and 2, and the ISFSI, which are located in Pope County, Arkansas.
By application dated September 21, 2017, EOI requested on behalf of itself, EAI, and their parent companies (together, the applicants), pursuant to Title 10 of the
The application proposes no physical or operational changes to the facilities. The interconnections that provide offsite power to ANO, Units 1 and 2, do not change as a result of the proposed direct and indirect license transfers.
The applicants requested NRC approval of the transfers of the facility operating and ISFSI general licenses and conforming license amendments in accordance with 10 CFR 50.80 and 10 CFR 50.90, “Application for amendment of license, construction permit, or early site permit.” The NRC published a notice, “Arkansas Nuclear One, Units 1 and 2; Grand Gulf Nuclear Station, Unit 1; River Bend Station, Unit 1; and Waterford Steam Electric Station, Unit 3 Consideration of Approval of Transfer of Licenses and Conforming Amendments,” in the
Under 10 CFR 50.80, no license, or any right thereunder, shall be transferred, directly or indirectly, through transfer of control of the license, unless the NRC gives its consent in writing. Upon review of the information in the application, and other information before the Commission, the NRC staff has determined that EAL is qualified to hold the license to the extent proposed to permit the transfer of ownership from EAI to EAL and the indirect transfer of membership interest of EAL to an intermediate company, EUHC, as described in the application. The NRC staff has also determined that the proposed license transfers are otherwise consistent with the applicable provisions of law, regulations, and orders issued by the NRC pursuant thereto, subject to the condition set forth below. The NRC staff has further found that the application for the proposed license amendments complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations set forth in 10 CFR Chapter I, “Nuclear Regulatory Commission”; the facilities will operate in conformity with the application, the provisions of the Act, and the rules and regulations of the Commission; there is reasonable assurance that the activities authorized by the proposed license amendments can be conducted without endangering the health and safety of the public and that such activities will be
Accordingly, pursuant to Sections 161b, 161i, and 184 of the Act; Title 42 of the
1. Before completion of the proposed transaction, EOI shall provide the Director of the Office of Nuclear Reactor Regulation satisfactory documentary evidence that EAL has obtained the appropriate amount of insurance required of the licensees under 10 CFR part 140 and 10 CFR part 50.
IT IS FURTHER ORDERED that, consistent with 10 CFR 2.1315(b), the license amendments for ANO, Units 1 and 2, that make changes, as indicated in Enclosures 2 and 3 to the cover letter forwarding this order, to conform the licenses to reflect the subject transfers, are approved. The amendments shall be issued and made effective at the time the proposed transfer actions are completed.
IT IS FURTHER ORDERED that, after receipt of all required regulatory approvals of the proposed transfer actions, EOI shall inform the Director of the Office of Nuclear Reactor Regulation in writing of such receipt, and of the date of closing of the transfers, no later than 5 business days before the date of the closing of the transfers. Should the proposed transfers not be completed within 1 year of this order's date of issuance, this order shall become null and void; however, upon written application and for good cause shown, such date may be extended by order.
This order is effective upon issuance.
For further details with respect to this order, see the application dated September 21, 2017 (Agencywide Documents Access and Management System (ADAMS) Accession No. ML17268A213) and the NRC's safety evaluation dated August 1, 2018 (ADAMS Accession No. ML18177A236), which are available for public inspection at the NRC's Public Document Room located at One White Flint North, Public File Area 01-F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available documents created or received at the NRC are accessible electronically through ADAMS in the NRC Library at
Dated at Rockville, Maryland, this 1st day of August, 2018.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Director's decision under 10 CFR 2.206; issuance.
The U.S. Nuclear Regulatory Commission (NRC) has issued a director's decision in response to a petition dated January 24, 2017, filed by Mr. Paul Gunter on behalf of Beyond Nuclear, and representing numerous public interest groups (collectively, Beyond Nuclear,
The director's decision was issued on August 2, 2018.
Please refer to Docket ID NRC-2017-0188 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:
•
•
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Perry Buckberg, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-1383; email:
The text of the director's decision is attached.
For the Nuclear Regulatory Commission.
On January 24, 2017,
Specifically, the Petitioners asked the NRC to take enforcement actions consistent with the following:
1. Suspend power operations of U.S. nuclear power plants that rely on ACF components and subcontractors pending a full inspection (including nondestructive examination by ultrasonic testing) and material testing. If carbon anomalies (“carbon segregation” or “carbon macrosegregation” (CMAC)) in excess of the design-basis specifications for at-risk component parts are identified, require the licensee to do one of the following:
a. Replace the degraded at-risk component(s) with quality-certified components.
b. For those at-risk degraded components that a licensee seeks to allow to remain in service, apply through the license amendment request process to demonstrate that a revised design basis is achievable and will not render the inservice component unacceptably vulnerable to fast fracture failure at any time and in any credible service condition throughout the current license of the power reactor.
2. Alternatively modify the licensees' operating licenses to require the licensees to perform the requested emergency enforcement actions at the next scheduled outage.
3. Issue a letter to all U.S. light-water reactor operators under 10 CFR 50.54(f) requiring licensees to provide the NRC with information under oath and affirming specifically how U.S. operators are reliably monitoring contractors and subcontractors for the potential carbon segmentation anomaly in the supply chain and the reliability of the quality assurance certification of those components, and publicly release the responses.
The June 16 and June 22, 2017, supplements to the petitions added Crystal River Unit 3, which is currently shut down, and the licensee Duke Energy to the list of facilities for which the Petitioners requested the following fourth NRC action:
a. Confirm the sale, delivery, quality control and quality assurance certification and installation of the replacement reactor pressure vessel head as supplied to Crystal River Unit 3 by then Framatome and now AREVA-Le Creusot Forge industrial facility in Charlon-St. Marcel, France and;
b. With completion and confirmation [of the above Crystal River Unit 3 actions], the modification of Duke Energy's current license for the permanently closed Crystal River Unit 3 nuclear power station in Crystal River, Florida, to inspect and conduct the appropriate material test(s) for carbon macrosegregation on sufficient samples harvested from the installed and now inservice irradiated Le Creusot Forge reactor pressure vessel head [sic]. The Petitioners assert that the appropriate material testing include Optical Emissions Spectrometry (OES).
As the basis of their requests, the Petitioners cited the expert review by Large and Associates Consulting Engineers that identified significant irregularities and anomalies in both the manufacturing process and quality assurance documentation of large reactor components manufactured by the ACF for French reactors and reactors in other countries.
On February 2, 2017,
On February 8, 2017, the PRB met internally to discuss the request for immediate actions and informed the Petitioners on February 13, 2017,
On April 11, 2017, the PRB met to discuss the petition with respect to the criteria for consideration under 10 CFR 2.206. Based on that review, the PRB determined that the petition request meets the criteria for consideration under 10 CFR 2.206. On May 19, 2017, the petition manager informed the Petitioners that the initial recommendation was to accept the petition for review but to refer a portion of the petition (i.e., the concern of potentially falsified quality assurance documentation) to the NRC's allegation process for appropriate action.
By a letter to the Petitioners which copied the licensees dated June 6, 2018,
The petition and other references related to this petition are available for inspection in the NRC's Public Document Room (PDR), located at O1F21, 11555 Rockville Pike (first floor), Rockville, MD 20852. Publicly available documents created or received at the NRC are accessible electronically through ADAMS in the NRC Library at
Under the 10 CFR 2.206(b) petition review process, the Director of the NRC office with responsibility for the subject matter shall either institute the requested proceeding or shall advise the person who made the request in writing that no proceeding will be instituted, in whole or in part, with respect to the request and the reason for the decision. Accordingly, the decision of the NRR Director is provided below. As further discussed below, the petition is denied.
The NRC's policy is to have an effectively coordinated program to promptly and systematically review relevant domestic and applicable international operational experience (OpE) information. The program supplies the means for assessing the significance of OpE information, offering timely and effective communication to stakeholders, and applying the lessons learned to regulatory decisions and programs affecting nuclear reactors. The NRC Management Directive 8.7, “Reactor Operating Experience Program,” dated February 1, 2018, describes the Reactor OpE Program.
As reported in internal NRC communications, AREVA notified France's nuclear safety authority, Autorité de Sûreté Nucléaire (ASN), of an anomaly in the composition of the steel in certain zones of the reactor pressure vessel (RPV) upper and lower heads of the Flamanville Nuclear Power Plant (Flamanville), Unit 3, in Manche, France. Both the upper and lower vessel heads were manufactured by ACF. According to ASN, chemical and mechanical property testing performed by AREVA in late 2014 (on a vessel head similar to that of the Flamanville European Pressurized Reactor (EPR)) revealed a zone of high carbon concentration (0.30 percent as opposed to a target value of 0.22 percent), which led to lower than expected mechanical toughness values in that area. Initial measurements confirmed the presence of this anomaly in the Flamanville, Unit 3, RPV upper and bottom heads.
In accordance with the process described in NRR OI LIC-401, the NRC's Reactor OpE Program staff ensured that the appropriate technical experts within the NRC were aware of the issue and were evaluating these issues for relevance to the U.S. industry. In addition, the NRC has strong collaboration with the international community and was separately in contact with ASN to discuss this issue.
The CMAC is a known phenomenon that takes place during the casting of large ingots. The CMAC is a material heterogeneity in the form of a chemical (i.e., carbon) gradient that deviates from the nominal composition and may exceed specification limits. Portions of the ingot containing CMAC that exceed specification limits (positive CMAC) are purposefully removed and discarded as part of the material processing. Regions of positive CMAC that are not appropriately removed result in localized regions near the surface of the final component with higher strength and lower toughness relative to the bulk material.
In April 2015, regions of positive CMAC were discovered in EPR RPV heads that were manufactured for the Flamanville plant. The ACF had produced the forgings for the Flamanville upper and lower RPV heads. The discovery of the CMAC in the heads prompted ASN to ask the operator, Électricité de France S.A. (EDF) (Electricity of France), to review inservice forged components at all of its plants to determine the potential extent of the condition. The review identified steam generator (SG) channel heads (also commonly referred to as SG primary heads) produced by ACF and JCFC as the components most likely to contain a region of CMAC. The ASN requested that nondestructive testing be performed on these SG channel heads to characterize the carbon content and confirm the absence of unacceptable flaws.
On October 18, 2016, ASN ordered the acceleration of the nondestructive testing of the potentially affected ACF and JCFC SG channel heads, which required completion of the remaining nondestructive testing within 3 months. The discovery of higher than expected carbon values measured on an inservice SG channel head produced by JCFC prompted the accelerated schedule. As a result, to perform the required nondestructive tests, EDF had to shut down its plants before their scheduled outages.
AREVA Inc. (AREVA Inc. or AREVA), located in Lynchburg, VA, provides safety-related products and services for U.S. operating nuclear power plants, including replacements for reactor coolant pressure boundary components. On February 3, 2017,
In September 2015, June 2016, and June 2017, ASN convened an Advisory Committee of Experts for Nuclear Pressure Equipment to obtain its technical opinion on the consequences of CMAC for the serviceability of the Flamanville EPR reactor vessel domes. The resulting series of publicly available reports (CODEP-DEP-2015-037971,
Beginning in December 2016, the NRC staff conducted a preliminary safety assessment to determine the potential safety significance posed to the U.S. nuclear power reactor fleet by the CMAC observed in reactor coolant system (RCS) components overseas and concluded that the failure of an RPV/SG head component has a very low probability, even if the worst practical degree of CMAC occurs within that component. The NRC staff used a qualitative failure comparison to assess the relative likelihood of failure of an RPV shell (which is not expected to be subject to positive CMAC) with RPV/SG head component types that could be affected by CMAC. Based on this comparison, the NRC determined the following:
When combining all these individual attributes, an RPV/SG head component with postulated CMAC is much less likely to fail than an RPV shell. Past research and operating experience has demonstrated that failure of an RPV shell under normal operations or postulated accident scenarios has a very low probability of occurrence.
Concurrent with the NRC analyses, the U.S. industry initiated a research program in early 2017, conducted by the Electric Power Research Institute (EPRI), to address the generic safety significance of elevated carbon levels caused by CMAC in the components of interest. This program was divided into the following four main tasks, each aimed at developing both qualitative and quantitative information to make a safety determination:
As of the writing of this document, Task 1 has been completed and has been publicly released as Materials Reliability Program (MRP)-417.
The MRP-417 addresses the structural significance of the potential presence of CMAC in large, forged pressurized-water reactor pressure-retaining components, including the RPV head, beltline and nozzle shell forgings, and the SG and pressurizer ring and head forgings through the end of an 80-year operating interval. The assessment was made using the NRC risk safety criterion of a 95
The MRP-417 describes the analyses and results for bounding values for the RPV shell, RPV upper head, SG channel head, pressurizer shell, and pressurizer head components based on the analyses assumptions from the alternate PTS rule in conjunction with the effect of the CMAC on the material toughness. The report's deterministic results suggest that the RPV vessel behavior bounds the behavior of the pressurizer components. In addition, the probabilistic results suggest that in all cases, assuming the maximum carbon content observed in the field, the calculated TWCF and CPF were below the NRC risk safety criterion of the 95
In March 2017, an NRC inspection team performed a limited-scope vendor inspection at the AREVA facility in Lynchburg, Virginia, to review documentation from ACF and assess AREVA's compliance with the provisions of selected portions of Appendix B, “Quality Assurance Criteria for Nuclear Power Plants and Fuel Reprocessing Plants,” to 10 CFR Part 50, and 10 CFR Part 21, “Reporting of Defects and Noncompliance.” This inspection focused on AREVA's documentation and evaluation of potential carbon macrosegregation issues in forgings supplied by AREVA for U.S. operating nuclear power plants. Specifically, the NRC inspection reviewed documentation to verify that forgings met the ASME Code requirements for carbon content and mechanical properties. The NRC issued the inspection report on May 10, 2017.
The inspection report contains the following primary material processing and property observations:
The NRC staff also documented its risk-informed evaluation of the potential safety significance of CMAC in components produced by ACF, as it relates to the safe operation of U.S. plants, and options for addressing the topic using its risk-informed decision-making process in NRR OI LIC-504, “Integrated Risk-Informed Decision-Making Process for Emergent Issues,” Revision 4, dated June 2, 2014,
The NRC requires U.S. nuclear reactor components fabricated with forgings from ACF to be manufactured and procured in accordance with all applicable regulations, as well as the ASME Code requirements that are incorporated by reference. The regulations most pertinent to the prevention and identification of CMAC in regions of RCS components are the ASME Code requirements incorporated by reference in 10 CFR 50.55a, “Codes and Standards,” and quality assurance requirements in 10 CFR part 50, Appendix B. In addition to the NRC regulations and ASME Code requirements that are focused on the process and quality controls for addressing CMAC, there are also regulations that focus on performance and design criteria that may be impacted by regions of CMAC. These regulations include: 10 CFR 50.60, “Acceptance criteria for fracture prevention measures for lightwater nuclear power reactors for normal operation,” Appendix A to 10 CFR part 50, “General Design Criteria for Nuclear Power Plants,” and Appendix G to 10 CFR part 50, “Fracture Toughness Requirements.” The applicability of specific NRC regulations and ASME Code requirements will, in part, depend on the dates that the regulations or requirements became effective relative to a component being put into operation. The plant-specific design basis and current licensing basis address the fundamental regulatory requirements pertaining to the integrity of the components of interest.
Appendix B to 10 CFR part 50 establishes quality assurance requirements for the design, manufacture, construction, and operation of the structures, systems, and components (SSCs) for nuclear facilities. Appendix B requirements apply to all activities affecting the safety-related functions of those SSCs. These activities include designing, purchasing, fabricating, handling, installing, inspecting, testing, operating, maintaining, repairing, and modifying SSCs. To accomplish these activities, licensees must contractually pass down the requirements of Appendix B through procurement documentation to suppliers of SSCs, as stated in the Appendix B criteria below.
Criterion IV, “Procurement Document Control,” of 10 CFR Part 50, Appendix B, states the following:
Criterion VII, “Control of Purchased Material, Equipment, and Services,” of 10 CFR Part 50, Appendix B, in part, states, the following:
The licensee is responsible for ensuring that the procurement documentation appropriately identifies the applicable regulatory and technical requirements and for determining whether the purchased items conform to the procurement documentation.
Criterion XV, “Nonconforming Materials, Parts, or Components,” of 10 CFR Part 50, Appendix B, states the following:
Nonconformances identified by the supplier during manufacturing must be technically evaluated and dispositioned accordingly. If the supplier identifies a nonconformance, such as the presence of CMAC in the final product, it must perform an engineering evaluation and document the nonconformance on the associated certificate of conformance. The licensee is responsible for reviewing the certificate of conformance during receipt inspection for acceptance of the final product upon delivery.
Under 10 CFR Part 21, the NRC requires both licensees and their suppliers to evaluate any condition or defect in a component that could create a substantial safety hazard. Regions of CMAC in RCS components suspected of having the potential to create a substantial safety hazard would be an example of a condition that licensees and their suppliers must evaluate. In addition, 10 CFR Part 21 requires the entity to notify the NRC if it becomes aware of information that reasonably indicates that a basic component contains defects that could create substantial safety hazard.
The NRC's evaluation of this issue consisted of conducting preliminary safety analyses as described above, reviewing the testing and analyses performed by the French licensee, meeting with French and Japanese regulators to discuss their evaluation, reviewing the nuclear industry's evaluation of the issue, conducting an onsite inspection of manufacturing and procurement records, and determining the final safety assessment using a risk-informed decision-making process. The staff's evaluation dated February 22, 2018, documents the NRC's full evaluation of the CMAC topics as it relates to plants operating in the United States.
The staff reviewed the publicly available ASN documentation on this issue (CODEP-DEP-2015-037971, CODEP-DEP-2016-019209, and CODEP-DEP-2017-019368) and concluded that, although ASN's decisions and actions are based solely on French nuclear regulations which do not directly correlate to U.S. regulations, the experimental results and the fast fracture analyses can provide direct insight into the expected behavior of postulated CMAC in U.S.-forged components. As concluded by ASN, the analyses demonstrate that the fast fracture of the Flamanville heads from the impacts of CMAC can be ruled out in view of the margins determined by the analyses.
The NRC staff reviewed the technical information in MRP-417 and concluded that it was credible for use in this assessment for the following reasons:
The NRC assessment of MRP-417 for this report does not constitute a regulatory endorsement of its full contents. The NRC staff will assess the other industry reports on the CMAC topic in the same manner as such reports become available.
Although these evaluations provide useful information to address the impacts of postulated CMAC in forged components in service at U.S. operating reactors, the NRC staff used an analysis approach, leveraging
Consistent with LIC-504, for this review, the NRC staff considered the following five principles of risk-informed decision-making when considering options for addressing this issue:
The NRC staff considered the following four options to address the potential impact of the international CMAC OpE on the U.S. nuclear power reactor fleet. Options 2, 3, and 4 align with the Petitioners' requests.
This option consists of the NRC staff continuing to monitor all domestic and international information associated with the CMAC topic. The staff will evaluate new information, as it becomes available, to ensure that conservatism in the staff's final safety determination is maintained. Aspects of the staff's safety determination that may be evaluated against new information includes the extent of condition in the U.S., potential degree of CMAC on a generic basis, or data affecting the relationship between CMAC and mechanical performance. This information is to be evaluated to determine if there is reasonable assurance that adequate defense-in-depth, sufficient safety margin, and an acceptable level of risk is maintained with an appropriate degree of conservatism.
If new information becomes available that warrants evaluation and it is concluded that the staff's safety determination remain appropriately conservative, then no additional actions will be taken. Alternatively, if the staff cannot conclude that there is reasonable assurance of structural integrity, additional action(s) will be considered. The NRC will communicate with applicable stakeholders, as appropriate.
The second option involves issuing a generic letter (GL) to the licensees operating with components forged by ACF. The objective of the GL would be to confirm that the licensees' 10 CFR Part 50, Appendix B, quality assurance programs have verified that the components produced by ACF comply with the applicable NRC regulations and ASME Code requirements. The GL would request that the licensees (1) provide the documentation necessary to confirm that the components in question meet all applicable NRC regulations and ASME Code requirements and (2) describe how their 10 CFR Part 50, Appendix B, quality assurance programs verified that the components complied with all applicable NRC regulations and ASME Code requirements, specifically, those related to the manufacturing of the components relevant to the CMAC topic. Section II.C of this Director's Decision provides the regulatory requirements and the 10 CFR Part 50, Appendix B, quality assurance program, as they relate to the CMAC topic. A GL can require a written response in accordance with 10 CFR 50.54(f).
The third option involves issuing an order to the licensees operating with inservice components produced by ACF. The order would require licensees with components from ACF to conduct nondestructive examinations of these inservice components during the next scheduled outage. The objective of the examination would be to verify the condition of the components (e.g., no unacceptable flaw or indications) and to verify carbon levels. If the nondestructive examinations reveal a condition that is adverse to safety or does not conform to requirements, the plant would not be allowed to restart until the issue is addressed and until the NRC grants its approval.
Option 4 is identical to Option 3, except that the NRC orders would require immediate plant shutdowns to perform the inspections. This Option would be preferable in the case of an immediate safety issue posing a clearly demonstrated significant and immediate risk to an operating plant. NRR OI LIC-504 defines a risk significant condition as significant enough to warrant immediate action if the calculated large early release frequency (LERF) is on the order of 1×10
The NRC staff evaluated the relative merits of the four options discussed in the preceding section. The staff has concluded that any of the four options proposed will adequately address the possible safety impact to the U.S. nuclear power reactor fleet posed by potential regions of CMAC in components produced by ACF. However, all four options are not equivalent or warranted, as discussed below.
To properly assess this option, the NRC assessed each of the five principles of the risk-informed decision-making process within the context of this option.
A licensee is responsible for ensuring that the applicable regulatory and technical requirements are appropriately identified in the procurement documentation and for evaluating whether the purchased items, upon receipt, conform to the procurement documentation, in accordance with 10 CFR part 50, Appendix B. The NRC expects that licensees and vendors subject to NRC jurisdiction affected by the potential presence of CMAC have verified compliance with applicable NRC requirements and regulations for each potentially affected component or, alternatively, performed an appropriate evaluation that concludes that the condition is not adverse to safety. The NRC has not received a 10 CFR part 21 notification from a component supplier or licensee associated with CMAC. The ongoing evaluations have not yet determined that a deviation exists under 10 CFR part 21. The NRC confirms licensee and vendor compliance with NRC requirements through submitted reports, routine inspections, and continuous oversight provided by the plant resident inspector. For example, the NRC reviews 10 CFR part 21 evaluations and the response to operational experience routinely as part of the Reactor Oversight Process (ROP). Specifically, IP 71152,
The aspect of defense-in-depth of relevance to the potential presence of CMAC in regions of RCS components is “barrier integrity.” The reactor coolant pressure boundary is one of the three principal fission-product release barriers in a U.S. plant. Under 10 CFR 50.61a, the NRC established a 95
A region of CMAC in a component could reduce the margin against fracture. However, it has been shown that this reduction in
If it is conservatively assumed that the TWCF equates to the LERF (neglecting mitigating factors), the calculated 95
Because there is no indication that the U.S. inservice components produced by ACF are noncompliant with the applicable regulations and because the NRC has reasonable assurance that defense-in-depth, safety margins, and risk levels are adequately maintained, the current monitoring programs at the plants are adequate, and additional performance measurement strategies are not warranted. However, the NRC staff would continue to monitor the U.S. nuclear industry and international activities related to the CMAC topic to analyze any new information to determine whether additional performance measurement strategies are necessary. Therefore, Principle 5 is satisfied for Option 1.
This option reinforces the regulatory determination made in Option 1 by issuing a GL requesting that the documentation and evaluations performed by licensees and their component suppliers conclude that the components produced by ACF do not have defects or deviations that pose a substantial safety hazard. The NRC would not expect the information collected in the response to a GL to change any of the conclusions reached in Option 1, including those related to defense-in-depth, safety margins, or risk-level determinations. Therefore, all five principles of risk-informed decision-making would also be satisfied for Option 2. Additionally, the relevant vendors have informed the affected licensees of the CMAC topic. Vendors and licensees must meet their 10 CFR part 21 evaluation and reporting responsibilities if the condition warrants such action. As part of the ROP and vendor inspection program, the NRC reviews these evaluations for adequacy.
This option reinforces the determinations made in Option 1 by performing inspections to confirm that an appropriate degree of conservatism was used in the evaluations of the potential impact of CMAC on U.S. components produced by AFC. The NRC would not expect the information collected by performing nondestructive examinations of the inservice components to significantly affect the defense-in-depth, safety margins, or risk-level determinations made in Option 1. Therefore, all five principles of risk-informed decision-making would also be satisfied for Option 3.
In evaluating the international, U.S. industry, and NRC safety assessments, the NRC determined that the impact of CMAC on the integrity of the U.S.-forged components in question is small and that the calculated 95
The staff determined that Option 1 was the most appropriate action based on the material and processing information reviewed by the staff during the vender inspection of AREVA, experimental data and evaluation reported by ASN, PFM analyses conducted by the industry, the staff's review of the open literature on CMAC in steel ingots and its effect on performance, and an evaluation demonstrating that Option 1 satisfies all five key principles of risk-informed decision-making. Additionally, this compilation of information reviewed affirms the staff's preliminary safety assessment that the safety significance of CMAC to U.S. plants appears to be negligible and does not warrant immediate action. If new information becomes available that calls into question the conservatism of the evaluations supporting Option 1 or the regulatory compliance of the plants with inservice components from ACF, the NRC staff will reevaluate the need for additional actions. The staff's evaluation dated February 22, 2018, documents the NRC's full evaluation of the CMAC topics as it relates to plants operating in the United States.
This request is essentially identical to Option 4 described above. The NRC has determined, through its PFM analyses, that the expected impact of CMAC on the LERF is less than 1×10
This request is essentially identical to Option 3 described above. As discussed above, performing nondestructive examinations of the inservice components is not expected to provide information that would significantly affect the defense-in-depth, safety margins, or risk-level determinations that would be provided by continued monitoring and evaluation of new information.
This request is essentially identical to Option 2 described above. As discussed above, the information collected through a 10 CFR 50.54(f) request for information or a GL is not expected to change any of defense-in-depth, safety margins, or risk-level determinations that would be provided by continued monitoring and evaluation of new information. In addition, the relevant vendors and licensees must meet their 10 CFR Part 21 evaluation and reporting responsibilities if the condition warrants such action. As part of the ROP and vendor inspection program, the NRC reviews these evaluations for adequacy.
AREVA did not identify Crystal River Unit 3 as a plant that contained components from ACF,
Based on the evaluations provided above, and documented in the February 22, 2018, NRC memorandum, the NRR Director has determined that the actions requested by the Petitioners, will not be granted in whole or in part.
As provided for in 10 CFR 2.206(c), a copy of this Director's Decision will be filed with the Secretary of the Commission for the Commission to review. As provided for by this regulation, the decision will constitute the final action of the Commission 25 days after the date of the decision unless the Commission, on its own motion, institutes a review of the decision within that time.
Dated at Rockville, MD, this 2nd day of August 2018.
Nuclear Regulatory Commission.
Indirect transfer of license; order.
The U.S. Nuclear Regulatory Commission (NRC) is issuing an order to permit the indirect transfer of membership interests in Entergy Louisiana, LLC (ELL; the owner of Waterford Steam Electric Station, Unit 3, and the independent spent fuel storage installation facility) to the extent ELL is affected by the addition of Entergy Arkansas, LLC; Entergy Mississippi, LLC; and Entergy New Orleans, LLC to Entergy Utility Holding Company, LLC (EUHC). Upon execution of the transfer, these changes will result in additional members of EUHC that may dilute the resources and voting power of its members, including ELL.
The order was issued on August 1, 2018, and is effective for one year.
Please refer to Docket ID NRC-2017-0239 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:
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Margaret W. O'Banion, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington DC 20555-0001; telephone: 301-415-1233; email:
The text of the order is attached.
