Federal Register Vol. 83, No.195,
Federal Register Volume 83, Issue 195 (October 9, 2018)
Federal Register Volume 83, Issue 195 (October 9, 2018)
| Page Range | 50475-50801 | |
| FR Document |
Document Created: 2017-12-29 23:37:51
Document Modified: 2017-12-29 23:37:51
| Page and Subject | |
|---|---|
| 83 FR 50660 - Sunshine Act Meeting | |
| 83 FR 50738 - Sunshine Act Meetings | |
| 83 FR 50687 - Government in the Sunshine Act Meeting Notice | |
| 83 FR 50688 - Government in the Sunshine Act Meeting Notice | |
| 83 FR 50670 - Changes in Flood Hazard Determinations | |
| 83 FR 50700 - Southern Nuclear Operating Company, Inc., Vogtle Electric Generating Plant, Units 3 and Updates to Tier 1 Table 2.5.2-3 | |
| 83 FR 50723 - Self-Regulatory Organizations; Nasdaq BX, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Align Existing Investigatory and Disciplinary Processes and Related Rules With the Investigatory and Disciplinary Processes and Related Rules of Nasdaq PHLX LLC | |
| 83 FR 50739 - Delegation of Authority by the Secretary of State to the Administrator of the United States Agency for International Development of Functions and Authorities Under the Reinforcing Education Accountability in Development Act | |
| 83 FR 50686 - Exxon Valdez Oil Spill Public Advisory Committee | |
| 83 FR 50650 - Submission for OMB Review; Comment Request | |
| 83 FR 50674 - Senior Executive Service Performance Review Board | |
| 83 FR 50740 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: 2120-0043 | |
| 83 FR 50740 - Agency Information Collection Activities: Requests for Comments; Clearance of Reinstated Approval of Information Collection: Flight Simulation Device Initial and Continuing Qualification and Use | |
| 83 FR 50548 - Air Plan Approval; California; El Dorado County Air Quality Management District; Reasonably Available Control Technology Demonstration | |
| 83 FR 50510 - Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; 2017-2018 Biennial Specifications and Management Measures; Inseason Adjustments | |
| 83 FR 50556 - Air Quality Designation; Illinois; Indiana; Revised Designation of Illinois and Indiana 2012 PM2.5 | |
| 83 FR 50551 - Air Plan Approval; Illinois; Nonattainment New Source Review Requirements for the 2008 8-Hour Ozone Standard | |
| 83 FR 50737 - Vident Advisory, LLC et al. | |
| 83 FR 50647 - Costco Wholesale Corporation, Provisional Acceptance of a Settlement Agreement and Order | |
| 83 FR 50545 - Safety Zone; Barters Island Bridge, Back River, Barters Island, ME | |
| 83 FR 50503 - Safety Zone; North Hero-Grand Isle Bridge, Lake Champlain, VT | |
| 83 FR 50631 - Submission for OMB Review; Comment Request | |
| 83 FR 50542 - Amendment to Requirements for Consumer Registration of Durable Infant or Toddler Products | |
| 83 FR 50664 - Charter Renewal for the Council on Graduate Medical Education | |
| 83 FR 50643 - Proposed Information Collection; Comment Request; Access-Point Angler Intercept Survey (APAIS) | |
| 83 FR 50676 - 60-Day Notice of Proposed Information Collection: Public Housing 5-Year and Annual PHA Plan and MTW Supplement to the PHA Plan | |
| 83 FR 50677 - Notice of Proposed Information Collection to OMB: Emergency Comment Request, Indian Housing Block Grant (IHBG) Competitive Program | |
| 83 FR 50632 - National Advisory Committee on Meat and Poultry Inspection; Nominations for Membership | |
| 83 FR 50634 - Notice of Request To Renew an Approved Information Collection (Laboratories) | |
| 83 FR 50633 - Notice of Request To Renew an Approved Information Collection (Records To Be Kept by Official Establishments and Retail Stores That Grind Raw Beef Products) | |
| 83 FR 50739 - Notice of Public Meeting of the President's Emergency Plan for AIDS Relief (PEPFAR) Scientific Advisory Board | |
| 83 FR 50665 - Performance Review Board Members | |
| 83 FR 50665 - Meeting of the National Clinical Care Commission | |
| 83 FR 50646 - Endangered Species; File No. 22218 | |
| 83 FR 50639 - Stainless Steel Flanges From India: Antidumping Duty Order | |
| 83 FR 50637 - Narrow Woven Ribbons With Woven Selvedge From Taiwan: Preliminary Results of Antidumping Duty Administrative Review and Preliminary Determination of No Shipments; 2016-2017 | |
| 83 FR 50636 - Foreign-Trade Zone (FTZ) 12-McAllen, Texas; Authorization of Limited Production Activity; Black & Decker (U.S.), Inc. (Indoor and Outdoor Power Tools and Related Components) Mission, Texas | |
| 83 FR 50642 - Atlantic Highly Migratory Species; Advisory Panel | |
| 83 FR 50750 - Proposed Collection; Comment Request for Forms 1065, 1065-B, 1066, 1120, 1120-C, 1120-F, 1120-H, 1120-ND, 1120-S, 1120-SF, 1120-FSC, 1120-L, 1120-PC, 1120-REIT, 1120-RIC, 1120-POL, and Related Attachments | |
| 83 FR 50475 - United States Standards for Grades of Pecans | |
| 83 FR 50527 - Marketing Order Regulating the Handling of Spearmint Oil Produced in the Far West; Revision of the Salable Quantity and Allotment Percentage for Class 3 (Native) Spearmint Oil for the 2018-2019 Marketing Year | |
| 83 FR 50527 - Amendments to Quality Systems Verification Programs and Conforming Changes; Withdrawal | |
| 83 FR 50747 - Notice of Request for Comments: Scope of the Study on the Impact of Automated Vehicle Technologies on Workforce | |
| 83 FR 50531 - Pecans Grown in the States of Alabama, Arkansas, Arizona, California, Florida, Georgia, Kansas, Louisiana, Missouri, Mississippi, North Carolina, New Mexico, Oklahoma, South Carolina, and Texas; Revision of Reporting Requirements | |
| 83 FR 50746 - Notice of Request for Comments: Preparing for the Future of Transportation: Automated Vehicles 3.0 (AV 3.0) | |
| 83 FR 50745 - Notice of Rights and Protections Available Under the Federal Antidiscrimination and Whistleblower Protection Laws | |
| 83 FR 50641 - Gulf of Mexico Fishery Management Council; Public Meeting | |
| 83 FR 50636 - Soliciting Feedback From Users on 2020 Census Data Products; Reopening of Comment Period | |
| 83 FR 50704 - Agency Forms Submitted for OMB Review, Request for Comments | |
| 83 FR 50736 - Proposed Collection; Comment Request | |
| 83 FR 50713 - Submission for OMB Review; Comment Request | |
| 83 FR 50720 - Submission for OMB Review; Comment Request | |
| 83 FR 50722 - Submission for OMB Review; Comment Request | |
| 83 FR 50708 - Submission for OMB Review; Comment Request | |
| 83 FR 50689 - Meeting of the Compact Council for the National Crime Prevention and Privacy Compact | |
| 83 FR 50742 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel ENDLESS SUMMER; Invitation for Public Comments | |
| 83 FR 50741 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel RAY; Invitation for Public Comments | |
| 83 FR 50744 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel IREMIA; Invitation for Public Comments | |
| 83 FR 50743 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel ICONA; Invitation for Public Comments | |
| 83 FR 50668 - Submission for OMB Review; 30-Day Comment Request; Generic Clearance To Conduct Voluntary Customer/Partner Surveys (NLM) | |
| 83 FR 50644 - Proposed Information Collection; Comment Request; Alaska Community Quota Entity (CQE) Program | |
| 83 FR 50663 - Joint Meeting of the Anesthetic and Analgesic Drug Products Advisory Committee and the Drug Safety and Risk Management Advisory Committee; Notice of Meeting; Establishment of a Public Docket; Request for Comments | |
| 83 FR 50661 - Anesthetic and Analgesic Drug Products Advisory Committee; Notice of Meeting; Establishment of a Public Docket; Request for Comments | |
| 83 FR 50487 - Food Additives Permitted for Direct Addition to Food for Human Consumption; Styrene | |
| 83 FR 50490 - Food Additive Regulations; Synthetic Flavoring Agents and Adjuvants | |
| 83 FR 50533 - Agency Procedures for Responding to Adverse Court Decisions and Addressing Funding Shortfalls | |
| 83 FR 50484 - Deceptive Advertising as to Sizes of Viewable Pictures Shown by Television Receiving Sets | |
| 83 FR 50702 - Pendency for Request for Approval of Special Withdrawal Liability Rules: United Food and Commercial Workers International Union-Industry Pension Fund | |
| 83 FR 50687 - American Manufacturing Competitiveness Act: Effects of Temporary Duty Suspensions and Reductions on the U.S. Economy; Institution of Investigation and Scheduling of Hearing | |
| 83 FR 50610 - Endangered and Threatened Wildlife and Plants; 12-Month Petition Finding and Threatened Species Status for Eastern Black Rail With a Section 4(d) Rule | |
| 83 FR 50582 - Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule and Critical Habitat Designation for Slenderclaw Crayfish | |
| 83 FR 50682 - Privacy Act of 1974; System of Records | |
| 83 FR 50675 - Technical Assistance Request and Evaluation | |
| 83 FR 50574 - Endangered and Threatened Wildlife and Plants; Threatened Species Status for Coastal Distinct Population Segment of the Pacific Marten | |
| 83 FR 50560 - Endangered and Threatened Wildlife and Plants; Threatened Species Status for Black-Capped Petrel With a Section 4(d) Rule | |
| 83 FR 50669 - Florida; Amendment No. 3 to Notice of an Emergency Declaration | |
| 83 FR 50672 - Florida; Amendment No. 4 to Notice of an Emergency Declaration | |
| 83 FR 50670 - Florida; Amendment No. 16 to Notice of a Major Disaster Declaration | |
| 83 FR 50670 - South Carolina; Amendment No. 2 to Notice of a Major Disaster Declaration | |
| 83 FR 50646 - Announcement for the Upcoming Small Business Innovation Research Program (SBIR) Notice of Funding Opportunity and Procurement Award Changes for Fiscal Year 2019 and Beyond | |
| 83 FR 50705 - Self-Regulatory Organizations; BOX Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rules Relating to Registration and Qualification Examinations Required for Participants That Engage in Trading Activities on the Exchange | |
| 83 FR 50715 - Self-Regulatory Organizations; Nasdaq ISE, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Establish New Pricing for Flash Orders | |
| 83 FR 50713 - Self-Regulatory Organizations; ICE Clear Europe Limited; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Relating to F&O Risk Policies | |
| 83 FR 50721 - Self-Regulatory Organizations; Cboe Exchange, Inc.; Order Approving a Proposed Rule Change To Adopt Rule 6.57, Risk-Weighted Asset (“RWA”) Packages | |
| 83 FR 50718 - Self-Regulatory Organizations; BOX Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend BOX Rule 7600(a)(4) (Qualified Open Outcry Orders-Floor Crossing) | |
| 83 FR 50708 - Self-Regulatory Organizations; Municipal Securities Rulemaking Board; Notice of Filing of a Proposed Rule Change To Amend MSRB Rule G-3, on Professional Qualification Requirements, To Require Municipal Advisor Principals To Become Appropriately Qualified by Passing the Municipal Advisor Principal Qualification Examination | |
| 83 FR 50727 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Amendments To Rules Regarding Qualification, Registration and Continuing Education Applicable to Members and Member Organizations | |
| 83 FR 50672 - Privacy Act of 1974; Computer Matching Program | |
| 83 FR 50659 - Notice of Application Accepted for Filing, Soliciting Comments, Motions To Intervene, and Protests: Georgia Power Company | |
| 83 FR 50656 - Notice of Availability of the Draft Environmental Impact Statement for the Proposed Port Arthur Liquefaction Project, Texas Connector Project, and Louisiana Connector Project: Port Arthur LNG, LLC, PALNG Common Facilities Company LLC, Port Arthur Pipeline, LLC | |
| 83 FR 50652 - Commission Information Collection Activities (FERC-725R); Comment Request; Revision | |
| 83 FR 50655 - Notice Soliciting Scoping Comments: Erie Boulevard Hydropower, LP | |
| 83 FR 50658 - Erie Boulevard Hydropower, L.P.; Notice of Application Accepted for Filing and Soliciting Motions To Intervene and Protests | |
| 83 FR 50650 - Commission Information Collection Activities (FERC-919); Comment Request; Extension | |
| 83 FR 50655 - Notice of Schedule for Environmental Review of the Texas Eastern Transmission, LP Cameron System Abandonment Project | |
| 83 FR 50659 - Wallowa Resources Community Solutions Inc.; Notice of Preliminary Determination of a Qualifying Conduit Hydropower Facility and Soliciting Comments and Motions To Intervene | |
| 83 FR 50689 - Notice of Lodging Proposed Consent Decree | |
| 83 FR 50756 - Proposed Collection; Comment Request on Information Collection for Treasury Decision 9142 (Final) | |
| 83 FR 50666 - Government-Owned Inventions; Availability for Licensing | |
| 83 FR 50668 - Government-Owned Inventions; Availability for Licensing | |
| 83 FR 50661 - Submission for OMB Review; Comment Request | |
| 83 FR 50689 - Request for Information | |
| 83 FR 50667 - Government-Owned Inventions; Availability for Licensing | |
| 83 FR 50720 - In the Matter of Chicago Stock Exchange, Inc., 440 South LaSalle Street, Suite 800, Chicago, IL 60605; File No. SR-CHX-2017-04; Order Setting Aside the Order by Delegated Authority Approving SR-CHX-2017-04 | |
| 83 FR 50636 - Fresh Garlic From the People's Republic of China: Final Rescission of the Semiannual Antidumping Duty New Shipper Review of Qingdao Doo Won Foods Co., Ltd. | |
| 83 FR 50691 - Biweekly Notice; Applications and Amendments to Facility Operating Licenses and Combined Licenses Involving No Significant Hazards Considerations | |
| 83 FR 50536 - Proposed Primary Category Design Standards; Vertical Aviation Technologies (VAT) Model S-52L Rotorcraft | |
| 83 FR 50537 - Airworthiness Directives; Dassault Aviation Model FALCON 2000 Airplanes | |
| 83 FR 50539 - Airworthiness Directives; Airbus Defense and Space S.A. (Formerly Known as Construcciones Aeronauticas, S.A.) Airplanes | |
| 83 FR 50681 - Deepwater Horizon Oil Spill Draft Restoration Plan 1 and Environmental Assessment; Open Ocean Trustee Implementation Group | |
| 83 FR 50679 - Deepwater Horizon Oil Spill Florida Trustee Implementation Group Draft Restoration Plan 1 and Environmental Assessment: Habitat Projects on Federally Managed Lands; Nutrient Reduction; Water Quality; and Provide and Enhance Recreational Opportunities | |
| 83 FR 50645 - Proposed Information Collection; Comment Request; Alaska Region Amendment 80 Permits and Reports | |
| 83 FR 50477 - Airworthiness Directives; Dassault Aviation Airplanes | |
| 83 FR 50506 - Approval and Promulgation of Implementation Plans; New Jersey; Elements for the 2008 8-Hour Ozone National Ambient Air Quality Standards | |
| 83 FR 50482 - Airworthiness Directives; Airbus SAS Airplanes | |
| 83 FR 50479 - Airworthiness Directives; Dassault Aviation Airplanes | |
| 83 FR 50661 - Meeting of the Depository Library Council to the Acting Deputy Director | |
| 83 FR 50506 - Loan Guaranty: Ability-to-Repay Standards and Qualified Mortgage Definition Under the Truth-in-Lending Act | |
| 83 FR 50758 - Subsistence Management Regulations for Public Lands in Alaska-2018-19 and 2019-20 Subsistence Taking of Wildlife Regulations |
Issue
Agricultural Marketing Service
Food Safety and Inspection Service
Forest Service
Census Bureau
Foreign-Trade Zones Board
International Trade Administration
National Oceanic and Atmospheric Administration
Air Force Department
Federal Energy Regulatory Commission
Children and Families Administration
Food and Drug Administration
Health Resources and Services Administration
National Institutes of Health
Coast Guard
Federal Emergency Management Agency
Fish and Wildlife Service
Federal Bureau of Investigation
Federal Aviation Administration
Maritime Administration
Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
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Agricultural Marketing Service, USDA.
Direct final rule.
The Agricultural Marketing Service (AMS) is amending the U.S. Standards for Grades of Shelled Pecans and the U.S. Standards for Grades of Pecans in the Shell. The revisions include replacing the term “midget” with “extra small” in the Shelled Pecan standards and removing references to plastic models of pecan kernels and information on where the color standards may be examined from both standards.
This direct final rule is effective December 10, 2018; without further action or notice, unless significant adverse comment is received by November 8, 2018. If significant adverse comment is received, AMS will publish a timely withdrawal of this rule in the
Interested persons are invited to submit written comments to the USDA, Specialty Crops Inspection Division, 100 Riverside Parkway, Suite 101, Fredericksburg, VA 22406; fax: (540) 361-1199; or at
Lindsay H. Mitchell at the address above, by phone (540) 361-1120; fax (540) 361-1199; or, email
Section 203(c) of the Agricultural Marketing Act of 1946 (7 U.S.C. 1621-1627) as amended, directs and authorizes the Secretary of Agriculture “to develop and improve standards of quality, condition, quantity, grade, and packaging, and recommend and demonstrate such standards in order to encourage uniformity and consistency in commercial practices.”
The Agricultural Marketing Service (AMS) is committed to carrying out this authority in a manner that facilitates the marketing of agricultural commodities and makes copies of official standards available upon request. The U.S. Standards for Grades of Fruits and Vegetables that no longer appear in the Code of Federal Regulations are maintained by AMS at:
This rule is not expected to be an Executive Order 13771 regulatory action because this rule is not significant under Executive Order 12866. See the Office of Management and Budget's memorandum, “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017 titled `Reducing Regulation and Controlling Regulatory Costs' ” (February 2, 2017). 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). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility.
This rule has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. The review reveals that this regulation would not have substantial and direct effects on Tribal governments nor significant Tribal implications.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect. There are no administrative procedures that must be exhausted prior to any judicial challenge to the provisions of this rule.
AMS continuously reviews fruit and vegetable grade standards to assess their effectiveness in the industry and to modernize language. In addition, on May 13, 2013, AMS received a petition from the Little People of America stating that the group is “trying to raise awareness around and eliminate the use of the word midget.” The petition further stated that, “Though the use of the word midget by the USDA when classifying certain food products is benign, Little People of America, and the dwarfism community, hopes that the USDA would consider phasing out the term midget.” Five grade standards contain the term “midget”: U.S. Standards for Grades of Canned Lima Beans, U.S. Standards for Grades of Canned Mushrooms, U.S. Standards for Grades of Pickles, U.S. Standards for Grades of Green Olives, and U.S. Standards for Grades of Shelled Pecans. Canned lima beans, canned mushrooms, pickles, and green olives will be covered in another notice due to additional changes being made to those specific standards.
Prior to developing the proposed revisions to the pecan grade standards, AMS solicited comments and suggestions about the standards from the National Pecan Shellers Association (NPSA). The NPSA recommended replacing the term “midget” with “extra small.”
As part of modernizing the standards, the obsolete language regarding the purchase of plastic pecan models (PEC-MC-1) is being removed. These color standards are still in effect, but are no
A notice announcing these changes was published in the January 12, 2016,
AMS is making the following revisions in the U.S. Standards for Grades of Shelled Pecans:
• § 51.1436 Color classifications (b): Revised to remove reference to plastic models and address for viewing them.
• § 51.1437 Table I: Revised to change Midget to Extra small.
• § 51.1438 Table II and Table III: Revised to change Midget pieces to Extra small pieces.
• § 51.1443 Particles and dust: Revised to change midget to extra small.
In addition, AMS is making the following revision in the U.S. Standards for Grades of Pecans in the Shell:
• § 51.1403 Kernel color classifications (b): Revised to remove reference to plastic models and address.
Pursuant to the requirements set forth in the Regulatory Flexibility Act (RFA), AMS has considered the economic impact of this action on small entities. Accordingly, AMS prepared this final regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions so that small businesses will not be unduly or disproportionately burdened. Small agricultural producers have been defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts of less than $750,000. Small agricultural service firms (handlers) are defined as those with annual receipts of less than $7,500,000.
Considering the economic impact on small entities involves estimating whether a majority of growers and handlers in the U.S. pecan market qualify as small or large businesses. The following paragraphs explain a set of computations that achieves this goal.
Almost all U.S. pecans are grown in the 15-state production area of the Federal marketing order for pecans (Marketing Order 986). There are 2,500 growers of pecans in the production area and 250 handlers subject to regulation under the marketing order. The grower number estimate was supplied by the American Pecan Council, which administers the marketing order under the oversight of USDA. The handler number estimate comes from the Secretary's Decision on promulgating the marketing order (81 FR 10140).
According to data published by the National Agricultural Statistics Service (NASS), the 3-year average value of utilized pecan production for 2014 through 2016 was $591.204 million. Dividing this average value of utilized pecan production by the total number of pecan growers (2,500) provides an average return per grower estimate of $236,482, well below the SBA small business threshold of $750,000 in annual receipts. Using this average value of utilized production and grower number information, and assuming a normal bell-curve distribution of receipts among growers, the majority of growers qualify as small businesses.
Evidence presented in 2015 during formal rulemaking for the pecan Federal marketing order indicated an average handler margin of $0.58 per pound. Adding the handler margin to the 2014-2016 average grower price of $2.22 per pound of inshell pecans results in an estimated handler price of $2.80 per pound. Multiplying the estimated handler price by the 3-year average utilized production figure of 266.312 million pounds yields a total value of production at the handler level of $745.7 million. Dividing this handler-level value of utilized pecan production by the number of handlers (250) results in an average return per handler of $2.98 million, well below the SBA small business threshold of $7.5 million in annual receipts. Using this estimated price, utilization volume and value, and number of handlers, and assuming a normal bell-curve distribution of receipts among handlers, the majority of handlers qualify as small businesses.
The pecan standard changes are limited to modernizing grading terminology and removing language related to outdated vendor references for color standards. The pecan size standard currently known as “midget” will be changed to “extra small.” Additionally, obsolete vendor information for the pecan kernel color standards will be revised. Information regarding the purchasing of the color standards from the manufacturer is obsolete as models are no longer available. The inspection procedures and color standards will remain in effect. AMS also is removing outdated language in another section that identified where the kernel models could be viewed. The remaining language in that section identifies the four “color intensities” of the kernel color standards.
With the adoption of this rule, current inspection methods will continue unchanged. The “extra small” size category will be identical to the previous “midget” size category; only the name will change. Renaming the size category and continuing to use the current method of applying kernel color standards will not require any significant changes in grower or handler business operations. Any additional costs to growers and handlers will be negligible. No small businesses will be unduly or disproportionately burdened.
Renaming the size standard and removing outdated language helps keep grading standards current. Food grading standards provide important quality information to buyers and sellers, contributing to the efficient marketing of agricultural commodities.
A 30-day comment period is provided for public comment on the changes to the U.S. Standards for Grades of Shelled Pecans and the U.S. Standards for Grades of Pecans in the Shell proposed herein. If no significant comment is received, the changes in this rule, would be implemented 30 days thereafter.
Food grades and standards, Fruits, Nuts, Reporting and recordkeeping requirements, Vegetables.
For reasons set forth in the preamble, 7 CFR part 51 is amended as follows:
7 U.S.C. 1621—1627.
(b) U.S. Department of Agriculture kernel color standards, PEC-MC-1, illustrate the color intensities implied by the terms “golden,” “light brown,” “medium brown,” and “dark brown” referred to in paragraph (a) of this section.
(b) U.S. Department of Agriculture kernel color standards, PEC-MC-1, illustrate the color intensities implied by the terms “golden,” “light brown,” “medium brown,” and “dark brown” referred to in paragraph (a) of this section.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are adopting a new airworthiness directive (AD) for certain Dassault Aviation Model FALCON 900EX airplanes. This AD was prompted by reports of rejected take-offs due to untimely inboard flap retraction. This AD requires modification of the slat/flap control wiring and replacement of the slat/flap control box with an improved box. We are issuing this AD to address the unsafe condition on these products.
This AD is effective November 13, 2018.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of November 13, 2018.
For service information identified in this final rule, 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 issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Dassault Aviation Model FALCON 900EX airplanes. The NPRM published in the
We are issuing this AD to address an uncommanded retraction of the inboard slats and flaps during take-off, and consequent reduced 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 AD 2017-0219, dated November 14, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Dassault Aviation Model FALCON 900EX airplanes. The MCAI states:
An occurrence was reported where, during the take-off run, a red CAS [crew alerting system] message “NO TAKE OFF” was displayed, and an aural warning was given. The flight crew elected to abort the take-off. The configuration of the affected aeroplane was SF1 and indicated airspeed (IAS) was at 100 kts. Investigations showed that the outboard slat extended microswitch, located at track #7, was not correctly adjusted. A design review revealed that this deficiency may affect only Falcon 900LX (commercial designation) without modification M5636, during take-off in SF1 configuration.
This condition, if not corrected, could lead to an uncommanded retraction of inboard slats and flaps during take-off, possibly resulting in reduced control of the aeroplane.
To address this potential unsafe condition, DA [Dassault Aviation] designed modification M6043 and published Service Bulletin (SB) F900EX-522 to provide instructions for embodiment of this modification in-service.
For the reasons described above, this [EASA] AD requires a wiring modification and replacement of the slat/flap control box with an improved box.
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 received no comments on the NPRM or on the determination of the cost to the public.
We reviewed the relevant data 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.
Dassault Aviation has issued Dassault Aviation Service Bulletin F900EX-522, also referred to as 522, dated March 8, 2017. This service information describes procedures for modifying the slat/flap control wiring and replacing the slat/flap control box. 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 13 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
According to the manufacturer, some or all of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all known costs in our cost estimate.
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
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 November 13, 2018.
None.
This AD applies to Dassault Aviation Model FALCON 900EX airplanes, certificated in any category, serial number 240 and serial numbers 242 through 273 inclusive.
Air Transport Association (ATA) of America Code 27, Flight controls.