For the Nuclear Regulatory Commission.
Entergy Louisiana, LLC (ELL) and Entergy Operations, Inc. (EOI) (together, the licensees) are co-holders of Facility Operating License No. NPF-38 for Waterford Steam Electric Station, Unit 3 (Waterford), and the general license for the independent spent fuel storage installation (ISFSI). ELL is the owner and EOI is authorized to possess, use, and operate Waterford and the ISFSI, which are located in St. Charles Parish, Louisiana.
By application dated September 21, 2017, EOI requested, on behalf of itself, ELL, and their parent companies (together, the applicants), pursuant to Title 10 of the
The application proposes no physical or operational changes to the facilities. The interconnections that provide offsite power to Waterford do not change as a result of the proposed indirect license transfer.
The applicants requested NRC approval of the indirect transfer of membership interests in ELL. The NRC published a notice, “Arkansas Nuclear One, Units 1 and 2; Grand Gulf Nuclear Station, Unit 1; River Bend Station, Unit 1; and Waterford Steam Electric Station, Unit 3 Consideration of Approval of Transfer of Licenses and Conforming Amendments,” in the
Under 10 CFR 50.80, no license, or any right thereunder, shall be transferred, directly or indirectly, through transfer of control of the license, unless the NRC gives its consent in writing. Upon review of the information in the application and other information before the Commission, the NRC staff has determined that the licensees are qualified to hold the license to the extent proposed to permit the indirect transfer of membership interests in ELL to the extent ELL is affected by the addition of EAL, EML, and ENOL to EUHC. The NRC staff has also determined that the proposed license transfer is otherwise consistent with the applicable provisions of law, regulations, and orders issued by the NRC pursuant thereto. The findings set forth above are supported by an NRC safety evaluation dated August 1, 2018.
Accordingly, pursuant to Sections 161b, 161i, and 184 of the Atomic Energy Act of 1954, as amended; Title 42 of the
IT IS FURTHER ORDERED that, after receipt of all required regulatory approvals of the proposed transfer action, EOI shall inform the Director of the Office of Nuclear Reactor Regulation in writing of such receipt, and of the date of closing of the transfer, no later than 5 business days before the date of the closing of the transfer. Should the proposed indirect transfer not be completed within 1 year of this order's date of issuance, this order shall become null and void; however, upon written application and for good cause shown, such date may be extended by order.
This order is effective upon issuance.
For further details with respect to this order, see the application dated September 21, 2017 (Agencywide Documents Access and Management System (ADAMS) Accession No. ML17268A213), and the NRC's safety evaluation dated August 1, 2018 (ADAMS Accession No. ML18177A236), which are available for public inspection at the NRC's Public Document Room located at One White Flint North, Public File Area 01-F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available documents created or received at the NRC are accessible electronically through ADAMS in the NRC Library at
Dated at Rockville, Maryland, this 1st day of August, 2018.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Indirect transfer of license; order.
The U.S. Nuclear Regulatory Commission (NRC) is issuing an order to permit the indirect transfer of membership interests in Entergy Louisiana, LLC (ELL; the owner of River Bend Station, Unit 1, and the independent spent fuel storage installation facility) to the extent ELL is affected by the addition of Entergy Arkansas, LLC; Entergy Mississippi, LLC; and Entergy New Orleans, LLC to Entergy Utility Holding Company, LLC (EUHC). Upon execution of the transfer, these changes will result in additional members of EUHC that may dilute the resources and voting power of its members, including ELL.
The Order was issued on August 1, 2018, and is effective for one year.
Please refer to Docket ID NRC-2017-0239 when contacting the NRC about the availability of
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Margaret W. O'Banion, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-1233; e-mail:
The text of the order is attached.
For the Nuclear Regulatory Commission.
Entergy Louisiana, LLC (ELL) and Entergy Operations, Inc. (EOI) (together, the licensees) are co-holders of Facility Operating License No. NPF-47 for River Bend Station, Unit 1 (RBS), and the general license for the independent spent fuel storage installation (ISFSI). ELL is the owner and EOI is authorized to possess, use, and operate RBS and the ISFSI, which are located in West Feliciana Parish, Louisiana.
By application dated September 21, 2017, EOI requested, on behalf of itself, ELL, and their parent companies (together, the applicants), pursuant to Title 10 of the
The application proposes no physical or operational changes to the facilities. The interconnections that provide offsite power to RBS do not change as a result of the proposed indirect license transfer.
The applicants requested NRC approval of the indirect transfer of membership interests in ELL. The NRC published a notice, “Arkansas Nuclear One, Units 1 and 2; Grand Gulf Nuclear Station, Unit 1; River Bend Station, Unit 1; and Waterford Steam Electric Station, Unit 3 Consideration of Approval of Transfer of Licenses and Conforming Amendments,” in the
Under 10 CFR 50.80, no license, or any right thereunder, shall be transferred, directly or indirectly, through transfer of control of the license, unless the NRC gives its consent in writing. Upon review of the information in the application and other information before the Commission, the NRC staff has determined that the licensees are qualified to hold the license to the extent proposed to permit the indirect transfer of membership interests in ELL to the extent ELL is affected by the addition of EAL, EML, and ENOL to EUHC. The NRC staff has also determined that the proposed license transfer is otherwise consistent with the applicable provisions of law, regulations, and orders issued by the NRC pursuant thereto. The findings set forth above are supported by an NRC safety evaluation dated August 1, 2018.
Accordingly, pursuant to Sections 161b, 161i, and 184 of the Atomic Energy Act of 1954, as amended; Title 42 of the
IT IS FURTHER ORDERED that, after receipt of all required regulatory approvals of the proposed transfer action, EOI shall inform the Director of the Office of Nuclear Reactor Regulation in writing of such receipt, and of the date of closing of the transfer, no later than 5 business days before the date of the closing of the transfer. Should the proposed indirect transfer not be completed within 1 year of this order's date of issuance, this order shall become null and void; however, upon written application and for good cause shown, such date may be extended by order.
This order is effective upon issuance.
For further details with respect to this order, see the application dated September 21, 2017 (Agencywide Documents Access and Management System (ADAMS) Accession No. ML17268A213), and the NRC's safety evaluation dated August 1, 2018 (ADAMS Accession No. ML18177A236), which are available for public inspection at the NRC's Public Document Room, located at One White Flint North, Public File Area 01-F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available documents created or received at the NRC are accessible electronically through ADAMS in the NRC Library at
Dated at Rockville, Maryland, this 1st day of August 2018.
For the Nuclear Regulatory Commission.
The ACRS Subcommittee on Regulatory Policies and Practices will hold a meeting on August 22, 2018, at 11545 Rockville Pike, Room T-2B1, Rockville, Maryland 20852.
This meeting will be open to public attendance. The agenda for the subject meeting shall be as follows:
The Subcommittee will review the Early Site Permit for Clinch River (Section 13.3, “Emergency Planning”) and will hear presentations by and hold discussions with the NRC staff and other interested persons regarding this matter. The Subcommittee will gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the Full Committee.
Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official (DFO), Quynh Nguyen (Telephone 301-415-5844 or Email
Detailed meeting agendas and meeting transcripts are available on the NRC website at
If attending this meeting, please enter through the One White Flint North building, 11555 Rockville Pike, Rockville, Maryland 20852. After registering with Security, please contact Mr. Theron Brown (Telephone 301-415-6207) to be escorted to the meeting room.
Pursuant to Section 19(b)(1)
The Exchange proposes to modify the NYSE Arca Options Fee Schedule (“Fee Schedule”). The Exchange proposes to implement the fee change effective August 1, 2018. The proposed rule change is available on the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The purpose of this filing is to modify the Fee Schedule, effective August 1, 2018, to modify or eliminate the criteria for achieving various credits.
The Exchange currently provides a number of incentives for OTP Holders and OTP Firms (collectively, “OTPs”) designed to encourage OTPs to direct additional order flow to the Exchange to achieve more favorable pricing and higher credits. Among these incentives are enhanced posted liquidity credits based on achieving certain percentages of NYSE Arca Equity daily activity, also known as “cross-asset pricing.” In addition, certain of the qualifications for achieving these incentives are more tailored to specific activity (
Pursuant to the Customer Penny Pilot Posting Tiers (the “Penny Credit Tiers”, each a “Penny Tier”), Customer orders
The Exchange proposes to eliminate Penny Tier 4, which would remove the $0.46 per contract credit for OTPs that achieve at least 0.60% of TCADV from Customer posted interest in all issues, plus executed Average Daily Volume (“ADV”) of Retail Orders of 0.1% ADV of U.S. Equity Market Share Posted and Executed on NYSE Arca Equity Market. Consistent with this change, the Exchange proposed to renumber the remaining higher Tiers (
The Exchange also offers a Customer Incentive Program (the “Incentive Program”), which offers OTPs the ability to earn one additional credit by achieving the minimum thresholds listed.
The Exchange also offers increasing credits to be applied to executions of Customer posted interest in non-Penny Pilot issues based on minimum volume thresholds through the Customer Posting Credit Tiers in Non-Penny Pilot Issues (“Non-Penny Credit Tiers”, each a “Non-Penny Tier”). The Exchange proposes to eliminate one Non-Penny Tier (the current Tier A), which would remove the $0.83 per contract credit for OTPs that achieve at least 0.70% of TCADV from Customer posted interest in all issues, plus executed ADV of Retail Orders of 0.1% ADV of U.S. Equity Market Share Posted and Executed on NYSE Arca Equity Market. Consistent with this change, the Exchange proposes to re-title the balance of the Non-Penny Tiers (
Additionally, the Exchange proposes to modify the minimum volume threshold required to achieve new Tier B, such that an OTP would earn the $0.94 per contract credit by achieving at least 0.75% (up from 0.50%) of TCADV from Customer posted interest in all issues, plus an ADV from Market Maker Total Electronic Volume equal to 0.45% of TCADV. The Exchange also proposes to modify the minimum volume threshold for the new Tier D, such that an OTP would earn the $1.00 per contract credit by achieving at least 0.75% (up from 0.50%) of TCADV from Customer posted interest in all issues, plus an ADV from Market Maker Total Electronic Volume equal to 0.60% of TCADV.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed modifications to the minimum threshold qualification for certain of the Penny, and Non-Penny, Credit Tiers and the Incentive Program are reasonable, equitable, and not unfairly discriminatory because, among other things, the proposed changes would streamline the available means for an OTP to qualify for credits on the Exchange, while still offering OTPs incentives to direct volume to the Exchange. The Exchange notes that it proposes to remove certain tiers from the various posting credit programs because such tiers are underutilized. The proposed changes, therefore, should provide more meaningful criteria for OTPs to qualify for (and seek to achieve higher) credits by posting desired volume on the Exchange. The Exchange believes that the proposed changes would continue to attract Customer (and Professional Customer) orders to the Exchange, which results in increased liquidity to the benefit of all participants by offering greater price discovery, increased transparency, and an increased opportunity to trade on the Exchange.
The Exchange also believes the proposed changes are reasonable, equitable and not unfairly discriminatory because the modified minimum volume thresholds for the Penny, and Non-Penny, Tiers and the Incentive Program would be available to all similarly-situated market participants on an equal and non-discriminatory basis. The Exchange believes the proposed modifications are reasonable, equitable and not unfairly discriminatory because they encourage participants to enhance their order flow to qualify for the various incentives, including encouraging more participants to have affiliated or appointed order flow directed to the Exchange. Further, encouraging OFPs to send higher volumes of Customer (and Professional Customer) orders to the Exchange would also contribute to the Exchange's depth of book as well as to the top of book liquidity.
The proposed changes to the various posting credit incentives offered on the Exchange are also reasonable as they are consistent with similar such programs offered on other exchanges.
Finally, the Exchange believes the proposed non-substantive changes to the Fee Schedule (
In accordance with Section 6(b)(8) of the Act, the Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. Instead, the Exchange believes that the
The Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues. In such an environment, the Exchange must continually review, and consider adjusting, its fees and credits to remain competitive with other exchanges. For the reasons described above, the Exchange believes that the proposed rule change reflects this competitive environment.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
83 FR 38759, August 7, 2018.
Thursday, August 9, 2018 at 2:00 p.m.
The Closed Meeting scheduled for Thursday, August 9, 2018 at 2:00 p.m. has been changed to Thursday, August 9, 2018 at 1:00 p.m.
For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact the Office of the Secretary at (202) 551-5400.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
FINRA is proposing to make technical and other non-substantive changes to FINRA Rule 9000 Series (Code of Procedure) (“the Code”) to reflect an internal reorganization of FINRA's enforcement operations to create a single Department of Enforcement.
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.
In March 2017, FINRA launched FINRA360, a comprehensive self-evaluation and organizational improvement initiative to ensure that FINRA is operating as an optimally effective self-regulatory organization, working to protect investors and promote market integrity in a manner that supports strong and vibrant capital markets. In connection with this ongoing initiative, FINRA has sought feedback from its members, as well as investors, investor advocates, regulators, trade associations and FINRA employees. FINRA has analyzed the feedback received from these stakeholders and as a result has made significant changes across the organization.
Until last summer, FINRA had two distinct enforcement teams. One enforcement group that was historically part of the Department of Market Regulation handled disciplinary actions related to trading-based matters found through Market Regulation's surveillance and examination programs; and a separate enforcement group handled cases referred from other regulatory oversight divisions including Member Regulation, Corporate Financing, the Office of Fraud Detection and Market Intelligence, and Advertising Regulation. As part of FINRA360, stakeholders raised concerns that these dual programs sometimes resulted in duplication of effort and inconsistency of results. As a result, in July 2017, FINRA announced its plan to consolidate its existing enforcement functions into a unified Department of Enforcement. On July 26, 2018, FINRA announced that it had completed the final phase of this consolidation.
The proposed rule change would make technical and other non-substantive changes to the Code to reflect the single Department of Enforcement. The proposed changes would therefore remove references to the Market Regulation department, its head and employees from the Code where those references reflect the previously separate Market Regulation enforcement function.
FINRA has filed the proposed rule change for immediate effectiveness and has requested that the SEC waive the requirement that the proposed rule change not become operative for 30 days after the date of the filing, so FINRA can implement the proposed rule change immediately.
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. The proposed rule change brings clarity and consistency to FINRA rules without adding any burden on firms.
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
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The purpose of this filing is to amend the Silexx Fees Schedule to introduce a waiver of Login ID fees for the first month for new users of any of the Silexx platforms and eliminate obsolete language.
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 filing is to amend the Silexx Fees Schedule to introduce a waiver of Login ID fees for the first month for new users of any of the Silexx platforms and eliminate obsolete language.
By way of background, Silexx is an order entry and management trading platform for listed stocks and options that support both simple and complex orders.
Platform Login IDs may be purchased for different versions of the platform, including Basic, Pro, Sell-Side, Pro Plus
The Exchange recently introduced a two-month free-upgrade period for users that are currently on Silexx Basic. The upgrade allowed users of Silexx Basic to use the functionality of Silexx Pro for a period of two months (May 1, 2018 through June 30, 2018) at the current Silexx Basic rate of $200 per month per Login ID. After the two-month period ends, beginning July 1, 2018, the users were to be charged at the Silexx Pro rate of $400 per month until they choose to downgrade. As the free-upgrade period has since ended, the Exchange proposes to delete the obsolete language and eliminate the reference in the Silexx Fees Schedule
These proposed changes to the Silexx Fees Schedule are to take effect on August 1, 2018.
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.
Particularly, the Exchange believes the proposed fee waiver provides for the equitable allocation of reasonable fees because the waiver of Platform Login ID fees for the first month will apply to all new users of new firms, regardless of which version of the platform they subscribe to. Additionally, the Exchange believes the proposed fee waiver is reasonable because new user firms will not have to pay those fees and because it serves as an incentive to market participants to start using the Silexx platform as an additional trading tool on their trading desks. The Exchange also notes that use of the platform is discretionary and not compulsory.
Lastly, the Exchange believes eliminating obsolete language maintains clarity in the Silexx Fees Schedule and alleviates potential confusion, thereby removing impediments to and perfecting the mechanism of a free and open market and a national market system, and, in general, protecting investors and the public interest.
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 Exchange believes that the proposed rule change will not impose any burden on intramarket competition because the proposed rule change applies to all new user firms of Silexx. The Exchange notes that each version of Silexx is available to all market participants, and users have discretion to determine which version of the platform they register for based on functionality.
The Exchange does not believe that the proposed rule changes will impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act because the proposed change applies only to Cboe Options. To the extent that the proposed changes make Cboe Options a more attractive marketplace for market participants at other exchanges, such market participants are welcome to become Cboe Options market participants.
The Exchange neither solicited nor received comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) 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.
Pursuant to section 7070(c)(1) of the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2018 (Div. K, Pub. L. 115-141), I hereby determine, by delegation from the Secretary of State, that the Government of Nauru has recognized the independence of, or has established diplomatic relations with, the Georgian territories of Abkhazia and Tskhinvali Region/South Ossetia.
This determination shall be published in the
Notice is hereby given of the following determinations: I hereby determine that two objects to be exhibited in the Italian Renaissance Paintings Gallery of The J. Paul Getty Museum at the Getty Center, imported from abroad for temporary exhibition within the United States, are of cultural significance. The objects are imported pursuant to a loan agreement with the foreign owner or custodian. I also determine that the exhibition or display of the exhibit objects at The J. Paul Getty Museum at the Getty Center, Los Angeles, California, from on or about December 17, 2018, until on or about August 5, 2019, and at possible additional exhibitions or venues yet to be determined, is in the national interest. I have ordered that Public Notice of these determinations be published in the
Julie Simpson, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6471; email:
The foregoing determinations were made pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), E.O. 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
Notice is hereby given of the following determinations: I hereby determine that certain objects to be included in the exhibition “Celebrating Tintoretto: Portrait Paintings and Studio Drawings,” imported from abroad for temporary exhibition within the United States, are of cultural significance. The objects are imported pursuant to loan agreements with the foreign owners or custodians. I also determine that the exhibition or display of the exhibit objects at The Metropolitan Museum of Art, New York, New York, from on or about October 15, 2018, until on or about January 27, 2019, and at possible additional exhibitions or venues yet to be determined, is in the national interest. I have ordered that Public Notice of these determinations be published in the
Julie Simpson, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6471; email:
The foregoing determinations were made pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), E.O. 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
Notice is hereby given of the following determinations: I hereby determine that certain objects to be included in the exhibition “Rembrandt: Painter as Printmaker,” imported from abroad for temporary exhibition within the United States, are of cultural significance. The objects are imported pursuant to loan agreements with the foreign owners or custodians. I also determine that the exhibition or display of the exhibit objects at the Denver Art Museum, Denver, Colorado, from on or about September 16, 2018, until on or about January 6, 2019, and at possible additional exhibitions or venues yet to be determined, is in the national interest. I have ordered that Public Notice of these determinations be published in the
Julie Simpson, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6471; email:
The foregoing determinations were made pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), E.O. 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
Susquehanna River Basin Commission.
Notice.
As part of its regular business meeting held on June 15, 2018, in Baltimore, Maryland, the Commission approved or tabled the applications of certain water resources projects; and took additional actions, as set forth in the
June 15, 2018.
Susquehanna River Basin Commission, 4423 N Front Street, Harrisburg, PA 17110-1788.
Gwyn Rowland, Manager, Governmental and Public Affairs, telephone: 717-238-0423, ext. 1316; fax: 717-238-2436;
In addition to the actions taken on projects identified in the summary above and the listings below, the following items were also presented or acted upon at the business meeting: (1) Election of the member from the State of New York as Chair of the Commission and the member of the Commonwealth of Pennsylvania as Vice Chair of the Commission for the period of July 1, 2018, to June 30, 2019; (2) adoption of FY2019 Regulatory Program Fee Schedule, effective July 1, 2018; (3) adoption of a current expense budget for the period of July 1, 2019, to June 30, 2020; (4) adoption of a resolution authorizing a purchase approval threshold; (5) approval of an agreement, a grant amendment and a subcontract; (6) adoption of a records retention policy; (7) delegation of authority to the Executive Director to enter into certain settlement agreements to resolve violations of regulations or approval conditions; (8) adoption of the FY2019-2021 Water Resources Program; (9) adoption of amendments to the
The Commission approved the following project applications:
1. Project Sponsor and Facility: Brymac, Inc. dba Mountain View Country Club (Pond 3/4), Harris Township, Centre County, PA. Surface water withdrawal of up to 0.240 mgd (peak day).
2. Project Sponsor and Facility: Dillsburg Area Authority, Franklin Township, York County, PA. Modification to increase groundwater withdrawal by an additional 0.099 mgd (30-day average), for a total groundwater withdrawal of up to 0.200 mgd (30-day average) from Well 3 (Docket No. 20081207).
3. Project Sponsor and Facility: Healthy Properties, Inc. (Sugar Creek), North Towanda Township, Bradford County, PA. Renewal of surface water withdrawal of up to 0.999 mgd (peak day) (Docket No. 20140602).
4. Project Sponsor and Facility: LDG Innovation, LLC (Tioga River), Lawrenceville Borough, Tioga County, PA. Renewal of surface water withdrawal of up to 0.750 mgd (peak day) (Docket No. 20140604).
5. Project Sponsor and Facility: Lycoming Engines, a Division of Avco Corporation, City of Williamsport, Lycoming County, PA. Renewal of groundwater withdrawal of up to 1.440 mgd (30-day average) for groundwater remediation system (Docket No. 19880203).
6. Project Sponsor and Facility: Mountain Energy Services, Inc. (Tunkhannock Creek), Tunkhannock Township, Wyoming County, PA. Renewal of surface water withdrawal of up to 1.498 mgd (peak day) (Docket No. 20140606).
7. Project Sponsor and Facility: Niagara H2O Company (Susquehanna River), Towanda Township, Bradford County, PA. Application for surface water withdrawal of up to 1.500 mgd (peak day).
8. Project Sponsor and Facility: Northeast Marcellus Aqua Midstream I, LLC (Susquehanna River), Tunkhannock Township, Wyoming County, PA. Surface water withdrawal of up to 5.000 mgd (peak day).
9. Project Sponsor and Facility: Pennsylvania General Energy Company, L.L.C. (Pine Creek), Watson Township, Lycoming County, PA. Renewal of surface water withdrawal of up to 0.918 mgd (peak day) (Docket No. 20140609).
10. Project Sponsor and Facility: Pro-Environmental, LLC (Martins Creek), Lathrop Township, Susquehanna County, PA. Renewal of surface water withdrawal of up to 0.999 mgd (peak day) (Docket No. 20140610).
11. Project Sponsor and Facility: Repsol Oil & Gas USA, LLC (Fall Brook), Troy Township, Bradford County, PA. Renewal of surface water withdrawal of up to 0.176 mgd (peak day) (Docket No. 20140615).
12. Project Sponsor and Facility: Repsol Oil & Gas USA, LLC (Unnamed Tributary to North Branch Sugar Creek), Columbia Township, Bradford County, PA. Renewal of surface water withdrawal of up to 0.926 mgd (peak day) (Docket No. 20140616).
13. Project Sponsor and Facility: Sugar Hollow Water Services LLC (Bowman Creek), Eaton Township, Wyoming County, PA. Renewal of surface water withdrawal of up to 0.249 mgd (peak day) (Docket No. 20140612).
14. Project Sponsor and Facility: Susquehanna Gas Field Services, LLC, Meshoppen Borough, Wyoming County, PA. Renewal of groundwater withdrawal of up to 0.216 mgd (30-day average) from the Meshoppen Pizza Well (Docket No. 20140613).
15. Project Sponsor and Facility: Susquehanna Gas Field Services, LLC (Susquehanna River), Meshoppen Township, Wyoming County, PA. Renewal of surface water withdrawal of up to 1.650 mgd (peak day) (Docket No. 20140614).
16. Project Sponsor and Facility: Town of Vestal, Broome County, NY. Renewal of groundwater withdrawal of up to 1.440 mgd (30-day average) from Well 4-4 (Docket No. 19810508).
The Commission tabled action on the following project applications:
1. Project Sponsor: SUEZ Water Pennsylvania Inc. Project Facility: Center Square Operation, Upper Allen Township, Cumberland County, PA. Application for groundwater withdrawal of up to 0.107 mgd (30-day average) from Well 1.
2. Project Sponsor: SUEZ Water Pennsylvania Inc. Project Facility: Center Square Operation, Upper Allen Township, Cumberland County, PA. Application for renewal of groundwater withdrawal of up to 0.379 mgd (30-day average) from Well 2 (Docket No. 19861104).
3. Project Sponsor and Facility: Togg Mountain LLC, Town of Fabius, Onondaga County, NY. Application for consumptive use of up to 0.485 mgd (peak day).
4. Project Sponsor and Facility: Togg Mountain LLC (West Branch of Tioughnioga Creek), Town of Fabius, Onondaga County, NY. Application for surface water withdrawal of up to 2.200 mgd (peak day).
Pub. L. 91-575, 84 Stat. 1509
Federal Highway Administration (FHWA), DOT.
Notice of limitation on claims for judicial review of actions by the California Department of Transportation (Caltrans), pursuant to 23 U.S.C. 327, and the Federal Railroad Administration (FRA).
The FHWA, on behalf of Caltrans, is issuing this notice to announce actions taken by Caltrans and the FRA, that are final within the meaning of 23 U.S.C. 139(
By this notice, the FHWA, on behalf of Caltrans, is advising the public of final agency actions subject to 23 U.S.C. 139(
For Caltrans: Susan Tse Koo, Branch Chief, Division of Environmental Planning, California Department of Transportation. Address: 100 S Main Street, MS 16A, Los Angeles, CA 90012. Regular Office Hours M-F 8:00 a.m .to 5:00 p.m., Phone number (213) 897-1821, Email
Effective July 1, 2007, the Federal Highway Administration (FHWA) assigned, and the California Department of Transportation (Caltrans) assumed, environmental responsibilities for this project pursuant to 23 U.S.C. 327. Notice is hereby given that the Caltrans and FRA have taken final agency actions subject to 23 U.S.C. 139(
This notice applies to all Federal agency decisions as of the issuance date of this notice and all laws under which such actions were taken, including but not limited to:
23 U.S.C. 139(
Texas Department of Transportation (TxDOT), Federal Highway Administration (FHWA), U.S. Department of Transportation.
Notice of limitation on claims for judicial review of actions by TxDOT and Federal agencies.
This notice announces actions taken by TxDOT and Federal agencies that are final. The environmental review, consultation, and other actions required by applicable Federal environmental laws for these projects are being, or have been, carried-out by TxDOT pursuant to statute and a Memorandum of Understanding dated December 16, 2014, and executed by FHWA and TxDOT. The actions relate to various proposed highway projects in the State of Texas. Those actions grant licenses, permits, and approvals for the projects.
By this notice, TxDOT is advising the public of final agency actions subject to 23 U.S.C. 139(l)(1). A claim seeking judicial review of TxDOT and Federal agency actions on the highway project will be barred unless the claim is filed on or before January 21, 2019. If the Federal law that authorizes judicial review of a claim provides a time period of less than 150 days for filing such a claim, then that shorter time period still applies.
Carlos Swonke, Environmental Affairs Division, Texas Department of Transportation, 125 East 11th Street, Austin, Texas 78701; telephone: (512) 416-2734; email:
Notice is hereby given that TxDOT and Federal agencies have taken final agency actions by issuing licenses, permits, and approvals for the highway projects in the State of Texas that are listed below.
The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Categorical Exclusion (CE) or Environmental Assessment (EA) issued in connection with the projects and in other key project documents. The CE or EA, and other key documents for the listed projects are available by contacting TxDOT at the address provided above.
This notice applies to all TxDOT and Federal agency decisions as of the issuance date of this notice and all laws under which such actions were taken, including but not limited to:
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8.
The projects subject to this notice are:
1. US 87 from US 54 to 0.19 miles north of US 385 in Dallam County. TxDOT, Amarillo District, proposes to improve the clearance on US 87 under the Union Pacific Railroad (UPRR) bridge in Dalhart. The proposed project would lower the elevation of US 87 under the railroad bridge up to two feet and add a detention facility to improve drainage particularly during flooding situations. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Final Environmental Assessment (EA) approved on February 10, 2015, the Finding of No Significant Impact (FONSI) issued on February 10, 2015 and other documents in the TxDOT project file. The EA, FONSI, and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT Amarillo District Office at 5715 Canyon Drive, Amarillo, Texas 79110; telephone (806) 356-3200.
2. SL 335 from FM 2590 to SW 9th Avenue in Randall and Potter County. TxDOT, Amarillo District, proposes to upgrade existing roadways and a new location alignment to a controlled access facility including frontage roads, ramps, and bicycle and pedestrian accommodations. The project length is approximately 8 miles in length. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Final Environmental Assessment (EA) approved on July 21, 2017, the Finding of No Significant Impact (FONSI) issued on July 21, 2017 and other documents in the TxDOT project file. The EA, FONSI, and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT Amarillo District Office at 5715 Canyon Drive, Amarillo, Texas 79110; telephone (806) 356-3200.
3. SL 335 from FM 2590 to Bell Street, and IH 27 at SL 335 Interchange in Randall County. TxDOT, Amarillo District, proposes to improve SL 335 in the southwest portion of the City of Amarillo. The improvements would include the conversion of SL 335 from a non-freeway to a freeway section with frontage roads, ramps, grade separations over intersection cross streets, a four main lane section, with a provision for future expansion to an ultimate six main lane section. The purpose of the proposed project is to develop an alternative freight corridor, provide a hazardous cargo route, and to improve traffic operations, mobility, safety, and
4. SL 255 from FM 1520 to US 271 in Camp County. TxDOT, Atlanta District, proposes to construct a new location two-lane roadway, State Loop SL 255 (formerly referred to as Farm-to-Market Road FM 3535), near Pittsburg, Texas. The total length of the proposed project is approximately 2.45 miles with a proposed right-of-way (ROW) width of approximately 150 feet (ft.). The purpose of the project is to provide an efficient east-west roadway for the various users of the northern Camp County transportation system. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Final Environmental Assessment (EA) approved on June 26, 2017, the Finding of No Significant Impact (FONSI) issued on June 26, 2017 and other documents in the TxDOT project file. The EA, FONSI, and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT Atlanta District Office at 701 East Main Street, Atlanta, Texas 75551; telephone (903) 799-1308.
5. I-35 from Rundberg Lane to US 290 East, Travis County. The project would include the addition of three direct connectors, collector-distributors to bypass the St. Johns Avenue signalized intersection, reconstruction of the St. Johns Avenue bridge and bicycle and pedestrian improvements. The project is approximately 1.6 miles in length. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Final Environmental Assessment (EA) approved on August 1, 2016, the Finding of No Significant Impact (FONSI) issued on August 1, 2016, and other documents in the TxDOT project file. The EA, FONSI, and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT Austin District Office at 7901 North I-35, Austin, TX 78753; telephone (512) 832-7000.
6. FM 969 from FM 973 to Hunters Bend Road, Travis County. The project would include widening the existing two-lane roadway to four lanes, with a continuous two-way center turn lane, outside shoulders and a continuous sidewalk. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Final Environmental Assessment (EA) approved on September 18, 2017, the Finding of No Significant Impact (FONSI) issued on September 18, 2017, and other documents in the TxDOT project file. The EA, FONSI, and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT Austin District Office at 7901 North I-35, Austin, TX 78753; telephone (512) 832-7000.
7. RM 2222 and RM 620 from RM 620 to Bonaventure Drive and Steiner Ranch Boulevard to RM 2222, Travis County. The project includes the addition of a northbound auxiliary lane on RM 620 from Steiner Ranch Blvd. to a 0.4 mile new arterial connector from RM 620 to RM 2222, improved operations at the RM 620/RM 2222/Bullick Hollow Road intersection, and improvements to RM 2222 from the new arterial connector to the RM 620/RM 2222/Bullick Hollow Road intersection. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Final Environmental Assessment (EA) approved on April 4, 2018, the Finding of No Significant Impact (FONSI) issued on April 4, 2018, and other documents in the TxDOT project file. The EA, FONSI, and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT Austin District Office at 7901 North I-35, Austin, TX 78753; telephone (512) 832-7000.
8. US 59/I-69 from Fostoria Road near the Montgomery/Liberty County line to SL 573, Montgomery/Liberty County. This project intends to widen the existing four lane (two lanes in each direction) divided highway with no designated frontage roads to six lanes (three lanes in each direction) and one-way, two lane frontage roads. The project will also include installation of sidewalks on the outside of the southbound frontage road and the construction of 8-foot wide, shared use lanes for bicycles on the northbound and southbound frontage lanes. The project length is approximately 4.475 miles in length. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Final Environmental Assessment (EA) approved on March 19, 2018, the Finding of No Significant Impact (FONSI) issued on March 23, 2018, and other documents in the TxDOT project file. The EA, FONSI, and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT Beaumont District Office at 8350 Eastex Freeway, Beaumont, TX 77708; telephone (409) 892-7311.
9. IH 20 from 3.5 miles east of LP 254 to SH 16 in Eastland County. TxDOT, Brownwood District, proposes to realign the interstate approximately 500 feet to the south of the existing alignment to alleviate the existing horizontal and vertical curvature. Two new continuous two-way frontage roads would be constructed on both sides of the new highway. The project length is approximately 3 miles in length. The proposed improvements would alleviate the safety hazards that contribute to the high frequency and severity of traffic incidents at Ranger Hill. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Final Environmental Assessment (EA) approved on October 26, 2016, the Finding of No Significant Impact (FONSI) issued on October 26, 2016 and other documents in the TxDOT project file. The EA, FONSI, and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT Brownwood District Office at 2495 Highway 183 North, Brownwood, Texas 76802; telephone (325) 646-2591.
10. US 281 at Premont from 0.5 miles north of FM 1538 to 1.0 miles north of CR 431, Jim Wells County. The proposed project includes construction of an access controlled relief route around the city of Premont that meets interstate standards. This 5.17 mile long project would consist of two northbound and southbound 12-foot mainlanes with 10-foot outside shoulders and 4-foot inside shoulders, separated by a 48-foot grassy median. The project purpose is to develop US 281 to an Interstate facility that would meet Interstate design standards and improve safety in a manner that is sensitive to the environment and serves the access and mobility needs of the affected communities. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Final Environmental Assessment (EA) approved on October 2, 2015, the Finding of No Significant Impact (FONSI) issued on October 2, 2015, and
11. Holly Road from SH 286 (Crosstown Expressway) to Greenwood Drive, Nueces County. The project would include constructing two additional travel lanes, providing a four lane curb and gutter facility with a raised median, sidewalks, and bicycle lanes along Holly Road from SH 286 (Crosstown Expressway) to Greenwood Drive in Corpus Christi, Nueces County, Texas, a distance of approximately 3,960 linear feet (0.75 mile). The purpose of the project is to improve mobility and enhance safety. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Final Environmental Assessment (EA) approved on July 15, 2016, the Finding of No Significant Impact (FONSI) issued on July 15, 2016, and other documents in the TxDOT project file. The EA, FONSI, and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT Corpus Christi District Office at 1701 S. Padre Island Drive, Corpus Christi, TX 78416-1324; telephone (361) 808-2300.
12. SH 200 from SH 361 to FM 1069 in San Patricio County. SH 200 is proposed to be constructed as a principal arterial roadway to route commercial/industrial traffic around the southwestern portion of the city of Ingleside. The proposed project is approximately 1.98 miles in length, with an initial phase of construction of two 12-foot travel lanes and two 10-foot wide shoulders within a 160-foot wide right-of-way, and an ultimate build-out of four 12-foot wide travel lanes and two 10-foot wide shoulders. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Final Environmental Assessment (EA) approved on August 26, 2016, the Finding of No Significant Impact (FONSI) issued on August 26, 2016, and other documents in the TxDOT project file. The EA, FONSI, and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT Corpus Christi District Office at 1701 S. Padre Island Drive, Corpus Christi, TX 78416-1324, telephone (361) 808-2300.
13. FM 2478 from US 380 to North of FM 1461 in Collin County, Texas. The proposed improvements would include the expansion of the existing facility from a two-lane rural to a six-lane urban divided roadway. Approximately 0.54 miles of FM 2478 would be realigned and constructed on new location from Rhea Mills Circle north to FM 1461. The length of the proposed project is approximately 3 miles. The purpose of the proposed project is to improve mobility and bring the roadway up to current design standards. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Final Environmental Assessment (EA) approved on September 22, 2017, Finding of No Significant Impact (FONSI) issued on September 22, 2017, and other documents in the TxDOT project file. The EA, FONSI, and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT Dallas District Office at 4777 E. Highway 80, Mesquite, TX 75150; telephone (214) 320-6100.
14. FM 455 from West of FM 2450 to East of Mario Road, in Denton County. The project would reconstruct and widen FM 455 west of FM 2450 to east of Marion Road for an approximate distance of 5.53 miles. Proposed improvements would involve the expansion of FM455 from a two-lane rural highway to a four-lane. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Final Environmental Assessment (EA) approved on March 15, 2018, the Finding of No Significant Impact (FONSI) issued on March 15, 2018, and other documents in the TxDOT project file. The EA, FONSI, and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT Dallas District Office at 4777 E. Highway 80, Mesquite, TX 75150; telephone (214) 320-6100.
15. Loop 9 from Interstate 35 East to Interstate 45 in Dallas and Ellis Counties, Texas. The proposed improvements would include constructing a six-lane new location frontage road system. The project would also construct intersections at major crossroads and grade separations at Interstate Highway 35 East and BNSF Railroad. The length of the proposed project is approximately 10 miles. The purpose of the proposed project is to provide a direct link from Interstate 35 East to Interstate 45 to serve the residents and businesses in the area. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Final Environmental Assessment (EA) approved on September 28, 2017, Finding of No Significant Impact (FONSI) issued on November 16, 2017, and other documents in the TxDOT project file. The EA, FONSI, and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT Dallas District Office at 4777 E. Highway 80, Mesquite, TX 75150; telephone (214) 320-6100.
16. SH 121 from Collin County Outer Loop to County Road 635 in Collin County, Texas. The proposed improvements would include reconstructing and widening the existing two-lane undivided roadway to a rural four-lane divided highway from Collin County Outer Loop to north of County Road 635. Grade separation intersections are proposed at FM 455 and FM 2862. The length of the proposed project is approximately 9.52 miles. The purpose of the proposed project is to improve mobility, decrease congestion, accommodate population growth, and enhance safety for the traveling public, while upgrading the facility to current design standards. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Final Environmental Assessment (EA) approved on January 19, 2018, Finding of No Significant Impact (FONSI) issued on January 19, 2018, and other documents in the TxDOT project file. The EA, FONSI, and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT Dallas District Office at 4777 E. Highway 80, Mesquite, TX 75150; telephone (214) 320-6100.
17. SH 310 and Interstate 45 (S.M. Wright, Phase IIB): SH 310 from Pennsylvania Avenue to north of Al Lipscomb Way; and Interstate 45 from Lenway Street to Good Latimer in Dallas County, Texas. The proposed improvements would include reconstructing the existing freeway-to-freeway connections to achieve greater connectivity with major Interstate 45 cross streets. The proposed project would realign S.M. Wright Parkway to connect exclusively to Cesar Chavez Boulevard between Pennsylvania Avenue and Al Lipscomb Way. The length of the proposed project is approximately .05 mile for SH 310 (S.M. Wright Parkway) and approximately 1.0 mile for IH 45. The purpose of the proposed project is to improve operability, connections, and mobility between Interstate 45 and major cross streets near S.M. Wright Parkway. The actions by TxDOT and Federal agencies and the laws under which such actions
18. US 77 from south of FM 66 to north of McMillan Street in Ellis County, Texas. The proposed improvements would include the addition of a new two-lane bridge on new alignment west of the existing viaduct, and the conversion of Elm Street and Monroe Street to a one-way couplet system. The length of the proposed project is approximately 1.2 miles. The purpose of the proposed project is to improve the safety of the US 77 viaduct and reduce congestion and improve mobility through downtown Waxahachie, Texas. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Final Environmental Assessment (EA) approved on March 27, 2017, Finding of No Significant Impact (FONSI) issued on March 27, 2017, and other documents in the TxDOT project file. The EA, FONSI, and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT Dallas District Office at 4777 E. Highway 80, Mesquite, TX 75150; telephone (214) 320-6100.
19. US 377 Relief Route from approximately one mile south of SH 171 to approximately one mile north of SH 171 in Hood and Johnson Counties, Texas. The proposed project would construct a four-lane relief route west of US 377 and the City of Cresson. The length of the proposed project is approximately 3.02 miles. The purpose of the proposed project is to provide a long-term solution to identified traffic issues at the US 377 and SH 171 intersection. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Final Environmental Assessment (EA) approved on August 3, 2017, Finding of No Significant Impact (FONSI) issued on September 20, 2017, and other documents in the TxDOT project file. The EA, FONSI, and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT Fort Worth District Office at 2501 SW Loop 820, Fort Worth, TX 76133; telephone (817) 370-6500.
20. FM 2218 from IH 69 to SH 36, Fort Bend County. The project widens the existing two-lane undivided roadway to a four-lane divided roadway with a raised grass median. FM 2218 will also be realigned just south of Longleaf Drive, with the former road ending in a cul-de-sac. The length of the project is approximately 3.7 miles. The purpose of the project is to accommodate existing and projected growth, and bring the roadway to current design standards between SH 36 and IH 69. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Final Environmental Assessment (EA) approved on March 9, 2018, Finding of No Significant Impact (FONSI) issued on March 9, 2018, and other documents in the TxDOT project file. The EA, FONSI, and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT Houston District Office at 7600 Washington Avenue, Houston, Texas 77007; telephone (713) 802-5000.
21. Crabb River Road (Farm-to-Market Road 2759/Farm-to-Market Road 762), from 0.25 mile south of Sansbury Boulevard to the Lamar Consolidated Independent School District Secondary School Complex, in Fort Bend County. The project widens the existing two-lane undivided roadway to a four-lane divided roadway. The project is approximately 2.9 miles long. The purpose of the project is to improve mobility, alleviate traffic congestion, and improve safety. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Final Environmental Assessment (EA) approved on March 20, 2017, Finding of No Significant Impact (FONSI) issued on March 20, 2017, and other documents in the TxDOT project file. The EA, FONSI, and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT Houston District Office at 7600 Washington Avenue, Houston, Texas 77007; telephone (713) 802-5000.
22. FM 2854, from Loop 336 to Interstate Highway 45, in Montgomery County. The project will reconstruct the existing two-lane, undivided facility to a four-lane roadway with a curb and gutter and a flush median. The project is approximately two miles long. The purpose of the proposed project is to improve safety and mobility, and reduce congestion for the travelling public by constructing a divided roadway and signalized intersections. The roadway improvements will accommodate anticipated future growth in the region by adding additional capacity needed, while providing accommodations for bicyclists and pedestrians through the construction of shared-use lanes and sidewalks, in accordance with FHWA and TxDOT guidelines and policies. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Final Environmental Assessment (EA) approved on August 1, 2016, Finding of No Significant Impact (FONSI) issued on August 1, 2016, and other documents in the TxDOT project file. The EA, FONSI, and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT Houston District Office at 7600 Washington Avenue, Houston, Texas 77007; telephone (713) 802-5000.
23. McHard Road Extension, from Cullen Boulevard to Mykawa Road, Brazoria County. The project is an extension of McHard Road from Cullen Boulevard to Mykawa Road. McHard Road Extension will have an urban cross-section consisting of a four-lane divided, curb-and-gutter roadway. The project is approximately 3.45 miles long. The purpose of the project is to improve connectivity between Pearland Parkway and State Highway 288, improve mobility on FM 518/Broadway Street, and provide residents in the project area better access to amenities in the City of Pearland and Harris and Brazoria Counties. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Final Environmental Assessment (EA) approved on July 7, 2017, Finding of No Significant Impact (FONSI) issued on July 7, 2017, and other documents in the TxDOT project file. The EA, FONSI, and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT Houston District Office at 7600 Washington Avenue, Houston, Texas 77007; telephone (713) 802-5000.
24. SH 105, from Mount Mariah Road to FM 149, Montgomery County. The project will widen SH 105 both to the north and south of the existing highway from an undivided, two-lane highway to a four-lane divided highway. The project length is approximately 6.2 miles. The purpose of the project is to improve traffic flow within the study area and larger region and reduce the number of traffic accidents from Mount Mariah Road to FM 149. The actions by TxDOT and Federal agencies and the laws under which such actions were
25. Bulverde Road from Marshall Road to Wilderness Oak in Bexar County. The project would convert the existing two-lane roadway to a four-lane roadway with five-foot shoulders, curb and gutter, sidewalks and turn lanes. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Final Environmental Assessment (EA) approved on July 20, 2016, Finding of No Significant Impact (FONSI) issued on July 20, 2016 and other documents in the TxDOT project file. The EA, FONSI, and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT San Antonio District Office at 4615 NW Loop 410, San Antonio, TX 78229; telephone (210) 615-5839.
26. I-10 West from FM 3351 (Ralph Fair Road) to La Cantera Parkway, Bexar County. The project would add one general-purpose lane and one High Occupancy Vehicle (HOV) lane in each direction of IH 10 from approximately 3,800 feet north of FM 3351 (Ralph Fair Rd.) to La Cantera Parkway. The project would transition to the two general-purpose lanes approximately 3,800 feet north of FM 3351 (Ralph Fair Rd.) and would tie into the three general-purpose lanes at La Cantera Parkway. In addition, a 12-ft wide auxiliary lane would be added to the IH 10 westbound main lanes between the westbound on-ramp from Dominion Drive to the westbound exit ramp to FM 3351 (Ralph Fair Rd.). The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Final Environmental Assessment (EA) approved on March 30, 2017, Finding of No Significant Impact (FONSI) issued on March 30, 2017 and other documents in the TxDOT project file. The EA, FONSI, and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT San Antonio District Office at 4615 NW Loop 410, San Antonio, TX 78229; telephone (210) 615-5839.
27. Loop 1604 from FM 1957 to FM 471 in Bexar County. The project would convert the existing four-lane divided roadway to a four-lane expressway, and would include the construction of the southbound Loop 1604 main lanes and frontage road, entrance and exit ramps, and three grade separations. The length of the proposed project is approximately 4.1 miles. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Final Environmental Assessment (EA) approved on May 4, 2016, Finding of No Significant Impact (FONSI) issued on May 4, 2016 and other documents in the TxDOT project file. The EA, FONSI, and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT San Antonio District Office at 4615 NW Loop 410, San Antonio, TX 78229; telephone (210) 615-5839.
28. Loop 1604 from US 90 to FM 1957 in Bexar County. The project would convert the existing four-lane divided roadway to a four-lane expressway with continuous frontage roads. The project would also include the construction of grade separations at major intersections located within the project limits as well as a direct connector from southbound LP 1604 to eastbound US 90. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Final Environmental Assessment (EA) approved on May 27, 2016, Finding of No Significant Impact (FONSI) issued on May 27, 2016 and other documents in the TxDOT project file. The EA, FONSI, and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT San Antonio District Office at 4615 NW Loop 410, San Antonio, TX 78229; telephone (210) 615-5839.
29. Quintana Road from Harmon Avenue to McKenna Avenue in Bexar County. The project includes roadway realignment, median, shared use path, turn lanes and drainage improvements. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Final Environmental Assessment (EA) approved on June 22, 2017, Finding of No Significant Impact (FONSI) issued on June 22, 2017 and other documents in the TxDOT project file. The EA, FONSI, and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT San Antonio District Office at 4615 NW Loop 410, San Antonio, TX 78229; telephone (210) 615-5839.
30. SH 211 from FM 1957 to FM 471 in Bexar and Medina Counties. The project includes construction of a new 7.6 mile two-lane rural arterial roadway on new location. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Final Environmental Assessment (EA) approved on July 14, 2017, Finding of No Significant Impact (FONSI) issued on July 14, 2017 and other documents in the TxDOT project file. The EA, FONSI, and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT San Antonio District Office at 4615 NW Loop 410, San Antonio, TX 78229; telephone (210) 615-5839.
23 U.S.C. 139(l)(1).
Maritime Administration, Department of Transportation.
Notice of intent; notice of public meeting; request for comments.
The U.S. Coast Guard (USCG), in coordination with the Maritime Administration (MARAD), will prepare an environmental impact statement (EIS) as part of the environmental review of the Texas Gulf Terminals, Inc. (TGTI) deepwater port license application. The application proposes the ownership, construction, operation and eventual decommissioning of an offshore oil export deepwater port that would be located in Federal waters approximately 12.7 nautical miles off the coast of Corpus Christi, Texas in a water depth of approximately 93 feet. The deepwater port would allow for the loading of Very Large Crude Carriers (VLCCs) via a single point mooring buoy system.
This Notice of Intent (NOI) requests public participation in the scoping process, provides information on how to participate and announces an informational open house and public meeting in Texas. Pursuant to the criteria provided in the Deepwater Port Act of 1974, as amended, 33 U.S.C. 1501
There will be one public scoping meeting held in connection with the TGTI deepwater port application. The meeting will be held in Corpus Christi, Texas on September 12, 2018, from 6:00 p.m. to 8:00 p.m. The public meeting will be preceded by an informational open house from 4:00 p.m. to 5:30 p.m.
The public meeting may end later than the stated time, depending on the number of persons wishing to speak. Additionally, materials submitted in response to this request for comments on the TGTI deepwater port license application must reach the Federal Docket Management Facility as detailed below by September 14, 2018.
The open house and public meeting in Corpus Christi, Texas will be held at the Omni Corpus Christi Hotel, 900 North Shoreline Boulevard, Corpus Christi, TX 78401, phone: (361) 887-1600, web address:
The public docket for MARAD-2018-0114 is maintained by the U.S. Department of Transportation, Docket Management Facility, West Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590.
The license application is available for viewing at the
We encourage you to submit comments electronically through the Federal eRulemaking Portal at
Mr. Roddy Bachman, USCG, telephone: 202-372-1451, email:
We encourage you to attend the informational open house and public meeting to learn about, and comment on, the proposed deepwater port. You will have the opportunity to submit comments on the scope and significance of the issues related to the proposed deepwater port that should be addressed in the EIS.
Speaker registrations will be available at the door. Speakers at the public scoping meeting will be recognized in the following order: Elected officials, public agencies, individuals or groups in the sign-up order and then anyone else who wishes to speak.
In order to allow everyone a chance to speak at a public meeting, we may limit speaker time, extend the meeting hours, or both. You must identify yourself, and any organization you represent by name. Your remarks will be recorded and/or transcribed for inclusion in the public docket.
You may submit written material at a public meeting, either in place of, or in addition to, speaking. Written material must include your name and address and will be included in the public docket.
Public docket materials will be made available to the public on the Federal Docket Management Facility website (see
Our public meeting location is wheelchair-accessible and compliant with the Americans with Disabilities Act. If you plan to attend an open house or public meeting and need special assistance such as sign language interpretation, non-English language translator services or other reasonable accommodation, please notify the USCG or MARAD (see
We request public comment on this proposal. The comments may relate to, but are not limited to, the environmental impact of the proposed action. All comments will be accepted. The public meeting is not the only opportunity you have to comment on the TGTI deepwater port license application. In addition to, or in place of, attending a meeting, you may submit comments directly to the Federal Docket Management Facility during the public comment period (see
The license application, comments and associated documentation, as well as the draft and final EISs (when published), are available for viewing at the Federal Docket Management System (FDMS) website:
Public comment submissions should include:
• Docket number MARAD-2018-0114.
• Your name and address.
Submit comments or material using only one of the following methods:
• Electronically (preferred for processing) to the Federal Docket Management System (FDMS) website:
• By mail to the Federal Docket Management Facility (MARAD-2018-0114), U.S. Department of Transportation, West Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590-0001.
• By personal delivery to the room and address listed above between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays.
• By fax to the Federal Docket Management Facility at 202-493-2251.
Faxed, mailed or hand delivered submissions must be unbound, no larger than 8
Regardless of the method used for submitting comments, all submissions will be posted, without change, to the FDMS website (
Information about deepwater ports, the statutes, and regulations governing their licensing, including the application review process, and the receipt of the current application for the proposed TGTI deepwater port appears in the TGTI Notice of Application, August 6, 2018 edition of the
Consideration of a deepwater port license application includes review of the proposed deepwater port's impact on the natural and human environment. For the proposed deepwater port, USCG and MARAD are the co-lead Federal agencies for determining the scope of this review, and in this case, it has been determined that review must include preparation of an EIS. This NOI is required by 40 CFR 1501.7. It briefly describes the proposed action, possible alternatives and our proposed scoping process. You can address any questions about the proposed action, the scoping process or the EIS to the USCG or MARAD project managers identified in this notice (see
The proposed action requiring environmental review is the Federal licensing of the proposed deepwater port described in “Summary of the Application” below. The alternatives to licensing the proposed port are: (1) Licensing with conditions (including conditions designed to mitigate environmental impact), (2) proposed deepwater port site alternatives or (3) denying the application, which for purposes of environmental review is the “no-action” alternative.
Public scoping is an early and open process for identifying and determining the scope of issues to be addressed in the EIS. Scoping begins with this notice, continues through the public comment period (see
• Invites the participation of Federal, state, and local agencies, any affected Indian tribe, the applicant, in this case TGTI, and other interested persons;
• Determines the actions, alternatives and impacts described in 40 CFR 1508.25;
• Identifies and eliminates from detailed study, those issues that are not significant or that have been covered elsewhere;
• Identifies other relevant permitting, environmental review and consultation requirements;
• Indicates the relationship between timing of the environmental review and other aspects of the application process; and
• At its discretion, exercises the options provided in 40 CFR 1501.7(b).
Once the scoping process is complete, USCG and MARAD will prepare a draft EIS. When complete, MARAD will publish a
TGTI is proposing to construct, own, and operate a deepwater port terminal in the Gulf of Mexico to export domestically produced crude oil. Use of the DWP would include the loading of various grades of crude oil at flow rates of up to 60,000 barrels per hour (bph). Approximately eight Very Large Crude Carrier (VLCC) vessels (or equivalent volumes) would be loaded per month from the proposed deepwater port. Loading of one VLCC vessel is expected to take 48 hours, including vessel approach, mooring, cargo transfer, and vessel departure.
The overall project would consist of three distinct, but interrelated components: (1) The “offshore” component, (2) the “inshore” component, and (3) the “onshore” component.
The proposed deepwater port (offshore component) would be located approximately 12.7 nautical miles off the coast of North Padre Island (Kleberg County, TX) and consists of 14.71 miles of two new parallel 30-inch diameter crude oil pipelines, which terminate at a single point mooring (SPM) buoy. The SPM buoy system would be positioned in water depths of approximately 93 feet and consist of a pipeline end manifold, catenary anchor leg mooring system, and other associated equipment. The SPM would be located in BOEM lease block number 823 at latitude N 27°28′42.60″ and longitude W 97°00′48.43″.
The inshore components associated with the proposed project include 5.74 miles of two new parallel 30-inch diameter pipelines and onshore valve stations used to connect the onshore project components to offshore project components. The inshore portions of the proposed pipeline infrastructure cross the Laguna Madre Bay complex, the Gulf Intracoastal Waterway, and extend across North Padre Island to the mean high tide line located at the interface of North Padre Island and the Gulf of Mexico. The inshore project components include the installation of an onshore valve station on North Padre Island to allow for the isolation of portions of the proposed pipeline infrastructure for servicing, maintenance, and inspection operations.