This AD was prompted by reports of rejected take-offs due to untimely inboard flap retraction. We are issuing this AD to address an uncommanded retraction of the inboard slats and flaps during take-off, and consequent reduced controllability of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Within 500 flight hours after the effective date of this AD, modify the slat/flap control wiring and replace the slat/flap control box having part number (P/N) 6-7061 with an improved control box, in accordance with the Accomplishment Instructions of Dassault Aviation Service Bulletin F900EX-522, also referred to as 522, dated March 8, 2017.
After modification of an airplane as required by paragraph (g) of this AD, no person may install any slat/flap control box having P/N 6-7061 on that airplane.
The following provisions also apply to this AD:
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2017-0219, dated November 14, 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 Tom Rodriguez, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3226.
(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) Dassault Aviation Service Bulletin F900EX-522, also referred to as 522, dated March 8, 2017.
(ii) Reserved.
(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
(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), Department of Transportation (DOT).
Final rule.
We are adopting a new airworthiness directive (AD) for certain Dassault Aviation Model FALCON 2000EX airplanes. This AD was
This AD is effective November 13, 2018.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of November 13, 2018.
For service information identified in this final rule, 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 issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Dassault Aviation Model FALCON 2000EX airplanes. The NPRM published in the
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2018-0021, dated January 29, 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 2000EX airplanes. The MCAI states:
The airworthiness limitations for Dassault Falcon 2000EX aeroplanes, which are approved by EASA, are currently defined and published in Aircraft Maintenance Manual (AMM) Airworthiness Limitations Section (ALS) Chapter 5-40. These instructions have been identified as mandatory for continued airworthiness.
Failure to accomplish these instructions could result in an unsafe condition [
EASA previously issued [EASA] AD 2012-0157 [which corresponds to FAA AD 2014-16-12, Amendment 39-17936 (79 FR 52187, September 3, 2014) (“AD 2014-16-12”)], requiring the actions described in Dassault Falcon 2000EX AMM Chapter 5-40 (DGT 113877) at Revision 07.
Since that [EASA] AD was issued, Dassault published Revision 11 of Dassault Falcon 2000EX AMM Chapter 5-40 (DGT 113877), containing new and/or more restrictive maintenance tasks and introducing (among other changes) an operational test for Cursor Control Device.
For the reason described above, this [EASA] AD retains the requirements of EASA AD 2012-0157, which is superseded, and requires accomplishment of the actions specified in the Dassault Falcon 2000EX AMM Chapter 5-40 (DGT 113877) at Revision 11 * * *.
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 received no comments on the NPRM or on the determination of the cost to the public.
We reviewed the relevant data 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.
Dassault Aviation has issued Chapter 5-40, Airworthiness Limitations, DGT 113877, Revision 11, dated November 2017, of the Dassault Falcon 2000EX Maintenance Manual. This service information describes instructions applicable to airworthiness and safe life limitations. 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 181 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 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
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 November 13, 2018.
This AD affects AD 2010-26-05, Amendment 39-16544 (75 FR 79952, December 21, 2010) (“AD 2010-26-05”); and AD 2014-16-12, Amendment 39-17936 (79 FR 52187, September 3, 2014) (“AD 2014-16-12”).
This AD applies to Dassault Aviation Model FALCON 2000EX airplanes, certificated in any category, with an original certificate of airworthiness or original export certificate of airworthiness issued on or before January 15, 2018.
Air Transport Association (ATA) of America Code 05, Time limits/maintenance checks.
This AD was prompted by manufacturer revisions to the airplane maintenance manual (AMM) that introduce new or more restrictive maintenance requirements and airworthiness limitations. We are issuing this AD to address 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 Chapter 5-40, Airworthiness Limitations, DGT 113877, Revision 11, dated November 2017, of the Dassault Falcon 2000EX Maintenance Manual. The initial compliance times for doing the tasks are at the time specified in Chapter 5-40, Airworthiness Limitations, DGT 113877, Revision 11, dated November 2017, of the Dassault Falcon 2000EX Maintenance Manual, or within 90 days after the effective date of this AD, whichever occurs later; except for task number 52-20-00-610-801-01, the initial compliance time is within 24 months after October 8, 2014 (the effective date of AD 2014-16-12). The term “LDG” in the “First Inspection” column of any table in Chapter 5-40, Airworthiness Limitations, DGT 113877, Revision 11, dated November 2017, means total airplane landings. The term “FH” in the “First Inspection” column of any table in Chapter 5-40, Airworthiness Limitations, DGT 113877, Revision 11, dated November 2017, means total flight hours. The term “FC” in the “First Inspection” column of any table in Chapter 5-40, Airworthiness Limitations, DGT 113877, Revision 11, dated November 2017, means total flight cycles.
After the maintenance or inspection program has been revised as required by paragraph (g) of this AD, no alternative actions (
(1) Accomplishing the actions required by paragraph (g) of this AD terminates all of the requirements of AD 2014-16-12.
(2) Accomplishing the actions specified in paragraph (g) of this AD terminates the requirements of paragraph (g) of AD 2010-26-05 for Dassault Aviation Model FALCON 2000EX airplanes.
The following provisions also apply to this AD:
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2018-0021, dated January 29, 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.
(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) Chapter 5-40, Airworthiness Limitations, DGT 113877, Revision 11, dated
(ii) Reserved.
(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
(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), Department of Transportation (DOT).
Final rule.
We are adopting a new airworthiness directive (AD) for all Airbus SAS Model A300 series airplanes; Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes); and Model A310 series airplanes. This AD was prompted by a report of yellow hydraulic system failure, including both braking accumulators, due to failure of the parking brake operated valve (PBOV). This AD requires replacement of a certain PBOV with a different PBOV. We are issuing this AD to address the unsafe condition on these products.
This AD is effective November 13, 2018.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of November 13, 2018.
For service information identified in this final rule, contact Airbus SAS, Airworthiness Office—EAW, 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
Dan Rodina, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3225.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus SAS Model A300 series airplanes; Model A300 B4-600, A300 B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes); and Model A310 series airplanes. The NPRM published in the
We are issuing this AD to address failure of the PBOV, which could result in no braking capability during ground operations, possibly leading to damage to the airplane and injury to people on the ground.
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2017-0153, dated August 17, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus SAS Model A300 series airplanes; Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes); and Model A310 series airplanes. The MCAI states:
An occurrence was reported where yellow hydraulic system, including both braking accumulators, was lost. This was confirmed by ECAM [electronic centralized aircraft monitor] warnings and single chimes during taxiing. Normal braking on green hydraulic circuit was used until aeroplane stopped at parking position. A few seconds later, the aeroplane slowly accelerated, until colliding with a wall and a bus. The crew reported that the parking brake was selected and full braking pedals were applied, but with no effect since normal braking was inhibited after Parking Brake was set to ON. Investigation results identified that this occurrence was due to failure of the parking brake operated valve (PBOV), Part Number (P/N) A25315-1.
This condition [parking brake failure], if not corrected, could lead to further incidents, possibly resulting in damage to the aeroplane and injury to persons on the ground.
Prompted by this event, Airbus issued Service Bulletin (SB) A300-32-0467, SB A310-32-2151, SB A300-32-6117 and SB A300-32-9023, as applicable, to provide instructions for in-service installation of the PBOV P/N A25315020-2 introduced by Airbus Modification 13201 for A300/A310/A300-600 and Airbus Modification 19601 for A300-600ST.
For the reason described above, this [EASA] AD requires replacement of the PBOV P/N A25315-1 by PBOV P/N A25315020-2.
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. The following presents the comments received on the NPRM and the FAA's response to each comment.
The Air Line Pilots Association, International (ALPA) indicated its support for the NPRM.
Airbus requested that the compliance time of the proposed AD be revised so operators would have all required actions completed by August 31, 2022, instead of 60 months after the effective date of the final rule. Airbus noted that August 31, 2022, is the calendar date that corresponds with the compliance time in EASA AD 2017-0153, which is 60 months after August 31, 2017 (the effective date of EASA AD 2017-0153).
We disagree with the commenter's request. In consideration of the average utilization rate by the affected U.S. operators, the practical aspects of an orderly modification of the U.S. fleet during regular maintenance periods, and the availability of required parts, we have determined that a 60-month compliance time is appropriate. However, most ADs, including this one, permit operators to accomplish the requirements of an AD at a time earlier then the specified compliance time.
Furthermore, using the compliance time proposed by Airbus would effectively reduce the compliance time for this AD, and we would have to provide an additional public comment period, which would further delay the issuance of this AD. We have not changed this AD in regard to this issue.
We reviewed the relevant data, considered the comments 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 Service Bulletin A300-32-0467, dated July 4, 2017; Service Bulletin A300-32-6117, dated July 4, 2017; and Service Bulletin A310-32-2151, dated July 4, 2017. This service information describes procedures for replacing the PBOV. These documents are distinct since they apply to different airplane models. 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 147 airplanes of U.S. registry. We estimate the following costs to comply with this AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to 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 November 13, 2018.
None.
This AD applies to the Airbus SAS airplanes identified in paragraphs (c)(1) through (c)(6) of this AD, certificated in any category, all manufacturer serial numbers.
(1) Model A300 B2-1A, B2-1C, B2K-3C, B2-203, B4-2C, B4-103, and B4-203 airplanes.
(2) Model A300 B4-601, B4-603, B4-620, and B4-622 airplanes.
(3) Model A300 B4-605R and B4-622R airplanes.
(4) Model A300 F4-605R and F4-622R airplanes.
(5) Model A300 C4-605R Variant F airplanes.
(6) Model A310-203, -204, -221, -222, -304, -322, -324, and -325 airplanes.
Air Transport Association (ATA) of America Code 32, Landing gear.
This AD was prompted by a report of yellow hydraulic system failure, including both braking accumulators, due to failure of the parking brake operated valve (PBOV). We are issuing this AD to address failure of the PBOV, which could result in no braking capability during ground operations, possibly leading to damage to the airplane and injury to people on the ground.
Comply with this AD within the compliance times specified, unless already done.
Within 60 months after the effective date of this AD, replace the PBOV having part number (P/N) A25315-1 with a PBOV having P/N A25315020-2, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A300-32-0467, dated July 4, 2017; Airbus Service Bulletin A300-32-6117, dated July 4, 2017; or Airbus Service Bulletin A310-32-2151, dated July 4, 2017; as applicable.
(1) After modification of an airplane as required by paragraph (g) of this AD, do not install any PBOV having P/N A25315-1 on that airplane.
(2) For an airplane that, as of the effective date of this AD, has a PBOV having P/N A25315020-2 installed: As of the effective date of this AD, do not install any PBOV having P/N A25315-1 on that airplane.
The following provisions also apply to this AD:
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2017-0153, dated August 17, 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 Dan Rodina, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3225.
(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 Service Bulletin A300-32-0467, dated July 4, 2017.
(ii) Airbus Service Bulletin A300-32-6117, dated July 4, 2017.
(iii) Airbus Service Bulletin A310-32-2151, dated July 4, 2017.
(3) For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAW, 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 Trade Commission.
Final rule.
The Federal Trade Commission (“Commission”) has completed its regulatory review of its Trade Regulation Rule Concerning the Deceptive Advertising as to Sizes of Viewable Pictures Shown by Television Receiving Sets (“Picture Tube Rule” or “Rule”), as part of its systematic review of all current Commission regulations and guides. Pursuant to that review, the Commission now determines that the Rule is no longer necessary to prevent deceptive claims regarding the size of television screens and to encourage uniformity and accuracy in their marketing. The Commission, therefore, repeals the Rule.
This rule is effective January 7, 2019.
Relevant portions of the record of this proceeding, including this document, are available at
John Andrew Singer, Attorney, (202) 326-3234, Division of Enforcement, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW, CC-9528, Washington, DC 20580.
The Commission promulgated the Picture Tube Rule in 1966
Based on these concerns, the Rule sets forth the means to non-deceptively advertise the dimensions of television screens.
The Commission reviews its rules and guides periodically to seek information about their costs and benefits, regulatory and economic impact, and general effectiveness in protecting consumers and helping industry avoid deceptive claims. These reviews assist the Commission in identifying rules and guides that warrant modification or repeal. The Commission last reviewed the Rule in 2006, leaving it unchanged.
In its 2017 ANPR initiating the current Rule review, the Commission solicited comment on, among other things: The economic impact of and the continuing need for the Rule; the Rule's benefits to consumers; and the burdens it places on industry, including small businesses.
The Commission further solicited comment regarding how consumers understand dimension claims for television screens, including: Whether consumers understand the stated dimensions; whether the dimensions are limited to the screen's viewable portion; and whether the dimensions are based on a single-plane measurement that does not include curvature in the screen. The Commission also solicited input on whether advances in broadcasting and television technology, such as the introduction of curved screen display panels and changing aspect ratios (
The Commission received two comments in response, both urging the Commission to repeal the Rule.
Commission staff observations confirmed that virtually all televisions in the marketplace have flat screens. Moreover, staff observed that marketers uniformly advertise the diagonal screen measurement for televisions, as well as for devices with screens not subject to the Rule, such as computer monitors, tablets, and cellphones.
Based upon the comments to the ANPR and staff's observations, the Commission's 2018 NPR proposed repealing the Rule.
Accordingly, in its 2018 NPR, the Commission preliminarily concluded that the Rule is outdated and no longer necessary to protect consumers and stated that, “[n]othing in the record suggests that repealing the Rule would likely result in any consumer deception.”
The Commission received four comments in response to the NPR.
In support of repeal, CTA repeated its contention that the state of technology for televisions—flat screens extending to virtually the end of any casing—make it unlikely that any manufacturer would use any measurement other the diagonal dimension of the screen to represent its size.
CTA also asserted that the Commission previously repealed trade regulation rules under similar circumstances, including when rules became obsolete due to changing technology;
Finally, CTA requested that, in addition to repealing the Rule, the Commission affirmatively declare that all “state regulations akin to the Rule—including interpretations of state laws prohibiting unfair or deceptive acts or practices—are in conflict with federal policy and are therefore preempted.”
Three individual consumers urged the Commission to retain the Rule unchanged. John Stover stated the Rule should remain in effect because its retention “does no harm.” Georgianne Giese commented the Rule should remain in effect because, “if it ain't broke, don't fix it,” and because the Rule standardizes television screen measurement. Finally, Frank Muenzer stated that the proposed repeal of the Rule “appears to be a politically motivated completely unnecessary removal of a useful regulation.”
Section 18 of the FTC Act, 15 U.S.C. 57a, authorizes the Commission to promulgate, amend, and repeal trade regulation rules that define with specificity acts or practices that are unfair or deceptive in or affecting commerce within the meaning of section 5(a)(1) of the FTC Act, 15 U.S.C. 45(a)(1). The Commission regularly reviews its rules to ensure they are up-to-date, effective, and not overly burdensome, and has repealed a number of trade regulation rules after finding they were no longer necessary to protect consumers.
The additional comments received in response to the NPR affirm the Commission's preliminary conclusion
First, the record indicates that the Rule has not kept up with changes in the marketplace. Specifically, as both CTA's comments and Commission staff's observations confirm, virtually all televisions now have flat screens where the viewable image covers the entire surface.
Second, to the extent lack of uniformity in screen size measurements (
Finally, the record lacks evidence of any deception in the marketplace that supports a continuing need for the Rule. No commenter submitted information indicating that manufacturers are making deceptive screen size claims. Additionally, the Commission has received no complaints about manufacturers making such claims over the past 5 years.
Accordingly, the Commission concludes that the Rule is no longer necessary to protect consumers from deceptive representations of screen size or to encourage uniformity and accuracy in marketing televisions. Nothing in the record suggests that repealing the Rule would likely result in any consumer deception. Therefore, any minimal costs associated with the Rule for businesses now outweigh any benefits to consumers.
To prevent what CTA characterized as the potential for “a complicated patchwork quilt of inconsistent [state law] mandates,”
While the Commission concludes that a trade regulation rule for television screen measurement is no longer necessary, it retains its authority to address future unfair or deceptive practices relating to television screen measurement on a case-by-case basis.
Under Section 22 of the FTC Act, 15 U.S.C. 57b-3, the Commission must issue a final regulatory analysis for a proceeding to amend a rule only when it: (1) Estimates that the amendment will have an annual effect on the national economy of $100 million or more; (2) estimates that the amendment will cause a substantial change in the cost or price of certain categories of goods or services; or (3) otherwise determines that the amendment will have a significant effect upon covered entities or upon consumers. The Commission determines that the repeal of the Rule will not have such effects on the national economy; on the cost of televisions; or on covered parties or consumers. The Rule repeal, rather than imposing any costs on covered parties or consumers, will eliminate any costs associated with complying with the Rule. Accordingly, the repeal of the Rule is exempt from Section 22's final regulatory analysis requirements.
The Regulatory Flexibility Act (“RFA”), 5 U.S.C. 601-612, requires that the Commission conduct an analysis of the anticipated economic impact of the amendment of a rule on small entities. The purpose of a regulatory flexibility analysis is to ensure that an agency considers the impacts on small entities and examines regulatory alternatives that could achieve the regulatory purpose while minimizing burdens on small entities. Section 605 of the RFA, 5 U.S.C. 605, provides that such an analysis is not required if the agency head certifies that the regulatory action will not have a significant economic impact on a substantial number of small entities. The Commission concludes that the repeal of the Rule will not have a significant economic impact upon small entities because the Rule's repeal will eliminate any costs associated with complying with the Rule. Therefore, in the Commission's view, the repeal of the Rule will not have a significant or disproportionate impact on the costs of small entities that sell televisions. These entities appear to provide consumers with the screen size as measured by a television's manufacturer and that typically appears on a television's packaging. In addition, the Commission is not aware of any existing federal laws or regulations that address the measurement of television screens and that would conflict with the repeal of the Rule. Therefore, based on available information, the Commission certifies that repealing the Rule will not have a significant economic impact on a substantial number of small entities.
For the reasons stated in the preamble, and under the authority of 15 U.S.C. 57a, the Commission removes 16 CFR part 410.
Advertising, Electronic funds transfer, Television, and Trade practices.
By direction of the Commission, Commissioner Wilson not participating.
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA, the Agency, or we) is amending the food additive regulations to no longer provide for the use of styrene as a flavoring substance and adjuvant for use in food because these uses have been abandoned. We are taking this action in response to a food additive petition submitted by the Styrene Information and Research Center (SIRC).
This rule is effective October 9, 2018. See section VIII for further information on the filing of objections. Submit either electronic or written objections and requests for a hearing on the final rule by November 8, 2018.
You may submit objections and requests for a hearing as follows. Please note that late, untimely filed objections will not be considered. Electronic objections must be submitted on or before November 8, 2018. Objections received by mail/hand delivery/courier (for written/paper submissions) will be considered timely if they are postmarked or the delivery service acceptance receipt is on or before that date.
Submit electronic objections in the following way:
•
• If you want to submit an objection with confidential information that you do not wish to be made available to the public, submit the objection as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper objections submitted to the Dockets Management Staff, FDA will post your objection, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit an objection with confidential information that you do not wish to be made publicly available, submit your objections 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
Judith Kidwell, Center for Food Safety and Applied Nutrition (HFS-265), Food and Drug Administration, 5001 Campus Dr., College Park, MD 20740-3835, 240-402-1071.
In the
Section 409(i) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 348(i)) states that we must by regulation establish the procedure for amending or repealing a food additive regulation and that this procedure must conform to the procedure provided in section 409 of the FD&C Act for the issuance of such regulations. Our regulations specific to administrative actions for food additives provide that the Commissioner of Food and Drugs, on his own initiative or on the petition of any interested person, under 21 CFR part 10, may propose the issuance of a regulation amending or repealing a regulation pertaining to a food additive or granting or repealing an exception for such additive (§ 171.130(a) (21 CFR 171.130(a))). The regulations further provide that any such petition must include an assertion of facts, supported by data, showing that new information exists with respect to the food additive or that new uses have been developed or old uses abandoned, that new data are available as to toxicity of the chemical, or that experience with the existing regulation or exemption may justify its amendment or repeal. New data must be furnished in the form specified in §§ 171.1 and 171.100 for submitting petitions (§ 171.130(b)). Under these regulations, a petitioner may propose that we amend a food additive regulation if the petitioner can demonstrate that there are “old uses abandoned” for the relevant food additive. Such abandonment must be complete for any intended uses in the United States market. While section 409 of the FD&C Act and § 171.130 also provide for amending or revoking a food additive regulation based on safety, an amendment or revocation based on abandonment is not based on safety, but is based on the fact that regulatory authorization is no longer necessary because the use of that food additive has been abandoned.
Abandonment may be based on the abandonment of certain authorized food additive uses for a substance (
The petition submitted on behalf of SIRC contains information collected from its members to support the petitioner's claim that styrene is no longer manufactured, imported, or otherwise marketed for use as a synthetic flavoring substance and adjuvant in food in the U.S. market and that industry has abandoned such use of styrene. Specifically, the petition contained information SIRC collected through surveying its membership, which contains over 95 percent of the current North American styrene industry, to verify that its members:
• Do not currently manufacture styrene for use as a synthetic flavoring substance and adjuvant in food in the United States;
• do not currently import styrene for use as a synthetic flavoring substance and adjuvant in food into the United States;
• do not intend to manufacture or import styrene for use as a synthetic flavoring substance and adjuvant in food in the United States in the future; and
• do not currently maintain any inventory of styrene for sale or distribution into commerce that is intended to be marketed for use as a synthetic flavoring substance and adjuvant in food in the United States.
SIRC also confirmed that no foreign manufacturers appear to be using or marketing styrene for use as a synthetic flavoring substance or adjuvant in food, based on information received from the Japan Styrene Industry Association, the European Chemical Industry Council, and contacts in China.
Additionally, SIRC consulted with the Flavor and Extract Manufacturers Association of the Unites States and received a determination confirming that the Flavor and Extract Manufacturers Association members no longer use or produce styrene as a synthetic flavoring substance or adjuvant in food. The Flavor and Extract Manufacturers Association also submitted to the docket for this petition data and information in support of the petition, which FDA reviewed and evaluated in making its decision on this petition. The Flavor and Extract Manufacturers Association is a national association of the U.S. flavor industry whose members include flavor manufacturers, flavor users, flavor ingredient suppliers, and others. Based on information provided from Flavor and Extract Manufacturers Association, its members manufacture more than 95 percent of all flavoring substances sold in the United States.
We provided 60 days for comments on the filing notice. We received two comments. For ease of reading, we preface each comment discussion with a numbered “Comment,” and the word “Response” appears before FDA's response. The number assigned is for organizational purposes only and does not signify any individual comment's value, importance, or order in which it was received. One comment expressed concerns about the timing of FDA action on SIRC's abandonment petition. This comment is summarized below, followed by FDA's response. The other comment supported SIRC's conclusions that the use of styrene as a synthetic flavoring substance or adjuvant in food has been abandoned.
(Comment 1) One comment requested that we not make a final decision on the petition until after we make a final decision on a food additive petition (FAP 5A4810) submitted in 2015 by several consumer groups asking us to remove styrene (and six other additives) from § 172.515 as a synthetic flavoring substance and adjuvant in food on the basis that it is not safe for use in food (Docket No. FDA-2015-F-4317). The comment stated that if we make a decision on the petition based on abandonment before making a decision on FAP 5A4810 based on safety, a company may conclude that the use of styrene is generally recognized as safe (GRAS) without notifying us. The comment also stated that making a decision based on abandonment “leaves unresolved the safety issue . . . and encourages industry to only consider whether something is abandoned in order to preempt a safety decision.” Further, the comment stated that FDA is statutorily required to regulate food additives and prevent the use of those that are unsafe and that FDA's failure to make a determination based on safety would fall short of FDA's statutory duty.
(Response 1) FDA disagrees. We are not required to make a final decision on FAP 5A4810 before the current petition. With regard to the assertion that FDA is required to make a safety determination and that failure to do so falls short of FDA's statutory duty, FDA has numerous responsibilities related to food additives. Each year, FDA receives and responds to hundreds of submissions under the various petition and notification programs we administer. Therefore, if the use of a food additive is no longer authorized in response to an abandonment petition, FDA may determine that it is neither necessary nor an efficient use of its limited resources to address safety arguments related to an abandoned use.
With regard to the comment's concern that a manufacturer may conclude that the use of styrene as a synthetic flavoring substance and adjuvant in food is GRAS without notifying us, we note that, for a substance to be GRAS based on scientific procedures, the scientific data and information about the use of a substance must be generally available and there must be general recognition among qualified experts that those data and information establish that the substance is safe under the conditions of its intended use (21 CFR 170.30). Prior approval as a food additive does not mean that the use of a substance is GRAS (see 81 FR 54960 at 54976, August 17, 2016). FDA encourages firms to seek our evaluation of any conclusion of GRAS status before they introduce the substance into the market. In the event that a manufacturer later wishes to reinstate the use of styrene as a synthetic flavoring substance and adjuvant in food, we would expect the manufacturer to seek re-authorization through submission of a food additive petition because this intended use was previously authorized under section 409 of the FD&C Act.
With regard to the assertion that an abandonment petition could be used by industry to preempt a safety determination by FDA, we have the discretion to make a safety determination regardless of whether there is an abandonment petition.
Elsewhere in this issue of the
FDA reviewed the data and information in the petition and other available relevant material to evaluate whether the use of styrene as a synthetic flavoring substance and adjuvant in food has been has been permanently and completely abandoned. Based on the available information, we have determined that the use of styrene as a synthetic flavoring substance and adjuvant in food has been abandoned. Therefore, we are amending § 172.515 to no longer provide for the use of styrene as a synthetic flavoring substance and adjuvant in food.
In accordance with § 171.1(h) (21 CFR 171.1(h)), the petition and the documents that we considered and relied upon in reaching our decision to approve the petition will be made available for public disclosure (see
We previously considered the environmental effects of this rule, as stated in the June 15, 2016,
This final rule contains no collection of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.
If you will be adversely affected by one or more provisions of this regulation, you may file with the Dockets Management Staff (see
Any objections received in response to the regulation may be seen in the Dockets Management Staff between 9 a.m. and 4 p.m., Monday through Friday, and will be posted to the docket at
Food additives, Reporting and recordkeeping requirements.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Director, Center for Food Safety and Applied Nutrition, 21 CFR part 172 is amended as follows:
21 U.S.C. 321, 341, 342, 348, 371, 379e.
Food and Drug Administration, HHS.
Final rule; notification of partial denial of petition.