Onshore components associated with the proposed project include the construction and operation of an onshore storage terminal facility (OSTF), booster station, and approximately 6.36 miles of two new parallel 30-inch diameter pipelines located within Nueces and Kleberg Counties, TX. The OSTF would occupy approximately 150 acres in Nueces County, TX and would consist of all necessary infrastructure to receive, store, measure and transport crude oil through the proposed inshore and deepwater port pipeline infrastructure. The proposed booster station would occupy approximately 8.25 acres in Kleberg County, TX and would consist of the necessary pumping infrastructure to support the transport of crude oil from the OSTF to the deepwater port. Onshore pipeline infrastructure would extend from the OSTF to the landward side of the mean high tide line located at the interface of the western shoreline of the Laguna Madre.
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its administrative and rulemaking processes. DOT posts comments, without edit, to
By Order of the Maritime Administrator.
In accordance with the Federal Advisory Committee Act, the Creating Options for Veterans Expedited Recovery (COVER) Commission gives notice that the second meeting will be held on August 21 and August 22, 2018 at the JW Marriott Hotel, 1331 Pennsylvania Avenue NW, Washington, DC 20004-1710. The meeting will convene at 8:00 a.m. and adjourn at 5:00 p.m. EST on both days. The meeting will be open to the public through the entirety of Day One, August 21, and again on Day Two, August 22 through the 2:00 p.m. session. On August 22, the meeting will be closed from 3:00 p.m. to 5:00 p.m. under S.C. 552b(c) under (9)(B) because it would reveal information the disclosure of which would, “in the case of an agency, be likely to significantly frustrate implementation of a proposed agency action.” This closed session would include continued discussion and final decisions on ground rules, decision making protocol, and strategy. Any precipitous release of those discussions through an open session will frustrate implementation and potentially our Veterans who we consider our greatest customer/benefactor of the commission.
Day 1 will focus on CARA Legislation (full scope) and integration with COVER, current VHA Mental Health Services and Resources and Current Process, Specialty and Recreational Therapies, Hyper Baric Therapy, Integrative Health, and a Question and Answer Panel by VA leading experts in CARA legislation, Mental Health and Whole Health Practices. Day 2 will include further review and discussion on past surveys of Veterans Mental Health and approach to a way forward. A listening line will be available to the public who prefer to call in rather than attend the open sessions at the JW Marriott. This listening line number will be activated 10 minutes before each of the two open sessions. The listening line number is 800-767-1750; access code 48664#.
The purpose of the COVER Commission is to examine the evidence-based therapy treatment model used by the Department of Veterans Affairs (VA) for treating mental health conditions of Veterans and the potential benefits of incorporating complementary and integrative health approaches as standard practice throughout the Department.
Any member of the public seeking additional information should email
Department of Veterans Affairs.
Proposed rule.
The Department of Veterans Affairs (VA) is proposing to amend its claims adjudication, appeals, and Rules of Practice of the Board of Veterans' Appeals (Board) regulations. In addition, VA proposes to revise its regulations with respect to accreditation of attorneys, agents, and Veterans Service Organization (VSO) representatives; the standards of conduct for persons practicing before VA; and the rules governing fees for representation. This rulemaking is needed to implement the Veterans Appeals Improvement and Modernization Act. That law amended the procedures applicable to administrative review and appeal of VA decisions denying claims for benefits, creating a new, modernized review system.
Unless otherwise specified, VA intends to make the proposed regulatory changes applicable to claims processed under the new review system, which generally applies where an initial VA decision on a claim is provided on or after the effective date or where a claimant has elected to opt into the new review system under established procedures.
Comments must be received by VA on or before October 9, 2018 to be considered in the formulation of the final rule.
Written comments may be submitted through
Veterans Benefits Administration information: Jennifer Williams, Senior Management and Program Analyst, Appeals Management Office, Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (202) 530-9124 (this is not a toll-free number). Board of Veterans' Appeals information: Rachel Sauter, Counsel for Legislation, Regulations, and Policy, Board of Veterans' Appeals. Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (202) 632-5555 (this is not a toll-free number).
Modernizing the appeals process is a top priority for VA. In fiscal year (FY) 2017, claimants generally waited less than 125 days for an initial decision on VA disability compensation claims; however, they waited an average of 3 years for a final decision if they chose to appeal. Moreover, in FY2017 those claimants who chose to continue their appeal to the Board waited an average of 7 years for a decision from the date that they initiated their appeal, and the Board decision may not have resolved the appeal.
Public Law (Pub. L.) 115-55, the Veterans Appeals Improvement and Modernization Act of 2017 (hereinafter “Pub. L. 115-55”) provides much-needed comprehensive reform for the legacy appeals process, to help ensure that claimants receive a timely decision on review where they disagree with a VA claims adjudication. It replaces the current VA appeals process with a new review process that makes sense for veterans, their advocates, VA, and stakeholders.
In the current VA appeal process, which is set in law, appeals are non-linear and may require VA staff to engage in gathering and receiving evidence and re-adjudicating appeals based on new evidence. This process of gathering evidence and readjudication can add years to the appeals process, as appeals churn between the Board and the agency of original jurisdiction. Additionally, jurisdiction of appeals processing is shared between the Board and the agency of original jurisdiction, which, for purposes of the changes made by this proposed rule, is typically the Veterans Benefits Administration (VBA).
The new statutory appeals framework features three differentiated lanes from which a claimant may choose in seeking review of a VA denial (or partial denial) of a claim. One lane is for review of the same evidence by a higher-level claims adjudicator in the agency of original jurisdiction (higher-level review); one lane is for submitting new and relevant evidence with a supplemental claim to the agency of original jurisdiction (supplemental claim); and one lane is the appeals lane for seeking review by a Veterans Law Judge at the Board by filing a Notice of Disagreement (appeal to the Board). In an appeal to the Board, Public Law 115-55 eliminates intermediate and duplicative steps previously required, such as the Statement of the Case (SOC) and the substantive appeal. Furthermore, the new law will allow the Board to maintain three separate dockets for handling the following categories of appeals: (1) Appeals where the claimant has requested a hearing, (2) appeals with no request for a hearing but where the claimant elects to submit other forms of evidence, and (3) appeals where the claimant requests Board review on the same evidence that was before the agency of original jurisdiction. These separate dockets will allow the Board to more efficiently and effectively manage distinctly different types of work. As a result of the new lane options, claimants will have increased choice for resolving disagreements with a VA decision on a claim.
In addition, the differentiated lanes will allow the agency of original jurisdiction to be the claim development entity within VA and the Board to be the appeals entity. This design is intended to reduce the uncertainty caused by the current process, in which a claimant initiates an appeal in the agency of original jurisdiction and the appeal is often a years-long continuation of the claim development process. It ensures that all claim development by the agency of original jurisdiction occurs in the context of either an initial or supplemental claim filed with the agency of original jurisdiction, rather than in an appeal.
The agency of original jurisdiction's duty to assist in developing evidence will continue to apply when a claimant initiates a new or supplemental claim. However, where a claimant seeks review of an agency of original jurisdiction decision, the duty to assist generally no longer applies, unless and until the claimant elects to file a supplemental claim, at which point the duty to assist applies to the supplemental claim. The proposed regulations also contain a mechanism to correct any duty to assist errors occurring before the agency of original jurisdiction, if such errors are discovered on review or appeal, by requiring that the claim be returned to
The statutory requirements, which we propose to codify in these proposed regulations, provide a claimant who is not fully satisfied with the result of any review lane one year to seek further review while preserving an effective date for benefits based upon the original filing date of the claim. For example, a claimant could go straight from an initial agency of original jurisdiction decision on a claim to an appeal to the Board. If the Board decision was not favorable, but it helped the claimant understand what evidence was needed to support the claim, then the claimant would have one year to submit new and relevant evidence to the agency of original jurisdiction in a supplemental claim without fearing loss of the effective date for choosing to go to the Board first.
The differentiated lane framework required by statute and proposed to be codified in these regulations has many advantages. It provides a streamlined process that allows for early resolution of a claimant's appeal and the lane options allow claimants to tailor the process to meet their individual needs and control their VA experience. It also enhances claimants' rights by preserving the earliest possible effective date for an award of benefits, regardless of the option(s) they choose, as long as the claimant pursues review of a claim in any of the lanes within the established timeframes. By having a higher-level review lane within the claims process and a lane at the Board providing for review on only the record considered by the initial claims adjudicator, the new process provides a feedback mechanism for targeted training and improved quality in the VBA or other claims adjudication agency.
To ensure that as many claimants as possible benefit from the streamlined features of the new process, Public Law 115-55 and the proposed regulations provide opportunities for claimants and appellants in the legacy system to take advantage of the new system. Some claimants who receive a decision prior to the effective date of the law will be able to participate in the new system. Other claimants who receive an SOC or Supplemental Statement of the Case (SSOC) in a legacy appeal after the effective date of the law will also have an opportunity to opt-in to the new system.
VA initially met in March 2016 with Veterans Service Organizations (VSOs), congressional staff, and other stakeholders to develop a plan to reform the current appeals process. The result of this collaborative work was a new appeals framework, with the same fundamental features as the process described in section 2 of Public Law 115-55. This new process will provide veterans with timely, fair, and high quality decisions. The engagement of those organizations that participated in the March 2016 “Appeals Summit” ultimately led to a stronger proposal, as VA was able to incorporate stakeholder feedback and benefit from the perspective of those with extensive experience in helping veterans navigate the complex VA appeals process.
In November 2017, VA again met with stakeholders to highlight important changes required by the new law, answered questions, and discussed specific concerns. VA is grateful to all of the stakeholders for their contributions of time, energy, and expertise in this effort.
The majority of amendments addressed in this proposed rule are mandatory to comply with the law. Through careful collaboration with VA, VSOs, and other stakeholders, in enacting Public Law 115-55, Congress provided a highly detailed statutory framework for claims and appeals processing. VA is unable to alter proposed amendments that directly implement mandatory statutory provisions. In addition to implementing mandatory requirements, VA proposes a few interpretive or gap-filling amendments to the regulations which are not specifically mandated by Public Law 115-55, but that VA believes are in line with the law's goals to streamline and modernize the claims and appeals process. These amendments fill gaps in the new law left by Congress, reduce unnecessary regulations, streamline and modernize processes, and improve services for Veterans.
This proposed rule contains amendments to parts 3, 8, 14, 19, 20, and 21, as described in detail below.
VA proposes to amend the regulations in 38 CFR part 3 as described in the section-by-section supplementary information below. These regulations govern the adjudication of claims for monetary benefits (
VA proposes to amend the definition of “claim” in § 3.1(p), to add definitions of the terms “initial claim” and “supplemental claim,” as the distinction between those terms is significant under the changes made by Public Law 115-55, which provides for the filing and adjudication of supplemental claims and adds a definition of supplemental claim at 38 U.S.C. 101(36). VA proposes to define an “initial claim” as a claim for a benefit other than a supplemental claim, including the first filing by a claimant (original claim) and a subsequent claim filed by a claimant for an increase in a disability evaluation, a new benefit, or a new disability. The definition of a claim for increase is moved into this section from § 3.160 and is expanded to more accurately reflect the nature of such claims.
Public Law 115-55, section 2(a), defines “supplemental claim” as “a claim for benefits under laws administered by the Secretary filed by a claimant who had previously filed a claim for the same or similar benefits on the same or similar basis.” The Secretary is required to readjudicate the claim if new and relevant evidence is presented or secured with respect to a supplemental claim. VA proposes to clarify in the regulatory definition of supplemental claim that VA must have issued a decision with respect to the previously filed claim before a supplemental claim can be filed. The inclusion of this requirement for a supplemental claim is consistent with the language of revised 38 U.S.C. 5108, which requires the Secretary to “readjudicate” a claim where “new and relevant evidence is presented or secured with respect to a supplemental claim.” This language presupposes that VA has already adjudicated the claim and issued a notice of decision before a supplemental claim is filed.
With the inclusion of additional definitions under § 3.1(p), VA proposes to amend the cross references to include a reference to supplemental claims under the new § 3.2501.
Under 38 U.S.C. 5104(a), when VA makes a decision affecting the provision of benefits to a claimant, VA must provide the claimant and his or her representative with notice of the decision. Under current 38 U.S.C.
Public Law 115-55 revised 38 U.S.C. 5104(b) to specify that each notice provided under section 5104(a) must include all of the following: Identification of the issues adjudicated; a summary of the evidence considered by VA; a summary of applicable laws and regulations; identification of findings favorable to the claimant; in the case of a denial, identification of elements not satisfied leading to the denial; an explanation of how to obtain or access evidence used in making the decision; and, if applicable, identification of the criteria that must be satisfied to grant service connection or the next higher-level of compensation.
VA proposes to amend its procedures for issuing decisions to conform with the amendments to 38 U.S.C. 5104(b). Enhanced decision notices will allow claimants and their representatives to make more informed choices about whether to seek further review and, if so, which of the new review lanes best fits the claimant's needs: Filing a supplemental claim with the agency of original jurisdiction, requesting a higher-level review of the initial decision within the agency of original jurisdiction, or appealing to the Board.
In addition, to comply with 38 U.S.C. 5104B(d), VA proposes to amend § 3.103 to explain that the evidentiary record for a claim before the agency of original jurisdiction closes when VA issues notice of a decision on said claim. A claimant may reopen the evidentiary record by submitting a supplemental claim or claim for an increase on the prescribed application form. Consistent with its discretionary authority under 38 U.S.C. 501(a), VA proposes to require a prescribed application form for submitting a supplemental claim consistent with current regulations applicable to claims. Submission of a substantially complete initial or supplemental claim also triggers VA's duty to assist in the gathering of evidence under § 3.159. The evidentiary record also reopens when a claim must be readjudicated due to identification of a duty to assist error on higher-level review or by the Board. Whenever the record reopens, evidence submitted to the agency of original jurisdiction while the record was closed will become part of the record to be considered for a subsequent adjudication.
VA also proposes to make several nomenclature changes within § 3.103 to update language and clarify that a hearing before VA may be conducted in person or through videoconferencing tools available at a regional office closest to the claimant. The changes also clarify that a hearing will not be provided in connection with a request for higher-level review. Claimants will have the opportunity to request an informal conference in connection with a request for higher-level review as provided in proposed § 3.2601.
Finally, VA proposes to delete the last sentence of § 3.103(c)(2), allowing a claimant to request visual examination during a hearing by a physician designated by VA. Due to the complex considerations involved in making determinations on the nature, origin, or degree of disability, a physician's visual assessment during a hearing has significant limitations. Disability assessments typically involve a comprehensive clinical evaluation with appropriate standardized testing to establish the diagnosis or origin, or characterize the severity of impairment. For some conditions, this could include specialized equipment, tests, or training that would not be available by a physician during a visual examination; examples of specialized testing could include neuropsychological evaluations for traumatic brain injury (TBI) claimants. Accordingly, VA proposes to remove the reference that claimants may request visual examination by a physician at the hearing. Although VA does not currently have data on the number of examinations requested by veterans during hearings, these types of examinations are obsolete as Veterans and VA can now utilize several other methods to add visual examination findings into the record. These include Disability Benefits Questionnaires (DBQs) that a claimant may ask any physician to complete to document visual findings and contract examinations which support VA's disability evaluation process and make obtaining examinations easier and more efficient by bypassing the requirement to formally schedule one with a VA provider.
VA proposes to amend § 3.104(a), concerning the binding nature of decisions, to conform with other regulatory changes implementing Public Law 115-55. In addition, VA proposes to remove the word “final” from this section for consistency with the definition of finally adjudicated claim in § 3.160(d). Decisions issued by an agency of original jurisdiction are binding on VA field offices under § 3.104 when issued, even though the decision is not finally adjudicated because the period for a claimant to seek review of the decision is still open. The current wording of § 3.104 refers to such decisions as “final” and binding when they are issued. The definition of “finally adjudicated” in § 3.160(d) will be maintained and a decision on a claim is final when the claim is finally adjudicated.
In addition, Public Law 115-55 added a new section, 38 U.S.C. 5104A, providing that any findings favorable to the claimant will be binding on all subsequent adjudicators within VA, unless clear and convincing evidence is shown to the contrary to rebut the favorable findings. VA proposes to amend § 3.104 to include a new paragraph implementing this provision. VA further proposes to define a finding as a conclusion on either a question of fact or on an application of law to facts.
VA proposes to amend § 3.105(a) to incorporate existing legal standards recognized in judicial decisions applicable to revision of final decisions under 38 U.S.C. 5109A. This statute allows for revision or reversal of final decisions by the Secretary based on clear and unmistakable error (CUE). These rules are set forth in proposed § 3.105(a)(1). Proposed § 3.105(a)(2) contains standards applicable to revision of decisions that are not yet final.
Proposed § 3.105(a)(1) incorporates judicial standards applicable to revision of final decisions based on CUE under 38 U.S.C. 5109A. No substantive changes are intended to the existing law governing revision of final agency of original jurisdiction decisions based on CUE. The proposed amendments conform regulations with respect to revision of final decisions by the agency of original jurisdiction with similar regulatory changes previously promulgated with respect to revision of final Board decisions based on CUE under 38 U.S.C. 7111.
Judicial decisions have recognized that CUE applies only to final administrative decisions.
Further, CUE is a specific and rare kind of error, requiring the claimant to demonstrate three elements: (1) The error must be of a specific type—“either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied;” (2) the error must be “undebatable;” and (3) the error must undebatably be outcome-determinative, meaning that the error would have “manifestly changed the outcome” at the time it was made.
An error is undebatable if “no reasonable adjudicator could weigh the evidence in the way that the adjudicator did.”
The error must be shown based solely on the evidentiary record as it existed at the time of the disputed regional office (RO) adjudication and the law that existed at the time of subject adjudication.
The caselaw also addresses burden of proof issues. As the Court stated in
Proposed § 3.105(a)(2) applies to decisions that are not finally adjudicated at the agency of original jurisdiction. The proposed language reflects current policy and practice with respect to matters adjudicated under part 3 of VA's regulations that the outcome of a decision will not be revised by another adjudicator in the agency of original jurisdiction on his or her own initiative, based on the same evidentiary record, unless a determination is made that the outcome of the decision is clearly erroneous. This reflects a policy decision by VA to restrict the discretion of subsequent adjudicators to reverse prior determinations in the absence of new evidence. In accordance with new 38 U.S.C. 5104A, the adjudicator may, in determining whether the result was clearly erroneous, take into account any favorable findings subject to reversal based on clear and convincing evidence to the contrary. Determinations under § 3.105(a)(2) are therefore legally distinct from determinations under § 3.105(a)(1) as to whether a final decision should be revised based on CUE.
In addition, VA proposes to amend paragraph (b) to clarify that difference of opinion authority is given to VA employees designated to complete higher-level reviews to implement the requirement in new 38 U.S.C. 5104B that a higher-level review is de novo, subject to the rule protecting favorable findings. A new paragraph is also added at the end of § 3.105 to reflect that VA decisions may now be revised through resolution of a timely-filed supplemental claim under 38 U.S.C. 5108 or higher-level review under 38 U.S.C. 5104B.
No changes are necessary to §§ 3.105(c) through (h), which govern severance of service connection and reduction in evaluations, such as reductions in pension payments and reductions in evaluations of a service-connected disability. The standards and procedures set forth in these paragraphs will continue to apply and an adjudicator considering whether to reduce or discontinue an evaluation under § 3.105 is not bound under the “favorable finding” rule in new section 5104A of the statute that protects findings relating to a disability evaluation for a particular period of time but does not preclude a subsequent finding that the disability thereafter improved.
Rating evaluations and pension awards are running awards, resulting in recurring payments being made subsequent to an initial award.
Public Law 115-55 added 38 U.S.C. 5104C, which outlines the available review options following a decision by the agency of original jurisdiction. VA proposes to amend §§ 3.2500 and 3.151 consistent with the statute to provide that a claimant may request one of the three review options under § 3.2500 (higher-level review, supplemental
Proposed § 3.151(c) defines an issue for this purpose as an adjudication of a specific entitlement. For example, with respect to service-connected disability compensation, an issue would be entitlement to compensation for a particular disability (and any ancillary benefits). This definition of “issue” is consistent with the definition of issue in § 20.1401(a), as interpreted by the U.S. Court of Appeals for Veterans Claims.
A simple hypothetical serves to illustrate VA's intent. Suppose a claimant seeks disability compensation for a knee disability, and for a mental disorder. Once the claimant receives an initial decision on both, it is permissible for the claimant to elect to place the knee issue and the mental disorder issue in separate lanes under the new appeals system. The claimant may not, however, challenge the effective date assigned for the knee in one lane, and simultaneously challenge the assigned degree of disability for the knee in another lane.
In addition, VA proposes to include a new paragraph, § 3.151(d), providing that the evidentiary record for a claim closes upon issuance of notice of a decision on the claim. This provision is similar to proposed § 3.103(c).
VA proposes to amend § 3.155, regarding the procedures for filing a claim, to make those procedures applicable to supplemental claims under Public Law 115-55, except for the “intent to file” provisions found in § 3.155(b). For example, this amendment would apply existing procedures in § 3.155(c) regarding the filing of incomplete claim forms to supplemental claims. Accordingly, incomplete supplemental claim forms would be considered filed on the date of receipt if a complete supplemental claim is submitted within one year of the filing date of the incomplete claim.
However, the “intent to file” provisions in § 3.155(b), would not be applied to supplemental claims. The new statutory framework provides that a claimant can maintain the effective date of a potential benefits award by submitting a request for review under any of the three new lanes within one year of the date of the decision denying benefits. Consistent with this requirement, the intent to file provisions of § 3.155(b) would not apply to supplemental claims as this provision would allow for the submission of a supplemental claim beyond the one-year period provided by statute for protection of effective dates.
VA proposes to amend § 3.156 to include reference to supplemental claims based on new and relevant evidence as provided in Public Law 115-55 and to clarify when a supplemental claim may be filed. For supplemental claims received after the effective date, VA proposes new § 3.156(d) to replace the “new and material” evidence element, which is currently required under § 3.156(a) for requests for VA to reopen a finally adjudicated claim, with the more liberal “new and relevant” evidence standard in section 2(i) of Public Law 115-55. As noted in the House of Representatives Committee Report (H. Rept.115-135, May 19, 2017, page 3), Congress's intent “behind the change is to lower the current burden” to have a claim readjudicated based on new evidence. Public Law 115-55 defines “relevant evidence” under 38 U.S.C. 101(35) as “evidence that tends to prove or disprove a matter in issue.” This new standard reduces a claimant's threshold in identifying or submitting evidence as part of a supplemental claim. Proposed § 3.156(d), regarding supplemental claims, includes a reference to new § 3.2501 which provides further details regarding the filing and adjudication of supplemental claims and the “new and relevant” evidence standard.
VA proposes to maintain the “new and material” evidence standard, found in 38 U.S.C. 5108 prior to the enactment of Public Law 115-55, in subsection (a) as the standard for requests to reopen finally adjudicated legacy claims where the request to reopen was decided prior to the applicability date of the new law. Claims to reopen that were filed, but not initially adjudicated, prior to the effective date will be adjudicated under the more favorable “new and relevant” standard applicable to supplemental claims. In addition, a supplemental claim subject to the more favorable standard may be filed after the effective date of the modernized review system, even with respect to legacy claims finally adjudicated prior to the effective date of the new system.
Under the new framework, the agency of original jurisdiction will take action on new evidence that is received with an application for a supplemental claim, or received or obtained prior to issuance of a decision on the supplemental claim. As indicated in the explanation of proposed § 3.103, the record closes upon issuance of a notice of decision on the claim, subject to reopening upon certain later events. Therefore, VA proposes to limit the applicability of the current rule under paragraph (b), allowing for the submission of new and material evidence during the appeal period, to pending legacy claims that are not subject to the modernized review system.
38 U.S.C. 5103(a) requires VA to provide notice to a claimant of the information or evidence necessary to substantiate the individual's claim for benefits. Public Law 115-55 revised section 5103 to state that this notice requirement applies to initial and supplemental claims; however, VA is not required under the statute to provide that notice with respect to a supplemental claim filed within one year of an agency of original jurisdiction or Board decision on an issue. VA proposes to amend § 3.159 to include this exception.
VA also proposes to require VA to assist a claimant who reasonably identifies existing records in connection with a supplemental claim, as required under 38 U.S.C. 5108(b). VA proposes to further amend § 3.159 to clarify that VA's duty to assist in the gathering of evidence begins upon receipt of a substantially complete application for an initial or supplemental claim and ends once VA issues a decision on the claim. The definition of a substantially complete application in 3.159 has been amended to add the requirement that a supplemental claim application include or identify potentially new evidence and that a higher-level review request identify the date of the decision for which review is sought. VA's duty to assist is reinstated when a substantially complete initial claim or supplemental claim is filed or when a claim is returned to correct a “duty to assist” error in a prior decision as required by
Public Law 115-55 deleted the reference in 38 U.S.C 5103(a) to a claim for reopening or a claim for increase and replaced it with reference to a “supplemental claim.” Based on this change in terminology, VA proposes to update several sections in part 3 to replace the term “reopened claim” with “supplemental claim.” Claimants may request review of VA's decision by submitting a supplemental claim after a decision by the VBA, the Board, or the Court of Appeals for Veterans Claims. VA proposes to update paragraph (e) to reflect the requirement that as of the applicability date of the new law, VA will no longer accept requests to “reopen” claims and a claimant must file a supplemental claim under § 3.2501 to seek review of a finally adjudicated claim for a previously disallowed benefit.
VA proposes to clarify the definition of “finally adjudicated claim” for decision notices issued on or after the effective date, to be consistent with 38 U.S.C. 5104C, added by Public Law 115-55. With the new claims and appeals system, a claim is considered finally adjudicated at the expiration of the period to file a review option following notice of a decision by the agency of original jurisdiction, the Board, or the Court of Appeals for Veterans Claims. If an appeal is timely filed from a decision of the Court of Appeals for Veterans Claims, a claim is finally adjudicated upon its disposition on judicial review. During the time period for seeking review, a claimant may elect one of the three new review options depending on the type of decision issued as outlined in 38 U.S.C. 5104C. Once the period to seek review expires, an issue is considered finally adjudicated and a claimant loses the effective date protections associated with continuous pursuit of an issue. At that point, the claimant may seek review of the decision by filing a supplemental claim or a request to revise the final decision based on clear and unmistakable error under § 3.105(a)(1).
VA proposes to amend the definition of complete claim to add a requirement applicable to supplemental claims, in part to implement the duty to assist requirements under 38 U.S.C. 5108(b). In order for a supplemental claim to be considered complete and filed, it must identify or include potentially new evidence. Identification of potentially new evidence would trigger VA's duty to assist under §§ 3.2501 and 3.159(a)(3). Without that baseline level of information, the complete claim standard will not have been met for purposes of claim initiation of a supplemental claim. VA believes this baseline level of substantive specificity is necessary in order to minimize the possibility that claimants can effectively keep a claim stream alive indefinitely by repeatedly asserting that they will submit or identify new and relevant evidence at some future date, never doing so, and then repeating the process once VA issues a decision. However, we emphasize that the claim would be considered “complete” for claim initiation purposes, and VA's duty to assist accordingly triggered, when the claimant identifies evidence within the scope of VA's duty to assist to obtain. It would not be required that VA actually obtain the evidence, or make a finding that new and relevant in fact has been secured, prior to recognizing that a supplemental claim has in fact been filed.
VA proposes to remove and reserve § 3.161, which addresses the Expedited Claims Adjudication (ECA) Initiative Pilot Program as this program is no longer in use and will not continue based on changes to the claims and appeals processes under Public Law 115-55. VA launched the ECA Initiative Program on February 2, 2009. The two-year pilot program was designed to accelerate claims and appeals processing. Participation in the ECA Initiative was strictly voluntary and limited to claimants who resided within the jurisdiction of the Nashville, Lincoln, Seattle, or Philadelphia Regional Offices (ROs). VA concluded the ECA pilot program in 2013.
Public Law 115-55 repealed 38 U.S.C. 7109, which authorized the Board to obtain independent medical opinions (IMOs). This repeal removed the ability for the Board to request IMOs. Under 38 U.S.C. 5103A(f)(2) and 5109(d), as added by Public Law 115-55, the Board will, when deemed necessary, direct the agency of original jurisdiction to obtain an IMO. VA proposes to amend § 3.328 to include a requirement that VBA process IMO instructions received from the Board.
VA proposes to amend § 3.400 to incorporate the new rule that a claimant may protect their initial filing date for effective date purposes if they continuously pursue a claim as outlined in 38 U.S.C. 5110(a), as amended by Public Law 115-55. VA will consider the date of receipt of the initial claim when determining the effective date for any benefits that VA may award under a continuously pursued claim. VA provides a reference to § 3.2500 where this is further defined.
VA proposes to limit the applicability of the rules regarding new and material evidence and reopened claims as VA will no longer accept or process claims to reopen claims received after the effective date of the new law.
Proposed § 3.2400 defines which claims are processed under the new review system and which clams are processed under the legacy appeals system. Public Law 115-55, section 2(x), provides generally that the new review system will apply to all claims for which a notice of decision is provided by the agency of original jurisdiction on or after the later of (a) 540 days from the date of enactment, which falls on February 14, 2019, or (b) 30 days after the date on which the Secretary certifies to Congress that VA is ready to carry out the new appeals system. Proposed § 19.2(a) refers to this date as the “effective date” of the new review system. Proposed § 3.2400(a)(1) implements the statutory definition and clarifies that the new review system applies when an “initial” decision is provided after the effective date. The term “initial decision” in this context refers to the initial decision on each claim for entitlement to a particular benefit, not the first decision that was ever issued by VA for a claimant.
Proposed § 3.2400 also clarifies that the new review system will generally apply to initial decisions provided on or after the effective date denying requests to revise a decision by the agency of original jurisdiction based on clear and unmistakable error (CUE). Such requests are not “claims” subject to Public Law 115-55, because the requester is not pursuing a claim for benefits pursuant to part II or III of Title 38 of the U.S. Code.
The proposed regulation also recognizes, in subsection (c), that some claimants who received a notice of decision prior to the effective date, defined as legacy claimants, may have
Proposed subsection (c) provides, in accordance with section 2(x)(5) of Public Law 115-55, that, after the effective date, legacy claimants may opt-in to the new review system after VA issues a Statement of the Case or Supplemental Statement of the Case. Claimants may do so by filing for one of the review options under the new system on a form prescribed by VA within the time allowed to file a substantive appeal to the Board under the legacy appeals system. A claimant may not elect to pursue review under both the legacy and modernized review systems with respect to a particular claim.
In the legacy appeals process, claimants who are dissatisfied with the initial decision on their claim are given only one avenue to seek review of that decision. Public Law 115-55 created a new claims and appeals process with several different review options for pursuing VA benefits. Congress added 38 U.S.C. 5104C to provide claimants with streamlined choices within the agency of original jurisdiction and through an appeal to the Board. VA proposes to add § 3.2500 to part 3, subpart D, to implement the new review options and set forth the rules that apply to those options under new 38 U.S.C. 5104C. In line with the statutory requirements, VA proposes to allow a claimant to file for one of the three review options upon receipt of a decision by the agency of original jurisdiction on an initial claim. Under proposed § 3.2500(b), a claimant would be able to elect a different review option for each different issue adjudicated in the decision. The term “issue” is defined in § 3.151(c) as a distinct determination of entitlement to a benefit, such as a determination of entitlement to service-connected disability compensation for a particular disability.
Proposed § 3.2500(b) provides that a claimant may not elect to have the same issue reviewed concurrently under different review options, consistent with new 38 U.S.C. 5104C(a)(2)(A). Proposed § 3.2500(d) implements new 38 U.S.C. 5104C(a)(2), providing that claimants may switch between the different review options. A claimant or the claimant's duly appointed representative may, for example, withdraw a request for higher-level review or a supplemental claim at any time prior to VA issuing notice of decision. If the withdrawal takes place within the one year period following notice of the decision being reviewed, a claimant may timely elect another review option to continuously pursue the claim and preserve potential entitlement to benefits effective as of the date of the initial claim.
Under new 38 U.S.C. 5104C, after receiving notice of a decision on an issue, claimants generally have up to one year to submit new and relevant evidence with a supplemental claim, request a higher-level review, or file an appeal to the Board to preserve the effective date associated with their initial claim. If a claimant remains dissatisfied with the decision on review, depending on the type of review requested, he or she would still have the option to file another review request. The review options available to a claimant after a decision on each type of review are set forth in § 3.2500(c). Paragraph (g) contains effective date protections for continuously pursued claims and the effective date rule for supplemental claims filed more than one year after notice of a decision (
VA proposes to include a paragraph in § 3.2500 that limits the review option available to parties to a simultaneously contested claim (contested claim) to the filing of a Notice of Disagreement with the Board. A contested claim is defined in VA regulations as a situation in which the allowance of one claim results in the disallowance of another claim involving the same benefit or the payment of a lesser benefit to another claimant. 38 CFR 20.3(p). For example, two people may claim entitlement to the same benefit, such as in the situation where two people claim entitlement to a death benefit as the surviving spouse.
In this situation, Congress has provided for different adjudication rules aimed at speeding resolution of the dispute. Prior to Public Law 115-55, the statutory time frame to appeal a decision by the agency of original jurisdiction in such cases was 60 days rather than the normal one year period. 38 U.S.C. 7105A. This required review to be initiated for all contested claims within 60 days and clearly reflected an intent that contested claims be resolved more quickly than ordinary claims.
In Public Law 115-55, Congress maintained the 60 day time period for filing a Notice of Disagreement to appeal a decision of the agency of original jurisdiction, but did not address how contested claims should be handled with respect to the newly available review lanes at the agency of original jurisdiction, for which the filing deadline is one year. This is problematic for the following reasons: (1) While the new system provides claimants with the right to select from three different review lanes, it is literally impossible to provide this right to each claimant in a contested claim, because the claimants' choice of review lanes may conflict (we note that both claimants may disagree with a particular determination in a contested claim, such as the amount of an apportionment under § 3.450); (2) while the new system protects favorable findings from being overturned in the absence of clear and convincing evidence to the contrary, a finding may be favorable to one claimant but unfavorable to the other, thus making it literally impossible to afford each claimant this right; (3) the review period for choosing the Board review lane (through filing a Notice of Disagreement) would be 60 days for a contested claim, but the review period for choosing higher-lever review or filing a supplemental claim would be one year, thereby significantly undermining the impact of the 60 day time period for filing a Notice of Disagreement on achieving a faster resolution of the claim. As a result, it appears that Congress either did not envision that contested claims would be
VA proposes to fill the gap left by the statute by limiting the review option available to a contested claimant to filing a Notice of Disagreement with the Board within 60 days of issuance of the decision of the agency of original jurisdiction. Simultaneously contested claims thus would be excepted from the general one year review period in § 3.2500. VA believes that this is a reasonable way to effectuate congressional intent that the review process for a contested claim be designed to achieve faster resolution of the claim. It also reduces the opportunity for one claimant to prevent the payment of benefits to another claimant by delaying action on filing for review of a decision favorable to the other claimant or by filing successive supplemental claims based on marginally relevant evidence. If either claimant discovers new evidence, the claimant may, under the new system, file such evidence in connection with an appeal to the Board. In addition, under the new system, initial decisions by the agency of original jurisdiction are required to contain more detailed information regarding the basis of the decision, reducing the need for further decisions by the agency of original jurisdiction to provide more information.
VA proposes to add a new section to part 3, subpart D, to explain the rules that govern the supplemental claim review option required by 38 U.S.C. 5108 as amended by Public Law 115-55. Claimants may request review of VA's decision by submitting a supplemental claim after a decision by the VBA, the Board, or the Court of Appeals for Veterans Claims. Public Law 115-55 amended 38 US.C. 5108(a) to prescribe that VA will re-adjudicate a claim when new and relevant evidence is presented or secured with respect to a supplemental claim. VA proposes to include in § 3.2501 the requirement that new and relevant evidence must accompany a supplemental claim or be submitted or secured while a supplemental claim is pending for VA to take action on the evidence and readjudicate the claim.
VA proposes to include a requirement that a claimant file a supplemental claim on a form prescribed by the Secretary and that the duty to assist in gathering new and relevant evidence will be triggered upon the filing of a substantially complete application. As provided in proposed amendments to § 3.159(a)(3) and § 3.160(a), a substantially complete or complete supplemental claim application must identify or include potentially new evidence. An incomplete claim will be considered filed on the date of receipt if the complete application is filed within a year, consistent with § 3.155. The new statutory framework provides one year for submission of a request for review under any of the three new lanes. Consistent with this requirement, the intent to file provisions of § 3.155(b) would not apply to supplemental claims. This new section will also address the evidentiary record for supplemental claims, consistent with proposed § 3.151(d).
VA proposes to add § 3.2502 to part 3, subpart D, to implement the requirement in new 38 U.S.C. 5109B for expedited processing of claims returned from a higher-level adjudicator and remands from the Board. Upon receipt of a returned claim or remand by the Board, the agency of original jurisdiction will take immediate action to expedite readjudication of the claim in accordance with new 38 U.S.C. 5109B. The agency of original jurisdiction will retain jurisdiction of the claim. In readjudicating the claim, the adjudication activity will correct all identified duty to assist errors, complete a new decision and issue notice to the claimant and or his or her legal representative in accordance with § 3.103(f). For all issues readjudicated, the effective date of any evaluation and award of pension, compensation, or dependency and indemnity compensation will be determined in accordance with the date of receipt of the initial claim as prescribed under proposed § 3.2500(g).
Current § 3.2600 governs certain aspects of review under the legacy system, for claims in which a Notice of Disagreement is filed on or after June 1, 2001. VA proposes to amend § 3.2600 to make clear that this section only applies to legacy claims as defined in § 3.2400 and not to claims that are processed under the new review system. VA plans to implement the new claims and appeals system on February 14, 2019. Claimants who receive decisions prior to the effective date of the new system will have the option to file an appeal under the legacy process, in which case § 3.2600 will apply. In general, the agency of original jurisdiction will stop accepting Notices of Disagreement for legacy claims one year after the effective date of the final rule implementing the new claims and appeals system, subject to extension of the filing period for good cause in individual cases.
VA proposes to add a new section to part 3, subpart D, to implement the rules that govern the higher-level review option required by 38 U.S.C. 5104B. This new section explains the requirements for electing a higher-level review, describes the type of agency of original jurisdiction employees who will conduct the review, and addresses the review process.
Under 38 U.S.C. 5104B, a claimant in the modernized review system may request a higher-level review of a decision on a claim by the agency of original jurisdiction during the one year period to seek review following issuance of the notice of decision. The higher-level review option gives claimants a second look at their claims, but that review is based solely on the same evidence that was before the initial adjudicator. The higher-level review is conducted by a different experienced VA employee with the ability to change the initial decision based on difference of opinion authority, subject to the rule that favorable findings are binding absent clear and convincing evidence to the contrary. The higher-level review provides the opportunity for resolution of the issue(s) in dispute at the agency of original jurisdiction without having to file an appeal to the Board, or having to submit a supplemental claim with new and relevant evidence.
The higher-level review consists of a closed evidentiary record and does not allow for the submission of new evidence or a hearing. While the closed evidentiary record does not allow for submission of new evidence, VA proposes to provide claimants and/or their representatives with an opportunity to speak with the higher-level adjudicator and point out any specific errors in the case as part of the higher-level review. VA has utilized an informal conference as part of the
VA proposes to include a paragraph that explains the requirement for expedited processing of all identified duty to assist errors. VA has a statutory duty to assist claimants in gathering evidence in support of a claim for benefits. Under 38 U.S.C. 5103A(f), if the higher-level adjudicator discovers a duty to assist error, the claim returns to the adjudication activity for correction unless the higher-level adjudicator determines that it would be appropriate for VA to grant the maximum benefit for the claim. In accordance with 38 U.S.C. 5109B, VA proposes to include a rule requiring expedited processing to correct these types of errors and to define “maximum benefit” for disability compensation as the maximum scheduler evaluation for the issue, and for other types of benefits, the granting of the benefit sought.
Because the filing date of a request for higher-level review is relevant to maintaining the effective date of any award, VA proposes to include provisions for determining the filing date that are similar to the provisions in § 3.155 that apply to applications for benefits.
To comply with Public Law 115-55, VA proposes to amend 38 CFR 8.30 to allow applicants for insurance coverage and/or claimants for insurance proceeds (both hereafter referred to as claimants) who disagree with (1) denials of applications for insurance, total disability income provision, or reinstatement; (2) disallowances of claims for insurance benefits; and/or (3) decisions holding fraud or imposing forfeiture to receive either a higher-level review, supplemental claim review, or Board review.
VA has consolidated all life insurance activity at a single office located in Philadelphia, PA. This office has original jurisdiction over all life insurance applications and claims for proceeds received in conjunction with life insurance programs administered by VA. Because insurance expertise and processing is consolidated at the Philadelphia office, higher level reviews and supplemental claims will be processed by employees at the Philadelphia office. Selection of an employee to conduct a higher-level review is at VA's discretion. The VA Insurance Service will assign higher-level reviews to employees who are experienced decision-makers who did not participate in the prior decision. The VA Insurance activity would make reasonable efforts to honor requests for informal conferences as part of a higher-level review, consistent with proposed 3.2601(h). As noted in proposed § 3.2601(h), claimants are responsible for any costs they incur in conjunction with an informal conference. This proposed rule would not limit the option of pursuing actions under 38 U.S.C. 1984.
Under 38 U.S.C. chapter 59, the Secretary of Veterans Affairs has authority to recognize VSOs and their representatives as well as attorneys and agents for the preparation, presentation, and prosecution of benefit claims, prescribe the rules of conduct applicable while providing claims assistance, and regulate fees charged by accredited attorneys and agents.
VA proposes to make several revisions to the regulations contained in part 14, Title 38 of the Code of Federal Regulations, regarding: Accreditation of attorneys, agents, and VSO representatives; representation of claimants before VA; and fees charged by attorneys and agents for representation. The proposed revisions will address the recent changes in law enacted by Public Law 115-55, address a few discrepancies relating to the appellate process in the current regulations, and further clarify the rules.
While Public Law 115-55 sets out “to reform the rights and processes relating to appeals of decisions regarding claims for benefits under the laws administered by the Secretary of Veterans Affairs,” the accreditation and fee regulations contained in part 14 are focused exclusively on accreditation of attorneys, agents, and VSO representatives; representation of claimants before VA; and fees charged by attorneys and agents for representation. Although VA recognizes that certain changes to part 14 are needed to reflect the new law, which changes the starting point at which fees for representation may be charged and changes in the appellate structure for deciding benefit claims, VA does not believe that the provisions of the appeals reform law prescribing processes for “claims for benefits” directly apply to adjudications of VA accreditation and attorney/agent fee matters.
Current § 14.629 contains an introductory paragraph describing the process within the Office of General Counsel for evaluating whether an applicant for accreditation meets the qualifications for becoming accredited by VA and for appealing decisions denying accreditation. VA proposes to move that paragraph from the beginning of 14.629 to a new paragraph, proposed paragraph (d), to improve the readability of the section.
In addition, VA proposes to modify the substance of the current introductory paragraph when relocating it in paragraph (d) to state that a denial of accreditation by the Chief Counsel is a final adjudicative determination of an agency of original jurisdiction that may only be appealed to the Board. The provision currently states that decisions denying accreditation may be appealed to the General Counsel and denials by the General Counsel are ultimately appealable to the district courts under the Administrative Procedures Act (APA). This provision reflects VA's prior position that a decision denying accreditation is not a “decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans,” 38 U.S.C. 511(a), and, therefore, is not appealable under the system enacted by the Veterans Judicial Review Act (VJRA).
However, upon further reflection in light of decisions by the Federal Circuit and other Federal courts broadly construing the VJRA's exclusive jurisdictional scheme, VA now concludes that decisions denying accreditation also fall within the scope of that exclusive review scheme. This conclusion ensures consistency with respect to the applicable law and other decisions relating to accreditation, and thus comports with a central purpose of the VJRA's exclusive review scheme,
The basis for permitting an appeal to the Board is grounded in 38 U.S.C. 511, which applies to decisions “under a law that affects the provision of benefits by [VA] to veterans or the dependents or survivors of veterans.” 38 U.S.C. 511(a). The Federal Circuit has construed section 511 to extend beyond matters relating to claims for benefits, including to accreditation-related decisions.
Notably, in Public Law 115-55, Congress specifically identified “decisions
Moreover, revising the current adjudication process for accreditation matters simply to mirror the choice and flexibility required under Public Law 115-55 for benefits claims is unwarranted. Public Law 115-55 is designed to allow claimants for benefits to switch between the lanes of review, while still having an option to submit new evidence regarding their claims, all while preserving potential entitlement to benefits retroactive to the date of the benefits claim as long as the matter is pursued continuously.
Consistent with the proposal in new paragraph (d) to have the Chief Counsel make the final decision on an accreditation determination, VA proposes to transfer from the General Counsel level to the Chief Counsel level the authority under § 14.629(b)(5) to grant or reinstate accreditation for an individual who remains suspended in a jurisdiction on grounds solely derivative of suspension or disbarment in another jurisdiction to which he or she has been subsequently reinstated.
In current § 14.631(c), the regulation refers to 38 CFR 20.608. However, VA proposes to change that to 38 CFR 20.6 to reflect the revisions being proposed by the Board in this rulemaking.
In current § 14.632, the regulation lists standards of conduct by which accredited attorneys, agents, and representatives must abide in preparing, presenting, and prosecuting VA benefit claims. VA proposes to revise current 14.632(c)(6) to eliminate the specific reference to the Notice of Disagreement and to clarify that gifts from a VA claimant to a VA-accredited individual are not permitted in any situation when a fee could not be lawfully charged. VA proposes to change the word “representation” to “services,” in order to be clear that this provision applies to all aspects of claims preparation, presentation, and prosecution.
VA proposes changes to current § 14.633(e)(2) to clarify that when the Chief Counsel closes the record with regard to a suspension or cancellation of accreditation, that this is the record before the Office of the General Counsel. The rationale for this change is to clarify procedures for closure of the record in suspending or cancelling an individual's accreditation to ensure that the regulation does not contradict changes under the modernized system. Under existing law, the record is closed prior to the General Counsel's decision and on appeal to the Board, no expansion of the record is permitted unless a Board hearing is requested. Under the modernized system, evidence may be submitted for the Board to consider in the first instance with or without a hearing request. VA proposes this change twice in § 14.633(e)(2) in order to maintain consistency.
VA also proposes new language in § 14.633(h)(1) and (2) to clarify the procedures for decisions issued before the effective date of the modernized review system and on or after that date. In addition, in proposed § 14.633(h)(1), VA proposes replacing the reference to 38 CFR 19.9 with 38 CFR 20.904, to reflect the redesignation in the Board's proposed regulations.
VA further proposes moving the second sentence in 14.633(h) to a new subsection 14.633(j) and adding “suspension” to clarify that the General Counsel can in fact provide notice of both suspensions and cancellations of accreditation. The overall move is intended to provide clarity, as the paragraph in which this is currently located otherwise addresses appellate rights. The proposed addition fills in a gap in the existing regulations. In the preamble to the May 2007 proposed rule on Part 14, VA stated that the General Counsel could notify all agencies, courts, and bars to which the agent or attorney is admitted to practice of suspensions or cancellations, 72 FR 25930, 25933 (May 7, 2007), but, in the regulation text, VA only specified cancellation.
As discussed above with denials of accreditation, it is neither required nor prudent to provide all the same options and safeguards that apply to the new appellate system under Public Law 115-55 to decisions regarding the suspension or cancellation of accreditation.
Currently, 38 U.S.C. 5904(c)(1) directs that agents and attorneys may be paid for services provided after a Notice of Disagreement is filed in a case. This is also reflected in current 38 CFR 14.636(c). VA proposes language in § 14.636(c)(1)(i) to implement the change in section 2(n) of Public Law 115-55 that fees may be charged by an accredited agent or attorney upon VA's issuance of notice of an initial decision on a claim. In the same subsection of § 14.636, VA proposes additional language, based on the effective date provisions in section 2(l) of Public Law 115-55, to clarify the relationship between section 2(n) of Public Law 115-55 and the new adjudication procedures. Specifically, this clarifies whether a decision on a supplemental claim is considered a new initial decision, or whether it is part of the original adjudication string based on the effective date. The language VA proposes makes clear that a decision by an agency of original jurisdiction adjudicating a supplemental claim will be considered an initial decision on a claim unless the decision is made while the claimant continuously pursued the claim by choosing one of the three procedural options available under Public Law 115-55.
In addition, VA proposes to add § 14.636(c)(1)(ii), to clarify the effective dates emanating from Public Law 115-55 for attorney fee matters based on clear and unmistakable error. The language in proposed § 14.636(c)(1)(ii) mirrors the already existing regulatory text at current § 14.636(c)(1).
Next, proposed § 14.636(c)(2)(i) contains minor language edits to accommodate for the implementation of the Public Law 115-55. Note that, although not specified in the proposed modified subsection, a Notice of Disagreement which has been withdrawn to opt in to the appeals modernization program will still satisfy the Notice of Disagreement requirement under paragraph (c)(2).
Proposed § 14.636(i)(3) contains language to clarify that when the Chief Counsel closes the record in proceedings to review fee agreements, this is the record before the Office of the General Counsel. VA proposes this minor change in both § 14.636(i)(3) and (k) in order to maintain consistency. VA proposes to remove the instruction for filing a Notice of Disagreement with the Office of the General Counsel because, although that is correct under the legacy system, under the modernized appeals system the Notice of Disagreement should be filed directly with the Board. The Office of General Counsel form with the appellate rights will specify where the Notice of Disagreement should be filed. In addition, proposed § 14.636(k) contains language similar to that in proposed § 14.633(h), for the reasons stated in those sections above, to clarify the procedures for decisions issued before the effective date of the modernized review system, and on or after that date, the date that Public Law 115-55 is scheduled to take effect. As required by Public Law 115-55, VA proposes to replace the term “reopened” with “readjudicated” in several places in the proposed § 14.636.
Finally, because fee matters are simultaneously contested matters they are processed under the appellate procedures applicable to simultaneously contested claims.
Moreover, it is clear that decisions on fee matters differ from decisions on claims for VA benefits because they ultimately concern whether the terms of the private contract should be altered for public policy reasons.
Proposed § 14.637(d)(3) contains language to clarify that when the Chief Counsel closes the record in proceedings to review fee agreements, this is the record before the Office of the General Counsel. Also, in proposed § 14.637(f), language similar to that in proposed §§ 14.633(h) and 14.636(k) is proposed to comply with Public Law 115-55 and for the reasons stated with respect to those sections above. In addition, in § 14.637(d)(3), VA proposes to remove the instruction for filing a Notice of Disagreement with the Office of the General Counsel for the same reasons as stated in § 14.636(i)(3).
VA proposes to restructure and revise 38 CFR part 19. As noted, Public Law 115-55 applies to all claims for which notice of decision was provided on or after the effective date and to certain claims where a notice of decision was provided prior to that date, but the appellant opted to subject the claim to the new system. While Public Law 115-55 is primarily aimed at creating a new claims and appeals adjudication system, VA must also provide timely and quality decisions on legacy appeals. A legacy appeal is any appeal where the agency of original jurisdiction provided notice of a decision prior to the effective date and the appellant has not opted to have review of his or her appeal completed in the new system. When the new system becomes effective, VA will have approximately 500,000 pending
This proposed rule would make part 19 applicable only to legacy appeals; specifically, the processing of legacy appeals by the agency of original jurisdiction. Subparts F, G, and J of part 20 would apply only to the processing and adjudication of legacy appeals by the Board. Except as otherwise provided in specific sections, subparts A, B, H, K, L, M, N, and O of part 20 would apply to the processing and adjudication of both appeals in the new system and legacy appeals. Subparts C, D, E, and I of part 20 would apply only to the processing and adjudication of appeals in the new system.
VA proposes to revise the authority citations for individual sections in part 19 and for certain sections in part 20 applicable only to legacy appeals to identify the versions of statutes existing prior to the effective date of the modernized appeals system, as those statutes will continue to apply to legacy appeals.
Finally, VA proposes minor updates to addresses. This minor change is not substantive. Currently, provisions containing the Board's address for mail related to appeals direct that mail should be addressed to a particular office within the Board. In practice, all mail is processed in a central location at the Board and routed to the appropriate office internally. Therefore, VA proposes to strike all references to specific offices or personnel at the Board in references to the Board's address.
The following distribution table shows where each section of current part 19 is proposed to be moved.
VA proposes to amend subpart A—Operation of the Board of Veterans' Appeals, by moving all sections into part 20. Generally applicable provisions are proposed to be moved into subpart B of part 20, while provisions applicable to adjudication of legacy appeals are proposed to be moved to subpart J of part 20.
VA proposes to add new provisions to subpart A of part 19 that explain the applicability of part 19.
New § 19.1 is proposed to help claimants understand which appeals system applies to their claim, and to provide specific instructions for legacy claimants to locate the regulations applicable to their appeal.
New § 19.2 is proposed to explain options that may be available for legacy claimants to have their claim or appeal considered in the new system. This includes electing the modernized review system pursuant to 38 CFR 3.2400(c)(1), following issuance of a Statement of the Case or Supplemental Statement of the Case on or after the effective date, or pursuant to any test program implemented by the Board.
VA proposes to restructure subpart B of part 19 in order to consolidate procedures relating to legacy appeal processing by the agency of original jurisdiction. Subpart C of part 20 deals with commencement and perfection of appeals. As these procedures require action by the agency of original jurisdiction rather than the Board, and are only applicable to appeals in the legacy system, VA proposes to move these provisions to subpart B of part 19.
VA proposes to redesignate § 20.200 as § 19.20, and update citations.
VA proposes to redesignate § 20.201 as § 19.21, and update citations.
VA proposes to redesignate § 20.202 as § 19.22, and update citations.
VA proposes to update the citations in § 19.23.
VA proposes to update the citations in § 19.24.
VA does not propose any changes to § 19.25.
VA does not propose any changes to § 19.26.
Section 2, paragraph (s) of Public Law 115-55 repeals procedures for administrative appeals by striking section 7106 of title 38 of the United States Code. Therefore, VA proposes to remove § 19.27, relating to administrative appeals.
VA does not propose any changes to § 19.28.
VA does not propose any changes to § 19.29.
Section 2, paragraph (x)(5) of Public Law 115-55 provides that a legacy appellant may elect to subject his or her appeal to the new system upon receipt of a Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC). Therefore, VA proposes to amend § 19.30 by requiring that all SOCs contain information on how to opt into the new system.
VA proposes to amend § 19.31 by requiring that all SSOCs contain information on how to opt into the new system.
VA does not propose any changes to § 19.32.
Section 2, paragraph (s) of Public Law 115-55 repeals procedures for
VA does not propose any changes to § 19.34.
Currently, certification to the Board may only be accomplished by completion of a VA Form 8. This requirement creates cumbersome administrative and technological processes which often delay certification of appeals, but do not serve Veterans in any way. Therefore, VA proposes to amend § 19.35 to eliminate the requirement for a Form 8, and will accomplish certification through other means.
VA proposes to update the citations in § 19.36.
VA does not propose any changes to § 19.37.
VA proposes to update the citations in § 19.38.
As noted, section 2, paragraph (s) of Public Law 115-55 repeals procedures for administrative appeals by striking section 7106 of title 38 of the United States Code. As this amendment is applicable to all appeals, VA proposes to remove subpart C of part 19, dealing with administrative appeals.