The Food and Drug Administration (FDA, the Agency, or we) is partially granting a petition submitted by the Breast Cancer Fund (now known as the Breast Cancer Prevention Partners), Center for Environmental Health, Center for Food Safety, Center for Science in the Public Interest, Consumers Union, Environmental Defense Fund, Environmental Working Group, Improving Kids' Environment, Natural Resources Defense Council, WE ACT for Environmental Justice, and Mr. James Huff, by amending the food additive regulations to no longer authorize the use of benzophenone, ethyl acrylate, eugenyl methyl ether, myrcene, pulegone, and pyridine as synthetic flavoring substances for use in food. We are taking this action because, despite FDA's scientific analysis and determination that these substances do not pose a risk to public health under the conditions of their intended use, the petitioners provided data demonstrating that these additives induce cancer in laboratory animals, and, as a result of this finding in animals, FDA cannot as a matter of law maintain the listing of these synthetic flavoring substances in the food additive regulations. Because of evidence that benzophenone causes cancer in animals, FDA also is amending the food additive regulations to no longer provide for the use of benzophenone as a plasticizer in rubber articles intended for repeated use in contact with food. FDA is denying as moot the portions of the petition proposing that the food additive regulations be amended to no longer authorize the use of styrene as a synthetic flavoring substance because this use has been permanently and completely abandoned. In addition, FDA is declining to act on the petitioners' request to issue a regulation to prohibit the use of these synthetic flavoring substances in food because that issue is not the proper subject of a food additive petition.
This rule is effective October 9, 2018. See section IX for further information on the filing of objections. Submit either electronic or written objections and requests for a hearing on the final rule by November 8, 2018.
You may submit objections and requests for a hearing as follows. Please note that late, untimely filed objections will not be considered. Electronic objections must be submitted on or before November 8, 2018. Objections received by mail/hand delivery/courier (for written/paper submissions) will be considered timely if they are postmarked or the delivery service acceptance receipt is on or before that date.
Submit electronic objections in the following way:
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• If you want to submit an objection with confidential information that you do not wish to be made available to the public, submit the objection 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 objections submitted to the Dockets Management Staff, FDA will post your objection, as
• Confidential Submissions—To submit an objection with confidential information that you do not wish to be made publicly available, submit your objections 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.” We will review this copy, including the claimed confidential information, in our 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
Judith Kidwell, Center for Food Safety and Applied Nutrition (HFS-265), Food and Drug Administration, 5001 Campus Dr., College Park, MD 20740-3835, 240-402-1071.
In the
The petition proposed that we take two separate regulatory actions: (1) Amend the food additive regulations in § 172.515
The seven food additives that are the subject of this petition are:
1. Benzophenone (also known as diphenylketone) (CAS No. 119-61-9);
2. Ethyl acrylate (CAS No. 140-88-5);
3. Eugenyl methyl ether (also known as 4-allylveratrole or methyl eugenol) (CAS No. 93-15-2);
4. Myrcene (also known as 7-methyl-3-methylene-1,6-octadiene) (CAS No. 123-35-3);
5. Pulegone (also known as
6. Pyridine (CAS No. 110-86-1); and
7. Styrene (CAS No. 100-42-5).
We stated in the notice of petition that, although the petition only proposes to amend § 172.515 to no longer provide for the use of these seven synthetic flavoring substances, FDA's action in response to the petition could affect other regulations that provide for the use of the additives. Specifically, in the notice we identified the use of benzophenone, which is approved as an indirect food additive,
This final rule partially granting the request to revise the regulations to no longer provide for the use of these synthetic flavorings in food, and the partial denial given the petitioners' request falls outside the scope of the food additive petition process, completely responds to the petition.
The FD&C Act authorizes us to regulate “food additives” (see section 409(a) of the FD&C Act). The FD&C Act defines “food additive,” in relevant part, as any substance the intended use of which results or may reasonably be expected to result, directly or indirectly, in its becoming a component of food (see section 201(s) of the FD&C Act (21 U.S.C. 321(s))). Food additives can include both substances added directly to food and “food contact substance[s]” (
The FD&C Act provides a process through which persons who wish to use a food additive may submit a petition proposing the issuance of a regulation prescribing the conditions under which the additive may be safely used (see section 409(b)(1) of the FD&C Act). Such a petition is referred to as a “food additive petition.” A food additive petition must either propose the issuance of a regulation prescribing the conditions under which a food additive may be safely used (see section 409(b)(1) of the FD&C Act), or propose the amendment or repeal of an existing food additive regulation (see section 409(i) of the FD&C Act). When we conclude that a proposed use of a food additive is safe, we issue a regulation called a “food additive regulation” authorizing a specific use of the substance.
A food additive cannot be approved for use unless the data presented to FDA establish that the food additive is safe for that use (section 409(c)(3)(A) of the FD&C Act). To determine whether a food additive is safe, the FD&C Act requires FDA to consider, among other relevant factors: (1) Probable consumption of the additive; (2) cumulative effect of such additive “in the diet of man or animals”; and (3) safety factors recognized by experts “as appropriate for the use of animal experimentation data” (section 409(c)(5) of the FD&C Act). FDA's determination that a food additive use is safe means that there is a “reasonable certainty in the minds of competent scientists that the substance is not harmful under the intended conditions of use” (§ 170.3(i)). However, FDA cannot approve a food additive if it is found “to induce cancer when ingested by man or animal, or if it is found, after tests which are appropriate for the evaluation of the safety of food additives, to induce cancer in man or animal” (section 409(c)(3)(A) of the FD&C Act). This provision, which is often referred to as the “Delaney Clause,” was added to the FD&C Act by the Food Additives Amendment of 1958 (Pub. L. 85-929). The Delaney Clause limits FDA's discretion to determine the safety of food additives, in that it prevents FDA from finding a food additive to be safe if it has been found to induce cancer when ingested by humans or animals, regardless of the probability, or risk, of cancer associated with exposure to the additive or of the extent to which the experimental conditions of the animal study or the carcinogenic mode of action provide insight into the health effects of human consumption and use of the additive in question. In
The FD&C Act provides that FDA must by regulation prescribe the procedure by which a food additive regulation may be amended or repealed (see section 409(i) of the FD&C Act). Our regulation specific to the administrative actions for food additives provides that the Commissioner of Food and Drugs (the Commissioner), on his or her own initiative or on the petition of any interested person, may propose the issuance of a regulation amending or repealing a regulation pertaining to a food additive (see § 171.130(a) (21 CFR 171.130(a))). Our regulation, at § 171.130(b), further provides that any such petition must include an assertion of facts, supported by data, showing that new information exists with respect to the food additive or that new uses have been developed or old uses abandoned, that new data are available as to toxicity of the chemical, or that experience with the existing regulation or exemption may justify its amendment or repeal.
The specific food additive regulation at issue in the petition, § 172.515, lists synthetic flavoring substances and adjuvants that may be safely used in food in accordance with the conditions in the regulation. At issue in the petition are seven synthetic flavorings and adjuvants listed in this regulation: Benzophenone (also known as diphenylketone), ethyl acrylate, eugenyl methyl ether (also known as 4-allylveratrole or methyl eugenol), myrcene (also known as 7-methyl-3-methylene-1,6-octadiene), pulegone (also known as p-menth-4(8)-en-3-one, pyridine, and styrene. The petitioners assert that new data establish that these synthetic flavoring additives are carcinogenic and therefore not safe for use in food pursuant to the Delaney Clause.
Related to FAP 5A4810, in a document published in the
In the
We have evaluated the data and information submitted by the petitioners, as well as other relevant carcinogenicity data and information, and have determined the remaining six synthetic flavoring substances (
In making this determination, we reiterate the point, first made in our 1964 proposed rulemaking, that all of the synthetic flavoring substances that are the subject of the petition have a natural counterpart in food or in natural substances used to flavor foods. For example, benzophenone is present in grapes, ethyl acrylate is present in pineapple, eugenyl methyl ether (methyl eugenol) is present in basil, myrcene is present in citrus fruit, pulegone is present in peppermint, and pyridine is present in coffee. FDA's revocation of the listings providing for the use of these synthetic flavoring substances and adjuvants does not affect the legal status of foods containing natural counterparts or non-synthetic flavoring substances extracted from food, and there is nothing in the data FDA has reviewed in responding to the pending food additive petition that causes FDA concern about the safety of foods that contain natural counterparts or extracts from such foods.
The petitioners assert that each of the synthetic flavoring substances (
As part of our scientific review, we also evaluated the genotoxicity of the synthetic flavoring substances. Based on their biological activities, chemical carcinogens can be classified as genotoxic (directly DNA reactive) and non-genotoxic (not directly DNA reactive but operating through a secondary mechanism) (Ref. 1). In cancer risk assessments, the traditional assumption for chemicals that are genotoxic is that there is no threshold exposure level below which there is no risk of cancer and that there is a risk of cancer at any level of exposure. In contrast, non-genotoxic carcinogens are assumed to have a threshold of exposure level below which tumor development is not anticipated and the risk of cancer is negligible (Ref. 2).
Additionally, as part of our review, we calculated Margins of Exposure (MOE) for each of the six synthetic flavoring substances. The MOE is the ratio between a point of departure (
We also estimated dietary exposure for the six synthetic flavoring substances using information from the 2015 Poundage and Technical Effects Survey that the Flavor and Extract Manufacturers Association (FEMA) collected from its member companies that formulate flavoring substances (Ref. 4). (The acronym FEMA, as used throughout this rule, refers to the Flavor and Extract Manufacturers Association. It should not be confused with the Federal Emergency Management Agency that commonly is referred to by this same acronym.) Every 5 years FEMA surveys its members to estimate the total volume of flavoring substances added to food, or “poundage data.” (The 2015 poundage data were the most recent available.) FEMA's members include flavor manufacturers, flavor users, flavor
To estimate dietary exposure to the synthetic flavoring substances, we used a “per-capita times ten” approach that conservatively assumes 10 percent of the population consumes 100 percent of the available flavoring substance. Because the FEMA poundage data include the total poundage for both synthetic and naturally-sourced flavoring substances, our estimates of dietary exposure assumed that all of the flavoring substances added annually to food are synthetic; thus, for most of these substances, actual exposure to these synthetic flavoring substances is less than our conservative exposure estimates (Refs. 5 and 6).
As explained in more detail later in this section, although there were findings of carcinogenicity in animal studies, none of the data in our evaluations of the six synthetic flavoring substances supports a finding that they are human carcinogens when consumed at the levels of intended use. Additionally, with the exception of the data concerning methyl eugenol, the data from the animal studies demonstrated that the modes of action (MOA) of carcinogenicity are not acting through mechanisms of genotoxic alterations and are not relevant to humans.
For methyl eugenol, the data showed evidence for a potential concern for carcinogenic risk to humans based on the findings that: (1) A metabolite of methyl eugenol was found to be genotoxic and able to covalently bind with DNA to form DNA adducts (a DNA adduct is a segment of DNA bound to a cancer causing chemical); (2) methyl eugenol-DNA adducts have been detected in human lung and liver tissues; and (3) there is a potential metabolic pathway by which methyl eugenol could metabolize to a reactive metabolite, under specific reaction conditions that then may proceed to tumor formation and carcinogenesis. However, there are no available clinical or epidemiological data reporting tumor formation and carcinogenicity from methyl eugenol exposure in humans.
Additionally, we concluded that the risk of carcinogenicity in humans from consumption of methyl eugenol added to food as a synthetic flavoring substance is further reduced by the following mitigating factors: (1) The metabolic pathway, in which methyl eugenol converts to a genotoxic metabolite subsequently leading to tumor formation, does not serve as the primary metabolic/detoxification pathway for methyl eugenol in humans and the amount of the genotoxic metabolite generated is dose-dependent, occurring at higher doses and (2) compared to the low levels of added synthetic methyl eugenol as a flavoring substance, the levels of methyl eugenol tested in the NTP animal studies were very high test doses that likely overwhelmed physiological conditions of normalcy and overloaded systemic repair systems.
In assessing the potential human carcinogenicity of methyl eugenol associated specifically with the use of synthetic methyl eugenol as a flavoring substance, we also considered data indicating that exposure to methyl eugenol from foods that naturally contain methyl eugenol (
In sum, although the data do not indicate that these synthetic flavoring substances pose a public health risk as a human carcinogen, because these six synthetic flavoring substances have been found to induce cancer in animal studies, the Delaney Clause requires that FDA consider these synthetic flavoring substances to be unsafe as a matter of law, and FDA must revoke the listings providing for the use of these synthetic flavoring substances.
Below is a summary of FDA's analysis of each of the six synthetic flavoring substances and adjuvants.
Under § 172.515, benzophenone is permitted for use as a synthetic flavoring substance and adjuvant in foods in accordance with current good manufacturing practices (CGMP). FEMA estimated an annual production volume of 5 kilograms (kg) for benzophenone used as a flavoring substance and adjuvant in food based on information from the 2015 FEMA Poundage and Technical Effects Survey (Ref. 4). FEMA also estimated that 133 kg of benzophenone are available for consumption annually in the United States from its natural presence in foods (Ref. 8). Thus, benzophenone is present from natural sources in the food supply (
Benzophenone also is permitted for use as a plasticizer in rubber articles intended for repeated use under § 177.2600. The upper-bound limit to the dietary exposure for benzophenone from this use is estimated to be 45 µg/p/d. This estimate assumes that 100 percent of an individual's diet is processed using rubber articles containing benzophenone as a plasticizer. While the exposure estimate for the use of benzophenone as a plasticizer in repeat use rubber articles is an overestimate of the actual exposure from this use, the estimated exposure is greater than that from the use of benzophenone as a flavoring substance by a factor of approximately 500. Thus, the combined exposure to benzophenone from its uses as a flavoring substance and as a plasticizer in food contact applications was estimated to be no more than 45 µg/p/d, or 0.75 µg/kg bw/d (Refs. 5 and 9).
FDA reviewed data from 2 NTP-sponsored 105-week carcinogenic bioassays on benzophenone in F344/N rats and B6C3F1 mice. In these studies, the rats and mice were administered feed containing benzophenone at 0, 312, 625, or 1,250 parts per million per day (ppm/d) or milligrams per kilogram of feed/day (mg/kg/d). This dosing is equivalent to average daily doses of approximately 15, 30, and 60 mg benzophenone/kg bw to male rats and 15, 30, and 65 mg/kg bw to female rats; equivalent to average daily doses of approximately 40, 80, and 160 mg/kg bw to male mice and 35, 70, and 150 mg/kg bw to female mice (Ref. 9).
The NTP reported several carcinogenicity findings from these studies. They noted that there was some evidence of carcinogenicity due to increased incidence of renal (kidney) tubular tumors in treated male rats and increased incidence of mononuclear cell leukemia (MNCL) in all treated female rats. The mean incidence of MNCL in
Based on results from the NTP studies, FDA concluded that, under the conditions of the 2-year NTP bioassays, benzophenone induced renal tubular tumors in male rats and hepatocellular tumors in male mice (Ref. 9).
Based on the results of the NTP 2-year carcinogenicity studies we concluded that benzophenone induced cancer in animals under the test conditions of the studies. However, benzophenone is not genotoxic and unlikely to produce cancer through a direct DNA-reactive mechanism. Chronic progressive nephropathy (CPN, a spontaneous age-related disease that occurs commonly in rats) may be involved in benzophenone inducing renal tumors in rats; however, CPN as a MOA, a biologically plausible sequence of key events leading to an observed endpoint supported by robust experimental observations and mechanistic data (Ref. 10), for renal tumors in humans has not been established. Regarding the incidence of MNCL in female F344/N rats, we determined that it was not dose-dependent and that the incidence of this tumor in the control rats was outside the historical range. Therefore, we concluded that the occurrence of renal tumors in this study is not related to treatment with benzophenone. Additionally, MNCL is species- and strain-specific to the F344/N rat, and of little or no relevance to humans (Ref. 9).
Regarding the results from the mouse study, several authors have observed that hepatocellular neoplasms seen in 2-year bioassays in B6C3F1 mice typically are secondary responses to chronic hepatic toxicity and regenerative cellular proliferation or hypertrophy as a function of dose (Ref. 9). Evidence of hepatotoxicity in short duration studies also has been shown to be a good predictor of hepatic neoplasia in chronic studies and the higher susceptibility of the male mouse (Ref. 9). Although there is no definitive MOA for the development of benzophenone-associated liver tumors in the NTP study, the B6C3F1 male mouse has been shown to have a high incidence of spontaneously-occurring hepatocellular tumors, which is elevated after chemical exposure. Introduction of high doses of benzophenone may produce hepatotoxicity that exacerbates this propensity toward tumor development and results in their increased occurrence by a non-genotoxic mechanism. Although rarely reported in NTP studies, histiocytic sarcomas observed in the B6C3F1 mice have been reported to occur at a mean incidence of 5.5 percent in female B6C3F1 mice used as controls in 2-year carcinogenicity studies conducted at Bayer AG, Institute of Toxicology. This result was based on historical data accumulated over a 10-year period (1986-1996) and is in line with the 6 percent occurrence observed in the high dose (1,250 ppm) group in the benzophenone NTP study. Other authors also reported similar findings in B6C3F1 mice, with incidences of 3.5 percent and 5.5 percent in control males and females, respectively. Histiocytic sarcomas are rarely reported in humans, accounting for less than 1 percent of all the neoplasms reported in the lymph nodes or soft tissues. The histiocytic sarcomas identified in the female mice in the NTP study were not dose related (
The lowest test dose (312 ppm) in the NTP 2-year studies was a dose at which no statistically significant treatment-related increase in tumor incidence was reported in rats or mice. This finding suggests that there may be a threshold level below which benzophenone does not induce tumors in rodents. Additionally, there is a large margin of exposure (MOE; 2.1 × 10
Under § 172.515, ethyl acrylate is permitted for use as a synthetic flavoring substance and adjuvant in foods in accordance with CGMP. FEMA estimated an annual production volume of 18 kg for ethyl acrylate used as a flavoring substance and adjuvant in food based on information from the 2015 FEMA Poundage and Technical Effects Survey (Ref. 4). FEMA also estimated that 9.2 kg of ethyl acrylate are available for consumption annually in the United States from its natural presence in foods (
FDA reviewed data from 2 NTP-sponsored 103-week carcinogenic bioassays on ethyl acrylate in F344/N rats and B6C3F1 mice. In these studies, rats and mice were administered ethyl acrylate at 0, 100, or 200 mg/kg bw by gavage 5 days per week. The NTP reported carcinogenicity findings were confined to the forestomach of rats and mice. They also reported that the occurrence of these forestomach tumors had a statistically positive trend compared to the control animals. Ethyl acrylate also was tested in several genotoxicity studies. Based on the available data from these studies, we
We also concluded that under the test conditions of NTP's 2-year hazard assessment studies ethyl acrylate is a rodent carcinogen. Evidence, however, supports the findings that these tumors were produced by a non-genotoxic mechanism (Ref. 11).
The tumors observed in the NTP study were initiated by administering bolus doses of ethyl acrylate by gavage onto the forestomach of the treated rats and mice, which resulted in irritation, inflammation, and hyperplasia of the forestomach mucosa. Repeated dosing over a 2-year period exacerbated this irritation and resulted in the development of papillomas and carcinomas, which were confined to the forestomach. No other treatment-related tumors were observed in the animals. Forestomach tumors were observed at both doses tested (100 mg/kg bw and 200 mg/kg bw) in both male and female mice and rats. Humans do not have a forestomach and a human counterpart for the forestomach does not exist. The function of the rodent forestomach is to store and concentrate feed; therefore, high concentrations of ethyl acrylate were present in the forestomach over the duration of the 2-year study. This concentration effect precluded our determining a no-significant-effect-level for the occurrence of the forestomach tumors. Therefore, we cannot make an MOE comparison between a no-effect-dose level for significant incidences of tumors and the estimated dietary exposure of ethyl acrylate as a synthetic flavoring substance and adjuvant in food (1.5 μg ethyl acrylate/p/d, or 0.025 µg/kg bw/d) (Ref. 11).
The 2-year NTP studies were conducted at doses higher than the expected exposures for flavoring substances. In general, flavoring substances have significantly lower dietary exposures than the doses used in 2-year carcinogenicity studies. For example, the lowest dose of ethyl acrylate tested in the NTP studies was 100 mg/kg bw, or approximately 1.8 × 10
Importantly, the NTP Board of Scientific Counselors Report on Carcinogens (RoC) Subcommittee concluded, based on the totality of the evidence, that ethyl acrylate should not be considered a human carcinogen (Ref. 12). We concur with the RoC and concluded that ethyl acrylate is a non-genotoxic rodent carcinogen with a carcinogenic effect limited to the rodent forestomach (a rodent-specific organ) due to chronic irritation. This MOA is not relevant to humans and, at the current intake level, there is no concern of carcinogenicity from the intake of ethyl acrylate intentionally added to food as a flavoring substance and adjuvant (Ref. 11).
Under § 172.515, methyl eugenol is permitted for use as a synthetic flavoring substance and adjuvant in foods in accordance with CGMP. FEMA estimated an annual production volume of 86 kg for methyl eugenol used as a flavoring substance and adjuvant in food based on information from the 2015 FEMA Poundage and Technical Effects Survey (Ref. 4). FEMA also estimated that 447,450 kg of methyl eugenol are available for consumption annually in the United States from its natural presence in foods (
FDA reviewed data from 2 NTP-sponsored 2-year carcinogenicity bioassays on methyl eugenol in F344/N rats and B6C3F1 mice. In these studies, methyl eugenol was administered to the animals at 0, 37, 75, or 150 mg/kg bw by gavage, 5 days per week, for 105 weeks. These test doses are 220,000 to 890,000 times higher than the estimated human dietary exposure from its use as a flavoring substance.
The NTP reported significantly increased incidence of liver tumors (combined adenomas or carcinomas), compared to the concurrent control groups, occurring in a dose-dependent manner across the treatment groups in both genders of rats and mice. Although the mortality in some treated groups was higher than 50 percent, tumors were the main cause of death in these groups. Further, most deaths occurred late in the studies. Another type of tumor, glandular stomach neuroendocrine neoplasms, were found in both genders of rats, but in only two male mice. The NTP, JECFA, and FDA do not consider these glandular stomach neuroendocrine neoplasms relevant to tumor formation in humans due to considerations of the mechanism of development of these neoplasms. Based on the overall data, we concluded that methyl eugenol, under the test conditions of the NTP 2-year carcinogenicity bioassays, induced cancer in rodents (Ref. 13).
Regarding the genotoxicity potential of methyl eugenol, results from several genotoxicity assays were negative; however, in testing systems that provided adequate metabolic activation, specifically 1′-hydroxylation and sulfonation, or those systems directly testing the 1′-hydroxyl metabolite of methyl eugenol, positive genotoxic effects were observed.
There is evidence showing that methyl eugenol treatment leads to the formation of covalent DNA adducts in vitro and in vivo. In cancer risk assessment, the formation of DNA adducts is a biomarker of exposure and suggestive of potential cancer risk. However, the observation of adducts itself should not be used to predict cancer. The relevance of DNA adducts for cancer assessment should be investigated in the context of other information, such as the quantity and persistency of the adducts. The level of methyl eugenol-specific adducts was shown to be dose-dependent in experimental animals. Therefore, since human dietary consumption of methyl eugenol from use as a synthetic flavoring substance in food is much lower than the dose received by the animals in the NTP studies, much lower levels of DNA adducts would be formed in humans compared to that in the test
There are only few studies measuring methyl eugenol-specific DNA adducts in humans. The adducts have been detected in 150 of 151 human liver biopsy samples and 10 of 10 tested human lung biopsy samples, indicating that the bioactive metabolites form in these subjects with typical dietary exposure, and are capable of binding with human DNA. However, these human data have limitations. We note that all but one the human tissue donors in these studies were patients with cancer or chronic liver diseases, who may have DNA-repair deficiencies, compromised detoxification pathways, or weakened control mechanisms that prevent the promotion of carcinogenesis from DNA adducts, whereas such control mechanisms would be expected to be operable in healthy humans. Therefore, it is difficult to extrapolate DNA-adduct results found in these unhealthy subpopulations to the general healthy population (Ref. 13).
In our evaluation of the carcinogenic potential of methyl eugenol in humans using a weight-of-evidence approach, we concluded that a genotoxic MOA is likely involved in the carcinogenicity observed in the NTP animal studies. This MOA involves formation of a bioactivated metabolite that forms DNA-adducts that leads to subsequent cancer initiation and development. Current scientific data on methyl eugenol suggest that bioactivation to the DNA-reactive metabolite, DNA adduct formation, and subsequent tumor formations are dose-dependent. Although methyl eugenol-specific DNA adducts have been identified in hospitalized subpopulations, there are no clinical or epidemiological data that provide concrete evidence that methyl eugenol is a human carcinogen. In the general healthy population, DNA-repair mechanisms and damage-response pathways may effectively prevent cancer development from an initiation event such as a DNA adduct. Therefore, the extremely low level of DNA adducts formed in humans from dietary exposure to methyl eugenol as an added food flavoring substance likely is below a threshold level necessary for subsequent cancer development. However, the current science is inadequate to quantitate the carcinogenic potential risk (if any) of methyl eugenol in humans (Ref. 13).
Carcinogenicity data on methyl eugenol also demonstrated that non-genotoxic MOAs for the observed tumors in animals, especially in mice, may be operating in conjunction with the genotoxic MOA. However, data for the non-genotoxic MOA are insufficient (Ref. 13).
The MOE for synthetic methyl eugenol as a flavoring substance and adjuvant in food is very large. Two dose-response assessments have been conducted to derive a point of departure for the liver carcinogenicity of methyl eugenol; both derived a lower bound benchmark dose (BMDL
As for methyl eugenol from natural sources, other components in such sources may modulate bioactivation and/or detoxification, so the toxicity data related to the use as a synthetic flavoring substance may not be relevant to its presence from natural sources. For example, a flavonoid derived from basil extracts, nevadensin, was found to be a sulfotransferase inhibitor, and it significantly reduced methyl eugenol-induced DNA adduct formation in F344/N rats (Ref. 13).
In conclusion, although there is evidence of genotoxicity for a bioactive metabolite of methyl eugenol, we concluded based on currently available scientific evidence that, despite the potential carcinogenic concern and lack of definitive quantitative cancer risk measurement, such risk in humans is mitigated by factors such as low exposure from its use as a flavoring substance, pharmacokinetics/metabolism, DNA-repair mechanisms, and the lack of clinical and epidemiological evidence of the carcinogenic effect in humans from oral exposure to methyl eugenol. Therefore, it is unlikely that consumption of methyl eugenol presents a risk to public health from use as a flavoring substance.