VA proposes to restructure subpart C of part 19 in order to consolidate procedures relating to commencement and filing of legacy appeals. Subpart D of part 20 deals with commencement and filing of appeals, including procedures for Statements of the Case. As these procedures require action by the agency of original jurisdiction rather than the Board, and are only applicable to appeals in the legacy system, VA proposes to move these provisions to subpart C of part 19.
VA proposes to redesignate § 20.301 as § 19.50.
VA proposes to redesignate § 20.300 as § 19.51.
VA proposes to redesignate § 20.302 as § 19.52.
VA proposes to redesignate § 20.303 as § 19.53.
VA proposes to redesignate § 20.304 as § 19.54.
VA proposes to redesignate § 20.204 as § 19.55, add an address update, and add an internal reference.
VA proposes to remove and reserve the two provisions of subpart D, dealing with field hearings. These provisions will be incorporated into subpart G of part 20, in order to streamline regulations concerning Board hearing procedures.
VA does not propose any substantive changes to the procedures for simultaneously contested legacy claims, consisting of §§ 19.100-19.102.
VA proposes to remove Appendix A to part 19, as it has outlived its usefulness. Cross-references currently located in the table are outdated or incorrect. Whereas a user may have previously used the appendix to search for other sections pertinent to a particular regulation, such research may be accomplished much more efficiently via a search of the electronic document.
As noted, VA proposes to restructure subparts A and B of part 20 by adding generally applicable provisions from part 19 and new provisions explaining applicability and new definitions. The following distribution table shows where each section of current part 20 is proposed to be moved.
VA proposes a minor edit to § 20.1, to provide the common name for the Board of Veterans' Appeals.
VA proposes no changes.
VA proposes minor edits to § 20.3 Definitions, to remove terms that are no longer used in part 20, or are defined elsewhere in the part. VA also proposes to adopt the definition of “claim” used in part 3 of this title.
VA proposes to add new § 20.4, appeal systems definitions and applicability provisions, to provide definitions and an explanation of the applicability of the new system. Proposed § 20.4 assists appellants in understanding which system applies to their appeal. It provides specific instructions for appellants to locate the regulations applicable to their appeal, and explains options that may be available for legacy claimants to take advantage of the new system.
VA proposes to redesignate § 20.600 as § 20.5.
VA proposes to redesignate § 20.608 as § 20.6, and make minor changes to reflect the different procedures for withdrawal of representatives in legacy appeals and appeals in the new system. Specifically, current § 20.608 draws a distinction between withdrawal of services by a representative prior to certification to the Board, and withdrawal after certification. In the new appeals system, Notices of Disagreement are filed directly to the Board, and thus the certification process will not be applicable to new appeals. Proposed § 20.6 clarifies that the rules governing withdrawal of representation after certification apply to both appeals in the legacy system that have been certified, and all appeals in the new system. The rules governing withdrawal of representation prior to certification apply only to legacy appeals that have not yet been certified.
VA proposes to redesignate § 19.1 as § 20.100.
VA proposes to redesignate § 19.2 as § 20.101.
VA proposes to redesignate § 20.100 as § 20.102 and update the mailing address.
VA proposes to redesignate § 19.4 as § 20.103.
VA proposes to redesignate § 20.101 as § 20.104, and make minor changes. Specifically, VA proposes to reverse paragraphs (c) and (d) to condense information applicable only to legacy appeals. VA also proposes to redesignate § 19.5 as § 20.105. This move would make the third sentence of § 20.104(a) redundant. Thus, VA proposes to remove that sentence from § 20.104, and incorporate it with § 20.105. Citations are also updated.
As noted above, VA proposes to redesignate § 19.5 as § 20.105 and clarify that the criteria governing the disposition of appeals also applies to decisions of the Board. Proposed § 20.105 includes the rules governing precedent opinions of the General Counsel of the Department of Veterans Affairs which are currently duplicated in § 20.104(a) and § 19.5. This nonsubstantive change reduces redundant paragraphs and simplifies the rule.
VA proposes to redesignate § 19.3 as § 20.106.
VA proposes to redesignate § 19.12 as § 20.107 and remove paragraph (b), dealing with administrative appeals.
VA proposes to redesignate § 19.13 as § 20.108.
VA proposes to combine current § 19.14 with § 20.102 and redesignate the section as § 20.109, and update citations. This nonsubstantive change reduces redundant paragraphs and simplifies the rule.
VA proposes to redesignate § 20.305 as § 20.110.
VA proposes to redesignate § 20.306 as § 20.111 and update the citations.
VA proposes to add a new subpart C, applicable only to appeals in the new system. Provisions in current subpart C applicable to legacy appeals would be redesignated and moved to part 19 as described elsewhere in this document. Proposed subpart C contains provisions dealing with the filing of a Notice of Disagreement. Although Public Law 115-55 makes some changes to Notice of Disagreement filing procedures, many of these procedures will remain the same; therefore, the proposed regulations contained in subpart C are similar to the Notice of Disagreement regulations currently in place.
VA proposes to add new § 20.200, similar to current § 19.25.
VA proposes to add new § 20.201, similar to current § 20.200. The amendments made to 38 U.S.C. 7105 direct that an appeal to the Board is accomplished by filing a Notice of Disagreement directly to the Board. Therefore, proposed § 20.201 reflects this change in procedure.
VA proposes to add new § 20.202, similar to current § 20.201. Public Law 115-55 requires that appellants indicate on their Notice of Disagreement the specific determination with which they disagree, and whether they request a Board hearing (which includes the opportunity to submit additional evidence within 90 days following the Board hearing), an opportunity to submit additional evidence within 90 days following submission of the Notice of Disagreement, or direct review of the evidence that was before the agency of original jurisdiction by the Board. Thus, paragraphs (a) and (b) of proposed § 20.202 reflect these changes to the information that must be indicated on the Notice of Disagreement.
Public Law 115-55 requires that VA create a policy allowing appellants to change the information indicated on the Notice of Disagreement, meaning that an appellant may request to change the evidentiary record before the Board. In crafting this policy, VA sought to provide appellants with an opportunity to change their initial election if their circumstances or preference changed. However, VA also wanted to prevent an appellant from unfairly gaining the advantage of two dockets. For example, an appellant should not be permitted to take advantage of the faster direct review docket if he or she has already submitted evidence or testified at a Board hearing.
Additionally, VA sought to limit the time period in which appellants may request to modify the Notice of Disagreement. VA has established a 365-day timeliness goal for appeals in the direct review docket. VA also intends to provide wait time predictions for the evidence and hearing dockets. If appellants are able to modify their Notices of Disagreement, and thereby change dockets at any time prior to the Board's decision on the issue or issues, VA will not be able to provide accurate wait time information. This would diminish the ability of other Veterans to make informed choices as to which of the Board's dockets best suits their individual needs.
Proposed § 20.202(c)(1) provides that the appellant's election of an evidentiary record on the Notice of Disagreement determines the docket on which the appeal is placed, and that the Board will not consider additional evidence or schedule a hearing unless the appellant indicated one of those options on the Notice of Disagreement. Paragraph (c)(2) provides that an appellant may modify the Notice of Disagreement for the purpose of selecting a different evidentiary record option. The request to modify must be made within one year of the agency of original jurisdiction decision on appeal, or 30 days after the Notice of Disagreement is received by the Board, whichever is later. The request will be denied if the appellant has already submitted evidence or testimony.
Additionally, nothing in the regulations prevent an appellant from filing multiple Notices of Disagreement within the one-year period. Therefore, if an appellant wants to add additional issues not initially included on the Notice of Disagreement, the appellant is free to submit an additional Notice of Disagreement identifying these issues, as long as this additional Notice of Disagreement is timely submitted.
Paragraphs (f) and (g) of proposed § 20.202 provide procedures for how the Board will handle unclear or deficient Notices of Disagreement. The new framework shifts jurisdiction to the Board for any question as to the adequacy of Notices of Disagreement. Veterans Law Judges will retain their discretion to interpret some unclear statements on Notices of Disagreements in the light most favorable to the Veteran. However, proposed paragraphs (f) and (g) are necessary to outline the procedures the Board will take when an inadequate Notice of Disagreement is received at the Board. Specifically, the proposed rule addresses the problem created when the Board receives a Notice of Disagreement electing more than one evidentiary option, no evidentiary option, or when it is otherwise unclear how the appeal should be docketed.
The proposed rule is closely aligned with the process for clarifying Notices of Disagreement in the legacy appeals system. When the Board receives an unclear or deficient Notice of Disagreement, the Board will notify the claimant and request clarification. The claimant must respond with the requested clarification within one year after the agency of original jurisdiction decision, or 60 days after the date of the Board's clarification request, whichever is later. If the claimant does not provide a timely response, the previous statement from the claimant will not be considered a Notice of Disagreement.
Paragraph (h) of proposed § 20.202 provides that, when an unclear Notice of Disagreement is properly clarified, the Notice of Disagreement will be considered to have been properly filed on the date of clarification. This means that the docket date will be based upon the date of the clarification, and if the appellant requests to submit evidence, the 90-day window for evidence submission will begin on the date of clarification.
VA proposes to add new § 20.203, similar to the provisions of current §§ 20.300 and 20.302. Proposed § 20.203 differs from current §§ 20.300 and 20.302 in that Public Law 115-55 requires that Notices of Disagreement are filed with the Board. In contrast, current §§ 20.300 and 20.302 provide that Notices of Disagreement are filed with the agency of original jurisdiction.
VA proposes to add new § 20.204, similar to current § 20.301. Proposed § 20.204 differs from current § 20.301 in that the provisions of § 20.301 also apply to the filing of a Substantive Appeal. Public Law 115-55 eliminates procedures relating to Substantive Appeals; therefore, proposed § 20.204 does not discuss Substantive Appeals.
VA proposes to add new § 20.205, similar to current § 20.204. Proposed § 20.205 differs from the rules for withdrawal of a legacy appeal in that paragraph (c) of proposed § 20.205 provides that, in addition to filing a new Notice of Disagreement, a claimant may request a higher-level review or file a supplemental claim following the withdrawal of the Notice of Disagreement, provided such filing would be timely.
VA proposes to add new subpart D, Evidentiary Record, in place of current subpart D, Filing, which VA proposes to move to part 19. New subpart D is proposed to implement 38 U.S.C. 7113, a new section added by Public Law 115-55 to establish the evidentiary record before the Board. The evidentiary record before the Board is determined by the appellant's election on his or her Notice of Disagreement. The appellant's election will determine whether the Board considers (1) only the evidence that was of record at the time of the prior agency of original jurisdiction decision; (2) the evidence that was of record before at the time of the prior agency of original jurisdiction decision and any additional evidence submitted within 90 days of submission of the Notice of Disagreement; or (3) the evidence that was of record at the time of the prior agency of original jurisdiction decision and any evidence submitting during, or within 90 days thereafter, the Board hearing.
Proposed § 20.300 provides that decisions of the Board will be based on a de novo review of the evidence, as provided in § 20.801.
Proposed § 20.301 provides that, for appeals with no request to appear at a hearing or submit additional evidence, the Board will consider only the evidence that was before the agency of original jurisdiction in the decision on appeal.
Proposed § 20.302 provides that, for appeals with a request for a Board hearing, the Board will consider the evidence that was before the agency of original jurisdiction in the decision on appeal, testimony presented at a Board hearing, and any additional evidence submitted within 90 days of the Board hearing.
Public Law 115-55 does not describe the evidentiary record in the event that a hearing request is withdrawn or the appellant does not appear for a scheduled hearing. Thus, the Board proposes paragraphs (b) and (c) of § 20.302 to specify that appellants who requested a hearing on the Notice of Disagreement, but ultimately do not appear for a hearing will retain the opportunity to submit additional evidence within a 90-day window.
Proposed § 20.303 provides that, for appeals with no request for a Board hearing, but with a request to submit additional evidence, the Board will consider the evidence that was before the agency of original jurisdiction in the decision on appeal, and any additional evidence submitted with the Notice of Disagreement or within 90 days following receipt of the Notice of Disagreement. As noted above, when an appellant requests to modify the Notice of Disagreement for the purpose of requesting an opportunity to submit additional evidence, the Board will notify the appellant whether the request has been granted, and if so, that the appeal has been moved to the docket for appeals described in this section. The 90-day window for submission of additional evidence will begin on the date of such notice.
Public Law 115-55 requires that VA create at least two new dockets—a docket for appeals with a request for a Board hearing and a docket for appeals with no request for a Board hearing—but affords VA discretion to create additional dockets. VA proposes to establish three dockets for appeals adjudicated under the modernized appeals system. The first docket is for Veterans who do not want a hearing and do not wish to submit additional evidence, as provided by proposed § 20.301. The second docket is for Veterans who wish to have a hearing, as provided by proposed § 20.302. Finally, the third docket is for Veterans who wish to submit additional evidence, but do not want a hearing before a Veterans Law Judge.
Creation of these three separate dockets has multiple benefits. Most importantly, this docket structure provides greater opportunity for Veterans to tailor their appeals experience to best suit their individual needs. The first docket, described in proposed § 20.301, captures quality feedback from appeals in which no additional evidence is added to the record. This allows VA to identify areas in which the claims process can be improved and will allow VA to develop targeted training. Allowing additional evidence submission for appeals in the docket described in proposed § 20.301 would break this quality feedback loop. Veterans with a strong preference to appear at a Board hearing before a Veterans Law Judge may choose the docket described in proposed § 20.302.
The docket described in proposed § 20.303 allows Veterans to submit additional evidence that may assist in establishing entitlement to benefits, without the wait time that is associated with Board hearings. Public Law 115-55 does not permit appeals with no request for a hearing to be placed on the same docket as appeals with a request for a hearing.
There is no cost associated with establishing the docket described in proposed § 20.303. The technological system required to track and manage appeals at the Board is designed to maintain multiple dockets in both the legacy and modernized appeals systems, as required by law. Adding a third docket to process appeals with no request for a Board hearing, but with a request to submit additional evidence does not result in any additional cost from an information technology development perspective. Moreover, there is no additional cost associated with the adjudication of such appeals, as the Board will apply the same substantive law regarding entitlement to benefits to all appeals. There is no additional administrative or adjudicative burden caused by maintaining a separate docket for evidence submission.
VA proposes to add new subpart E, Appeal in Simultaneously Contested Claims, in place of current subpart E, Administrative Appeals, which Public Law 115-55 repeals. Proposed subpart E would largely mirror subpart F, which VA proposes to make applicable only to legacy appeals. Subpart E would differ from subpart F insofar as the procedures for filing an appeal in the new system differ from those in the legacy system. For example, subpart F continues to describe notice and filing requirements for formal appeals and Statements of the Case. As Public Law 115-55 repeals procedures for formal appeals and Statements of the Case, subpart E does not have provisions related to these procedures. As discussed above, under the proposed new framework, simultaneously contested claims may only be appealed to the Board. Additionally, proposed subpart E addresses the circumstances—unique to the new framework, in which contesting parties request different evidentiary options.
Proposed § 20.401, similar to current § 19.100, describes the notification procedures when the agency of original jurisdiction takes an action in a simultaneously contested claim.
Proposed § 20.401, similar to current § 20.500, describes who can file an appeal in simultaneously contested claims.
Proposed § 20.402, similar to current § 20.501, describes the time limits for filing a Notice of Disagreement in a simultaneously contested claim.
Proposed § 20.403, similar to current § 20.502, also specifies that the notice to contesting parties upon receipt of a Notice of Disagreement must indicate the type of review requested by the appellant who initially filed the Notice of Disagreement, including whether a hearing was requested.
Proposed § 20.404 provides that a party to a simultaneously contested claim may file a brief, argument, or
Proposed § 20.405 resolves any conflict between two parties who request different evidentiary options under § 20.202(b). The proposed rule provides that, if any party requests a hearing before the Board, the appeal will be placed on the hearing docket and a hearing will be scheduled. If neither party requests a hearing, but any party requests an opportunity to submit additional evidence, the appeal will be placed on the evidence docket. VA will notify both parties when an appeal is placed on any docket. If the appeal is placed on the evidence docket, the parties will have 90 days from the date of such notice in which to submit additional evidence.
Proposed § 20.406, similar to current § 20.504, describes the procedures for sending notice to parties in contested claims.
The favorable finding rule is impossible to apply in the context of contested claims, because a particular factual finding might be favorable to one appellant but unfavorable to another. Because the application of this rule in the context of simultaneously contested claims would produce absurd results, proposed § 20.407 clearly provides that favorable findings are not binding in the context of simultaneously contested appeals.
VA proposes to add new “§ 20.500 Rule 500. Applicability.” in order to better inform appellants as to which subpart is applicable to their appeal. Aside from renumbering to accommodate the new applicability section and necessary citation updates, VA does not propose additional changes to subpart F.
As noted above, VA proposes to redesignate § 20.600 and § 20.608, dealing with representation, to subpart B, as these provisions are generally applicable to both appeals systems. Proposed new subpart G would contain special provisions for hearings in legacy appeals, while amendments to subpart H are proposed to make that subpart applicable to hearings on appeals in both systems.
Amendments to hearing regulations for legacy and new system appeals are necessary in light of the Jeff Miller and Richard Blumenthal Veterans Health Care and Benefits Improvement Act of 2016, Public Law 114-315. In relevant part, Public Law 114-315, by amending 38 U.S.C. 7107, establishes the Board's authority, upon request for a hearing, to determine what type of hearing it will provide an appellant, while affording the appellant the opportunity to request an alternative type of hearing once the Board makes its initial determination. Notably, field hearings will only be available in the legacy system. Therefore, provisions applicable to field hearings, currently contained in subpart D of part 19, and subpart H of part 20, are proposed to be moved into subpart G.
VA proposes new § 20.600 to assist appellants in determining the hearing regulations applicable to their appeal.
VA proposes to redesignate § 20.705 as § 20.601, and amend to reflect the procedures applicable only to legacy appeals. Proposed § 20.601 would clarify that a hearing before the Board may be conducted via an in-person hearing held at the Board's principal location in Washington, DC, via electronic means, or at a Department of Veterans Affairs facility having adequate physical resources and personnel for the support of such hearings. Further, proposed § 20.601 informs the reader that procedures for scheduling and providing notice of Board hearings in legacy appeals conducted at the Board's principal location or via electronic means are contained in § 20.704, while procedures for scheduling and providing notice of Board hearings in legacy appeals conducted at field facilities are contained in § 20.603.
VA proposes to retitle, revise, and expand § 20.703, redesignated as § 20.602, to clarify when and how legacy appellants may request hearings before the Board. These revisions implement the changes to 38 U.S.C. 7107 that require the Board to determine the method of a hearing and notify the appellant of its decision. As noted, although the Board will now be making the initial determinations regarding the method by which hearings will be conducted, appellants' rights to request a different type of hearing are preserved. Also, the Board alone will provide notification of the method and scheduling of hearings.
VA proposes to combine § 19.75 and § 20.704, and to redesignate as § 20.603. Proposed § 20.603 will clarify the procedures for the scheduling of hearings at VA field facilities. Field hearings for legacy appeals are scheduled in relationship to the need for the entire docket. Field hearing requests for legacy appeals are now handled by the Board alone and timing for requests is clarified. Citations and address are updated.
VA proposes to redesignate § 20.707 as § 20.604, and amend the section to differentiate the procedures for legacy appeals. Citations are also updated.
VA proposes to redesignate § 20.709 as § 20.605, and amend the section title to reflect that the provision is only applicable to legacy appeals. As notice, the evidentiary record in the new system is governed by subpart D.
No changes are proposed to § 20.701.
VA proposes to amend § 20.700 by removing outdated procedures for representatives to present oral arguments on an audio cassette. It is the Board's practice to accept written arguments from a representative in the form of informal hearing presentations. Additionally, the presiding member may accept oral argument from a representative. This amendment will not disrupt those practices.
VA also proposes to remove paragraph (e), regarding electronic hearings, as these procedures are described in § 20.702(b).
VA proposes new § 20.702, describing the types of hearings available to appellants in the new system. Similar to current § 20.705 (proposed here to be redesignated as § 20.601), this section will provide appellants and other readers with a clear understanding of the different methods by which Board hearings are conducted. Proposed § 20.702 would clarify that a hearing before the Board may be conducted via electronic means or via an in-person hearing held at the Board's principal location in Washington, DC.
VA proposes new § 20.703 to clarify when and how appellants may request hearings before the Board. These revisions implement the changes to 38 U.S.C. 7107 that require the Board to determine the method of a hearing and notify the appellant of its decision. As noted, although the Board will now be making the initial determinations regarding the method by which hearings will be conducted, appellants' rights to request a different type of hearing are preserved.
VA proposes to redesignate § 20.702 as § 20.704, and amend to reflect scheduling and notice procedures applicable to appeals in the new system, similar to § 20.603, applicable only to hearings in the legacy system.
VA proposes to redesignate § 20.706 as § 20.705, and amend the section to provide a more comprehensive list of functions of the presiding Member conducting the Board hearing.
VA proposes to add new § 20.706 to differentiate the procedures for appeals in the new system, similar to proposed § 20.604, applicable to legacy appeals.
Currently, § 20.708 requires different procedures for requesting a prehearing conference, depending on the method of hearing. It is the Board's practice not to require formal requests for prehearing conferences. VA proposes to eliminate regulations describing procedures that are confusing and burdensome for appellants, and instead provide a streamlined approach that is in line with current practices. Thus, VA proposes to redesignate § 20.708 as § 20.707 and amend the section.
VA proposes to redesignate § 20.710 as § 20.708.
VA proposes to redesignate § 20.711 as § 20.709. Addresses are updated.
VA proposes to redesignate § 20.712 as § 20.710.
As noted above, VA proposes to streamline the timelines for requesting a change in hearing date. For simultaneously contested claims, however, it is necessary to provide time limits in order to preserve the rights of all appellants. Therefore, VA proposes to redesignate § 20.713 as § 20.711 and amend the section by clarifying the procedures for hearings in simultaneously contested claims, in particular hearing date change requests.
VA proposes to redesignate § 20.714 as § 20.712 and amend the section to reflect current practices. Current § 20.714 contains lengthy and confusing rules dictating when a hearing transcript is prepared. However, it is the Board's practice to create hearing transcripts for all appeals, and to provide a copy of a transcript when requested.
VA proposes to redesignate § 20.715 as § 20.713 and amend the section to streamline the process for an appellant or representative to record a hearing with his or her own equipment. Currently, different procedures are applicable depending on where the hearing was held.
VA proposes to redesignate § 20.716 as § 20.714 and amend the section to remove outdated references to tape recordings, and streamline the process for requesting correction of hearing transcripts. Currently, different procedures are applicable depending on where the hearing was held. The address is also updated.
Current § 20.717 contemplates the loss or partial loss of a hearing recording or transcript, and requires that the appellant file a motion for a new hearing if desired, specifying why prejudice would result from the failure to provide a new hearing. It has been VA's practice to waive this motion requirement in the event that the Board discovers a loss of recordings or transcripts of hearings. VA proposes to redesignate § 20.717 as § 20.715 and amend the section to reflect the current, more appellant-friendly practice. Revised § 20.715 would require the Board to notify the appellant and his or her representative when such loss has occurred, and provide the appellant a choice of appearing at a new Board hearing, or having the Board proceed to appellate review of the appeal based on the evidence of record.
VA proposes to add new subpart I, Appeals Processing. Currently, subpart I contains only one section, which VA proposes to move into subpart J. New subpart I would describe processing of appeals in the new system at the Board.
VA proposes to add new § 20.800, to describe the docketing of appeals. While this new section is similar to current § 20.900, it follows Public Law 115-55's direction in creating separate dockets, and docketing appeals in the order in which they are received on their respective dockets.
Public Law 115-55 requires that VA create at least two new dockets—a docket for appeals with a request for a Board hearing, and a docket for appeals with no request for a Board hearing—but affords VA discretion to create additional dockets. VA proposes to establish three dockets to handle appeals adjudicated under the new system. The “direct” docket will be for Veterans who do not want a hearing and do not wish to submit additional evidence. The “evidence” docket will be for Veterans who wish to submit additional evidence, but do not want a Board hearing. Finally, the “hearing” docket will be for Veterans who wish to have a hearing before a Veterans Law Judge. Creation of these three separate dockets will have multiple benefits.
Public Law 115-55 requires that VA develop a policy allowing appellants to move their appeal from one docket to another. As noted, VA developed a policy allowing appellants to modify the information identified in the Notice of Disagreement. By requesting a different evidentiary option under the procedures described above, appellants are essentially requesting to change dockets as well. When a request to modify a Notice of Disagreement includes a request to change the hearing or evidence submission request, the Board will move the appeal to the appropriate docket, retaining the original docket date.
Proposed § 20.800(e) is added to explain that a case will not be returned to the Board following the agency of original jurisdiction's readjudication of an appeal previously remanded by the Board. Pursuant to amended 38 U.S.C. 5104C, a claimant's options for further review of the agency of original jurisdiction's decision include filing a new Notice of Disagreement. Where a new Notice of Disagreement is filed following readjudication by the agency of original jurisdiction, the case will be docketed in the order in which the most recent Notice of Disagreement was received. There is no statutory provision requiring that a case be returned to the Board following readjudication by the agency of original jurisdiction or that the Board provide expeditious treatment when a new appeal is filed following such readjudication.
Proposed § 20.801 describes general rules regarding Board decisions in the new system, similar to current § 19.7. Proposed § 20.801 differs from current § 19.7 in that it reflects Public Law 115-55's provisions regarding the evidentiary record, prior favorable findings, and notice requirements. As noted, Public Law 115-55 creates new section 7113 outlining the evidentiary record before the Board. Proposed § 20.801(a) explains that the Board's decision will be based on a de novo review of the evidence of record before the agency of original jurisdiction, as well as any additional evidence submitted pursuant to section 7113. Additionally, Public Law 115-55 creates a new requirement that VA provide a general statement as to whether any evidence was received at a time not permitted by section 7113. This statement must also inform the appellant that any such evidence was not considered by the Board, and explain the options available to have that evidence reviewed. Thus, § 20.801(b)(3) reflects this notice requirement. Finally, Public Law 115-55 amends chapter 51 by adding a new section, 5104A, requiring that any finding favorable to the claimant will be binding on subsequent adjudicators. Thus, proposed § 20.801(a) reflects that any findings favorable to the claimant with regard to the issue or issues on appeal, as identified by the agency of original jurisdiction, are binding on the Board's decision, unless rebutted by clear and convincing evidence. In practice, the Board would rarely disturb such findings prior to enactment of the Appeals Modernization Act. This regulation is largely serving to codify a longstanding practice of the Board not to disturb favorable findings or elements of the claim made by the agency of original jurisdiction.
Proposed § 20.802 describes general rules regarding Board remands in the new system, similar to current § 19.9. Proposed § 20.802 differs from current § 19.9 in that it reflects Public Law 115-55's provisions regarding the duty to assist. Amended section 5103A(e)(2) specifies that the Secretary's duty to assist does not apply to review on appeal by the Board. Thus, under the amendments made by Public Law 115-55, the Board may no longer remand an appeal for the purposes of developing additional evidence. Rather, under amended 38 U.S.C. 5103A(f)(2)(A), the Board shall remand an appeal to correct an error on the part of the agency of original jurisdiction to satisfy its duties under section 5103A, if that error occurred prior to the agency of original jurisdiction decision on appeal. A remand is not required if the Secretary is able to grant the issue or issues in full. Thus, proposed § 20.802(a) closely follows the amended statutory authority in describing the circumstances under which the Board must remand an appeal.
Amended 38 U.S.C. 5103A(f)(2)(B) further notes that the Board's remand for correction of a pre-decisional duty to assist error may include directing the agency of original jurisdiction to obtain an advisory medical opinion under amended section 5109. Public Law 115-55 adds new paragraph (d)(1) to section 5109, noting that the Board “shall remand a claim to direct the agency of original jurisdiction to obtain an advisory medical option from an independent medical expert under the section if the Board finds that the Veterans Benefits Administration should have exercised its discretion to obtain such an opinion.” Thus, proposed § 20.802(b) closely follows the amended statutory authority in describing the circumstances under which the Board must remand an appeal to obtain an advisory medical opinion.
Additionally, the Board may remand for the correction of any other error by the agency of original jurisdiction in satisfying a regulatory or statutory duty where there is a reasonable possibility that correction of the error would aid in substantiating the claim, but need not remand solely for correction of a procedural defect as this would be inconsistent with the statutory framework of Public Law 115-55.
Finally, proposed § 20.802(c) reflects that, under Public Law 115-55, the agency of original jurisdiction must correct any error identified by a Board remand, readjudicate the claim, and provide notice of the decision, including notice of the claimant's options for further review. Notably, cases remanded by the Board will not be automatically returned to the Board after the agency of original jurisdiction has taken the appropriate action. Instead, a claimant who remains dissatisfied with an agency of original jurisdiction decision after adjudication and wants review by the Board must file a new Notice of Disagreement with the Board as to the issue or issues. Proposed § 20.802(c) also reflects the amendment to 38 U.S.C. 5109B, which directs that the agency of original jurisdiction must provide for the expeditious treatment of any claim that is remanded by the Board.
Proposed § 20.803 mirrors the language of current § 19.8 in describing the content of a Board decision, remand, or order in simultaneously contested claims.
Proposed § 20.804 describes the circumstances under which the Board will obtain an opinion from the General Counsel, similar to provisions contained in current §§ 20.901-20.903. Proposed § 20.804 differs from current § 20.901 in that it reflects Public Law 115-55's provisions repealing the authority for
VA proposes to amend subpart J to apply only to legacy appeals. Proposed § 20.900 would explain that the subpart is applicable to legacy appeals. As noted, VA also proposes to consolidate provisions related to Board decisions in legacy appeals into subpart J. This reorganization will clarify the distinction between agency of original jurisdiction action on appeals, which is proposed to be consolidated into part 19, and Board action on appeals, which is proposed to be consolidated to part 20. Thus, VA proposes to move § 19.7, describing Board decisions, to § 20.903. VA proposes to move § 19.9, describing Board remands, to § 20.904. Finally, VA proposes to move § 19.8, describing Board decisions in simultaneously contested claims, to § 20.905. This reorganization will assist appellants by providing a clear delineation between Board and agency of original jurisdiction action, and by laying out relevant regulations in chronological order. VA also proposes to redesignate § 20.800, regarding submission of additional evidence after the initiation of the appeal to § 20.901. This provision is only applicable to legacy appeals, as evidence submission for appeals in the new system is governed by 7113. Other provisions currently in subpart J would remain largely unchanged.
VA proposes to add new § 20.900, to explain that provisions of this subpart only apply to legacy appeals.
VA proposes to redesignate § 20.800 as § 20.901.
VA proposes to redesignate § 20.900 as § 20.902 and update the Board's address.
VA proposes to redesignate § 19.7 as § 20.903.
VA proposes to redesignate § 19.9 as § 20.904 and update citations.
VA proposes to redesignate § 19.8 as § 20.905.
VA proposes to redesignate § 20.901 as § 20.906 and update the current name of the military institution that reviews pathologic material.
VA proposes to redesignate § 20.902 as § 20.907 and update citations.
VA proposes to redesignate § 20.903 as § 20.908 and update citations.
VA proposes to redesignate § 20.904, regarding vacatur of a Board decision, to § 20.1000. Current § 20.904 is generally applicable to both legacy and new system appeals. Moving this provision into subpart K allows VA to avoid duplicating the provision in subpart I, for new system appeals. Moreover, vacatur and reconsideration both describe actions that take place after a Board decision has been issued. Thus, this move is in line with VA's efforts to reorganize appeals regulations into a more common-sense, Veteran-centric order. VA proposes a minor change to proposed 20.1000 to reflect that Statements of the Case are no longer required in the new system. VA proposes to reverse paragraphs (a)(2) and (a)(3), and note that failure to provide a Statement of the Case or Supplemental Statement of the Case is considered a denial of due process only in legacy appeals.
VA proposes to redesignate and amend § 20.1000(b), by striking the words “and material”. Public Law 115-55 replaces the new and material standard with a requirement for new and relevant evidence. Although the new and material standard is still applicable to legacy appeals, in this context, VA notes that inclusion of the word “material” is redundant, as paragraph (b) describes discovery of “relevant” service department records. Any relevant service department records would be considered “material” under the legacy standard. Thus, the proposed change would make the paragraph applicable to both systems, while retaining the intended result.
VA proposed to redesignate § 20.1001 as § 20.1002. Citations and address are also updated.
VA proposes minor changes to § 20.1003, to reflect that a hearing on reconsideration would only be provided in legacy appeals, and in new system appeals where the appellant had requested a Board hearing on the Notice of Disagreement. This change is necessary to comply with amended section 7107(c), which states that a hearing before the Board may be scheduled only if a hearing was requested on the Notice of Disagreement.
VA proposes to redesignate § 19.11 as § 20.1004, and make a minor change as required by Public Law 115-55. Public Law 115-55 amends 7103(b)(1) by striking the word “heard” and replacing it with “decided”. Thus, VA proposes to make the same change to proposed § 20.1004, regarding reconsideration panels. This change will have no substantive impact on legacy appeals.
No changes are proposed to §§ 20.1102, 20.1104, and 20.1106.
VA proposes to amend § 20.1103, regarding finality of agency of original jurisdiction decisions, in order to make the rule applicable to both legacy and new appeals. The proposed rule clarifies that the agency of original jurisdiction decision may be readjudicated if, within one year, the claimant files a supplemental claim, request for higher-level review, or Notice of Disagreement. A citation is also updated.
VA proposes to amend § 20.1105, regarding a new claim after promulgation of an appellate decision. In the new system, a claimant may file a supplemental claim with the agency of original jurisdiction by submitting new and relevant evidence related to the previously adjudicated issue. This includes issues in which the final appellate decision was issued in a legacy appeal, but the new claim was filed on or after the effective date. In the current system, new and material evidence is required to reopen a claim after an appellate decision. VA proposes paragraph (b) to address any legacy appeals pending on the effective date which are based upon a claim to reopen. The requirement that an appellant submit new and material evidence to reopen a claim only applies to legacy appeals that are pending on the effective date. A citation is also updated.
No changes are proposed to § 20.1200.
Citations are updated.
No changes are proposed to § 20.1303.
VA proposes to amend § 20.1301, regarding the Board's policy to disclose adjudicative documents to appellants, to reflect the difference in procedure for legacy and new appeals. As noted, supplemental Statements of the Case are not required in the new system, but continue to be a requirement in the legacy system. Thus, VA proposes to strike references to Statements of the Case in paragraph (a), and add new paragraph (b) to note that, for legacy appeals, the policy described in paragraph (a) is also applicable to Statements of the Case. The address is also updated.
Citations and cross-references are updated.
VA proposes to redesignate § 20.1304 as § 20.1305, and add new § 20.1304, to delineate the different procedures for appellants in the legacy and new system to request a change in representation, personal hearing, or submission of additional evidence. In the new system, hearings and evidence submission will only be permitted as described in section 7113. Requests to modify a Notice of Disagreement, for the purpose of selecting a different option for evidence submission or hearing request, is governed by § 20.202(c). Thus, proposed § 20.1304 describes the procedures for requesting a change in representation only. Requests for changes in representation are collections of information under the Paperwork Reduction Act, and are currently approved under OMB Control Number 2900-0085. VA intends to submit this collection of information under OMB Control Number 2900-0674 in the future.
VA proposes to amend § 20.1304, redesignated as § 20.1305, to apply only to legacy appeals. Thus, minor changes are proposed to reflect that the provisions of § 20.1305 are applicable only to legacy appeals. The address and citations are also updated.
VA proposes minor changes to subpart O. Specifically, a reference to administrative appeals under § 19.51 is struck in § 20.1401(b) since Public Law 115-55 repeals procedures for administrative appeals by striking section 7106 of title 38 of the United States Code. VA proposes to clarify that the provisions of §§ 20.1403(b)(2) and 20.1411(b) are only applicable in the legacy system. Additionally, VA proposes to strike § 20.1405(d), as section 2, paragraph (v) of Public Law 115-55 repealed the authority for that provision. Addresses and citations are also updated. No changes are proposed to §§ 20.1400, 20.1402, 20.1406, 20.1407, and 20.1410.
VA proposes to remove and reserve subpart P, which addresses the Expedited Claims Adjudication (ECA) Initiative Pilot Program as this program is no longer in use and will not continue based on changes to the claims and appeals processes under Public Law 115-55. VA launched the ECA Initiative Program on February 2, 2009. The two-year pilot program was designed to accelerate claims and appeals processing. Participation in the ECA Initiative was strictly voluntary and limited to claimants who resided within the jurisdiction of the Nashville, Lincoln, Seattle, or Philadelphia Regional Offices (ROs). VA concluded the ECA pilot program in 2013. As the program is no longer operational, VA proposes to remove subpart P.
VA proposes to remove Appendix A to part 20, as it has outlived its usefulness. Cross-references currently located in the table are outdated or incorrect. Whereas a user may have previously used the appendix to search for other sections pertinent to a particular regulation, such research may be accomplished much more efficiently via a search of the electronic document.
VA proposes to amend part 21 to align current regulations with new review and appeals processes outlined in Public Law 115-55. To accomplish this goal, VA proposes to update Subpart A by deleting 38 CFR 21.59 and 21.98; adding one new section, 38 CFR 21.416; amending 38 CFR 21.414 and 21.420; and updating cross references in several additional regulations (in subparts A and I).
VA's Vocational Rehabilitation and Employment (VR&E) program, under the authority of title 38 of the United States Code (U.S.C.) Chapter 31, serves an important function: To assist Servicemembers and Veterans who have service connected disabilities and barriers to employment in obtaining and maintaining suitable employment and achieving maximum independence in daily living. There are several points in this process where program participants may disagree with a decision made by VR&E field staff regarding benefits and/or services. Although VR&E's current practices with regard to reviews and appeals are well established in policy and procedural guidance, current regulations on the review and appeal processes focus only on three very specific points in the rehabilitation process (eligibility; entitlement; and the development of, or change in, the rehabilitation plan). Therefore, VA proposes to remove those current regulations, 38 CFR 21.59 and 21.98, and add proposed § 21.416, one new comprehensive regulation that is
Proposed § 21.416 will outline who can perform a higher-level review; provide a process that allows for the submission of new and relevant evidence; discuss duty to assist errors; outline an informal conference procedure for the higher-level review process; provide information on how to proceed on issues surrounding a difference of opinion; and establish a review time period. The review time period is an administrative goal, but does not create an enforceable right.
VA also proposes to amend 38 CFR 21.414 and 21.420 to include the new review options and the new requirements for notification letters under Public Law 115-55.
In addition to the proposed amendments to subpart A, VA proposes to amend subpart B regulations that govern VA's educational assistance benefits. VA's Education Service handles oversight of VA's education programs, which provide veterans, servicemembers, reservists, and certain family members of veterans with educational opportunities post-separation. To align current educational assistance regulations with the new review and appeals processes outlined in Public Law 115-55, VA proposes to revise § 21.1034. VA also proposes to remove the cross reference in one additional regulation and add § 21.1035 to address reviews in the legacy appeals process.
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that VA consider the impact of paperwork and other information collection burdens imposed on the public. According to the 1995 amendments to the Paperwork Reduction Act (5 CFR 1320.8(b)(2)(vi)), an agency may not collect or sponsor the collection of information, nor may it impose an information collection requirement unless it displays a currently valid Office of Management and Budget (OMB) control number. This proposed rule includes provisions constituting new collections of information under the Paperwork Reduction Act of 1995 that require approval by the OMB. Accordingly, under 44 U.S.C. 3507(d), VA has submitted a copy of this rulemaking action to OMB for review.
OMB assigns control numbers to collections of information it approves. VA may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. Proposed 38 CFR 3.160(c), 3.2501, 3.2601, 8.30, 20.202, and 21.1034 contain collections of information under the Paperwork Reduction Act of 1995. If OMB does not approve the collections of information as requested, VA will immediately remove the provisions containing a collection of information or take such other action as is directed by the OMB.
Comments on the collections of information contained in this proposed rule should be submitted to the Office of Management and Budget, Attention: Desk Officer for the Department of Veterans Affairs, Office of Information and Regulatory Affairs, Washington, DC 20503 or emailed to
OMB is required to make a decision concerning the collections of information contained in this proposed rule between 30 and 60 days after publication of this document in the
VA considers comments by the public on proposed collections of information in—
• Evaluating whether the proposed collections of information are necessary for the proper performance of the functions of the Department, including whether the information will have practical utility;
• Evaluating the accuracy of the Department's estimate of the burden of the proposed collections of information, including the validity of the methodology and assumptions used;
• Enhancing the quality, usefulness, and clarity of the information to be collected; and
• Minimizing the burden of the collections 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,
The collections of information contained in 38 CFR 3.160(c), 3.2501, 3.2601, 8.30, 20.202, 21.416, and 21.1034 are described immediately following this paragraph. VA intends to revise OMB Control No. 2900-0674 so that it will contain all appeals-related information collections for the legacy and new systems, including the four claims and appeals related information collections previously approved under OMB Control No. 2900-0085. OMB Control No. 2900-0085 will be discontinued upon approval of the request to renew 2900-0674. As discussed in the regulatory impact analysis, VA believes that the net impact of the reorganization of the collections of information is likely to be deregulatory.
For each of the new or proposed collections of information below, VBA used general wage data from the Bureau of Labor Statistics (BLS) to estimate the respondents' costs associated with completing the information collection. According to the latest available BLS data, the mean hourly wage of full-time wage and salary workers was $24.34 based on the BLS wage code—“00-0000 All Occupations.” This information was taken from the following website:
The total costs of these information collections to respondents is estimated to be $8.4 million over a five-year period (FY2019-FY2023).
The Secretary hereby certifies that these regulatory amendments would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. These amendments would not directly affect any small entities. Only VA beneficiaries and their survivors could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), these amendments are exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a “significant regulatory action,” which requires review by OMB, as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.”
The economic, interagency, budgetary, legal, and policy implications of this proposed rule have been examined, and it has been determined that this is an economically significant regulatory action under Executive Order 12866. This proposed rule is expected to be an E.O. 13771 deregulatory action. Details on the estimated cost savings of this proposed rule can be found in the rule's economic analysis. VA's impact analysis can be found as a supporting document at
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in an expenditure by State, local, and tribal governments, in the aggregate, or by the private sector of $100 million or more (adjusted annually for inflation) in any given year. This rule would have no such effect on State, local, and tribal governments, or on the private sector.
The Catalog of Federal Domestic Assistance program numbers and titles for this rule are 64.100, Automobiles and Adaptive Equipment for Certain Disabled Veterans and Members of the Armed Forces; 64.101, Burial Expenses Allowance for Veterans; 64.102, Compensation for Service-Connected Deaths for Veterans' Dependents; 64.103, Life Insurance for Veterans; 64.104, Pension for Non-Service-Connected Disability for Veterans; 64.105, Pension to Veterans Surviving Spouses, and Children; 64.106, Specially Adapted Housing for Disabled Veterans; 64.109, Veterans Compensation for Service-Connected Disability; 64.110, Veterans Dependency and Indemnity Compensation for Service-Connected Death; 64.114, Veterans Housing-Guaranteed and Insured Loans; 64.115, Veterans Information and Assistance; 64.116,Vocational Rehabilitation for Disabled Veterans; 64.117, Survivors and Dependents Educational Assistance; 64.118, Veterans Housing-Direct Loans for Certain Disabled Veterans; 64.119, Veterans Housing-Manufactured Home Loans; 64.120, Post-Vietnam Era Veterans' Educational Assistance; 64.124, All-Volunteer Force Educational Assistance; 64.125, Vocational and Educational Counseling for Servicemembers and Veterans; 64.126, Native American Veteran Direct Loan Program; 64.127, Monthly Allowance for Children of Vietnam Veterans Born with Spina Bifida; and 64.128, Vocational Training and Rehabilitation for Vietnam Veterans' Children with Spina Bifida or Other Covered Birth Defects.
Administrative practice and procedure, Claims, Disability benefits, Health care, Pensions, Radioactive materials, Veterans, Vietnam.
Life insurance; Military personnel; Veterans.
Administrative practice and procedure, Claims, Courts, Foreign relations, Government employees, Lawyers, Legal services, Organization and functions (Government agencies), Reporting and recordkeeping requirements, Surety bonds, Trusts and trustees, Veterans.
Administrative practice and procedure, Claims, Veterans.
Administrative practice and procedure, Armed forces,Civil rights, Claims, Colleges and universities, Conflict of interests, Defense Department, Education, Employment, Grant programs-education, Grant programs-veterans, Health care, Loan programs-education, Loan programs-veterans, Manpower training programs, Reporting and recordkeeping requirements, Schools, Travel and transportation expenses, Veterans, Vocational education, Vocational rehabilitation.
The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Peter M. O'Rourke, Chief of Staff, Department of Veterans Affairs, approved this document on April 24, 2018, for publication.
For the reasons set forth in the preamble, VA proposes to amend 38 CFR parts 3, 8, 14, 19, 20, and 21 as follows:
38 U.S.C. 501(a), unless otherwise noted.
(p)
(1)
(i) An original claim for one or more benefits, which is the first complete claim received by VA (see original claim, § 3.160(b)).
(ii) A new claim requesting service connection for a disability or grant of a new benefit, and
(iii) A claim for increase in a disability evaluation rating or rate of a benefit paid.
(2)
(b) * * *
(1)
(c)
(2)
(i) The agency of original jurisdiction subsequently receives a complete application for a supplemental claim or claim for increase; or
(ii) A claim is pending readjudication after identification of a duty to assist error during a higher-level review or appeal to the Board of Veterans' Appeals. Those events reopen the record and any evidence previously submitted to the agency of original jurisdiction while the record was closed will become part of the record to be considered upon readjudication.
(d)
(2) The purpose of a hearing is to permit the claimant to introduce into the record, in person, any available evidence which he or she considers relevant and any arguments or contentions with respect to the facts and applicable law which he or she may consider pertinent. All testimony will be under oath or affirmation. The claimant is entitled to produce witnesses, but the claimant and witnesses must be present. The agency of original jurisdiction will not normally schedule a hearing for the sole purpose of receiving argument from a representative. It is the responsibility of the VA employees conducting the hearings to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position. To assure clarity and completeness of the hearing record, questions which are directed to the claimant and to witnesses are to be framed to explore fully the basis for claimed entitlement rather than with an intent to refute evidence or to discredit testimony.
(f)
(1) Identification of the issues adjudicated;
(2) A summary of the evidence considered;
(3) A summary of the laws and regulations applicable to the claim;
(4) A listing of any findings made by the adjudicator that are favorable to the claimant under § 3.104(c);
(5) For denied claims, identification of the element(s) required to grant the claim(s) that were not met;
(6) If applicable, identification of the criteria required to grant service
(7) An explanation of how to obtain or access evidence used in making the decision; and
(8) A summary of the applicable review options under § 3.2500 available for the claimant to seek further review of the decision.
The revisions and additions read as follows:
(a)
(b)
(c)
(a)(1)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(B)
(2)
(b)
(j)
The revisions and additions read as follows:
(a)
(c)
(2) With respect to service-connected disability compensation, an issue for purposes of paragraph (c)(1) of this section is defined as entitlement to compensation for a particular disability. For example, if a decision adjudicates service-connected disability compensation for both a knee condition and an ankle condition, compensation for each condition is a separate entitlement or issue for which a different review option may be elected. However, different review options may not be selected for specific components of the knee disability claim, such as ancillary benefits, whether a knee injury occurred in service, or whether a current knee condition resulted from a service-connected injury or condition.
(d)
* * * The provisions of this section are applicable to all claims governed by part 3, with the exception that paragraph (b) of this section, regarding intent to file a claim, does not apply to supplemental claims.
(d) * * *
(1)
The revisions and additions read as follows:
New evidence means evidence not previously submitted to agency adjudicators.
(a)
(b)
(d)
(a)
The revisions read as follows:
(a) * * *
(3)
(i) The claimant's name;
(ii) His or her relationship to the veteran, if applicable;
(iii) Sufficient service information for VA to verify the claimed service, if applicable;
(iv) The benefit sought and any medical condition(s) on which it is based;
(v) The claimant's signature; and
(vi) In claims for nonservice-connected disability or death pension and parents' dependency and indemnity compensation, a statement of income;
(vii) In supplemental claims, identification or inclusion of potentially new evidence;
(viii) For higher-level reviews, identification of the date of the decision for which review is sought.
(b)
(3) No duty to provide the notice described in paragraph (b)(1) of this section arises:
(i) Upon receipt of a supplemental claim under § 3.2501 within one year of the date VA issues notice of a prior decision;
(ii) Upon receipt of a request for higher-level review under § 3.2601;
(iii) Upon receipt of a Notice of Disagreement under § 20.202 of this chapter;
or
(iv) When, as a matter of law, entitlement to the benefit claimed cannot be established.
(c)
(4) * * *
(iii) For requests to reopen a finally adjudicated claim received prior to the effective date provided in § 19.2(a) of this chapter, paragraph (c)(4) of this section applies only if new and material evidence is presented or secured as prescribed in § 3.156.
(iv) Paragraph (c)(4) of this section applies to a supplemental claim only if new and relevant evidence under § 3.2501 is presented or secured.
(a)
(1) A complete claim must provide the name of the claimant; the relationship to the veteran, if applicable; and sufficient information for VA to verify the claimed service, if applicable.
(2) A complete claim must be signed by the claimant or a person legally authorized to sign for the claimant.
(3) A complete claim must identify the benefit sought.
(4) A description of any symptom(s) or medical condition(s) on which the benefit is based must be provided to the extent the form prescribed by the Secretary so requires.
(5) For nonservice-connected disability or death pension and parents' dependency and indemnity compensation claims, a statement of income must be provided to the extent the form prescribed by the Secretary so requires; and
(6) For supplemental claims, potentially new evidence must be identified or included.
(d)
(1) For legacy claims not subject to the modernized review system, whichever of the following occurs first:
(i) The expiration of the period in which to file a Notice of Disagreement, pursuant to the provisions of § 19.52(a) or § 20.502(a) of this chapter, as applicable; or
(ii) Disposition on appellate review.
(2) For claims under the modernized review system, the expiration of the period in which to file a review option available under § 3.2500 or disposition on judicial review where no such review option is available.
(e)
The revision reads as follows:
(c)
(i) The director of the Service or his or her designee determines that the issue under consideration poses a medical problem of such obscurity or complexity, or has generated such controversy in the medical community at large, as to justify solicitation of an independent medical opinion; or
(ii) The independent medical opinion is required to fulfill the instructions
(2) A determination that an independent medical opinion is not warranted may be contested only as part of an appeal to the Board of Veterans' Appeals on the merits of the decision rendered on the primary issue by VA.
The revisions read as follows:
Except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. For effective date provisions regarding revision of a decision based on a supplemental claim or higher-level review, see § 3.2500.
(h)
(2) As to decisions which have been finally adjudicated (see § 3.160(d)), and notwithstanding other provisions of this section, the date entitlement arose, but not earlier than the date of receipt of the supplemental claim.
(3) As to decisions which have been finally adjudicated (see 3.160(d)) and readjudication is undertaken solely on VA initiative, the date of Central Office approval authorizing a favorable decision or the date of the favorable Board of Veterans' Appeals decision.
(z) * * *
(2) Reopened claims received prior to the effective date provided in § 19.2(a) of this chapter: Latest of the following dates:
(i) November 23, 1977.
(ii) Date entitlement arose.
(iii) One year prior to date of receipt of reopened claim.
(3) Supplemental claims received more than one year after notice of decision: Latest of the following dates:
(i) Date entitlement arose.
(ii) One year prior to date of receipt of a supplemental claim.
38 U.S.C. 501(a), unless otherwise noted.
(a) The modernized review system defined in 38 CFR 19.2(b) applies to all claims, requests for reopening of finally adjudicated claims, and requests for revision based on clear and unmistakable error:
(1) For which VA issues notice of an initial decision on or after the effective date of the modernized review system as provided in 38 CFR 19.2(a); or
(2) Where a claimant has elected review of a legacy claim under the modernized review system as provided in paragraph (c) of this section.
(b)
(c)
(1)
(2)
(d)
(a)
(i) A request for higher-level review under § 3.2601 or
(ii) An appeal to the Board under § 20.202 of this chapter.
(2) At any time after VA issues notice of a decision on an issue within a claim, a claimant may file a supplemental claim under § 3.2501.
(b)
(c)
(1) Following notice of a decision on a supplemental claim, the claimant may file another supplemental claim, request a higher-level review, or appeal to the Board of Veterans' Appeals.
(2) Following notice of a decision on a higher-level review, the claimant may file a supplemental claim or appeal to the Board of Veterans' Appeals. (See appeal to the Board, 38 CFR 20.202).
(3) Following notice of a decision on an appeal to the Board of Veterans' Appeals, the claimant may file a supplemental claim.
(4) Following entry of judgment on an appeal to the Court of Appeals for Veterans Claims, the claimant may file a supplemental claim.
(d)
(e)
(f)
(g)
(2)
Except as otherwise provided, a claimant or his or her legal representative, if any, may file a supplemental claim (see § 3.1(p)(2)) by submitting a complete application (see § 3.160(a)) in writing on a form prescribed by the Secretary any time after the agency of original jurisdiction issues notice of a decision, regardless of whether the claim is pending or has become finally adjudicated. If new and relevant evidence is presented or secured with respect to the supplemental claim, the agency of original jurisdiction will readjudicate the claim taking into consideration all of the evidence of record. If new and relevant evidence is not presented or secured, the agency of original jurisdiction will issue a decision finding that there was insufficient evidence to readjudicate the claim.
(a)
(1)
(2)
(b)
(c)
(d)
Upon receipt of a returned claim from a higher-level adjudicator or remand by the Board of Veterans' Appeals, the adjudication activity will take immediate action to expedite readjudication of the claim in accordance with 38 U.S.C. 5109B. The adjudication activity retains jurisdiction of the claim. In readjudicating the claim, the adjudication activity will correct all identified duty to assist errors, complete a new decision and issue notice to the claimant and or his or her legal representative in accordance with 3.103(f). The effective date of any evaluation and award of pension, compensation or dependency and indemnity compensation will be determined in accordance with the date of receipt of the initial claim as prescribed under § 3.2500(g).
The revisions and additions read as follows:
This section applies only to legacy claims as defined in § 3.2400 in which a Notice of Disagreement is timely filed on or after June 1, 2001, under regulations applicable at the time of filing.
(a)
(b)
(c)
(1) A complete request must provide the name of the claimant and the relationship to the veteran, if applicable;
(2) A complete request must be signed by the claimant or a person legally authorized to sign for the claimant; and
(3) A complete request must specify the date of the underlying decision for which review is requested and specify the issues for which review is requested.
(d)
(e)
(f)
(g)
(1) For disability evaluations, the
(2) For ancillary benefits, the
(3) For pension benefits or dependents indemnity compensation, the
(h)
(i)
(j)
(k)
38 U.S.C. 501, 1901-1929, 1981-1988, unless otherwise noted.
The revisions read as follows:
(a)
(1) Identification of the issues adjudicated.
(2) A summary of the evidence considered.
(3) A summary of the applicable laws and regulations relevant to the decision.
(4) Identification of findings that are favorable to the claimant.
(5) For denials, identification of the element(s) not satisfied that led to the denial.
(6) An explanation of how to obtain or access the evidence used in making the decision.
(7) A summary of the applicable review options available for the claimant to seek further review of the decision.
(b)
(c)
(1)
(2)
(3)
(d)
(e)
(f)
(g)
(h)
5 U.S.C. 301; 28 U.S.C. 2671-2680; 38 U.S.C. 501(a), 512, 515, 5502, 5901-5905; 28 CFR part 14, appendix to part 14, unless otherwise noted.