Under § 172.515, myrcene is permitted for use as a synthetic flavoring substance and adjuvant in foods in accordance with CGMP. FEMA estimated an annual production volume of 860 kg for myrcene used as a flavoring substance and adjuvant in food based on information from the 2015 FEMA Poundage and Technical Effects Survey (Ref. 4). FEMA also estimated that 14,177,215 kg of myrcene are available for consumption annually in the United States from its natural presence in foods (
FDA reviewed data from 2 NTP-sponsored carcinogenicity bioassays on myrcene (β-myrcene) in F344/N rats and B6C3F1 mice. In the rat study, male and female rats were administered 0, 0.25, 0.50 or 1.0 g myrcene/kg bw by gavage, 5 days per week for up to 105 weeks. Results from the study showed increased incidence of renal tubule tumors in both sexes. All high dose (1 g/kg bw) male rats died prior to the end of the study due to renal toxicity. Incidence of nephrosis were significantly increased in all dosed male and female rats when compared to controls. Incidence of CPN were significantly increased in all myrcene-treated female rats but not male rats. There also was significantly increased incidence of nephrosis in all myrcene-
In the NTP mouse study, male and female mice were administered 0, 0.25, 0.50 or 1.0 g myrcene/kg bw by gavage, 5 days per week for up to 104 (females) and 105 weeks (males). Based on increased incidence of liver neoplasms, NTP concluded that there was clear evidence of carcinogenic activity of myrcene in male mice and equivocal evidence of carcinogenic activity of myrcene in female mice (Ref. 14).
Myrcene also was tested in several in vivo and in vitro genotoxicity assays sponsored by the NTP. The NTP concluded that myrcene was not genotoxic based on the negative Ames assays (
Based on our evaluation of the data in the NTP 2-year myrcene studies, we concluded that, under the test conditions of the studies, myrcene induced renal tubular tumors in F344/N rats and hepatocellular tumors in B6C3F1 mice. We also concluded that myrcene is non-genotoxic (Ref. 14).
Our review of relevant scientific data and information suggests that myrcene may be operating through multiple MOAs to induce kidney and liver tumors in rodents. While, a definitive MOA for the induction of tumors by myrcene in rodents has not been established, because myrcene is not genotoxic, the induction of rodent tumors likely is occurring through an indirect non-DNA mediated MOA. One potential MOA in male and female rats is an unusual nephrosis. Another potential MOA, α2u-globulin (a low molecular-weight protein synthesized in the male rat liver) hyaline nephropathy, and renal tubular hyperplasia may collectively contribute to the development of renal tubule neoplasia in male rats following myrcene treatment (the α-2u-globulin nephropathy occurs only in male rats and is not operative in humans) (Ref. 14).
The B6C3F1 mouse strain used in the NTP-sponsored study with myrcene is known to have a high spontaneous background incidence of liver neoplasms and is a sensitive strain for the induction of liver tumors. The observed hepatocellular tumors in myrcene-dosed mice exceeded concurrent and historical controls. The MOA for the induction of hepatocellular tumors in myrcene dosed mice is not well understood. We are not aware of any robust mechanistic studies conducted to determine the MOA(s) responsible for the induction of hepatocellular neoplasia reported in myrcene-treated mice (Ref. 14).
In the NTP 2-year rat study, increased incidence of renal tubular tumors was observed in all doses of myrcene treated male rats. Because a no significant effect dose level was not observed in this study, we derived a BMDL
Using a weight-of-evidence analysis, we concluded that myrcene is unlikely to induce tumors in humans at its current exposure level when used as a synthetic flavoring substance and adjuvant in food based on the following: (1) Myrcene is non-genotoxic; (2) the MOA for kidney tubule tumors likely involves multiple MOAs that may include renal toxicity (nephrosis), α2u-globulin nephropathy (a mechanism not operative in humans), and hyperplasia in male rats. In female rats, nephrosis and hyperplasia are likely MOAs; (3) B6C3F1 mice are prone to spontaneous hepatocellular adenomas, carcinomas, and hepatoblastomas with high background tumor incidence, and (4) a MOE of 5.2 ×10
Under § 172.515, pulegone is permitted for use as a synthetic flavoring substance and adjuvant in foods in accordance with CGMP. FEMA estimated an annual production volume of 6 kg for pulegone used as a flavoring substance and adjuvant in food based on information from the 2015 FEMA Poundage and Technical Effects Survey (Ref. 4). FEMA estimated that 866 kg of pulegone are available for consumption annually in the U.S. from its natural presence in foods (
FDA reviewed data from 2 NTP-sponsored 2-year carcinogenicity bioassays on pulegone in F344/N rats and B6C3F1 mice. In the rat study, pulegone was administered by gavage at 0, 18.75, 37.5, or 75 mg pulegone/kg bw to male rats and 0, 37.5, 75, or 150 mg pulegone/kg bw to female rats 5 days a week for up to 104 weeks. The NTP reported that, in female rats, the primary tumors observed were urinary bladder papillomas and carcinomas. In male rats, no urinary bladder neoplasms were reported. Only transitional epithelial hyperplasia was observed in the pulegone-treated male rats at the lowest dose tested; no epithelial hyperplasia was observed in male rats at the mid or high doses. Pulegone administration also was associated with the occurrence of non-neoplastic lesions in the liver and nose of male and female rats, and in the forestomach of male rats. The NTP concluded that under the conditions of the experiment, there was no evidence of carcinogenic activity of pulegone in male F344/N rats and clear evidence of carcinogenic activity of pulegone in female F344/N rats based on increased incidence of urinary bladder neoplasms.
In the mouse study, pulegone was administered by gavage at 0, 37.5, 75 or 150 mg/kg bw 5 days a week for 105 weeks. The NTP reported that the primary tumors observed in the study were liver neoplasms in male and female mice. The NTP concluded that under the conditions of the experiment, there was clear evidence of carcinogenic activity of pulegone in male and female B6C3F1 mice.
Pulegone also was tested in several in vitro and in vivo genotoxicity assays. Overall, results were mostly negative. However, NTP concluded that pulegone is genotoxic based on a single positive result in the Ames Assay in
Based on the findings of statistically significant increased incidence of urinary bladder papilloma and carcinoma in female F344/N rats and liver neoplasms in B6C3F1 male and female mice in the 2-year NTP
According to NTP, the dose-related increase in the incidence of urinary bladder neoplasms in female rats was most likely related to the genotoxic activity of pulegone. However, we concluded that pulegone likely is non-genotoxic based on negative results in the majority of genotoxicity studies, along with a lack of available evidence reporting that DNA adducts related to pulegone treatments are formed. This suggests that the urinary bladder neoplasms observed in female F344/N rats treated with pulegone were caused by a non-genotoxic MOA.
Urinary bladder carcinogenesis likely is occurring in the rat through cytotoxicity as a result of chronic exposure to high concentrations of pulegone and its metabolites, followed by regenerative urothelial cell (a cell type that lines much of the urinary tract) proliferation, that further led to urothelial tumors (Ref. 15). Da Rocha et al. (2012) (Ref. 16) concluded that the carcinogenic MOA for urinary bladder tumors was not relevant to humans, based on the assertion that humans would never be exposed to pulegone long enough to develop hyperplasia because pulegone is highly volatile, noxious, and a nasal irritant, and that genotoxicity of pulegone has not been demonstrated.
The metabolic fate of pulegone has been studied extensively in rodents and is well understood. Pulegone is metabolized by multiple pathways in the rodent. One important intoxication (bioactivation) pathway involves the formation of menthofuran, the proximate toxic metabolite of pulegone, which is further oxidized in the liver to yield γ-ketoenal, 8-pulegone aldehyde. γ-ketoenal, 8-pulegone aldehyde is the ultimate toxic metabolite of pulegone in rodents. In general, at dose levels at or below 80 mg/kg bw, cellular concentrations of pulegone and its metabolites are effectively detoxified by conjugation with glutathione and glucuronic acid in rodents (Ref. 15).
In a human metabolism study in which pulegone was administered orally at doses of 0.5 to 1 mg/kg bw, 10-hydroxypulegone, not menthofuran, was the major metabolite. In this study, 10-hydroxypulegone was conjugated with glucuronic acid or sulfuric acid and detoxified. Based on the limited, available human metabolism data, the toxic metabolite of pulegone, menthofuran, is not formed at toxicologically significant levels in humans at the dietary exposure levels expected from the use of pulegone as a flavoring substance (Ref. 15).
Protein adduct formation and glutathione depletion have been postulated as potential MOAs of pulegone via menthofuran formation, which could cause cytotoxicity and chronic cell proliferation, and ultimately lead to liver neoplasms. In vivo and in vitro studies showed an association between hepatocellular damage caused by menthofuran and its metabolic activation to γ-ketoenal, 8-pulegone aldehyde and covalent binding to target organ proteins. Further, p-cresol, another pulegone metabolite produced in rodents given high doses of pulegone, depletes glutathione levels. This may lead to chronic regenerative cell proliferation, which may be related to the liver carcinogenicity observed in experimental B6C3F1 mice (Ref. 15)
Considering genotoxicity data, metabolism, MOA, and the sensitivity of the B6C3F1 strain to develop hepatocellular tumors, the mouse liver tumors likely are not relevant to humans at the current use level of pulegone as a synthetic flavoring substance and adjuvant in food (Ref. 15).
An MOE was calculated using the no-significant effect level at which no treatment-related tumors were reported in the 2-year NTP mouse study of pulegone in male rats (
Using a weight-of-evidence analysis considering that: (1) Pulegone is non-genotoxic; (2) pulegone has a potential cytotoxicity MOA; (3) available data suggest a dose-dependent, metabolic activation of pulegone in humans and rodents, an indication of a threshold effect; (4) there is a no-significant effect level below which no tumors were formed in the 2 NTP year studies; (5) dietary exposure from use as a synthetic flavoring substance added to food is low with a MOE of 1.7 × 10
Under § 172.515, pyridine is permitted for use as a synthetic flavoring substance and adjuvant in foods in accordance with CGMP. FEMA estimated an annual production volume of 27 kg for pyridine used as a flavoring substance and adjuvant in food based on information from the 2015 FEMA Poundage and Technical Effects Survey (Ref. 4). FEMA also estimated that 73,861 kg of pyridine are available for consumption annually in the U.S. from its natural presence in foods (
FDA reviewed data from 3 NTP-sponsored 2-year carcinogenicity bioassays on pyridine in F344/N rats, Wistar rats, and B6C3F1 mice. In the F344/N rat study, pyridine was administered in drinking water at 0, 100, 200, or 400 ppm (mg pyridine/kg drinking water) for 104 (males) and 105 (females) weeks. These dose levels were equivalent to doses of 7, 14, or 33 mg pyridine/kg bw/d, respectively. The
Recognizing the species specificity and high background levels of MNCL in F344/N rats, the NTP conducted a 2-year carcinogenicity study in male Wistar rats (a rat strain that does not have a high background of MNCL neoplasms). In this study, pyridine was administered in drinking water at 0, 100, 200, or 400 ppm for 104 weeks to male Wistar rats. These dose levels were equivalent to doses of 8, 17, or 36 mg pyridine/kg bw/d. The study showed no increased incidences of MNCL in any of the treatment groups. The NTP reported a statistically significant increased incidence of interstitial cell adenomas in the 400 ppm dose group. Observed increased incidence of interstitial cell adenomas of the testes in Wistar rats exposed to 400 ppm pyridine were marginally above the historical control range. A statistically significant increased incidence of kidney hyperplasia was observed at the 100 ppm dose group, along with increased incidence of kidney adenomas that were not statistically significant. There also was increased incidence of nephropathy in all pyridine-treated Wistar rats as well as in the controls (Ref. 17).
The NTP concluded that under the conditions of the 2-year F344/N rat oral drinking water study there was some evidence of carcinogenic activity of pyridine in male F344/N rats based on increased incidence of renal tubule neoplasms and equivocal evidence of carcinogenic activity of pyridine in female F344/N rats based on increased incidence of MNCL. The NTP considered the increased incidence of interstitial cell adenomas of the testes in the Wistar rat study to be equivocal evidence for carcinogenicity.
In the mouse study, pyridine was administered in drinking water to male B6C3F1 mice at concentrations of 0, 250, 500 or 1,000 ppm (doses equivalent to 35, 65, or 110 mg pyridine/kg bw/d, respectively) for 104 weeks. Groups of female B6C3F1 mice were administered pyridine at doses of 0, 125, 250 or 500 ppm (doses equivalent to 15, 35, or 70 mg pyridine/kg bw/d, respectively) in drinking water for 105 weeks. The NTP reported statistically significant increased incidence of hepatocellular carcinomas at all dose levels in the male and female mice and concluded that there was clear evidence of carcinogenic activity of pyridine in male and female B6C3F1 mice.
Pyridine also was tested in several in vitro and in vivo genotoxicity assays. The NTP concluded that pyridine was non-genotoxic. Based on evidence from available studies, we also concluded that pyridine is non-genotoxic (Ref. 17).
Under the test conditions of the 2-year NTP studies, we concluded that pyridine is a rodent carcinogen based on the observed pyridine-induced renal tumors in male F344/N rats and pyridine-induced liver tumors in B6C3F1 mice (Ref. 17).
Our review of relevant scientific data and information suggests that pyridine may be operating through multiple MOAs in its capability to induce kidney and liver tumors in rodents. A definitive MOA for the induction of tumors in rodents has not been established. However, because pyridine is not genotoxic, the induction of rodent tumors likely is occurring through an indirect non-DNA mediated MOA.
While NTP discounted the kidney neoplasms observed in the F344/N rats as being associated with an α2µ-globulin MOA, we concluded that pyridine may be a weak inducer of α2µ-globulin in F344/N male rats, based on the observation of statistically significant increased incidence in granular casts and hyaline degeneration in the 1000 ppm pyridine-treated rats along with higher staining intensity for α2µ-globulin in the kidney tissues from F344/N male rats exposed to 1000 ppm pyridine (Ref. 17).
Using a weight-of-evidence analysis, we concluded that pyridine is unlikely to induce tumors in humans at its current exposure level as a synthetic flavoring substance and adjuvant in foods based on the following: (1) Pyridine is non-genotoxic; (2) renal tubule neoplasms likely involve multiple MOAs that may include α2µ-globulin nephropathy and CPN, which are not relevant to humans. These postulated mechanisms, specifically α2µ-globulin nephropathy, are species- and sex-specific; (3) B6C3F1 mice are prone to spontaneous hepatocellular adenomas, carcinomas, and hepatoblastomas with high background incidence; and (4) active metabolites of pyridine differ across species and appear to be dose-dependent.
Further, there is a large MOE (3.7 × 10
FDA received a number of comments in response to the notice of the petition. Most comments expressed general support for revocation of the regulations for the seven synthetic flavoring substances, without providing any additional information. Several comments expressed concern about the safety of these synthetic flavoring substances and asked that FDA ban them from foods; however, these comments did not provide any information to support their claim that the use of these additives is unsafe.
We summarize and respond to relevant portions of comments in this final rule. To make it easier to identify comments and FDA's responses to the comments, the word “Comment” will appear in parentheses before the description of the comment, and the word, “Response” will appear in parentheses before FDA's response. We have also numbered each comment to make it easier to identify a particular comment. The number assigned to each comment is for organizational purposes only and does not signify the comment's value, importance, or the order in which it was submitted.
(Comment 1) One comment stated that these synthetic flavoring substances should not be revoked based on the Delaney Clause because “. . . the Delaney Clause does not mandate that FDA flatly prohibit the use of the substance under any circumstances.” The comment goes on to say that “[t]he determination that a substance triggers the Delaney Clause is not the same as a determination that the substance is necessarily unsafe in food and that “. . . an outright ban of any of the flavorings identified by the petitioner would require FDA to explain—in a rulemaking procedure—why the substance not only triggers the Delaney Clause but also why there are no circumstances under which the substance could otherwise be
(Response 1) We disagree. The language of the Delaney Clause is straightforward. For most food additives, FDA has discretion to review a number of factors to determine whether a food additive is safe (section 409(c)(5) of the FD&C Act). However, for food additives that are shown “to induce cancer in man or animal,” the Delaney Clause limits FDA's discretion and requires that FDA conclude that the food additive is not safe. Furthermore, as described above, courts have rejected the interpretations of the Delaney Clause suggested in the comments and have concluded that the Delaney Clause completely bans additives found to induce cancer in humans or animals. Thus, as a matter of law, FDA cannot find these synthetic flavoring substances to be safe.
(Comment 2) One comment said that the Delaney Clause applies only to food additives that induce cancer in test animals through a direct, genotoxic mechanism of carcinogenicity. The comment further stated that there are numerous examples of food ingredients that produce increased incidence of tumors in high dose rodent studies through a threshold secondary mechanism.
(Response 2) We disagree. The Delaney Clause does not differentiate between non-genotoxic and genotoxic carcinogens. Nor does it permit FDA to find a food additive safe for human consumption if the food additive has induced cancer in animal. The Delaney Clause is a strict legal standard that precludes FDA from using its expertise to evaluate a substance under its intended condition of use and its risk to public health.
(Comment 3) One comment stated that the petitioners call for a radical departure from long-established regulatory framework of FDA conducting its own comprehensive review of the scientific data that bear on the safety assessment. Further, the comment stated that the petitioners' approach is contrary to the statute and cannot be implemented without amendment of the law. The comment stated that if, contrary to the statute and long precedent, FDA believes it should delegate its authority to external organizations, it must consider such policy changes through notice-and-comment rulemaking. The comment also stated that while an FAP is the correct vehicle to appeal/amend a food additive regulation, it is not appropriate for FDA to consider, much less implement, “radical new interpretations” of the statute through a food additive petition.
(Response 3) FDA disagrees with this comment. FDA's regulations permit petitioning the agency to revoke a food additive regulation. In response to such a petition, FDA conducts its own review of scientific data that bear on the petition. FDA then takes action based on its own evaluation of the data in accordance with the FD&C Act and its implementing regulations. The Delaney Clause is in the FD&C Act and this rulemaking is in accordance with the language of the law and case law interpreting it.
(Comment 4) One comment included a lengthy discussion of relevant carcinogenicity and genotoxicity studies for each of the additives that are the subject of the petition and argued that none of the synthetic flavoring substances are direct carcinogens. Instead, the comment contended that tumors observed in the NTP studies were the result of secondary mechanisms and not direct, genotoxic effects.
(Response 4) Our review included an evaluation of all relevant carcinogenicity studies for each of the additives. The toxicology memoranda for each of the six synthetic flavoring substances and section III include a full discussion of the relevant studies and address each scientific point outlined in the comment.
(Comment 5) Several comments believed that FDA should not base its safety decision solely on classifications by NTP or IARC and that any decision should be based on an independent FDA assessment. Another comment stated that FDA must consider new studies since the NTP and IARC reviews were completed.
(Response 5) FDA agrees with the comments and has conducted its own evaluation of available relevant data to reach its conclusions on each synthetic flavoring substance, and did not solely rely on NTP and IARC classifications as the basis for our decision.
(Comment 6) One comment noted that IARC is not subject to U.S. law and relying on its conclusions is inappropriate and legally vulnerable for FDA. Another comment noted that IARC warns that its monographs are not the basis for governmental action, pointing out that the preamble to IARC monographs is clear that they are a starting place for government agencies, not a basis for regulation.
(Response 6) We agree that relying solely on IARC conclusions would not be appropriate in making a decision on the petition, and, as such, FDA has conducted its own comprehensive carcinogenicity evaluation of the flavoring substances using all available relevant information.
(Comment 7) One comment stated that the international health and safety community has moved away from rote reliance on IARC and NTP. The comment further said that the NTP and IARC classifications do not make those substances carcinogens under the Occupational Safety and Health Administration (OSHA) Hazard Communication Standard and that these reviews are not viewed as weight-of-evidence conclusions by international authorities; therefore, it would be incongruent for FDA to view them in this manner. The comment cited an action in 2012, where OSHA reversed three decades of automatically requiring employers to classify a substance as a carcinogen based on an NTP or IARC classification.
(Response 7) FDA acknowledges that the NTP studies are designed for hazard identification and not for assessing the human carcinogenicity risk of chemicals under specific conditions of use; however, FDA must evaluate the results from the NTP studies and other available information within the context of the FD&C Act, including the Delaney Clause.
(Comment 8) Some comments expressed concern that compliance and enforcement of a zero tolerance policy is not possible and that a zero tolerance policy is not feasible for naturally occurring substances.
(Response 8) FDA has not addressed the request for FDA to establish zero tolerances for the food additives that are the subject of this petition because such a request is not the proper subject of a food additive petition, and because the petitioners have indicated that they are abandoning that claim.
(Comment 9) Several comments expressed concern over the use of these substances in food packaging applications.
(Response 9) Benzophenone is the only synthetic flavoring substance that is the subject of this petition that also is approved as a food additive for use in food packaging (§ 177.2600(c)(4)(iv) diphenylketone). As explained earlier, we are repealing the regulation for the
(Comment 10) One comment said that the use of ethyl acrylate should not be revoked, because the studies used to assess carcinogenicity were not appropriate and noted that NTP has removed it from its list of human carcinogens.
(Response 10) FDA acknowledges that NTP has removed ethyl acrylate from its list of human carcinogens; however, the flavoring substance induced cancer in animals under the conditions of the 2-year NTP carcinogenicity studies. As such, we are required under the Delaney Clause to deem the additive to be unsafe as a matter of law. (See Section III.B, Ethyl Acrylate.)
(Comment 11) One comment submitted on behalf of several industry interests supported removal of styrene from § 172.515 based solely on abandonment and subsequently submitted a petition (FAP 6A4817 (81 FR 38984)) providing data to support their claim.
(Response 11) FDA is responding to this comment as part of our response to FAP 6A4817, which is published elsewhere in this edition of the
(Comment 12) One comment stated that the petitioner should follow the National Environmental Policy Act and submit an environmental assessment but did not provide any supporting data.
(Response 12) FDA disagrees. As discussed in section VII, we have determined that the action we are taking on the petition does not have a significant effect on the human environment and neither an environmental assessment nor an environmental impact statement is required.
Upon review of the available information, we have determined that the information provided in the petition and other publicly available relevant data demonstrate that synthetic benzophenone, ethyl acrylate, methyl eugenol, myrcene, pulegone, and pyridine have been shown to cause cancer in animals. Despite FDA's scientific analysis and determination that these substances do not pose a risk to public health under the conditions of their intended use, under the Delaney Clause this finding of carcinogenicity renders the additives “unsafe” as a matter of law and FDA is compelled to amend the authorizations for these substances as food additives to no longer provide for the use of these synthetic flavoring substances. Additionally, because of evidence that benzophenone causes cancer in animals, FDA also is amending the food additive regulations to no longer provide for the use of benzophenone as a plasticizer in rubber articles intended for repeated use in contact with food. Therefore, we are amending parts 172 and 177 as set forth in this document. Upon the publication, these food additive uses are no longer authorized.
FDA realizes that the food industry needs sufficient time to identify suitable replacement ingredients for these synthetic flavoring substances and reformulate products and for these products to work their way through distribution. Therefore, FDA intends to not enforce applicable requirements of the final rule with regard to food products manufactured (domestically and internationally) prior to October 9, 2020 that contain one or more of these six synthetic flavoring substances, to provide an opportunity for companies to reformulate products prior to enforcing the requirements of this final rule.
In accordance with § 171.1(h) (21 CFR 171.1(h)), the petition and the documents that we considered and relied upon in reaching our decision to approve the petition will be made available for public disclosure (see
As stated in the January 4, 2016,
This final rule contains no collection of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.
If you will be adversely affected by one or more provisions of this regulation, you may file with the Dockets Management Staff (see
Any objections received in response to the regulation may be seen in the Dockets Management Staff between 9 a.m. and 4 p.m., Monday through Friday, and will be posted to the docket at
The following references marked with an asterisk (*) are on display at the Dockets Management Staff (see
Food additives, Reporting and recordkeeping requirements.
Food additives, Food packaging.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR parts 172 and 177 are amended as follows:
21 U.S.C. 321, 341, 342, 348, 371, 379e.
21 U.S.C. 321, 342, 348, 379e.
Coast Guard, DHS.
Temporary interim rule and request for comments.
The Coast Guard is establishing a temporary safety zone for the navigable waters within a 50 yard radius from the center of the North Hero-Grand Isle Bridge, on Lake Champlain, VT. The safety zone is necessary to protect personnel, vessels, and marine environment from potential hazards created by the demolition, subsequent removal, and replacement of the North Hero-Grand Isle Bridge. When enforced, this regulation prohibits entry of vessels or persons into the safety zone unless authorized by the Captain of the Port Northern New England or a designated representative.
This rule is effective without actual notice from October 9, 2018 through September 1, 2022. For purposes of enforcement, actual notice will be used from October 1, 2018 through October 9, 2018.
Comments and related material must be received by the Coast Guard on or before January 7, 2019.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email LT Matthew Odom, Waterways Management Division, U.S. Coast Guard Sector Northern New England, telephone 207-347-5015, email
On July 5, 2018, Sector Northern New England was made aware by Cianbro Corporation through email, of the North Hero-Grand Isle Bridge replacement project, which will be replacing Bridge 8 on US 2 over Lake Champlain which connects the towns of North Hero Island and Grand Isle in Vermont. The COTP Northern New England has determined that the potential hazards associated with the bridge replacement project will be a safety concern for anyone within the work area.
The Coast Guard is publishing this rule to be effective, and enforceable, through September 1, 2022, in case the project is delayed due to unforeseen circumstances. During this project, removal and replacement of the bridge will take place. No vessel or person will be permitted to enter the safety zone without obtaining permission from the
The Coast Guard is issuing this temporary interim 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 an NPRM with respect to this rule because doing so would be impracticable and contrary to the public interest. The late finalization of project details did not give the Coast Guard enough time to publish an NPRM, take public comments, and issue a final rule before the construction work is set to begin. It would be impracticable and contrary to the public interest to delay promulgating this rule as it is necessary to establish this safety zone on October 1, 2018 to protect the safety of the waterway users, construction crew, and other personnel associated with the replacement project. A delay of the replacement project to accommodate a full notice and comment period would delay necessary operations, result in increased costs, and delay the date when the replacement project is expected to be completed and reopen the bridge for normal operations.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The COTP Northern New England has determined that potential hazards associated with the bridge replacement project scheduled from October 1, 2018 through September 1, 2022 will be a safety concern for anyone within the work zone. This rule is needed to protect personnel, vessels, and the marine environment on the navigable waters of Lake Champlain while the bridge replacement project is completed.
This rule establishes a safety zone from October 1, 2018 through September 1, 2022. The safety zone will cover all navigable waters from surface to bottom within a 50 yard radius from the center of the Route 2 North Hero-Grand Isle Bridge. When enforced, no vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.
The Coast Guard will notify the public and local mariners of this safety zone through appropriate means, which may include, but are not limited to, publication in the
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, it 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.
The Coast Guard has determined that this rulemaking is not a significant regulatory action for the following reasons: (1) The safety zone only impacts a small designated area of Lake Champlain, (2) the safety zone will only be enforced when work equipment is present in the navigable channel as a result of bridge removal and replacement operations or if there is an emergency, (3) persons or vessels desiring to enter the safety zone may do so with permission from the COTP Northern New England or a designated representative. The Coast Guard will notify the public of the enforcement of this rule via appropriate means, such as via Local Notice to Mariners and Broadcast Notice to Mariners via marine channel 16 (VHF-FM).
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A., 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 temporary interim 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 Management Directive 023-01 and Commandant Instruction M16475.lD, 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 temporary safety zone that will prohibit entry within a 50 yard radius from the center of the North Hero-Grand Isle Bridge during its removal and replacement. Normally such actions are categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01.
A preliminary Record of Environmental Consideration for Categorically Excluded Actions is available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments received will be posted without change to
Documents mentioned in this TIR as being available in the docket, and all public comments, will be in our online docket at
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(1)
(2)
(c)
(d)
(1) No person or vessel may enter or remain in this safety zone without the permission of the Captain of the Port (COTP) Northern New England or the COTP's designated representative. However, any vessel that is granted permission to enter or remain in this zone by the COTP or the COTP's designated representative must proceed through the zone with caution and operate at a speed no faster than that speed necessary to maintain a safe course, unless otherwise required by the Navigation Rules.
(2) Any person or vessel permitted to enter the safety zone shall comply with the directions and orders of the COTP or the COTP's designated representative. Upon being hailed by a U.S. Coast Guard vessel by siren, radio, flashing lights, or other means, the operator of a vessel within the zone shall proceed as directed. Any person or vessel within the safety zone shall exit the zone when directed by the COTP or the COTP's designated representative.
(3) To obtain permission required by this regulation, individuals may reach the COTP or the COTP's designated representative via Channel 16 (VHF-FM) or (207)741-5465 (Sector Northern New England Command Center).
(e)
(f)
Department of Veterans Affairs.
Agency determination; status of interim final rule.
The Department of Veterans Affairs (VA) published an interim final rule on May 9, 2014, implementing provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the Dodd-Frank Act). This document informs the public that VA will not be publishing a final rule to adopt the provisions in the interim final rule that published on May 9, 2014. However, VA will be publishing a separate regulation in the near future that will supersede the provisions in the interim final rule that published on May 9, 2014.
This document is effective October 9, 2018.
Greg Nelms, Assistant Director (26), Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (202) 632-8795. (This is not a toll-free number.)
On May 9, 2014, VA published in the
VA specified in the IFR that almost all VA loans meeting VA's underwriting standards would be considered safe harbor QMs. 79 FR 26622-26623. The loans that would not be considered safe harbor QMs would be certain Interest Rate Reduction Refinance Loans (IRRRLs), specifically those meeting the requirements for guaranty but failing to meet IRRRL-specific seasoning and recoupment requirements for safe harbor protections. While these types of IRRRLs could still be deemed QMs, they would receive the designation of rebuttable presumption QM rather than safe harbor QM. 79 FR 26624. VA also specified income verification requirements for IRRRLs. Id.
VA received a total of 22 comments on the IFR. Most of the commenters were industry participants in the VA Home Loan program or representatives of the lending community. A few individuals also commented. No comments were received from veterans' service organizations or veterans expressing concerns about the use of their VA home loan benefit. Most commenters sought clarification of the IFR. Several commenters were fully supportive of the rule. VA appreciates the comments received on the IFR.
On May 24, 2018, section 309 of Economic Growth, Regulatory Relief, and Consumer Protection Act (Pub. L. 115-174) superseded certain elements of the IFR. The law's seasoning and recoupment requirements for IRRRLs effectively eliminated the category of rebuttable presumption QM. Section 309 also imposed other requirements that, while not in conflict with the IFR, were not contemplated at the time of the IFR's publication. Consequently, rather than finalizing the IFR, VA will need to revise its qualified mortgage criteria in a future rulemaking. VA will in its future rulemaking take into account the spirit of the comments submitted in response to the IFR. Until such future rulemaking is final, the IFR remains in effect. To the extent any provision of the IFR conflicts with or is superseded by Public Law 115-174, Public Law 115-174 controls.
On May 25, 2018, VA released a policy guidance update in Circular 26-18-13 to inform program participants about the impact of Public Law 115-174 on VA home loan financing. Loan applications taken on or after May 25, 2018 must meet the requirements of the new law to be eligible for guaranty by the VA.
The Secretary of Veterans Affairs 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. Robert L. Wilkie, Secretary, Department of Veterans Affairs, approved this document on September 26, 2018, for publication.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving several State Implementation Plan (SIP) revisions submitted by the State of New Jersey for purposes of implementing Reasonably Available Control Technology (RACT) for the 2008 8-hour ozone National Ambient Air Quality Standard (NAAQS). The EPA is approving New Jersey's SIP revision for the control and prohibition of air pollution by volatile organic compounds (VOCs) and control and prohibition of air pollution by oxides of nitrogen (NO
This final rule is effective on November 8, 2018.
The EPA has established a docket for this action under Docket ID Number EPA-R02-OAR-2018-0549. All documents in the docket are listed on the
Omar Hammad, Environmental Protection Agency, 290 Broadway, New York, New York 10007-1866, at (212) 637-3347, or by email at
The
On July 31, 2018 (83 FR 36816), the EPA published a Notice of Proposed Rulemaking that proposed to approve the State of New Jersey's State Implementation Plan (SIP) submittals,
The specific details of New Jersey's SIP submittals and the rationale for the EPA's approval action are explained in the EPA's proposed rulemaking and are not restated in this final action. For this detailed information, the reader is referred to the EPA's July 31, 2018 proposed rulemaking (83 FR 36816).
In response to the EPA's July 31, 2018 proposed rulemaking on New Jersey's SIP submittals, the EPA received four comments during the 30-day public comment period. The specific comments may be viewed under Docket ID Number EPA-R02-OAR-2018-0549 on the
After reviewing the comments, EPA has determined that the comments are outside the scope of our proposed action or fail to identify any material issue necessitating a response. The comments do not raise issues germane to EPA's proposed action. They do not explain (or provide a legal basis for) how the proposed action should differ in any way and make no specific mention of the proposed action. Since the comments are not relevant to the specific action EPA proposed, EPA will not provide a specific response to the comments.
The EPA has evaluated New Jersey's SIP submittals and has determined that they are consistent with the EPA's guidance documents as well as the EPA's CTG and Alternative Control Technique (ACT) documents and are fully approvable as SIP-strengthening measures for New Jersey's ozone SIP. Specifically, EPA is approving New Jersey's state-wide RACT submittal dated June 11, 2015 and the State's December 14, 2017 SIP revision rule, which include a declaration that the following source-specific categories either do not exist in this State, or fall below significant emission unit applicability thresholds in the CTGs: (1) Manufacture of Vegetable Oils; (2) Manufacture of Pneumatic Rubber Tires; (3) Aerospace Coatings; (4) Shipbuilding and Ship Repair Operations; (5) Metal
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 revisions to portions of Title 7, Chapter 27: Subchapter 16 and 19 of the New Jersey Administrative Code that implement New Jersey's Control and Prohibition of Air Pollution by Volatile Organic Compounds and Control and Prohibition of Air Pollution from Oxides of Nitrogen, as described in section III of this preamble.
EPA has made, and will continue to make, these materials generally available through
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. 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 Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 10, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
The revisions and additions read as follows:
(c) * * *
(e) * * *
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule; inseason adjustments to biennial groundfish management measures.
This final rule announces routine inseason adjustments to management measures in commercial groundfish fisheries. This action, which is authorized by the Pacific Coast Groundfish Fishery Management Plan, is intended to allow commercial fishing vessels to access more abundant groundfish stocks while protecting overfished and depleted stocks.
This final rule is effective October 9, 2018.
Karen Palmigiano, phone: 206-526-4491 or email:
This rule is accessible via the internet at the Office of the Federal Register website at
The Pacific Coast Groundfish Fishery Management Plan (PCGFMP) and its implementing regulations at title 50 in the Code of Federal Regulations (CFR), part 660, subparts C through G, regulate fishing for over 90 species of groundfish off the coasts of Washington, Oregon, and California. The Pacific Fishery Management Council (Council) develops groundfish harvest specifications and management measures for two year periods or biennium. NMFS published the final rule to implement harvest specifications and management measures for the 2017-18 biennium for most species managed under the PCGFMP on February 7, 2017 (82 FR 9634). In general, the management measures are set at the start of the biennial specifications cycle to help the various sectors of the fishery attain, but not exceed, the catch limits for each stock. The Council, in coordination with the States of Washington, Oregon, and California, recommends adjustments to the management measures during the fishing year to achieve this goal.
At its September 7-12, 2018, meeting the Council recommended four adjustments to current management measures, including: (1) Increasing the sablefish trip limits for the limited entry fixed gear (LEFG) fishery north of 36° North latitude (N lat.) and the open access fixed gear (OAFG) fishery north and south of 36° N lat.; (2) increasing the bocaccio trip limits for the LEFG fishery between 40°10′ N lat. and 34°27′ N lat.; (3) transferring Pacific Ocean perch (POP) and darkblotched rockfish from the incidental open access (IOA) set-asides to the set asides for unforeseen catch events for those species; and (4) increasing the incidental halibut retention allowance in the LEFG sablefish primary fishery.
At the September 2018 Council meeting, the Groundfish Management Team (GMT) received requests from industry members and members of the Groundfish Advisory Subpanel (GAP) to examine the potential to increase sablefish trips limits for the LEFG fishery north of 36° N lat. and the OAFG fisheries north and south of 36° N lat. The intent of increasing trip limits would be to increase harvest opportunities for the LEFG and OAFG sablefish fisheries. To evaluate potential increases to sablefish trip limits, the GMT made model-based landings projections under current regulations and a range of potential sablefish trip limits, include the limits ultimately recommended by the Council, for the LEFG and OAFG sablefish fisheries through the remainder of the year. Table 1 shows the projected sablefish landings, the sablefish allocations, and the projected attainment percentage by fishery under both the current trip limits and the Council's recommended trip limits. These projections were based on the most recent catch information available through August 2018.
As shown in Table 1, under the current trip limits, the model predicts catches of sablefish will be at or below 75 percent for each fishery except the OAFG fishery north of 36° N lat. which may attain just over 78 percent of their sablefish allocation by the end of the year. Under the Council's recommended trip limits, sablefish attainment is
Projections for the LEFG sablefish fishery south of 36° N lat. remain low and within the levels anticipated in the 2017-18 harvest specifications and management measures. Industry did not request changes to sablefish trip limits for the LEFG fishery south of 36° N lat. Therefore, NMFS and the Council did not consider trip limit changes for this fishery.
Trip limit increases for sablefish are intended to increase attainment of the non-trawl HG. The proposed trip limit increases do not change projected impacts to co-occurring overfished species compared to the impacts anticipated in the 2017-18 harvest specifications because the projected impacts to those species assume that the entire sablefish ACL is harvested. Therefore, the Council recommended and NMFS is implementing, by modifying Table 2 (North) to part 660, subpart E, trip limit changes for the LEFG sablefish fishery north of 36° N lat. to increase the limits from “1,100 lb (499 kg) per week, not to exceed 3,300 lb (1,497 kg) per two months” to “1,400 lb (635 kg) per week, not to exceed 4,200 lb (1,905 kg) per two months” for period 4 (September and October) and period 5 (November and December).
The Council also recommended and NMFS is implementing, by modifying Table 3 (North and South) to part 660, subpart F, trip limits for sablefish in the OA sablefish DTL fishery north and south of 36° N lat. The trip limits for sablefish in the OA sablefish DTL fishery north of 36° N lat. will increase from “300 lb (136 kg) per day, or one landing per week of up to 1,000 lb (454 kg), not to exceed 2,000 lb (907 kg) per two months” to “300 lb (136 kg) per day, or one landing per week of up to 1,400 lb (590 kg), not to exceed 2,800 lb (1,179 kg) per two months” for period 4 (September and October) and period 5 (November and December). The trip limits for sablefish in the OA sablefish DTL fishery south of 36° N lat. will increase from “300 lb (136 kg) per day, or one landing per week of up to 1,600 lb (454 kg), not to exceed 3,200 lb (907 kg) per two months” to “300 lb (136 kg) per day, or one landing per week of up to 1,600 lb (590 kg), not to exceed 4,800 lb (1,179 kg) per two months” for period 4 (September and October) and period 5 (November and December).
Bocaccio is managed with stock-specific harvest specifications south of 40°10′ N lat., but is managed within the Minor Shelf Rockfish complex north of 40°10′ N lat. NMFS declared bocaccio overfished in 1999, and implemented a rebuilding plan for the stock in 2000. Although NMFS declared bocaccio officially rebuilt in 2017, the current harvest specifications are based on the current rebuilding plan. At the September 2018 Council meeting, members of the GAP notified the Council and the GMT of increased interactions with bocaccio for vessels targeting chilipepper rockfish. The low trip limits for bocaccio between 40°10′ N lat. and 34°27′ N lat., coupled with these increased interactions, results in higher bocaccio discard rates in the LEFG fishery. Because the most recent bocaccio attainment estimates suggest that around 4 percent or 16.7 mt of bocaccio will be attained out of the 442.3 mt non-trawl allocation, the GAP requested the GMT examine potential increases to the bocaccio trip limits for the LEFG fishery only between 40°10′ N lat and 34°27′ N lat. The GMT did not receive a request to examine trip limit increases for bocaccio south of 34°27′ N lat.
To assist the Council in evaluating potential trip limit increases for bocaccio between 40°10′ N lat. and 34°27′ N lat., the GMT analyzed projected attainment under the current status quo regulations and under the proposed trip limit changes. In 2016, when the bocaccio trip limits were established for the 2017-18 harvest specifications, few data points existed to provide projected annual catch data under the current trip limits. Based on that limited data, boccacio catch in the non-trawl commercial fishery between 40°10′ N lat. and 34°27′ N lat. was expected to be around 0.3 mt of the 442.3 mt non-trawl allocation. The GMT updated the expected attainment under the current status quo trip limits and examined potential impacts under alternative trip limits with additional catch data from the 2016 and 2017 fishing years.
Based on updated model projections under the current status quo trip limit of 1,000 lb (454 kg) per two months, total coastwide bocaccio catch in the LEFG and OA fisheries is expected to be 16.7 mt, or four percent of the non-trawl HG and two percent of the coastwide ACL. Increasing the trip limits to 1,500 lb (680 kg) per two months for the reminder of the fishing year for vessels fishing in the LEFG fishery in the area between 40°10′ N lat. and 34°27′ N lat., which would align them with the trip limits already in place south of 34°27′ N lat., is expected to increase total mortality by less than 0.1 mt, and the overall total mortality of bocaccio would be expected to remain at around four percent of the non-trawl HG and two percent of the coastwide ACL.
Trip limit increases for bocaccio are intended to allow for increased attainment of the non-trawl allocation (442.3 mt), while also providing the incentive for vessels targeting co-occurring species, such as chilipepper rockfish, to land their bocaccio catch instead of discarding. Therefore, the Council recommended and NMFS is implementing, by modifying Table 2 (South) to part 660, Subpart E, an increase to the bocaccio trip limits for the LEFG fishery between 40°10′ N lat. and 34°27′ N lat. The trip limits for bocaccio in this area will increase from “1,000 lb (464 kg) per per two months” to “1,500 lb (680 kg) per two months” for period 4 (September and October) and period 5 (November and December).
NMFS sets ACLs for non-whiting groundfish stocks and stock complexes as part of biennial harvest specifications and management measures. Deductions are made “off-the-top” from the ACL to “set-aside” an amount for various sources of mortality, including non-groundfish fisheries that catch groundfish incidentally, also called IOA fisheries, as well as for research, tribal, recreational catch, and for some species, an amount for unforeseen catch events. NMFS allocates the remainder, the fishery's commercial HG, among the trawl and non-trawl sectors of the groundfish fishery. For some species, sector-specific set-asides are then deducted from the trawl allocation. For example, the trawl HGs for both darkblotched rockfish and POP are divided up into an allocation for the Shorebased individual fishing quota (IFQ) program and a set-asides for the motherships (MS) and catcher/processors (C/P) which make up the at-sea sector.
On January 8, 2018, NMFS published a final rule to implement Amendment 21-3. Amendment 21-3 recharacterized the portions of the trawl HG of darkblotched rockfish and POP for the MS and CP vessels that make up the at sea whiting sector from allocations, which are hard caps requiring the relevant sector to close upon reaching them, to sector specific set-asides (83 FR
At the September 2018 Council meeting, representatives from the Midwater Trawlers Cooperative, Pacific Whiting Conservation Cooperative, United Catcher Boats, and Whiting Mothership Cooperative requested that the Council recommend NMFS take inseason action to transfer the unused portion of the IOA and research off the top deductions for darkblotched rockfish and POP to the buffer for those species. The intent of the request is to create a larger buffer for unforeseen catch events. If the at-sea sectors, or any sector, were to exceed their sector specific set-aside for darkblotched rockfish or POP, there would be a larger amount available in the buffer to harvest before NMFS would be required to close either the MS or C/P sectors.
To evaluate this request, the GMT considered the historical maximum amount of POP and darkblotched rockfish taken in the IOA and research fisheries over the past several years, the current amounts of POP and darkblotched rockfish taken in the IOA and research fisheries in 2018, the at-sea sector's total catch to date, and the projected catch for the remainder of the year for IOA, research, and the at-sea sector.
Currently, the IOA fishery has a 10 mt set-aside for POP, and research has a 5.2 mt set-aside. Harvest of POP in the IOA fishery mainly occurs in the pink shrimp fishery. Between 2007 and 2017 total harvest of POP in the IOA fishery was below 0.6 mt annually, except for an uncharacteristically high mortality in 2014 of 10 mt. Overall harvest of rockfish in the pink shrimp trawl fishery fell significantly in 2015 and remained low in subsequent years. Total harvest of POP in the IOA fishery between 2015 and 2017 was less than 0.7 mt. Total mortality of POP in the research sector between 2007 and 2017 never exceeded 3.10 mt annually. However, NOAA's Northwest Fisheries Science Center (NWFSC) notified the GMT that 2018 research catch is likely to be much higher after a single haul on a research cruise took 3.4 mt of POP.
The current set-aside for darkblotched rockfish in the IOA fishery is 24.5 mt, and the current research set-aside is 2.5 mt. Similar to POP, the majority of darkblotched rockfish catch in the IOA fishery is harvested in the pink shrimp fishery. Since 2015, no more than 6.82 mt of darkblotched rockfish was taken annually in the IOA fishery. Between 2007 and 2015, the darkblotched rockfish harvest in the IOA fishery exceeded 50 percent of the set-aside five times, most recently in 2014 when catch actually exceeded the set-aside for the first time. However, this was deemed to be an anomalous year due to a substantial recruitment event. The research fishery is expected to take their current set-aside amount this year, with 1.53 mt of darkblotched rockfish already caught in 2018.
Finally, the GMT conducted a analysis using data through September 5, 2018, to examine the potential attainment of the at-sea sector's darkblotched rockfish and POP set-asides, using the current bycatch rates and assuming full attainment of the at-sea sector's whiting allocation. Based on this analysis, the GMT determined that it is likely the C/P will exceed their POP set-aside (65.9-percent chance), and the MS will most likely not exceed their POP set-aside (8.5-percent chance). When considering both sectors, the combined at-sea sector has a 39-percent chance of exceeding their combined POP set-asides (15.2 mt) and a less than one percent chance of exceeding the set-aside value and the “buffer” set-aside (46.7 mt).
For darkblotched rockfish, the GMT's bootstrap analysis indicated that theC/P have a 40-percent chance of exceeding their darkblotched set-aside (16.7 mt) and the MS have a 32-percent chance of exceeding their darkblotched set-aside (11.8 mt). When considering both sectors, the combined at-sector has a 43-percent chance of exceeding their combined darkblotched rockfish set-asides (28.5 mt). None of the model runs showed that the at-sea sector, when considered as a group, would exceed their darkblotched set-aside and the “buffer” set-aside (78.5 mt).
While the current risk of the at-sea sector exceeding the POP or darkblotched rockfish set-aside and the amount set-aside for unforeseen catch events for those species is low to negligible at this time, the Council considered the risk to the at-sea sector and the other groundfish fisheries if no action was taken. If the Council chose not to take action now, because the automatic closure authority still exists in regulations, if the MS or C/P sectors exceeded their darkblotched or POP set-aside and the amount set-aside for unforeseen catch events for that species, the NMFS would have to close the sectors even though there may be unused POP or darkblotched rockfish in the IOA fisheries. The projected economic impacts associated with a closure of the at-sea sector in November, when closure would most likely occur, are losses of approximately 200 jobs and $14 million in personal income. Additionally, in order to reopen the Pacific whiting fishery, the Council would need to convene an emergency Council meeting or wait until the Council makes a decision at a subsequent meeting. Finally, because moving any portion of the IOA set-aside into the amount set aside for unforeseen catch events would make that amount available for all sectors, the GMT did not determine that this request would pose a risk to other groundfish fisheries.
Therefore, the Council recommended and NMFS is implementing a redistribution of 9.7 mt of POP and 17.7 mt of darkblotched rockfish, from the “off-the-top” deductions for the IOA fishery made at the start of the 2017-18 biennium, to the buffer for unforeseen catch events. This redistribution creates a larger buffer for all sectors, and reduces the risk of a closure of one or both the MS and C/P sectors. Transfer of POP and darkblotched rockfish to the set-aside for unforeseen catch events is not expected to result in greater impacts to either species, or other overfished species, than what was originally projected through the 2017-18 harvest specifications.
Under the authority of the Northern Pacific Halibut Act of 1982, the Council developed a Catch Sharing Plan for the International Pacific Halibut Commission Regulatory Area 2A. The Catch Sharing Plan allocates the Area 2A annual total allowable catch (TAC) among fisheries off Washington, Oregon, and California. Pacific halibut is generally a prohibited species for vessels fishing in Pacific coast groundfish fisheries, unless explicitly allowed in groundfish regulations and authorized by the Pacific halibut Catch Sharing Plan. In years when the Pacific halibut TAC is above 900,000 lb (408 mt), the Catch Sharing Plan allows the limited entry fixed gear sablefish primary fishery an incidental retention limit for Pacific halibut north of Point Chehalis, WA (46°53.30′ N. lat.). On March 24, 2018, NMFS implemented a 2018 Area 2A TAC of 1,190,000 lb (540 mt) (83 FR 13080, March 26, 2018).
Current regulations at § 660.231(b)(3)(iv) provide for halibut retention starting on April 1 with a landing ratio of 160 lb (64 kg) dressed weight of halibut, for every 1,000 lb (454 kg) dressed weight of sablefish landed, and up to an additional 2 halibut in excess of this ratio. These limits, recommended by the Council at its March 2018 meeting, and subsequently implemented by NMFS on April 13, 2018 (83 FR 16005), were intended to allow the total catch of Pacific halibut to approach, but not exceed, the 2018 allocation for the sablefish primary fishery north of Pt. Chelais, WA (50,000 lb or 22.7 mt) and provide greater opportunity for industry to attain a higher percentage of the sablefish primary fishery allocation. However, the GMT notified the Council, after a request from the GAP to increase the incidental halibut allowance in the sablefish primary fishery, that incidental catch of halibut through September 11, 2018, was 22,464 lb, or less than 50 percent of the 50,000 lb allocation, with little more than a month left in the season that ends on October 31, 2018.
Therefore, in order to allow increased incidental halibut retention in the sablefish primary fishery, the Council recommended and NMFS is implementing revised incidental halibut retention regulations at § 660.231(b)(3)(iv) to increase the catch ratio to “200 lb dressed weight of halibut for every 1,000 lb dressed weight of sablefish landed and up to 2 additional halibut in excess of the 200 lb per 1,000 lb ratio per landing.” This modest increase in the allowed halibut retention ratio over the last few weeks of the fishery is unlikely to cause catch to exceed the incidental halibut allocation for the sablefish primary fishery north of Pt. Chehalis, WA, but will provide some additional benefit to fishery participants.
This final rule makes routine inseason adjustments to groundfish fishery management measures, based on the best available information, consistent with the PCGFMP and its implementing regulations.
This action is taken under the authority of 50 CFR 660.60(c) and is exempt from review under Executive Order 12866.
The aggregate data upon which these actions are based are available for public inspection by contacting Karen Palmigiano in NMFS West Coast Region (see
NMFS finds good cause to waive prior public notice and comment on these adjustments to groundfish management measures under 5 U.S.C. 553(b) because notice and comment would be impracticable and contrary to the public interest. Each of the adjustments to commercial groundfish management measures in this rule would create more harvest opportunity and allow fishermen to better attain species that are currently under attained without causing any additional impacts on the fishery. Delaying the implementation of these adjustments would reduce or eliminate the benefits that they would provide to the industry. For example, the sablefish primary season ends on October 31, 2018; therefore, any delay in implementing the increased halibut retention limit would further limit the time available for fishery participants to benefit from these changes. Allowing for a public comment period would likely result in little if any time before the end of the season. Vessels fishing in the LEFG or OAFG fisheries for sablefish would ultimately only fish under the increased trip limits for 1.5 periods (October-December). Providing for a public comment period and issuing a final rule would likely delay implementation of the increased limits to the point where only minimal fishing opportunity remained due to the approaching end of the year and winter weather conditions. Delaying implementation further risks the at-sea sector reaching and/or exceeding their set-aside for darkblotched rockfish and POP further increasing fears about potential closures and the expenses associated with such closures. In summary, providing a comment period for this action would significantly limit the benefits to the fishery, and would hamper the achievement of optimum yield from the affected fisheries. For the same reasons, the NMFS finds good cause to waive the 30-day delay in effectiveness pursuant to 5 U.S.C. 553(d)(3), so that this final rule may become effective October 9, 2018. The adjustments to management measures in this document affect commercial fisheries in Washington, Oregon and California. These adjustments were requested by members of industry during the Council's September 7-11, 2018 meeting, and recommended unanimously by the Council. No aspect of this action is controversial, and changes of this nature were anticipated in the biennial harvest specifications and management measures established through a notice and comment rulemaking for 2017-18 (82 FR 9634). Therefore, NMFS finds good cause to waive prior notice and comment and to waive the delay in effectiveness.