(d)
(1) If the Chief Counsel determines that the prospective service organization representative, agent, or attorney meets the requirements for accreditation in paragraphs (a) or (b) of this section, notification of accreditation will be issued by the Chief Counsel and will constitute authority to prepare, present, and prosecute claims before an agency of original jurisdiction or the Board of Veterans' Appeals.
(2)(i) If the Chief Counsel determines that the prospective representative, agent, or attorney does not meet the requirements for accreditation, notification will be issued by the Chief Counsel concerning the reasons for disapproval, an opportunity to submit additional information, and any restrictions on further application for accreditation. If an applicant submits additional evidence, the Chief Counsel will consider such evidence and provide further notice concerning his or her final decision.
(ii) The determination of the Chief Counsel regarding the qualifications of a prospective service organization representative, agent, or attorney is a final adjudicative determination of an agency of original jurisdiction that may only be appealed to the Board of Veterans' Appeals.
(c) * * * This section is applicable unless 38 CFR 20.6 governs withdrawal from the representation.
The revision and addition read as follows:
(h) The decision of the General Counsel is a final adjudicative determination of an agency of original
(1)
(2)
(j) The effective date for suspension or cancellation of accreditation or authority to provide representation on a particular claim shall be the date upon which the General Counsel's final decision is rendered.
The revisions read as follows:
(c)
(1)(i) Agents and attorneys may charge claimants or appellants for representation provided after an agency of original jurisdiction has issued notice of an initial decision on the claim or claims, including any claim for an increase in rate of a benefit, if the notice of the initial decision was issued on or after the effective date of the modernized review system as provided in § 19.2(a) of this chapter, and the agent or attorney has complied with the power of attorney requirements in § 14.631 and the fee agreement requirements in paragraph (g) of this section. For purposes of this paragraph (c)(1)(i), a decision by an agency of original jurisdiction adjudicating a supplemental claim will be considered the initial decision on a claim unless that decision was made while the claimant continuously pursued the claim by filing any of the following, either alone or in succession: A request for higher-level review, on or before one year after the date on which the agency of original jurisdiction issued a decision; a supplemental claim, on or before one year after the date on which the agency of original jurisdiction issued a decision; a Notice of Disagreement, on or before one year after the date on which the agency of original jurisdiction issued a decision; a supplemental claim, on or before one year after the date on which the Board of Veterans' Appeals issued a decision; or a supplemental claim, on or before one year after the date on which the Court of Appeals for Veterans Claims issued a decision.
(ii) Agents and attorneys may charge fees for representation provided with respect to a request for revision of a decision of an agency of original jurisdiction under 38 U.S.C. 5109A or the Board of Veterans' Appeals under 38 U.S.C. 7111 based on clear and unmistakable error if notice of the decision on a claim or claims was issued on or after the effective date of the modernized review system as provided in § 19.2(a), and the agent or attorney has complied with the power of attorney requirements in § 14.631 and the fee agreement requirements in paragraph (g) of this section.
(2)(i) Agents and attorneys may charge claimants or appellants for representation provided: After an agency of original jurisdiction has issued a decision on a claim or claims, including any claim to reopen under 38 CFR 3.156(a) or for an increase in rate of a benefit; the agency of original jurisdiction issued notice of that decision before the effective date of the modernized review system as provided in § 19.2(a) of this chapter; a Notice of Disagreement has been filed with respect to that decision on or after June 20, 2007; and the agent or attorney has complied with the power of attorney requirements in § 14.631 and the fee agreement requirements in paragraph (g) of this section.
(ii) Agents and attorneys may charge fees for representation provided with respect to a request for revision of a decision of an agency of original jurisdiction under 38 U.S.C. 5109A or the Board of Veterans' Appeals under 38 U.S.C. 7111 based on clear and unmistakable error if the agency of original jurisdiction issued notice of its decision on such request before the effective date of the modernized review system as provided in § 19.2(a); a Notice of Disagreement was filed with respect to the challenged decision on or after June 20, 2007; and the agent or attorney has complied with the power of attorney requirements in § 14.631 and the fee agreement requirements in paragraph (g) of this section.
(3) In cases in which a Notice of Disagreement was filed on or before June 19, 2007, agents and attorneys may charge fees only for services provided after both of the following conditions have been met:
(i) A final decision was promulgated by the Board with respect to the issue, or issues, involved in the appeal; and
(ii) The agent or attorney was retained not later than 1 year following the date that the decision by the Board was promulgated. (This condition will be considered to have been met with respect to all successor agents or attorneys acting in the continuous prosecution of the same matter if a predecessor was retained within the required time period.)
(4) Except as noted in paragraph (i) of this section and § 14.637(d), the agency of original jurisdiction that issued the decision referenced in paragraphs (c)(1) or (2) of this section shall determine whether an agent or attorney is eligible for fees under this section. The agency of original jurisdiction's eligibility determination is a final adjudicative action that may only be appealed to the Board.
(i) * * *
(3) The Office of the General Counsel shall close the record before the Office of the General Counsel in proceedings to review fee agreements 15 days after the date on which the agent or attorney served a response on the claimant or appellant, or 30 days after the claimant, appellant, or the Office of the General Counsel served the motion on the agent or attorney if there is no response. The Deputy Chief Counsel with subject-matter jurisdiction may, for a reasonable
(k)(1)
(2)
The revisions read as follows:
(d) * * *
(3) The Office of the General Counsel shall close the record before the Office of the General Counsel in proceedings to review expenses 15 days after the date on which the agent or attorney served a response on the claimant or appellant, or 30 days after the claimant, appellant, or the Office of the General Counsel served the motion on the agent or attorney if there is no response. The Deputy Chief Counsel with subject-matter jurisdiction may, for a reasonable period upon a showing of sufficient cause, extend the time for an agent or attorney to serve an answer or for a claimant or appellant to serve a reply. The Deputy Chief Counsel shall forward the record and a recommendation to the General Counsel or his or her designee for a final decision. Unless either party files a Notice of Disagreement, the attorney or agent must refund any excess payment to the claimant or appellant not later than the expiration of the time within which the Office of the General Counsel's decision may be appealed to the Board of Veterans' Appeals.
(f)(1)
(2)
38 U.S.C. 501(a), unless otherwise noted.
(a) The authority exercised by the Chairman of the Board of Veterans' Appeals described in Rules 106(b) and 107(b) (§§ 20.106(b) and 20.107(b)) may also be exercised by the Vice Chairman of the Board.
(b) The authority exercised by the Chairman of the Board of Veterans' Appeals described in Rules 1004 and 1002(c) (§§ 20.1004 and 20.1002(c)) may also be exercised by the Vice Chairman of the Board and by Deputy Vice Chairmen of the Board.
(c) The authority exercised by the Chairman of the Board of Veterans' Appeals described in Rule 2 (§ 20.2), may also be exercised by the Vice Chairman of the Board; by Deputy Vice Chairmen of the Board; and, in connection with a proceeding or motion assigned to them by the Chairman, by a Member or Members of the Board.
Part 19 and subparts F, G, and J of part 20 apply only to the processing and adjudication of legacy appeals, as defined in § 19.2. Except as otherwise provided in specific sections, subparts A, B, H, K, L, M, N, and O of part 20 apply to the processing and adjudication of both appeals and legacy appeals. For applicability provisions concerning appeals in the modernized review system, see § 20.4 of this chapter.
(a)
(b)
(c)
(d)
(1) A claimant with a legacy claim or appeal elects the modernized review system pursuant to 38 CFR 3.2400(c)(1);
(2) A claimant with a legacy claim or appeal elects the modernized review system, following issuance, on or after the effective date, of a VA Statement of the Case or Supplemental Statement of the Case. The election is made by filing an appeal in accordance with 38 CFR 20.202, or a review option in accordance with 38 U.S.C. 5108 or 5104B, as implemented by 38 CFR 3.2500 and other applicable regulations. The election must be filed within the time allowed for filing a substantive appeal under § 19.52(b); or
(3) VA issued notice of a decision prior to the effective date, and, pursuant to the Secretary's authorization to participate in a test program, the claimant elects the modernized review system by filing an appeal in accordance with 38 U.S.C. 7105, or a review option in accordance with 38 U.S.C. 5108 or 5104B.
(b)
38 U.S.C. 501(a) and as noted in specific sections.
The revisions read as follows:
(b)
(c)
(f)
(a)
(2)
(b)
(2)
(3)
(c)
The revisions read as follows:
(c) * * *
The Board shall decide all questions pertaining to its jurisdictional authority to review a particular case.
(d)(1)
(2)
The revisions read as follows:
The revisions to read as follows:
The revisions read as follows:
(b) * * *
(1)
(2) * * *
Thereafter, file the withdrawal at the Board.
The claimant and his or her representative, if any, will be informed of appellate rights provided by 38 U.S.C. chapters 71 and 72, including the right to a personal hearing and the right to representation. The agency of original jurisdiction will provide this information in each notification of a determination of entitlement or nonentitlement to Department of Veterans Affairs benefits, pursuant to 38 U.S.C. 5104, 5104B, and 5108.
An appeal of a decision by the agency of original jurisdiction consists of a Notice of Disagreement submitted to the Board in accordance with the provisions of §§ 20.202-20.204.
(a)
(b) Upon filing the Notice of Disagreement, a claimant must indicate whether the claimant requests:
(1) Direct review by the Board of the record before the agency of original jurisdiction at the time of its decision, without submission of additional evidence or a Board hearing;
(2) A Board hearing, to include an opportunity to submit additional evidence at the hearing and within 90 days following the hearing; or
(3) An opportunity to submit additional evidence without a Board hearing with the Notice of Disagreement and within 90 days following receipt of the Notice of Disagreement.
(c)(1) The information indicated by the claimant in paragraph (b) of this section determines the evidentiary record before the Board as described in subpart D of this part, and the docket on which the appeal will be placed, as described in Rule 800 (§ 20.800). Except as otherwise provided in paragraph (2) of this section, the Board will not consider evidence as described in Rules 302 or 303 (§§ 20.302 and 20.303) unless the claimant requests a Board hearing or an opportunity to submit additional evidence on the Notice of Disagreement.
(2) A claimant may modify the information identified in the Notice of Disagreement for the purpose of selecting a different evidentiary record option as described in paragraph (b) of this section. Requests to modify a Notice of Disagreement must be in writing, must clearly identify the option listed in paragraph (b) of this section that the appellant requests, and must be received at the Board within one year from the date that the agency of original jurisdiction mails notice of the decision on appeal, or within 30 days of the date that the Board receives the Notice of Disagreement, whichever is later. Requests to modify a Notice of Disagreement will not be granted if the appellant has submitted evidence or testimony as described in §§ 20.302 and 20.303.
(d) The Board will not accept as a Notice of Disagreement an expression of dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result that is submitted in any format other than the form prescribed by the Secretary, including on a different VA form.
(e)
(f)
(g)
(i) 60 days after the date of the Board's clarification request; or
(ii) One year after the date of mailing of notice of the adverse decision being appealed (60 days for simultaneously contested claims).
(2)
(h)
(i)
(f) through (h) of this section, references to the “claimant” include reference to the claimant or his or her representative, if any, or to his or her fiduciary, if any, as appropriate.
(a)
(b)
(a)
(b)
(c)
(a)
(b)
(2)
(3)
(c)
(a) * * *
(b) * * *
(c) * * *
Decisions of the Board will be based on a de novo review of the evidence of record at the time of the agency of original jurisdiction decision on the issue or issues on appeal, and any additional evidence or testimony submitted pursuant to this subpart, as provided in § 20.801.
For appeals in which the appellant requested, on the Notice of Disagreement, direct review by the Board without submission of additional evidence and without a Board hearing, the Board's decision will be based on a review of the evidence of record at the time of the agency of original jurisdiction decision on the issue or issues on appeal.
(a) Except as described in paragraphs (b) and (c) of this section, for appeals in which the appellant requested, on the Notice of Disagreement, a Board hearing, the Board's decision will be based on a review of the following:
(1) Evidence of record at the time of the agency of original jurisdiction's decision on the issue or issues on appeal;
(2) Evidence submitted by the appellant or his or her representative at the hearing, to include testimony provided at the hearing; and
(3) Evidence submitted by the appellant or his or her representative within 90 days following the hearing.
(b) In the event that the hearing request is withdrawn pursuant to § 20.704(e), the Board's decision will be based on a review of evidence described in paragraph (a)(1) of this section, and evidence submitted by the appellant or his or her representative within 90 days following receipt of the withdrawal.
(c) In the event that the appellant does not appear for a scheduled hearing, and the hearing is not rescheduled subject to § 20.704(d), the Board's decision will be based on a review of evidence described in paragraph (a)(1) of this section, and evidence submitted by the appellant or his or her representative within 90 days following the date of the scheduled hearing.
For appeals in which the appellant requested, on the Notice of Disagreement, an opportunity to submit additional evidence without a Board hearing, the Board's decision will be based on a review of the following:
(a) Evidence of record at the time of the agency of original jurisdiction's decision on the issue or issues on appeal; and
(b) Evidence submitted by the appellant or his or her representative:
(1) With the Notice of Disagreement or within 90 days following receipt of the Notice of Disagreement; or,
(2) If the appellant did not request an opportunity to submit additional evidence on the Notice of Disagreement, but subsequently requested to submit additional evidence pursuant to Rule 202, (§ 20.202 (c)(2)(ii)), within 90 days following VA's notice that the appeal has been moved to the docket described in § 20.800(a)(ii).
All interested parties will be specifically notified of the action taken by the agency of original jurisdiction in a simultaneously contested claim and of the right and time limit for submitting a Notice of Disagreement to the Board, as well as hearing and representation rights.
In simultaneously contested claims, any claimant or representative of a claimant may file a Notice of Disagreement within the time limits set out in Rule 402 (§ 20.402).
In simultaneously contested claims, the Notice of Disagreement from the person adversely affected must be filed within 60 days from the date of mailing of the notification of the determination to him or her; otherwise, that determination will become final. The date of mailing of the letter of notification will be presumed to be the same as the date of that letter for purposes of determining whether a Notice of Disagreement has been timely filed.
Upon the filing of a Notice of Disagreement in a simultaneously contested claim, all interested parties and their representatives will be furnished a copy of the substance of the Notice of Disagreement. The notice will inform the contesting party or parties of what type of review the appellant who initially filed a Notice of Disagreement selected under § 20.202(b), including whether a hearing was requested.
A party to a simultaneously contested claim may file a brief, argument, or request for a different type of review under § 20.202(b) in answer to a Notice of Disagreement filed by another contesting party. Any such brief, argument, or request must be filed with the Board within 30 days from the date the content of the Notice of Disagreement is furnished as provided in § 20.403. Such content will be presumed to have been furnished on the date of the letter that accompanies the content.
After expiration of the 30 day period for response in § 20.404, the Board will place all parties of the simultaneously contested claim on the docket for the type of review requested under § 20.202(b). In the event the parties request different types of review, if any party requests a hearing the appeal will be placed on the docket described in
Notices in simultaneously contested claims will be forwarded to the last address of record of the parties concerned and such action will constitute sufficient evidence of notice.
Where a claim is contested, findings favorable to either party, as described in Rule 801 (§ 20.801), are no longer binding on all VA and Board of Veterans' Appeals adjudicators during the pendency of the contested appeal.
The provisions of this subpart apply to legacy appeals, as defined in § 19.2 of this chapter.
(a) * * *
(b) * * *
(c) * * *
(a) The provisions in this subpart apply to Board hearings conducted in legacy appeals, as defined in § 19.2 of this chapter.
(b) Except as otherwise provided, Rules 700, 701, 704, 705, and 707-715 (§§ 20.700, 20.701, 20.704, 20.705, and 20.707-20.715) are also applicable to Board hearings conducted in legacy appeals.
(a)
(b)
The revisions and additions read as follows:
(a)(1)
(2)
(b) * * *
(c)
(d)
(e)
(f)
A hearing on appeal before the Board may be held by one of the following methods:
(a) In person at the Board's principal location in Washington, DC, or
(b) By electronic hearing, through picture and voice transmission, with the appellant appearing at a Department of Veterans Affairs facility.
(a)
(b)
(c)
(d)
(e)
(a)
(b)
(c)
(d)
(e)
(a)
(b)
(c)
(d)
(e)
(f)
(a)
(1) In person at the Board's principal location in Washington, DC;
(2) By electronic hearing, through voice transmission or through picture and voice transmission, with the appellant appearing at a Department of Veterans Affairs facility or appropriate Federal facility; or
(3) At a Department of Veterans Affairs facility having adequate physical resources and personnel for the support of such hearings.
(b)
(c)
(1) The procedures for scheduling and providing notice of Board hearings in legacy appeals conducted by the methods described in paragraphs (a)(1) and (a)(2) of this section are contained in Rule 704 (§ 20.704).
(2) The procedures for scheduling and providing notice of Board hearings in legacy appeals conducted at a Department of Veterans Affairs facility having adequate physical resources and personnel for the support of such hearings under (a)(3) are contained in Rule 603 (§ 20.603).
(a)
(b)
(1) Conducting a prehearing conference, pursuant to § 20.707;
(2) Ruling on questions of procedure;
(3) Administering the oath or affirmation;
(4) Ensuring that the course of the Board hearing remains relevant to the issue or issues on appeal;
(5) Setting reasonable time limits for the presentation of argument;
(6) Prohibiting cross-examination of the appellant and any witnesses;
(7) Excluding documentary evidence, testimony, and/or argument which is not relevant or material to the issue or issues being considered or which is unduly repetitious;
(8) Terminating a Board hearing or directing that an offending party, representative, witness, or observer leave the hearing if that party persists or engages in disruptive or threatening behavior;
(9) Disallowing or halting the use of personal recording equipment being used by an appellant or representative if it becomes disruptive to the hearing; and
(10) Taking any other steps necessary to maintain good order and decorum.
(c)
Hearings will be conducted by a Member or panel of Members of the Board. Where a proceeding has been assigned to a panel, the Chairman, or the Chairman's designee, shall designate one of the Members as the presiding Member.
(a) * * *
(b)
(2)(i) A request under Rule 704, paragraph (c) must be made within 60 days from the date of the letter of notification of the time and place of the hearing, or not later than two weeks prior to the scheduled hearing date, whichever is earlier.
(ii) In order to obtain a new hearing date under the provisions of Rule 704, paragraph (c), the consent of all other interested parties must be obtained and submitted with the request for a new hearing date. If such consent is not obtained, the date of the hearing will become fixed. After a hearing date has become fixed, an extension of time for appearance at a hearing will be granted only for good cause, with due consideration of the interests of other parties. Examples of good cause include, but are not limited to, illness of the appellant and/or representative, difficulty in obtaining necessary records, and unavailability of a necessary witness. The motion for a new hearing date must be in writing and must explain why a new hearing date is necessary. If good cause is shown, the hearing will be rescheduled for the next available hearing date after the appellant or his or her representative gives notice that the contingency which gave rise to the request for postponement has been removed. Ordinarily, however, hearings will not be postponed more than 30 days. Whether good cause for establishing a new hearing date has been shown will be determined by the presiding Member assigned to conduct the hearing.
(3) A copy of any motion for a new hearing date required by these rules must be mailed to all other interested parties by certified mail, return receipt requested. The receipts, which must bear the signatures of the other interested parties, and a letter explaining that they relate to the motion for a new hearing date and containing the applicable Department of Veterans Affairs file number must be filed at the same address where the motion was filed as proof of service of the motion. Each interested party will be allowed a period of 10 days from the date that the copy of the motion was received by that party to file written argument in response to the motion.
(a)
(b)
(c)
If an appellant wishes to seek correction of perceived errors in a hearing transcript, the appellant or his or her representative should move for correction of the hearing transcript within 30 days after the date that the transcript is mailed to the appellant. The motion must be in writing and must specify the error, or errors, in the transcript and the correct wording to be substituted. The motion must be filed with the Board of Veterans' Appeals, P.O. Box 27063, Washington, DC 20038. The ruling on the motion will be made by the presiding Member of the hearing.
(a)
(i) Appear at a new Board hearing, pursuant to Rules 703 and 704 (§§ 20.703 and 20.704) for appeals or Rules 602 and 603 (§§ 20.602 and 20.603) for legacy appeals, as defined in § 19.2 of this chapter; or
(ii) Have the Board proceed to appellate review of the appeal based on the evidence of record.
(2) The notice will inform the appellant that he or she has a period of 30 days to respond to the notice. If the appellant does not respond by requesting a new hearing within 30 days from the date of the mailing of the notice, then the Board will decide the appeal on the basis of the evidence of record. A request for a new Board hearing will not be accepted once the Board has issued a decision on the appeal.
(b)
(a)
(i) A docket for appeals in which an appellant does not request a hearing or an opportunity to submit additional evidence on the Notice of Disagreement;
(ii) A docket for appeals in which the appellant does not request a hearing but does request an opportunity to submit additional evidence on the Notice of Disagreement; and
(iii) A docket for appeals in which the appellant requests a hearing on the Notice of Disagreement.
(2) An appeal may be moved from one docket to another only when the Notice of Disagreement has been modified pursuant to Rule 202, paragraph (c)(3) (§ 20.202(c)(3)). The request to modify the Notice of Disagreement must reflect that the appellant requests the option listed in § 20.202(b) that corresponds to the docket to which the appeal will be moved. An appeal that is moved from one docket to another will retain its original docket date.
(b) Except as otherwise provided, each appeal will be decided in the order in which it is entered on the docket to which it is assigned.
(c)
(2)
(3)
(d)
(e)
(f)
(g)
(a)
(b)
(1) Findings of fact and conclusions of law on all material issues of fact and law presented on the record;
(2) The reasons or bases for those findings and conclusions;
(3) A general statement reflecting whether any evidence was received at a time when not permitted under subpart D, and informing the appellant that any such evidence was not considered by the Board and of the options available to have that evidence reviewed by the Department of Veterans Affairs; and
(4) An order granting or denying the benefit or benefits sought on appeal, dismissing the appeal, or remanding the issue or issues as described in Rule 802 (§ 20.802).
(c) A decision by a panel of Members will be by a majority vote of the panel Members.
(a)
(b)
(c)
The content of the Board's decision, remand, or order in appeals involving a simultaneously contested claim will be limited to information that directly affects the issues involved in the contested claim. Appellate issues that do not involve all of the contesting parties will be addressed in one or more separate written decisions, remands, or orders that will be furnished only to the appellants concerned and their representatives, if any.
(a) The Board may obtain an opinion from the General Counsel of the Department of Veterans Affairs on legal questions involved in the consideration of an appeal.
(b)
(c)
(d) For purposes of this section, the term “the Board” includes the Chairman, the Vice Chairman, any Deputy Vice Chairman, and any Member of the Board before whom a case is pending.
(c) * * *
(1) * * *
“Other sufficient cause” shall include, but is not limited to, administrative error resulting in a significant delay in docketing the case, administrative necessity, or the advanced age of the appellant.
(d) * * *
The provisions in this subpart apply to Board decisions and remands rendered in legacy appeals, as defined in § 19.2 of this chapter.
(a) * * *
(1) * * *
(2) When there was a prejudicial failure to afford the appellant a personal hearing. (Where there was a failure to honor a request for a hearing and a hearing is subsequently scheduled, but the appellant fails to appear, the decision will not be vacated.), and
(3) For a legacy appeal, as defined in § 19.2 of this chapter, when a Statement of the Case or required Supplemental Statement of the Case was not provided.
After a motion for reconsideration has been allowed, a hearing will be granted if the issue under reconsideration was considered on a docket for cases that may include a hearing, and an appellant requests a hearing before the Board.
A determination on a claim by the agency of original jurisdiction of which the claimant is properly notified is final if an appeal is not perfected as prescribed in § 19.52 of this chapter. If no Notice of Disagreement is filed as prescribed in subpart C of this part, the claim shall not thereafter be readjudicated or allowed, except as provided by 38 U.S.C. 5104B or 5108, or by regulation.
(a) After an appellate decision has been promulgated on a claim, a claimant may file a supplemental claim with the agency of original jurisdiction by submitting the prescribed form with new and relevant evidence related to the previously adjudicated claim as set forth in § 3.2601 of this chapter, except in cases involving simultaneously contested claims under Subpart E of this part.
(b)
The additions and revisions read as follows:
(a)
(b)
(a)
(a)
(b)
(1)
(2)
(b) * * *
(1) * * *
(2)
(f)
(a) * * *
(b) For legacy appeals as defined in § 19.2 of this chapter, a motion under this subpart is not a claim subject to reopening under 38 U.S.C. 5108 (prior to the effective date described in Rule 4, paragraph (a) (§ 20.4(a) of this part) (relating to reopening claims on the grounds of new and material evidence).
(c) * * *
(d) A motion under this subpart is not a claim for benefits subject to the requirements and duties associated with 38 U.S.C. 5103A (imposing a duty to assist).
38 U.S.C. 501(a), chs. 18, 31, and as noted in specific sections.
The revisions and additions read as follows:
(f) Review of decisions, § 21.416.
(a)
(b)
(1)
(2)
(3)
(i)
(ii)
(iii)
(iv)
(v)
(c)
(a) * * *
(b)
(1) Identification of the issues adjudicated.
(2) A summary of the evidence considered by the Secretary.
(3) A summary of the applicable laws and regulations relevant to the decision.
(4) Identification of findings favorable to the veteran.
(5) In the case of a denial of a claim, identification of elements not satisfied leading to the denial.
(6) An explanation of how to obtain or access evidence used in making the decision.
(7) A summary of the applicable review options available for the veteran to seek further review of the decision.
(d)
(1) Meet informally with a representative of VA;
(2) Review the basis for VA decision, including any relevant written documents or material; and
(3) Submit to VA any material which he or she may have relevant to the decision.
(e)
38 U.S.C. 501(a).
(a)
(b)
(1)
(2)
(3)
(c)
(d)
(e)
(a) A claimant who has filed a Notice of Disagreement with a decision described in § 21.1034(a) that does not meet the criteria of § 21.1034(e) of this chapter has a right to a review under this section. The review will be conducted by the Educational Officer of the Regional Processing Officer, at VA's discretion. An individual who did not participate in the decision being reviewed will conduct this review. Only a decision that has not yet become final (by appellate decision or failure to timely appeal) may be reviewed. Review under this section will encompass only decisions with which the claimant has expressed disagreement in the Notice of Disagreement. The reviewer will consider all evidence of record and applicable law, and will give no deference to the decision being reviewed.
(b) Unless the claimant has requested review under this section with his or her Notice of Disagreement, VA will, upon receipt of the Notice of Disagreement, notify the claimant in writing of his or her right to a review under this section. To obtain such a review, the claimant must request it not later than 60 days after the date VA mails the notice. This 60-day time limit may not be extended. If the claimant fails to request review under this section not later than 60 days after the date VA mails the notice, VA will proceed with the legacy appeal process by issuing a Statement of the Case. A claimant may not have more than one review under this section of the same decision.
(c) The reviewer may conduct whatever development he or she considers necessary to resolve any disagreements in the Notice of Disagreement, consistent with applicable law. This may include an attempt to obtain additional evidence or the holding of an informal conference with the claimant. Upon the request of the claimant, the reviewer will conduct a hearing under the version of § 3.103(c) of this chapter predating Public Law 115-55.
(d) A review decision made under this section will include a summary of the evidence, a citation to pertinent laws, a discussion of how those laws affect the decision, and a summary of the reasons for the decision.
(e) The reviewer may grant a benefit sought in the claim, notwithstanding § 3.105(b) of this chapter. The reviewer may not revise the decision in a manner that is less advantageous to the claimant
(f) Review under this section does not limit the appeal rights of a claimant. Unless a claimant withdraws his or her Notice of Disagreement as a result of this review process, VA will proceed with the legacy appeal process by issuing a Statement of the Case.
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