Fisheries, Fishing, and Indian Fisheries.
For the reasons set out in the preamble, 50 CFR part 660 is amended as follows:
16 U.S.C. 1801
(b) * * *
(3) * * *
(iv) Incidental Pacific halibut retention north of Pt. Chehalis, WA (46°53.30′ N lat.). From April 1 through October 31, vessels authorized to participate in the sablefish primary fishery, licensed by the International Pacific Halibut Commission for commercial fishing in Area 2A (waters off Washington, Oregon, California), and fishing with longline gear north of Pt. Chehalis, WA (46°53.30′ N lat.) may possess and land up to the following cumulative limits: 200 pounds (91 kg) dressed weight of Pacific halibut for every 1,000 pounds (454 kg) dressed weight of sablefish landed and up to 2 additional Pacific halibut in excess of the 200-pounds-per-1,000-pound ratio per landing. “Dressed” Pacific halibut in this area means halibut landed eviscerated with their heads on. Pacific halibut taken and retained in the sablefish primary fishery north of Pt. Chehalis may only be landed north of Pt. Chehalis and may not be possessed or landed south of Pt. Chehalis.
Agricultural Marketing Service, USDA.
Notice of withdrawal.
This action informs the public that the Agricultural Marketing Service (AMS) is withdrawing a proposed rule published in the
The proposed rule published November 7, 2016, at 81 FR 78057, is withdrawn as of October 9, 2018.
Jeffrey Waite, Branch Chief, Auditing Services Branch, Quality Assessment Division; Livestock and Poultry Program, Agricultural Marketing Service, U.S. Department of Agriculture; Room 3932-S, STOP 0258, 1400 Independence Avenue SW, Washington, DC 20250-0258; telephone (202) 720-4411; or email to
The Act directs and authorizes the Secretary of Agriculture to facilitate the competitive and efficient marketing of agricultural products and provides that rulemaking be undertaken as necessary to effectuate its purpose. Under the authority of the Act, AMS programs support a strategic marketing perspective that adapts product and marketing decisions to consumer demands, changing domestic and international marketing practices, and new technology. To assist in marketing, AMS developed the QSVP, a suite of audit-based programs that can provide confidence that process points meet specified requirements.
This action informs the public of the withdrawal of the proposed rule published in the
Upon further review, AMS decided to clarify that all voluntary, user-fee services under 7 CFR part 62 are applicable to all commodities covered by the Act. AMS also plans to harmonize administrative procedures governing these services. A new proposed rule to amend 7 CFR part 62 to that effect is forthcoming from the agency. Therefore, for the reasons set forth above, AMS announces that it is withdrawing the proposed rule published in the
Agricultural Marketing Service, USDA.
Proposed rule.
This proposed rule would implement a recommendation from the Far West Spearmint Oil Administrative Committee (Committee) to increase the quantity of Class 3 (Native) spearmint oil that handlers may purchase from, or handle on behalf of, producers during the 2018-2019 marketing year. The Committee recommended this action to avoid extreme fluctuations in supplies and prices and to help maintain stability in the Far West spearmint oil market.
Comments must be received by December 10, 2018.
Interested persons are invited to submit written comments concerning this proposed rule. Comments must be sent to the Docket Clerk, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-0237; Fax: (202) 720-8938; or internet:
Barry Broadbent, Senior Marketing Specialist, or Gary D. Olson, Regional Director, Northwest Marketing Field
Small businesses may request information on complying with this regulation by contacting Richard Lower, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or email:
This action, pursuant to 5 U.S.C. 553, proposes an amendment to regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This proposed rule is issued under Marketing Order No. 985 (7 CFR part 985), as amended, regulating the handling of spearmint oil produced in the Far West (Washington, Idaho, Oregon, and designated parts of Nevada and Utah). Part 985 (referred to as “the Order”) is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Committee locally administers the Order and is comprised of spearmint oil producers operating within the area of production, and a public member.
The Department of Agriculture (USDA) is issuing this proposed rule in conformance with Executive Orders 13563 and 13175. This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review.
Additionally, because this proposed rule does not meet the definition of a significant regulatory action, it does not trigger the requirements contained in Executive Order 13771. See OMB's Memorandum titled “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2018, titled `Reducing Regulation and Controlling Regulatory Costs' ” (February 2, 2018).
This proposal has been reviewed under Executive Order 12988, Civil Justice Reform. Under the provisions of the Order now in effect, salable quantities and allotment percentages may be established for classes of spearmint oil produced in the Far West. This proposed rule would increase the quantity of Native spearmint oil produced in the Far West that handlers may purchase from, or handle on behalf of, producers during the 2018-2019 marketing year, which ends on May 31, 2019.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
This proposal invites comments on a revision to the quantity of Native spearmint oil that handlers may purchase from, or handle on behalf of, producers during the 2018-2019 marketing year. The salable quantity and allotment percentage for Native spearmint oil for the 2018-19 marketing year was established at 1,307,947 pounds and 53 percent, respectively, in a final rule published in the
Under the volume regulation provisions of the Order, the Committee meets each year to adopt a marketing policy for the ensuing year. When the Committee's marketing policy considerations indicate a need to limit the quantity of spearmint oil available to the market to establish or maintain orderly marketing conditions, the Committee submits a recommendation to the Secretary of Agriculture for volume regulation.
Volume regulation under the Order is effectuated through the establishment of a salable quantity and allotment percentage applicable to each class of spearmint oil handled in the production area during a marketing year. The salable quantity is the total quantity of each class of oil that handlers may purchase from, or handle on behalf of, producers during a given marketing year. The allotment percentage for each class of oil is derived by dividing the salable quantity by the total industry allotment base for that same class of oil. The total industry allotment base is the aggregate of all allotment base held individually by producers. Producer allotment base is the quantity of each class of spearmint oil that the Committee has determined is representative of a producer's spearmint oil production. Each producer is allotted a pro rata share of the total salable quantity of each class of spearmint oil each marketing year. Each producer's annual allotment is determined by applying the allotment percentage to the producer's individual allotment base for each applicable class of spearmint oil.
The full Committee met on October 25, 2017, to consider its marketing policy for the 2018-2019 marketing year. At that meeting, the Committee determined that marketing conditions indicated a need for volume regulation of both classes of spearmint oil (Scotch and Native) for the 2018-2019 marketing year. The Committee recommended salable quantities of 760,660 pounds and 1,307,947 pounds, and allotment percentages of 35 percent and 53 percent, respectively, for Scotch and Native spearmint oil. A proposed rule to that effect was published in the
Pursuant to authority contained in §§ 985.50, 985.51, and 985.52, the full eight-member Committee met again on July 18, 2018, to evaluate the current year's volume control regulation. At the meeting, the Committee assessed the current market conditions for spearmint oil in relation to the salable quantities and allotment percentages established for the 2018-2019 marketing year. The Committee considered a number of factors, including the current and projected supply and the estimated future demand for all classes of spearmint oil. The Committee determined that the established salable quantity and allotment percentage in effect for Native spearmint oil for the 2018-2019 marketing year should be increased to accommodate a rise in market demand for that class of spearmint oil.
At the July 18, 2018, meeting, the Committee recommended increasing the 2018-2019 marketing year Native spearmint oil salable quantity from 1,307,947 pounds to 1,357,315 pounds and the allotment percentage from 53 percent to 55 percent. The vote to recommend to the Secretary to increase the salable quantity and allotment percentage passed unanimously.
This proposal would make additional amounts of Native spearmint oil
At the July 18, 2018, meeting, the Committee staff reported that estimated demand for Native spearmint oil for the 2018-2019 marketing year is greater than previously anticipated. The Committee initially estimated the trade demand for Native spearmint oil for the 2018-2019 marketing year to be 1,306,625. At the July 2018 meeting, the Committee revised the expected trade demand for the 2018-2019 marketing year from 1,306,625 pounds to 1,400,000 pounds. If realized, trade demand would be 43,991 pounds above the quantity of Native spearmint oil available under the volume control levels now in effect (the Committee estimates 1,356,009 pounds currently available minus the 1,400,000 pounds estimated trade demand, equals a deficit of 43,991 pounds). Without increasing the salable quantity and allotment percentage, the market for Native spearmint oil may be shorted. The increased quantity of Native spearmint oil (49,368 pounds) that would be made available to the market as a result of this rulemaking would ensure that market demand is fully satisfied in the current year and that there would be approximately 5,377 pounds of Native spearmint oil salable inventory available to carry-over for the start of the 2019-2020 marketing year, which begins on June 1, 2019.
In making the recommendation to increase the salable quantity and allotment percentage of Native spearmint oil, the Committee considered all currently available information on the price, supply, and demand of Native spearmint oil. The Committee also considered reports and other information from handlers and producers in attendance at the meeting.
This proposal would increase the 2018-2019 marketing year Native spearmint oil salable quantity by 49,368 pounds to a total of 1,357,315 pounds. Actual sales of Native spearmint oil for the 2017-2018 marketing year totaled 1,565,515 pounds. The 5-year average of Native spearmint oil sales is 1,365,377 pounds.
The Committee estimates that this action would result in 5,377 pounds of salable Native spearmint oil being carried into the 2019-2020 marketing year which begins June 1, 2019. While 5,377 pounds is a relatively low quantity of salable Native spearmint oil to begin the marketing year, reserve pool oil could be released into the market under a future relaxation of the volume regulation should it be necessary to adequately supply the market prior to the beginning of the 2019-2020 marketing year. The Committee estimates that a total of 1,082,257 pounds of Native spearmint oil (1,020,583 currently in reserve and an estimated 61,674 pounds of excess oil produced during the 2018-2019 marketing year) would be available from the reserve pool, if needed.
As mentioned previously, when the 2018-2019 marketing policy statement was drafted, handlers estimated the demand for Native spearmint oil for the 2018-2019 marketing year to be 1,306,625 pounds. The Committee's initial recommendation for the establishment of the Native spearmint oil salable quantity and allotment percentage for the 2018-2019 marketing year was based on that estimate. The Committee did not anticipate the level of demand that the Native spearmint oil market is currently experiencing and did not account for it when the marketing policy for the 2018-19 marketing year was adopted.
At the July 18, 2018, meeting, the Committee revised its estimate of the current trade demand to 1,400,000 pounds. The Committee now believes that the supply of Native spearmint oil available to the market under the established salable quantity and allotment percentage would be insufficient to satisfy the current level of demand for oil at reasonable price levels. The Committee further believes that the increase in the salable quantity and allotment percentage proposed in this action is vital to ensuring an adequate supply of Native spearmint oil is available to the market moving forward.
The Committee's stated intent in the use of the Order's volume control regulation is to keep adequate supplies available to meet market needs and to maintain orderly marketing conditions. With that in mind, the Committee developed its recommendation for increasing the Native spearmint oil salable quantity and allotment percentage for the 2018-2019 marketing year based on the information discussed above, as well as the summary data outlined below.
(A)
(B)
(C)
(D)
(E)
(F)
(1)
(2)
(3)
(4)
Scotch spearmint oil is also regulated by the Order. As mentioned previously, a salable quantity and allotment percentage for Scotch spearmint oil for the 2018-19 marketing year was established in a final rule published in
This proposed rule would relax the regulation of Native spearmint oil and would allow producers to meet market demand while improving producer returns. In conjunction with the issuance of this proposed rule, the Committee's revised marketing policy statement for the 2018-2019 marketing year has been reviewed by USDA.
The proposed increase in the Native spearmint oil salable quantity and allotment percentage would account for the anticipated market needs for that class of oil. In determining anticipated market needs, the Committee considered changes and trends in historical sales, production, and demand.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.
There are eight spearmint oil handlers subject to regulation under the Order, and approximately 43 producers of Scotch spearmint oil and approximately 95 producers of Native spearmint oil in the regulated production area. Small agricultural service firms are defined by the Small Business Administration (SBA) as those having annual receipts of less than $7,500,000, and small agricultural producers are defined as those having annual receipts of less than $750,000 (13 CFR 121.201).
Based on the SBA's definition of small entities, the Committee estimates that only two of the eight handlers regulated by the Order could be considered small entities. Most of the handlers are large corporations involved in the international trading of essential oils and the products of essential oils. In addition, the Committee estimates that 12 of the 43 Scotch spearmint oil producers and 31 of the 95 Native spearmint oil producers could be classified as small entities under the SBA definition. Thus, the majority of handlers and producers of Far West spearmint oil may not be classified as small entities.
The use of volume control regulation allows the spearmint oil industry to fully supply spearmint oil markets while avoiding the negative consequences of over-supplying these markets. Without volume control regulation, the supply and price of spearmint oil would likely fluctuate widely. Periods of oversupply could result in low producer prices and a large volume of oil stored and carried over to future crop years. Periods of undersupply could lead to excessive price spikes and drive end users to source flavoring needs from other markets, potentially causing long-term economic damage to the domestic spearmint oil industry. The Order's volume control provisions have been successfully implemented in the domestic spearmint oil industry since 1980 and provide benefits for producers, handlers, manufacturers, and consumers.
This proposed rule would increase the quantity of Native spearmint oil that handlers may purchase from, or handle on behalf of, producers during the 2018-2019 marketing year, which ends May 31, 2019. The 2018-2019 marketing year Native spearmint oil salable quantity was initially established at 1,307,947 pounds and the allotment percentage initially set at 53 percent. This proposed rule would increase the Native spearmint oil salable quantity to 1,357,315 pounds and the allotment percentage to 55 percent.
Based on the information and projections available at the July 18, 2018, meeting, the Committee considered several alternatives to this increase. The Committee considered leaving the salable quantity and allotment percentage unchanged and also considered other potential levels of increase. The Committee reached its recommendation to increase the salable quantity and allotment percentage for Native spearmint oil after careful consideration of all available information and input from all interested industry participants because it believes that the levels recommended would achieve the desired objectives. Without the increase, the Committee believes the industry would not be able to satisfactorily meet market demand.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Order's information collection requirements have been previously approved by OMB and assigned OMB No. 0581-0178, Specialty Crops. No changes are necessary in those requirements as a result of this action. Should any changes become necessary, they would be submitted to OMB for approval.
This proposed rule would relax the volume regulation requirements established under the Order for the 2018-19 marketing year. Accordingly, this action would not impose any additional reporting or recordkeeping requirements on either small or large spearmint oil handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.
AMS is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this action.
In addition, the Committee's July 18, 2018, meeting was widely publicized throughout the Far West spearmint oil industry, and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. The meeting was public, and all entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submit comments on this proposed rule, including the regulatory and information collection impacts of this action on small businesses.
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
A 60-day comment period is provided to allow interested persons to respond to this proposal. All written comments timely received will be considered
Marketing agreements, Oils and fats, Reporting and recordkeeping requirements, Spearmint oil.
For the reasons set forth in the preamble, 7 CFR part 985 is proposed to be amended as follows:
7 U.S.C. 601-674.
(b) Class 3 (Native) oil—a salable quantity of 1,357,315 pounds and an allotment percentage of 55 percent.
Agricultural Marketing Service, USDA.
Proposed rule.
This proposed rule invites comments on a proposal to revise the reporting requirements under the Federal marketing order for pecans. The revised reporting requirements would enable the American Pecan Council (Council) to collect information from handlers on the average handler price paid and the average shelled pecan yield. The Council would use this information to provide important statistical reports to the industry and meet requirements under the marketing order.
Comments must be received by November 8, 2018.
Interested persons are invited to submit written comments concerning this proposal. Comments must be sent to the Docket Clerk, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-0237; Fax: (202) 720-8938; or internet:
Jennie M. Varela, Marketing Specialist, or Christian D. Nissen, Regional Director, Southeast Marketing Field Office, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA; Telephone: (863) 324-3375, Fax: (863) 291-8614, or email:
Small businesses may request information on complying with this regulation by contacting Richard Lower, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202)720-8938, or email:
This proposed rule, pursuant to 5 U.S.C. 553, would amend regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This proposed rule is issued under Marketing Agreement and Order No. 986, (7 CFR part 986), regulating the handling of pecans grown in the states of Alabama, Arkansas, Arizona, California, Florida, Georgia, Kansas, Louisiana, Missouri, Mississippi, North Carolina, New Mexico, Oklahoma, South Carolina, and Texas. Part 986 (referred to as the “Order”) is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Council locally administers the Order and is comprised of growers and handlers of pecans operating within the production area, and one accumulator and one public member.
The Department of Agriculture (USDA) is issuing this proposed rule in conformance with Executive Orders 13563 and 13175. This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) has exempted from Executive Order 12866 review. Additionally, because this rule does not meet the definition of a significant regulatory action it does not trigger the requirements contained in Executive Order 13771. See OMB's Memorandum titled “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017 titled `Reducing Regulation and Controlling Regulatory Costs' ” (February 2, 2017).
This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. This proposed rule is not intended to have retroactive effect.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
This proposed rule would revise the reporting requirements under the Order. If approved, this action would require all pecan handlers to report to the Council the average handler price paid and average shelled pecan yield as part of its existing year-end report. This information would be used by the Council to provide statistical reports to the industry and meet requirements under the Order. This proposal was unanimously recommended by the Council at its January 24, 2018, meeting and affirmed at its April 17, 2018 meeting.
Section 986.76 provides the authority to collect reports on the quantity of pecans handled and other pertinent information as specified by the Council. Section 986.78 provides, with the
This proposed rule would revise § 986.175 to require that additional information be included in the year-end report. These revisions would require handlers to report the average price paid by handler and average yield of shelled pecans as part of the existing year-end report.
At its January 24, 2018, and April 17, 2018, meetings, the Council reviewed the reporting requirements under the Order and determined there were additional data that would be beneficial to collect and summarize for the industry on an annual basis. Specifically, the Council recommended adding two additional items to be reported as part of the annual year-end reporting requirement, average price paid by handlers and shelled pecan yield.
While the National Agricultural Statistics Service (NASS) reports average grower prices, this proposed reporting change would provide information regarding a handler's overall cost of acquiring pecans. Some handlers buy directly from growers, but many buy from other handlers or import pecans. Understanding the cost of pecans being handled is key information in determining the value of the overall crop and subsequent impacts on the market for pecans the following season. During the meetings, members noted that collecting the average price paid would also be necessary to complete the marketing policy report required under the Order. The marketing policy, as required by § 986.65, must include projected prices for the upcoming fiscal year, which would be influenced by handler costs. Further, the Council believes providing this information would improve the information available to the pecan industry. In particular the Council feels this information may give growers better information that can be used in making business decisions. The Council recommended adding this reporting requirement as there is currently no comprehensive source for handler cost information.
The Council also discussed asking handlers to provide information regarding the weight of shelled pecans handled. During the formal rulemaking hearing to promulgate the Order, a witness testified regarding a conversion rate of multiplying the shelled weight by two to calculate inshell weight. That conversion rate was incorporated into the Order. Using this conversion, the weight of shelled pecans is approximately 50 percent of the inshell weight. This proportion is referred to as the “shell-out” or shelled pecan yield. However, there are natural variations in pecans and yield can vary depending on the thickness of the shells of different varieties and can also vary from year to year. These fluctuations make it challenging to accurately convert the total inshell volume harvested into shelled pounds, or shelled pounds into their inshell equivalent to provide an accurate estimate of overall supply.
As with the handler price paid, there is currently no central industry source for information on the shelled pecan yield. The Council believes collecting this data would allow them to provide the industry with an updated annual average of this yield, which could be an indicator of quality, and over time provide a series of data on shelled pecan yield that would allow them to determine if changes to the current conversion rate are needed.
Following the recommendation of the proposed changes made at the January 24, 2018 meeting, some members had questions about the specific data that would be collected. Based on these questions, the Council made some adjustments to the proposed form to clarify that handlers would report the average price paid for all inshell pecans purchased during the fiscal year, regardless of how the pecans are handled, including pecans from outside the production area. For the purposes of this form, the terms crop year and fiscal year are synonymous. The Council reviewed the revised reporting form at its April 17, 2018, meeting and affirmed that the new language met their original intent.
The Council believes these revised reporting requirements are necessary to provide accurate reports to the industry regarding average price paid, yield for shelled pecans, and to meet requirements under the Order. The industry would use this information to complement the information provided by NASS in the development of its marketing policy and to collect accurate data to determine if the definition of weight in § 986.43 needs to be amended.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.
There are approximately 2,500 growers of pecans in the production area and approximately 250 handlers subject to regulation under the Order. Small agricultural growers are defined by the Small Business Administration as those having annual receipts less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $7,500,000 (13 CFR 121.201).
According to information from NASS, the average grower price for pecans during the 2016-2017 season was $2.59 per pound and 269 million pounds were utilized. The value for pecans that year totaled $697 million ($2.59 per pound multiplied by 269 million pounds). Taking the total value of production for pecans and dividing it by the total number of pecan growers provides an average return per grower of $278,684. Using the average price and utilization information, and assuming a normal distribution among growers, the majority of growers receive less than $750,000 annually.
Evidence presented at the formal rulemaking hearing indicates an average handler margin of $0.58 per pound. Adding this margin to the average grower price of $2.59 per pound of inshell pecans results in an estimated handler price of $3.17 per pound. With a total 2017 production of 269 million pounds, the total value of production in 2017 was $853 million ($3.17 per pound multiplied by 269 million pounds). Taking the total value of production for pecans and dividing it by the total number of pecan handlers provides an average return per handler of $3.4 million. Using this estimated price, the utilization volume, number of handlers, and assuming a normal distribution among handlers, the majority of handlers have annual receipts of less than $7,500,000. Thus, the majority of growers and handlers regulated under the Order may be classified as small entities.
This proposed rule would revise the reporting requirements in § 986.175. This action would require all pecan handlers to report to the Council the average handler price paid and average shelled pecan yield as part of its existing year-end report. This information would be used by the Council to provide statistical reports to the industry and meet requirements under the Order. The authority for this proposal is provided in §§ 986.76 and 986.78.
It is not anticipated that this proposed rule would impose additional costs on handlers or growers, regardless of size. Council members, including those representing small businesses, indicated the average handler price paid and the average shelled pecan yield information is already recorded and maintained by handlers as a part of their daily business and the information should be readily accessible. Consequently, any additional costs associated with this change would be minimal and apply equally to all handlers.
This action should also help the industry by providing additional data on pecans handled. This information would help with marketing and planning for the industry, as well as provide important information in preparing the annual marketing policy required by the Order. This change would also assist with the development of a dataset to determine if the conversion rate for shelled to inshell pecans needs to be revised. The benefits of this rule are expected to be equally available to all pecan growers and handlers, regardless of their size.
The Council discussed other alternatives to this proposed action, including making no changes to the current reporting requirements. However, having the information on handler price paid and shelled pecan yield would provide important information for the industry.
Another alternative considered was to create a new report for the collection of this information. However, the industry recently implemented a series of monthly reports that increased the reporting burden on handlers. Rather than add to the burden by creating a new report, the Council believed it would be more efficient to ask handlers for this information as part of the existing year-end reporting requirement. Therefore, the alternatives were rejected.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Order's information collection requirements have been previously approved by OMB and assigned OMB No. 0581-0291 “Federal Marketing Order for Pecans.” This proposed rule would require changes to the Council's existing APC Form 7. However, the changes are minor and the currently approved burden for the form should not be altered by the proposed changes to the form. The revised form has been submitted to OMB for approval.
As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this proposed rule.
AMS is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
Further, the Council's meetings were widely publicized throughout the pecan industry and all interested persons were invited to attend the meetings and participate in Council deliberations on all issues. Additionally, the Council's Committee meetings held on January 24, 2018, and April 17, 2018, were also public meetings and all entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submit comments on this proposed rule, including the regulatory and information collection impacts of this proposed action on small businesses.
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
A 30-day comment period is provided to allow interested persons to respond to this proposal. All written comments timely received will be considered before a final determination is made on this matter.
Marketing agreements, Nuts, Pecans, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, 7 CFR part 986 is proposed to be amended as follows:
7 U.S.C. 601-674.
(a) Handlers shall submit to the Council a year end inventory report following August 31 each fiscal year. Handlers shall file such reports by September 10. Should September 10 fall on a weekend, reports are due by the first business day following September 10. Such reports shall be reported to the Council on APC Form 7. For the purposes of this form, “crop year” is the same as the “fiscal year.” The report shall include:
(7) Total weight and type of domestic pecans handled for the fiscal year;
(8) Total assessments owed, assessments paid to date, and remaining assessments due to be paid by the due date of the year-end inventory report for the fiscal year;
(9) The average price paid for all inshell pecans purchased during the fiscal year regardless of how the pecans are handled, including pecans from outside the production area; and
(10) The average yield of shelled pecans per pound of inshell pecans shelled during the fiscal year.
Nuclear Regulatory Commission.
Petition for rulemaking; denial.
The U.S. Nuclear Regulatory Commission (NRC) is denying a petition for rulemaking (PRM) submitted on October 22, 2015, by Jeffrey M. Skov (the petitioner), and supplemented on December 7, 2015, March 1, 2016, March 21, 2016, and March 1, 2017. The petition was docketed by the NRC on November 10, 2015, and was assigned Docket No. PRM-2-15. The petitioner requests that the NRC amend its rules of practice to establish procedures for responding to adverse court decisions and to annually report to the public each instance where the NRC does not receive “sufficient funds reasonably necessary to implement in good faith its statutory mandates.” The NRC is denying the petition because the petitioner has not identified shortcomings in the NRC's current regulations or demonstrated a need for the requested changes.
The docket for the petition for rulemaking, PRM-2-15, is closed on October 9, 2018.
Please refer to Docket ID NRC-2015-0264 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
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Olivia Mikula, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington DC 20555-0001, telephone: 301-287-9107; email:
Section 2.802 of title 10 of the
In his PRM, the petitioner raises concerns about the NRC's independence, its mission-related functions, and its commitment to transparency in light of the adverse decision
Mr. Skov's PRM proposes two rules. The first proposed rule would require the NRC to take certain actions following the receipt of a court decision (and after the expiration of rehearing and appeal rights) finding that the agency violated applicable law. Specifically, the rule would require (1) an identification and determination of the causes of each violation; (2) an “extent of condition” evaluation to determine whether the NRC's implementation of other statutes and regulations is similarly affected by the violation; (3) implementation of immediate corrective actions based on the evaluation performed; (4) implementation of corrective actions to prevent recurrence; and (5) preparation of a public report documenting the agency's review. The rule also would require the NRC to seek investigation by the U.S. Department of Justice (DOJ) as to whether the agency has adequate oversight mechanisms in place to prevent the violation of applicable laws and whether any violations of Federal criminal laws have occurred (particularly laws prohibiting obstruction of Federal proceedings and conspiracies to commit offense or to defraud the United States). In addition, the rule would require the NRC to decide whether to appeal or seek rehearing in accordance with the American Bar Association's (ABA) Model Rules of Professional Conduct.
The second proposed rule would require the NRC to disclose annually “each instance where [the NRC] does not receive sufficient funds reasonably necessary to implement in good faith its statutory mandates.” In these instances, the proposed rule would have the NRC publicly disclose whether the NRC was directed not to request funds, requested funds but did not receive them, or determined on its own not to request funds. Further, the rule would require “a discussion of the consequences of each instance with respect to (1) public safety and health; (2) environmental protection; (3) the common defense and security; (4) the reputation/credibility of the agency as a `trusted, independent, transparent, and effective nuclear regulator;' and (5) collateral fiscal impacts.”
On February 17, 2016 (81 FR 8021), the NRC published a notice of docketing of PRM-2-15. The NRC elected not to request public comment on PRM-2-15 because the petition was sufficiently
In the original petition and subsequent submittals, the petitioner focuses on the outcome of the
The NRC is denying further consideration of the petitioner's first proposed rule because it does not present a practical process for agency accountability and because the NRC already has the tools in place to provide for independent evaluation of agency actions. The petitioner's proposed rule presents the goal of requiring the agency to reflect upon the reasons for a loss it has sustained in court and to implement corrective actions in light of any lessons learned. However, for the reasons discussed below, the proposed rule is neither necessary nor appropriate for meeting this goal.
With regard to the trigger for the proposed rule—a finding by a court of competent jurisdiction that the NRC violated applicable law—adverse court decisions that relate to the NRC's licensing responsibilities do not necessarily reflect misconduct. Rather, the NRC's losses ordinarily have involved a failure to explain the basis for a technical conclusion,
Moreover, the vast majority of NRC licensing cases that result in Federal court litigation have already been the subject of litigation before the Atomic Safety and Licensing Boards and the Commission, such that opportunities to identify deficiencies have been provided through the Commission's internal adjudicatory process. Further, the Agency's Office of the General Counsel (OGC) ensures that the Commission and pertinent staff offices are informed of court decisions and the need for any responsive action to ensure compliance with the holding. In addition, OGC will provide advice on the impact, if any, of that decision on any current and future NRC decisionmaking. Given these facts, the additional processes in the proposed rule are not necessary.
In addition, the petitioner's proposed rule would require an independent evaluation of agency action in light of an adverse court decision. The NRC's Office of the Inspector General, however, already has the authority to perform that function. The Inspector General (IG) is authorized “to provide policy direction for and to conduct, supervise, and coordinate audits and investigations relating to the programs and operations of” the agency in which the office is established.
Similarly, the proposal to seek DOJ review of an adverse decision is not necessary because the DOJ is a party to, or has some involvement in, virtually all of the program-related cases in which the agency is named as a defendant. The Hobbs Act, which is the primary vehicle through which NRC decisions are challenged, requires that the United States be named as a respondent.
With respect to the codification of the need to make appeals and rehearing decisions in accordance with the Model Rules of Professional Conduct, each NRC attorney is already subject to the disciplinary rules of the bar in which he or she is admitted as well as the courts in which he or she appears. All decisions to seek further review of an adverse ruling are coordinated with the DOJ and, as necessary, the Solicitor General, who are likewise bound by applicable disciplinary rules. It is therefore not necessary to reference the ABA's Model Rules of Professional Conduct in the NRC's regulations.
The NRC therefore denies further consideration of the petitioner's first proposed rule for the reasons stated.
The NRC is denying further consideration of the petitioner's second proposed rule because it is the NRC's practice to refrain from disclosing pre-decisional budgetary information, consistent with Office of Management and Budget (OMB) guidance. OMB Circular A-11 directs agencies to withhold pre-decisional materials underlying budget deliberations.
The arguments presented by the petitioner focus heavily on the outcome and safety consequences of the
With regard to the petitioner's concerns about agency inaction with respect to Yucca Mountain, the NRC has used virtually all of the remaining funds appropriated through fiscal year 2011 by Congress for the Yucca Mountain project to further review the application, consistent with the
For the reasons stated in Section II, the NRC is denying PRM-2-15. The petition failed to identify a need for the proposed rules. Further, the NRC evaluated the petition in light of the considerations described in § 2.803(h)(1) and found the petition inconsistent with current agency policies and practice.
For the Nuclear Regulatory Commission.
Federal Aviation Administration, DOT.
Notice shortening comment period.
This action shortens the comment period for the notice of availability; request for comments that was published on September 26, 2018. In that document, the FAA announced the existence of and requested comments on the proposed airworthiness design standards for acceptance of the Vertical Aviation Technologies (VAT) Model S-52L rotorcraft under the regulations for primary category aircraft.
The comment period for the document published September 26, 2018, at 83 FR 48574, is shortened. Comments must be received on or before October 26, 2018.
Send comments to the Federal Aviation Administration, Policy and Innovation Division, Rotorcraft Standards Branch, AIR-681, Attention: Michael Hughlett, 10101 Hillwood Parkway, Ft. Worth, Texas 76117. Comments may also be emailed to:
Michael Hughlett, Aviation Safety Engineer, Rotorcraft Standards Branch, Policy and Innovation Division, FAA, 10101 Hillwood Pkwy., Fort Worth, Texas 76177; telephone (817) 222-5110; email
The FAA invites interested parties to submit comments on the proposed airworthiness standards to the address specified above. Commenters must identify the VAT Model S-52L on all submitted correspondence. The most helpful comments reference a specific portion of the airworthiness standards, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received on or before the closing date before issuing the final acceptance. We will consider comments filed late if it is possible to do so without incurring expense or delay. We
On September 26, 2018, the FAA issued a notice of availability; request for comments, entitled “Proposed Primary Category Design Standards; Vertical Aviation Technologies (VAT) Model S-52L Rotorcraft” (83 FR 48574) (“notice of availability”). The notice of availability established a 60-day comment period.
The FAA finds that a 30-day comment period is sufficient for the public to analyze and provide meaningful comment to notice of availability. The date by which to file comments is therefore shortened from November 26, 2018, to October 26, 2018. The FAA does not anticipate any further action to be taken regarding this comment period.
Accordingly, the comment period for the notice of availability has been shortened to close on October 26, 2018.
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 2000 airplanes. This proposed AD was prompted by a report of chafing of a wire bundle located at the bottom of the right hand electrical cabinet. This proposed AD would require a one-time general visual inspection of the wiring bundle for damage, measurement of the clearance between the metallic plate and the wiring bundle, and corrective actions if necessary. We are proposing this AD to address the unsafe condition on these products.
We must receive comments on this proposed AD by November 23, 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 2018-0114, dated May 23, 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 2000 airplanes. The MCAI states:
One Falcon 2000 aeroplane experienced some chafing of a wire bundle located at the bottom of the right-hand (RH) electrical cabinet (between Frames 4 and 5). The wire loom interfered with a metallic (ground) plate of terminal strip 700J and at least 12 wires were damaged. This wire loom includes 250 wires and in case of chafing, any wire may be damaged.
This condition, if not detected and corrected, could lead to improper functioning of aeroplane systems [such as loss of wing anti-icing or wing anti-icing inoperative indication, loss of normal braking indication, and loss of “No take-off” indication], possibly resulting in reduced control of the aeroplane.
To address this potential unsafe condition, Dassault developed a modification M3889 to improve the clearance between the metallic plate and the wire loom, and published the SB [Dassault Aviation Service Bulletin F2000-436] to inspect and modify aeroplanes in service.
For the reasons described above, this [EASA] AD requires a one-time inspection of the wiring bundle for interference or damage, measurement of the clearance between the metallic plate and the wiring bundle, and depending on findings, modification of the aeroplane by cutting out the lower part of the ground plate of terminal strip 700J and adding an edge protection to prevent interference. Aeroplanes that do not have a metallic plate installed are not affected by this [EASA] AD.
You may examine the MCAI in the AD docket on the internet at
Dassault Aviation has issued Service Bulletin F2000-436, dated September 28, 2017. This service information
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.
We estimate that this proposed AD affects 195 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:
We estimate the following costs to do the necessary on-condition action that would be required based on the results of any required actions. We have no way of determining the number of aircraft that might need this on-condition action:
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 November 23, 2018.
None.
This AD applies to Dassault Aviation Model FALCON 2000, certificated in any category, manufacturer serial numbers 70 through 231 inclusive.
Air Transport Association (ATA) of America Code 24, Electrical power.
This AD was prompted by a report of chafing of a wire bundle located at the bottom of the right hand (RH) electrical cabinet. We are issuing this AD to address such chafing, which may cause damage to wires within the bundle, and, if not detected and corrected, could lead to improper functioning of airplane systems (such as loss of wing anti-icing or wing anti-icing inoperative indication, loss of normal braking indication, and loss of “No take-off” indication), which could result in reduced control of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Within 25 months after the effective date of this AD, for airplanes equipped with a metallic plate at the bottom of the RH electrical cabinet, do the following actions as specified in paragraphs (g)(1) and (g)(2) of this AD.
(1) Perform a general visual inspection of the wiring bundle for damage (including chafing), in accordance with the Accomplishment Instructions of Dassault Aviation Service Bulletin F2000-436, dated September 28, 2017.
(2) Measure the clearance between the metallic plate and the wire bundle at the bottom of the RH electrical cabinet in accordance with the Accomplishment Instructions of Dassault Aviation Service Bulletin F2000-436, dated September 28, 2017.
(1) If, during the inspection required by paragraph (g)(1) of this AD, any damage is found, before further flight, replace all damaged wires using a method approved by the Manager, International Section, Transport Standards Branch, FAA; or the European Aviation Safety Agency (EASA); or Dassault Aviation's EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature.
(2) If, during the measurement as required by paragraph (g)(2) of this AD, the detected clearance is less than the criteria as specified in Dassault Aviation Service Bulletin F2000-436, dated September 28, 2017, before further flight, modify the metallic plate in accordance with the Accomplishment Instructions of Dassault Aviation Service Bulletin F2000-436, dated September 28, 2017.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2018-0114, dated May 23, 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 Airbus Defense and Space S.A. Model CN-235, CN-235-200 and CN-235-300 airplanes. This proposed AD was prompted by a determination that new or more restrictive airworthiness limitations are necessary. This proposed AD would require revising the maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations. We are proposing this AD to address the unsafe condition on these products.
We must receive comments on this proposed AD by November 23, 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 Airbus Defense and Space, Services/Engineering support, Avenida de Aragón 404, 28022 Madrid, Spain; telephone: +34 91 585 55 84; fax: +34 91 585 31 27; email:
You may examine the AD docket on the internet at
Shahram Daneshmandi, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3220.
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 2018-0134, dated June 25, 2018 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus Defense and Space S.A. Model CN-235, CN-235-200, and CN-235-300 airplanes. The MCAI states:
The airworthiness limitations and/or certification maintenance instructions for the EADS-CASA CN-235 aeroplanes, which are approved by EASA, are currently defined and published in the Airbus D&S CN-235 ALL [Airworthiness Limitations List] DT-86-3001 document. These instructions have been identified as mandatory for continued airworthiness.
Failure to accomplish these instructions could result in an unsafe condition [
For the reason described above, this [EASA] AD requires accomplishment of the actions specified in the ALL.
You may examine the MCAI in the AD docket on the internet at
Airbus Defence and Space has issued CN-235 Airworthiness Limitations List, DT-86-3001, Issue R, dated March 20, 2018. This service information describes airworthiness limitations for airplane systems, structural inspections, safe life structural items, and safe life system items. 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 incorporate new or more restrictive airworthiness limitations.
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 CN-235, CN-235-200 and CN-235-300 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 9 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 November 23, 2018.
None.
This AD applies to Airbus Defense and Space S.A. (formerly known as Construcciones Aeronauticas, S.A.) Model CN-235, CN-235-200, and CN-235-300 airplanes, all manufacturer serial numbers, certificated in any category, with an original certificate of airworthiness or original export certificate of airworthiness issued on or before March 20, 2018. This AD does not apply to Model CN-235-300 airplanes in a Maritime Patrol (SM01) configuration.
Air Transport Association (ATA) of America Code 05, Time Limits/Maintenance Checks.
This AD was prompted by a determination that new or more restrictive 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 Defence and Space CN-235 Airworthiness Limitations List, DT-86-3001, Issue R, dated March 20, 2018. The initial compliance times for doing the tasks are at the applicable times specified in Airbus Defence and Space CN-235 Airworthiness Limitations List, DT-86-3001, Issue R, dated March 20, 2018, or within 90 days after the effective date of this AD, whichever occurs later.
After accomplishment of the revision 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 2018-0134, dated June 25, 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 Shahram Daneshmandi, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3220.
(3) For service information identified in this AD, Airbus Defense and Space, Services/Engineering support, Avenida de Aragón 404, 28022 Madrid, Spain; telephone: +34 91 585 55 84; fax: +34 91 585 31 27; email:
Consumer Product Safety Commission.
Proposed rule.
In 2009, the Consumer Product Safety Commission (CPSC) fulfilled a statutory requirement in the Consumer Product Safety Improvement Act of 2008 (CPSIA) to issue a rule requiring manufacturers of durable infant or toddler products to establish a consumer registration program. The Commission now proposes to amend the definition of “durable infant or toddler product” in the rule to include the full statutory definition; clarify that the scope of each listed product category is further defined in the applicable mandatory standard; clarify listed product categories using the product name in the applicable mandatory standard; and clarify the scope of the infant carriers and bassinets and cradles product categories.
Submit comments by December 24, 2018.
Comments, identified by Docket No. CPSC-2018-0018, may be submitted electronically or in writing:
Hope EJ Nesteruk, Project Manager, Children's Program Manager, Division of Mechanical and Combustion Engineering, Consumer Product Safety Commission, 5 Research Place, Rockville, MD 20850; telephone: 301-987-2579; email:
Section 104 of the Consumer Product Safety Improvement Act of 2008 (CPSIA) is the Danny Keysar Child Product Safety Notification Act. Section 104 of the CPSIA requires that for “durable infant or toddler products,” the U.S. Consumer Product Safety Commission (CPSC) must (1) issue a mandatory rule for each product based on the applicable voluntary standard, and (2) issue a rule requiring consumer registration for such products. 15 U.S.C. 2056a(b) and (d).
The two aspects of section 104, consumer registration and product standards, are both based on the definition of “durable infant or toddler product” set forth in section 104(f) of the CPSIA: “durable products intended for use, or that may be reasonably expected to be used, by children under the age of 5 years.” The statute lists 12 product categories included within the definition, such as cribs, toddler beds, high chairs, strollers, and swings. In a
The Commission proposes to make the following changes to part 1130 to clarify the products the rule covers:
• State the full statutory definition of “durable infant or toddler product” in section 104(f)(1);
• Specify that the listed product categories are further defined in the applicable mandatory standards;
• List “sling carriers,” “soft infant and toddler carriers,” “handheld infant carriers,” and “frame child carriers” as a subset of infant carriers, to avoid confusion regarding whether they are subject to the consumer registration rule and to reflect each product category using the name of the applicable mandatory standard;
• Clarify that “bedside sleepers” are a subset of bassinets, to avoid confusion regarding whether they are subject to the consumer registration rule and to reflect the product name used in the mandatory standard; and
• Revise the term “changing tables” to “baby changing products,” to reflect the product name used in the mandatory standard.
This proposed rule is based on a briefing package CPSC staff provided to the Commission on September 26, 2018, Notice of Proposed Rulemaking: Updates to 16 CFR part 1130, Consumer Registration of Durable Infant or Toddler Products (Staff Briefing Package).
The Commission proposes to update the definition of “durable infant or toddler product” in 16 CFR 1130.2(a) to state the full statutory definition of “durable infant or toddler product” and to clarify that the scope of the product categories listed can be found in the applicable mandatory standard. Section 104(f) of the CPSIA defines the term “durable infant or toddler product” as “a durable product intended for use, or that may be reasonably expected to be used, by children under the age of 5 years,” and states that the definition “includes” 12 categories of products:
(A) full-size cribs and nonfull-size cribs;
(B) toddler beds;
(C) high chairs; booster chairs, and hook-on-chairs;
(D) bath seats;
(E) gates and other enclosures for confining a child;
(F) play yards;
(G) stationary activity centers;
(H) infant carriers;
(I) strollers;
(J) walkers;
(K) swings; and
(L) bassinets and cradles.
When the Commission finalized the consumer registration rule in 2009, the Commission listed the 12 statutory product categories, as well as six additional product categories the Commission determined fell within the scope of a “durable infant or toddler product”: Children's folding chairs, changing tables, infant bouncers, infant bathtubs, bed rails, and infant slings. 74 FR at 68669-70. However, the rule did not repeat the statutory phrase: “a durable product intended for use, or that may be reasonably expected to be used, by children under the age of 5 years.” Thus, currently one must look at both section 104(f) of the CPSIA and 16 CFR 1130.2 of the regulation to understand the full definition of “durable infant or toddler product.”
Since 2009, as the Commission has issued mandatory rules for the durable infant or toddler products, occasionally the name of the product category in the defined list does not match the name of the product category covered by a mandatory standard, or the scope of the products covered within a product category may be unclear. To clarify the product categories subject to the consumer registration rule, the Commission proposes to list in the rule the name of each product category that aligns with the name of the product category used in the applicable voluntary or mandatory standard.
Section 104(f)(H) of the CPSIA lists “infant carriers” as a product category included in the term “durable infant or toddler products.” However, ASTM international has four separate voluntary standards for infant carriers, and the Commission has now issued four separate mandatory standards, one for each subtype of infant carrier:
Although the Commission added “Infant Slings” to the list of products in 16 CFR 1130.2(a) when finalizing the 2009 consumer registration rule, the registration rule does not list the other sub-categories of infant carriers. To clarify that all four types of infant carriers are subject to the consumer registration requirement, the Commission proposes to list each type of infant carrier in § 1130.2(a)(8) as a subset of the infant carrier category, using the name in the applicable mandatory standard.
Accordingly, the Commission proposes to revise § 1130.2(a)(8), which currently states “Infant carriers,” to state: “Infant carriers, including soft infant and toddler carriers, hand-held infant carriers, sling carriers, and frame child carriers.” The Commission also proposes to delete “infant slings” as a separate product category in § 1130.2(a)(18), and to change the product name from “infant slings” to “sling carriers” in the revised § 1130.2(a)(8), to align with the name of the mandatory rule in part 1228. Thus, the proposed language retains the statutorily-defined category of “infant carrier” while clarifying the four types of infant carriers subject to part 1130.
Currently, the product “bedside sleepers”
Many bedside sleepers on the market are multi-use products that also function as play yards or stand-alone bassinets; such multi-use products are required to provide a consumer registration for their play yard or bassinet mode. However, because bedside sleepers are not specifically listed in part 1130, it may be unclear whether a stand-alone bedside sleeper,
Currently, “changing tables” is listed as a durable infant or toddler product in 16 CFR 1130.2(14). However, the Commission's standard for these products is called “Safety Standard for Baby Changing Products,” codified at 16 CFR part 1235.
The Administrative Procedure Act generally requires that the effective date of a rule be at least 30 days after publication of the final rule. This proposed rule clarifies existing product categories and expands one product category. Accordingly, the Commission proposes two effective dates.
Most of the changes in this proposed rule are clarifications to the definition of “durable infant or toddler product” to state the full statutory definition, and to more clearly identify product categories that already are subject to the consumer registration rule (
A thirty day effective date is likely insufficient for products that have not previously been required to establish a consumer registration program. In the 2009 registration rulemaking the Commission provided a 12-month effective date for the six product categories the Commission added and six months for the other aspects of the rule. The Commission's decision to allow a 12-month effective date for added product categories was based on three comments expressing concern that 6 months would be insufficient to establish a consumer registration program, and requesting a one year effective date instead.
Contoured changing pads have not previously been subject to the registration requirement. Although some manufacturers and importers of contoured changing pads likely distribute other durable infant and toddler products and would, therefore, have an established consumer registration program, the staff briefing package for the final rule for baby changing products identified 25 firms that supply only contoured changing pads to the market and no other changing products.
Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, when a notice of proposed rulemaking is required, agencies must review the proposed rule for the rule's potential economic impact on small entities, including small businesses. Section 603 of the RFA generally requires that agencies prepare an initial regulatory flexibility analysis (IRFA) and make it available to the public for comment when the NPR is published, unless the head of the agency certifies that the rule will not have a significant economic impact on a substantial number small entities. However, pursuant to section 104(d)(1) of the CPSIA, the provision that establishes the requirement for a consumer registration rule, the RFA does not apply when promulgating a rule under this provision. Consequently, the Commission has not prepared an IRFA and no certification is necessary. We note that the amendment mostly provides clarifications that would not have any economic impact. Providing a 12 month effective date for the one product that has not been subject to the registration rule, contoured changing pads, should reduce the economic impact on manufacturers of those products.
The Commission's regulations address whether the agency is required to prepare an environmental assessment or an environmental impact statement. Under these regulations, certain categories of CPSC actions normally have “little or no potential for affecting the human environment,” and therefore, they do not require an environmental assessment or an environmental impact statement. 16 CFR 1021.5. This proposed rule falls within the categorical exclusion to prepare an environmental impact statement.
Section 104(d)(1) of the CPSIA excludes this rulemaking from the requirements of the Paperwork Reduction Act, 44 U.S.C. 3501 through 3520. Consequently, no Paperwork Reduction Act analysis is necessary.
Section 26(a) of the CPSA, 15 U.S.C. 2075(a), provides that when a consumer
Administrative practice and procedure, Business and industry, Consumer protection, Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, the Commission proposes to amend part 1130 of title 16 of the Code of Federal Regulations as follows:
15 U.S.C. 2056a, 2065(b).
(c) * * * Compliance with this part 1130 shall be required on [DATE THAT IS 12 MONTHS AFTER PUBLICATION OF THE FINAL RULE IN THE
The revision reads as follows:
(a)
(8) Infant carrier, including soft infant and toddler carriers, hand-held infant carriers, sling carriers, and frame child carriers;
(11) Swings;
(12) Bassinets and cradles, including bedside sleepers;
(14) Baby changing products;
(17) Bed rails.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish a safety zone for the navigable waters within a 50 yard radius from the center point of the Barters Island Bridge, on the Back River, ME, approximately 4.6 miles north of the mouth of the waterway. When enforced, this proposed rulemaking would prohibit persons and vessels from being in the safety zone during bridge replacement operations unless authorized by the Captain of the Port Northern New England or a designated representative, which could pose as imminent hazard to persons and vessels operating in the area. The safety zone is necessary to protect personnel, vessels, and the marine environment from potential hazards created by the demolition, subsequent removal, and replacement of the Barters Island Bridge and a temporary bridge. We invite your comments on this proposed rulemaking.
Comments and related material must be received by the Coast Guard on or before November 8, 2018.
You may submit comments identified by docket number USCG-2018-0843 using the Federal eRulemaking Portal at
If you have questions about this proposed rulemaking, call or email LT Matthew Odom, Waterways Management Division, U.S. Coast Guard Sector Northern New England, telephone 207-347-5015, email
On April 27, 2018, the Maine Department of Transportation (MEDOT) applied for a bridge construction permit for Barter's Island Bridge with the Coast Guard. On June 22, 2018, the Coast Guard issued Public Notice 1-164, published it on the USCG Navigation Center website, and solicited comments through July 23, 2018. Three comments were received in response to the public notice: One commenter requested the project be stopped if any human remains, archaeological properties or other items of historical importance are unearthed and we report the findings. A second commenter notified us this project will not affect any Penobscot cultural/historic properties or interests and had no objection. A third commenter stated that Tennessee Gas Pipeline currently does not have facilities within the area. There were no statements of objection.
On August 22, 2018, MEDOT requested by letter that the Coast Guard impose waterway restrictions on the Back River around the Barters Island Bridge between Hodgdon Island and Barters Island in Boothbay Harbor in support of the bridge improvements. The project includes the replacement of the swing span of the bridge and the existing center pier. A temporary fixed bridge will be used to maintain vehicle traffic during construction of the new bridge. The temporary fixed bridge will
The purpose of this rulemaking is to protect personnel, vessels and the marine environment from potential hazards created during the replacement of the Barters Island Bridge, on the Back River, ME. The Coast Guard proposes this rulemaking under authority in 33 U.S.C. 1231.
The COTP Northern New England proposes to establish a safety zone from December 1, 2018 through January 31, 2021. The safety zone would cover all navigable waters within a 50 yard radius of the center point of the Barters Island Bridge on Back River connecting Barter Island and Hodgdon Island, approximately 4.6 north of the mouth of the waterway. The duration of the zone is intended to ensure the safety of vessels, the maritime public, construction workers, and these navigable waters during the replacement of the Barters Island Bridge over the main channel of the Back River. During times of enforcement, no vessel or person would be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The regulatory text we are proposing appears at the end of this document.
The Coast Guard will notify the public and local mariners of this safety zone through appropriate means, which may include, but are not limited to, publication in the
We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
This regulatory action determination is based on the following reasons: (1) The safety zone only impacts a small designated area of Back River, (2) the safety zone will only be enforced during certain construction activities necessitating a full waterway closure for safety purposes, which is only anticipated to occur on 85 days over a two year period, or if there is an emergency, (3) persons or vessels desiring to enter the safety zone may do so with permission from the COTP Northern New England or a designated representative, (4) the Coast Guard will notify the public of the enforcement of this rule via appropriate means, such as via Local Notice to Mariners and Broadcast Notice to Mariners via marine Channel 16 (VHF-FM).
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section IV.A above, this proposed rule would not have a significant economic impact on any vessel owner or operator.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions
We have analyzed this proposed rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves a safety zone that would prohibit entry within a 50 yards radius from the center point of the Barters Island Bridge during its removal and replacement over an approximately two year period. Normally such actions are categorically excluded from further review under paragraph L60 (a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A preliminary Record of Environmental Consideration for Categorically Excluded Actions is available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments received will be posted without change to
Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:
33 U.S.C 1231; 50 U.S.C 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(d)
(1) No person or vessel may enter or remain in this safety zone without the permission of the COTP or the COTP's designated representative.
(2) To obtain permission required by this regulation, individuals may reach the COTP or the COTP's designated representative via Channel 16 (VHF-FM) or (207) 741-5465 (Sector Northern New England Command Center).
(3) During periods of enforcement, any person or vessel permitted to enter the safety zone shall comply with the directions and orders of the COTP or the COTP's designated representative.
(4) During periods of enforcement, upon being hailed by a U.S. Coast Guard vessel by siren, radio, flashing lights, or other means, the operator of a vessel within the zone must proceed as directed. Any person or vessel within the safety zone shall exit the zone when directed by the COTP or the COTP's designated representative.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve a revision to the El Dorado County Air Quality Management District (EDCAQMD or “District”) portion of the California State Implementation Plan (SIP). This revision concerns the District's demonstration regarding Reasonably Available Control Technology (RACT) requirements for the 2008 8-hour ozone National Ambient Air Quality Standard (NAAQS) and negative declarations for several source categories. We are proposing action on a local SIP revision under the Clean Air Act (CAA or “the Act”). We are taking comments on this proposal and plan to follow with a final action.
Any comments must arrive by November 8, 2018.
Submit your comments, identified by Docket ID No. EPA-R09-OAR-2018-0602 at
Stanley Tong, EPA Region IX, (415) 947-4122,
Throughout this document, “we,” “us” and “our” refer to the EPA.
On January 3, 2017, the EDCAQMD adopted the “Reasonably Available Control Technology (RACT) State Implementation Plan (SIP) Update Analysis Staff Report” (“2017 RACT SIP”), and on January 4, 2017, the California Air Resources Board (CARB) submitted it to the EPA for approval as a revision to the California SIP. The submittal also included EDCAQMD's Resolution 002-2017, approving the
On January 5, 2017, the EPA determined that the submittal for EDCAQMD's
There are no previous versions of this document in the EDCAQMD portion of the California SIP for the 2008 8-hour ozone NAAQS.
Volatile organic compounds (VOCs) and oxides of nitrogen (NO
Section III.D of the preamble to the EPA's final rule to implement the 2008 8-hour ozone NAAQS (80 FR 12264, March 6, 2015) discusses RACT requirements. It states in part that RACT SIPs must contain adopted RACT regulations, certifications where appropriate that existing provisions are RACT, and/or negative declarations that no sources in the nonattainment area are covered by a specific CTG.
The submitted document provides EDCAQMD's analysis of its compliance with CAA section 182 RACT requirements for the 2008 8-hour ozone NAAQS. The EPA's technical support document (TSD) has more information about the District's submission and the EPA's evaluations thereof.
SIP rules must require RACT for each category of sources covered by a CTG document as well as each major source of VOCs or NO
States should also submit for SIP approval negative declarations for those source categories for which they have not adopted CTG-based regulations (because they have no sources above the CTG-recommended applicability threshold) regardless of whether such negative declarations were made for an earlier SIP.
The District's analysis must demonstrate that each major source of VOCs or NO
EDCAQMD's
With respect to major stationary sources, the
With respect to CTG source categories, we reviewed EDCAQMD's evaluation of its rules subject to RACT and we agree that its rules are generally consistent with the CTGs and recently adopted rules in neighboring air districts.
Where there are no existing sources covered by a particular CTG document, or no major non-CTG sources, states may, in lieu of adopting RACT requirements for those sources, adopt negative declarations certifying that there are no such sources in the relevant nonattainment area. Table C of the
Our TSD has more information on our evaluation of the submitted
As authorized in section 110(k)(3) of the Act, the EPA proposes to fully approve the
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed action merely proposes to approve state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide the EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve, as a State Implementation Plan (SIP) revision, Illinois' certification that its SIP satisfies the nonattainment new source review (NNSR) requirements of the Clean Air Act (CAA) for the 2008 ozone National Ambient Air Quality Standard (NAAQS or Standard). Final approval of the Illinois NNSR certification SIP will permanently stop the Federal Implementation Plan (FIP) clocks triggered by EPA's February 3 and December 11, 2017 findings that Illinois failed to submit an NNSR plan for the Illinois portion of the Chicago-Naperville, Illinois-Indiana-Wisconsin area (Chicago Nonattainment Area).
Written comments must be received on or before November 8, 2018.
Submit your comments, identified by Docket ID No. EPA-R05-OAR-2018-0383 at
David Ogulei, Environmental Engineer, Air Permits Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353-0987,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:
On March 12, 2008, EPA promulgated a revised 8-hour ozone NAAQS of 0.075 parts per million (ppm).
On March 6, 2015, EPA issued a final rule titled “Implementation of the 2008 National Ambient Air Quality Standards for Ozone: State Implementation Plan Requirements” (SIP Requirements Rule), which detailed the requirements that state, tribal, and local air quality management agencies must meet as they develop implementation plans for areas where air quality exceeds the 2008 8-hour ozone NAAQS.
Areas designated nonattainment for the ozone NAAQS are subject to the general nonattainment area planning requirements of CAA section 172 and also to the ozone-specific planning requirements of CAA section 182. States in the Ozone Transport Region (OTR)
EPA classified the Chicago-Naperville, Illinois-Indiana-Wisconsin area (Chicago Nonattainment Area) as a marginal nonattainment area for the 2008 8-hour ozone NAAQS on June 11, 2012 (effective July 20, 2012) using certified ambient air quality monitoring data from calendar years 2009-2011.
On May 4, 2016, pursuant to section 181(b)(2) of the CAA, EPA determined that the Chicago area failed to attain the 2008 8-hour ozone NAAQS by the July 20, 2015, marginal area attainment deadline and did not meet the CAA section 181(a)(5) criteria, as interpreted in 40 CFR 51.1107, for a 1-year attainment date extension.
As explained in the SIP Requirements Rule, Illinois was required to develop a SIP revision addressing NNSR requirements for its marginal ozone nonattainment areas by July 20, 2015.
On February 3, 2017, EPA found that 15 states and the District of Columbia failed to submit SIP revisions to satisfy certain nonattainment plan requirements for the 2008 ozone NAAQS.
These findings established certain deadlines for the imposition of sanctions if a state does not submit a timely SIP revision addressing the requirements for which EPA made the findings and the requirement for EPA to promulgate a FIP to address any outstanding SIP requirements. Specifically, Illinois was required to submit a complete SIP addressing the deficiencies that were the basis for each finding within 18 months of the effective dates of the findings (
On March 1, 2018, EPA redesignated the Metro-East area to attainment for the 2008 8-hour ozone NAAQS because EPA found this area to have met the statutory requirements for redesignation to attainment under the CAA.
On May 23, 2018, the Illinois Environmental Protection Agency (IEPA) submitted a SIP revision addressing the NNSR requirements of the CAA for areas designated as nonattainment for the 2008 ozone NAAQS. On July 12, 2018, EPA found that Illinois' NNSR SIP submission fulfilled the completeness criteria in 40 CFR part 51, appendix V.
On May 23, 2018, IEPA submitted a SIP revision requesting EPA's approval of Illinois' certification that its existing SIP-approved NNSR regulations fully satisfy the NNSR requirements set forth in 40 CFR 51.165 for both marginal and moderate ozone nonattainment areas for the 2008 ozone NAAQS. IEPA indicates that its NNSR SIP submission is intended to respond to the February 3 and December 11, 2017 findings for the Chicago and Metro-East areas. Specifically, Illinois is certifying that its existing NNSR program covering its ozone nonattainment areas for the 2008 8-hour ozone NAAQS, including the Chicago Nonattainment Area, contains the NNSR elements required by 40 CFR 51.165, as amended by the SIP Requirements Rule, for ozone and its precursors.
Illinois' submittal includes a document titled, “Illinois' Compliance
The minimum SIP requirements for NNSR permitting programs for the 2008 8-hour ozone NAAQS are located in 40 CFR 51.165.
Illinois' NNSR rules, as set forth in 35 IAC Part 203, Major Stationary Sources Construction And Modification, are designed to ensure that the construction of a major new source of air pollution or a large increase of emissions at an existing source does not interfere with the attainment demonstration and does not delay timely achievement of the ambient air quality standards. The rules require owners or operators of major projects to: (1) Apply the Lowest Achievable Emission Rate (LAER) or, for certain existing sources, the Best Available Control Technology (BACT) on emissions of the nonattainment pollutant from the major project; (2) offset the emissions of the nonattainment pollutant from a major project by emission reductions from other sources in the nonattainment area; (3) demonstrate that other sources in the State which are under common ownership or control with the person proposing the project are in compliance with the CAA; and (4) analyze alternatives to the particular project to determine whether the benefits of the project outweigh the environmental and social costs.
EPA last approved revisions to Illinois' NNSR SIP on May 13, 2003.
Based on our review of the NNSR checklist that Illinois incorporated into the SIP submittal, and the version of 35 IAC 203 approved into the Illinois SIP, we propose to find that Illinois' SIP-approved NNSR program at 35 IAC 203 contains the minimum required NNSR elements as specified in 40 CFR 51.165 for Illinois' ozone nonattainment areas. We are proposing to approve Illinois' certification that 35 IAC 203 is consistent with 40 CFR 51.165 and meets the requirements of CAA sections 172(c)(5), 173, 110(a)(2), 182(a)(4) and 182(b)(5) under the 2008 ozone standard for the Illinois portion of the Chicago Ozone Nonattainment Area. Final approval of Illinois' NNSR certification would address the deficiencies that were the basis for the February 3 and December 11, 2017 findings, and would turn off the FIP clock for the Illinois portion of the Chicago Nonattainment Area. While some of Illinois' regulations are worded or organized differently than the Federal counterparts, EPA proposes to find that these differences do not affect the relative stringency of such provisions.
The following table lists the specific provisions of Illinois' NNSR rules that address the required elements of the Federal NNSR rules:
The major source thresholds for both VOC and NO
Illinois has certified that the Federal requirements for major source thresholds for VOC and NO
Under 40 CFR 51.165(a)(1)(iv)(A)(
Under 40 CFR 51.165(a)(1)(v)(E), any significant net emissions increase of NO
Under 40 CFR 51.165(a)(1)(v)(F), any physical change in, or change in the method of operation of, a major stationary source of VOC that results in any increase in emissions of VOC from any discrete operation, emissions unit, or other pollutant emitting activity at the source shall be considered a significant net emissions increase and a major modification for ozone, if the major stationary source is located in an extreme ozone nonattainment area that is subject to CAA title 1, part D subpart 2. Illinois has certified that this requirement is addressed by 35 IAC 203.207(f). That provision states that in areas classified as extreme nonattainment for ozone, beginning on the date that EPA classifies an area as an extreme nonattainment area for ozone, any physical change in or change in the method of operation of a major stationary source which results in any increase in emissions of VOC or NO
Under 40 CFR 51.165(a)(1)(x)(A), (B) and (C), the significant emission rate for ozone is defined as 40 tons per year of VOC or NO
Under 40 CFR 51.165(a)(3)(ii)(C)(
Illinois certifies that these requirements are satisfied by 35 IAC 203.302(a), 35 IAC 203.303(b) and (f), 35 IAC 203.602 and 35 IAC 203.701. In particular, 35 IAC 203.302(a) establishes a general obligation that “the owner or operator of a new major source or major modification shall provide emission offsets equal to or greater than the allowable emissions from the source or the net increase in emissions from the modification sufficient to allow [IEPA] to determine that the source or modification will not interfere with reasonable further progress [RFP] . . . ” With respect to 40 CFR 51.165(a)(3)(ii)(C)(
With respect to 40 CFR 51.165(a)(3)(ii)(C)(
Under 40 CFR 51.165(a)(8), all requirements applicable to major stationary sources and major modifications of VOC shall apply to NO
Under 40 CFR 51.165(a)(9)(ii)(A)-(E), the VOC offset ratios shall be 1.1:1 in marginal ozone nonattainment areas, 1.15:1 in moderate ozone nonattainment areas, 1.2:1 in serious ozone nonattainment areas, 1.3:1 in severe ozone nonattainment areas, and 1.3:1 in severe ozone nonattainment areas. Illinois certifies that these requirements are satisfied by 35 IAC 203.302(a). Specifically, 35 IAC 203.302(a)(1) requires offset ratios for both VOC and NO
For ozone nonattainment areas subject to CAA title 1, part D, subpart 1 but not subpart 2, 40 CFR 51.165(a)(9)(iv) requires an offset ratio of at least 1:1. Because all of the current ozone nonattainment areas in Illinois were designated under CAA title 1, part D, subpart 2, 40 CFR 51.165(a)(9)(iv) does not apply to Illinois at this time.
Illinois' approved SIP does not contain the OTR provisions set forth in 40 CFR 51.165(a)(1)(iv)(A)(
“Anti-backsliding” provisions are designed to ensure that for existing ozone nonattainment areas that are designated nonattainment for a revised and more stringent ozone NAAQS, (1) there is protection against degradation of air quality (
Attainment status designations for Illinois are found at 40 CFR 81.314. With respect to the 1997 8-hour ozone NAAQS, all areas in Illinois attained the 1997 8-hour ozone NAAQS prior to April 6, 2015.
EPA is proposing to approve Illinois' May 23, 2018 SIP revision addressing the NNSR requirements for the 2008 ozone NAAQS for the Chicago Nonattainment Area. EPA has concluded that Illinois' submission fulfills the 40 CFR 51.1114 revision requirement, meets the requirements of CAA sections 110 and 172 and the minimum SIP requirements of 40 CFR 51.165, as well as its obligations under EPA's February 3 and December 11, 2017 findings.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The proposed rule approving Illinois' 2008 8-hour ozone NAAQS NNSR SIP revision is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve Illinois' May 8, 2018 request to revise the designation for the entire state of Illinois from unclassifiable to unclassifiable/attainment and Indiana's July 3, 2018 request to revise the designation for the Indiana portions of the Chicago IL-IN and Louisville KY-IN (herein referred to as Chicago and Louisville) areas from unclassifiable to unclassifiable/attainment for the 2012 primary and secondary annual fine particulate matter (PM
Comments must be received on or before November 8, 2018.
Submit your comments, identified by Docket ID No. EPA-R05-OAR-2018-0368 (Illinois) or EPA-R05-OAR-2018-0556 (Indiana) at
Michelle Becker, Life Scientist, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-3901,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:
The Clean Air Act (CAA) establishes a process for air quality management through the establishment and implementation of the NAAQS. After the promulgation of a new or revised NAAQS, EPA is required to designate areas, pursuant to section 107(d)(1) of the CAA, as attainment, nonattainment, or unclassifiable. On December 14, 2012, EPA promulgated a revised primary annual PM
The process for designating areas following promulgation of a new or revised NAAQS is contained in section 107(d)(1) of the CAA. On January 15, 2015 (80 FR 2206) and April 7, 2015 (80 FR 18535), EPA designated areas across the country as nonattainment, unclassifiable, or unclassifiable/attainment for the PM
In the first action referenced above, EPA designated the entire state of Illinois, including the multi-state areas of Chicago, IL-IN and St. Louis, MO-IL (herein referred to as St. Louis), as unclassifiable because the ambient air quality monitoring sites lacked complete data for the relevant periods, which were from 2011-2013. Therefore, EPA could not determine, based on available information, whether those areas were meeting the 2012 PM
On April 7, 2015 (80 FR 18535), EPA changed the Louisville area initial designation from nonattainment to unclassifiable. Although Indiana submitted complete, quality-assured and certified 2014 data from the Clark County monitor showing it was attaining the NAAQS, EPA noted that an air quality determination was not possible due to invalid monitoring data for neighboring Jefferson County, Kentucky.
On May 8, 2018, Illinois submitted to EPA a request to “redesignate” the State of Illinois, including the St. Louis area, from unclassifiable to unclassifiable/attainment based on three years of quality-assured, certified ambient air monitoring data for the three-year period of 2015-2017.
On July 3, 2018, Indiana submitted to EPA a request to “redesignate” the Louisville and Chicago areas from unclassifiable to unclassifiable/attainment based on three years of quality-assured, certified ambient air monitoring data for the three-year period of 2015-2017.
Section 107(d)(3) of the CAA provides the framework for changing the area designations for any NAAQS pollutants. Section 107(d)(3)(A) provides that the Administrator may notify the Governor of any state that the designation of an area should be revised “on the basis of air quality data, planning and control considerations, or any other air quality-related considerations the Administrator deems appropriate.” The CAA further provides in section 107(d)(3)(D) that even if the Administrator has not notified a state Governor that a designation should be revised, the Governor of any state may, on the Governor's own motion, submit a request to revise the designation of any area, and the Administrator must approve or deny the request.
When approving or denying a request to redesignate an area, EPA bases its decision on the air quality data for the area as well as the considerations provided under section 107(d)(3)(A). While CAA section 107(d)(3)(E) lists specific requirements for redesignations, those requirements only apply to redesignations of nonattainment areas to attainment and therefore are not applicable in this context of a revised designation of an area from unclassifiable to unclassifiable/attainment. In keeping with section 107(d)(3)(A), areas that request a revised designation to unclassifiable/attainment must meet the requirements for attainment areas and thus must meet the relevant NAAQS. The relevant monitoring data must be collected and quality-assured in accordance with 40 CFR part 58 and recorded in the EPA Air Quality System (AQS) database. The designated monitors generally should have remained at the same location for the duration of the monitoring period upon which the revised designation request is based.
Additionally, appendix N of 40 CFR part 50 specifies the data handling conventions and computations necessary for determining when the NAAQS for PM
In order to revise the designation of an area from unclassifiable to unclassifiable/attainment for the 2012 primary and secondary annual PM
There are two groups of monitoring sites with incomplete data and for which data substitution rules were applied under appendix N of 40 CFR part 50. First, Illinois had eight monitoring sites with a data capture rate below 75 percent during at least one quarter, but had valid PM
Second, Illinois had two monitoring sites, Cary (17-111-0001) and Jerseyville (17-183-0117), that had at least one calendar quarter of data capture below 75 percent and did not meet the substitution test conditions under section 4.1(c) of appendix N. Because the substitution test conditions were not applicable, EPA considered other factors under section 4.1(d) of appendix N, such as monitoring site closures/moves, the consistency of daily levels, and nearby concentrations in determining whether the data from the monitors was valid. In addition, EPA performed a substitution test similar to the test methods specified in 4.1(c). Based on consideration of these factors, EPA determined that the data from these monitors could be used and the data showed that the areas were meeting the PM
Because the 3-year design values, based on valid, quality-assured data, demonstrate that the areas meet the 2012 primary and secondary annual PM
EPA is proposing to approve Illinois' May 8, 2018 request to revise the designation of the entire state from unclassifiable to unclassifiable/attainment as well as Indiana's July 3, 2018 request to revise the designation of the Indiana portions of the Louisville and Chicago areas for the 2012 primary and secondary annual PM
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 Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Environmental protection, Air pollution control, Particulate matter.
Fish and Wildlife Service, Interior.
Proposed rule.
We, the U.S. Fish and Wildlife Service (Service), propose to list the black-capped petrel (
We will accept comments received or postmarked on or before December 10, 2018. Comments submitted electronically using the Federal eRulemaking Portal (see
You may submit comments by one of the following methods:
(1)
(2)
We request that you send comments only by the methods described above. We will post all comments on
Edwin Muñiz, Field Supervisor, U.S. Fish and Wildlife Service, Caribbean Ecological Services Field Office, P.O. Box 491, Road 301 Km 5.1, Boquerón, PR; telephone 787-851-7297. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service at 800-877-8339.
We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. Because we will consider all comments and information we receive during the comment period, our final determination may differ from this proposal. We particularly seek comments concerning:
(1) The black-capped petrel's biology, range, and population trends, including:
(a) Biological or ecological requirements of the species, including habitat requirements for feeding, breeding, and sheltering that apply to both the foraging and nesting areas;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns;
(d) Historical and current population levels, and current and projected trends; and
(e) Past and ongoing conservation measures for the species, its habitat, or both.
(2) Factors that may affect the continued existence of the species, which may include habitat modification or destruction, overutilization, disease, predation, the inadequacy of existing regulatory mechanisms, or other natural or manmade factors on both the nesting and foraging grounds and migratory routes, including:
(a) Impacts to prey species;
(b) Predicted changes in the Gulf Stream current due to climate change;
(c) Impacts from offshore and coastal lighting;
(d) Impacts from offshore oil and gas exploration, development, production, and operations; and
(e) Impacts from offshore wind energy operations.
(3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this species and existing regulations that may be addressing those threats.
(4) Additional information concerning the historical and current status, range, distribution, and population size of this species, including confirmed locations of any additional populations of this species.
(5) Information on nesting sites on the islands of Cuba or Dominica, or other Caribbean islands.
(6) Information concerning activities that should be considered under a rule issued in accordance with section 4(d) of the Act (16 U.S.C. 1531
(7) The reasons why we should or should not designate habitat as “critical habitat” under section 4 of the Act, including whether there are threats to the species from human activity, the degree of which can be expected to increase due to the designation, and whether a designation could increase threats to the species such that the designation of critical habitat may not be prudent. We specifically request information on foraging habitat for the petrel, the only habitat located within U.S. jurisdiction, and its relationship to the biological needs of the species, to help us determine whether such habitat meets the definition of critical habitat under the Act.
You may submit your comments and materials concerning this proposed rule by one of the methods listed in
Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include. All comments submitted electronically via
Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or a threatened species must be made “solely on the basis of the best scientific and commercial data available.”
Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on
Section 4(b)(5) of the Act provides for a public hearing on this proposal, if requested. Requests must be received within 45 days after the date of publication of this proposed rule in the
The black-capped petrel was included as a category 2 candidate species in a
We were petitioned by WildEarth Guardians on September 1, 2011, to list the species as endangered or threatened under the Act. On June 21, 2012, we published a 90-day finding, which determined there was substantial scientific or commercial information indicating that listing the species is warranted (77 FR 37367). On February 18, 2015, Center for Biological Diversity (CBD) filed a complaint against the Service for failure to complete a 12-month finding for the black-capped petrel. On September 9, 2015, the Service entered into a settlement agreement with CBD to resolve the complaint; the court approved the agreement on September 15, 2015. The agreement specified that a 12-month finding for the black-capped petrel would be delivered to the
A species status assessment (SSA) team prepared an SSA report for the black-capped petrel; the science provided in the SSA, version 1.1, is the basis for this proposed rule (Service 2018). The SSA team was composed of Service biologists, in consultation with other species experts. The SSA report represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the species. The SSA report underwent independent peer review by scientists with expertise in seabird biology, habitat management, and stressors (factors negatively affecting the species) to the species. The SSA report and other materials relating to this proposal can be found on the Service's Southeast Region website at
A thorough review of the taxonomy, life history, and ecology of the black-capped petrel (
The black-capped petrel is a pelagic seabird that is in the order Procellariiformes, family Procellariidae. This order is distinguished by sheathed nostrils in horny tubes from the base of the bill (Warham 1990, p. 2). It is a medium-sized seabird in the
Black-capped petrels currently breed at four locations on the island of Hispaniola (Pic Macaya, Haiti; Pic la Visite, Haiti; Morne Vincent/Sierra de Bahoruco, Haiti/Dominican Republic; and Valle Nuevo, Dominican Republic). Historically, the species also nested on Martinique, Dominica, Guadeloupe, and, possibly, Cuba (Simons
Black-capped petrels spend most of their time at sea in the western Atlantic. The at-sea geographic distribution (marine range) of the black-capped petrel includes waters off the eastern coast of North America from latitude 40° N (approximately New Jersey) south to latitude 10° N (approximately northern South America) (Goetz
Black-capped petrels feed mostly at night and pick their food from the water surface either solitarily or in close proximity to other foraging seabird species. The diet of black-capped petrels is not fully understood; however, stomach contents of black-capped petrels include squid, fish, crustaceans, and
Black-capped petrel nesting areas are in high-elevation (greater than or equal to 1,500 meters (4,921 feet)), montane forests with steep slopes and rocky substrate with or without vegetation or humus cover that provides cavities for nesting burrows. They may also burrow at the base of native arborescent ferns (Jean and Brown 2018, in litt.). The nesting season begins around January, with high parental investment in the nest and chick rearing. The female lays only one egg each season, with an alternating male and female incubation period of 50 to 53 days, followed by shared parenting of the chick for a minimum of 80 days. Adults that are raising young may travel 500 to 1,500 kilometers (km) (310 to 932 miles (mi)) to obtain food for the young and have been found foraging in the Caribbean Sea (Jodice
The travel of adults to and from nests during foraging bouts for the young generally occurs at night; this makes visual observations difficult. The nests are also in rugged montane areas that are not easily accessed, and burrows are difficult to detect. The species was historically used as a food source for the island inhabitants, as the young chicks are easily captured once a burrow is located. The petrels were also drawn in using manmade fires (Sen Sel) intended to disorient the birds, causing them to fly towards the light of the fire and ultimately crashing into the land nearby where they were captured for food (Wingate 1964, p. 154).
Due to the cryptic nature of the species as described above, the species was thought to be extinct until it was rediscovered in by Wingate in 1963, in the Massif de la Selle mountain range in Haiti. The estimated population at that time was around 2,000 pairs, based on potential occupied suitable habitat; however, there is some uncertainty of the accuracy of this estimate due to the methods used to extrapolate. Wingate suggested the population may have been even higher (Wingate 1964, p. 154).
The Act directs us to determine whether any species is an endangered species or a threatened species because of specific factors affecting its continued existence (stressors). Under section 4(a)(1) of the Act, we may list a species based on (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. The SSA report documents the results of our comprehensive biological status review for the black-capped petrel, including an assessment of the potential stressors to the species. It does not represent a decision by the Service on whether the species should be proposed for listing as an endangered or threatened species under the Act. It does, however, provide the scientific basis that informs our regulatory decision, which involves the further application of standards within the Act and its implementing regulations and policies. The following is a summary of the key results and conclusions from the SSA report.
We reviewed the potential risk factors (
At sea, the species may be affected by coastal and offshore wind farms (Factor E), offshore oil and gas development (Factor E), marine fisheries (Factor E), and mercury and plastic marine debris (Factor E). Lighting from fisheries and offshore energy operations can disorient the petrels. The predicted increase in strong Atlantic storms or hurricane frequency is also expected to lead to an increase in land strandings (Factor E).
Synergistic interactions are possible between effects of climate change and effects of other potential threats such as habitat degradation, deforestation, agricultural development, and coastal or offshore energy development.
We discuss each of these factors in more detail below.
Deforestation, and associated loss and degradation of nesting habitat, is considered the most significant threat to the black-capped petrel (Goetz
On Hispaniola, where all known active petrel nesting sites occur, estimates of current deforestation range from over 90 percent (and increasing)
Forested nesting areas that appear to be suitable for the black-capped petrel occur on the nearby islands of Dominica and Cuba. However, black-capped petrels do not currently breed on these islands. The island of Dominica retains over 60 percent of native forests; likewise, Cuba retains approximately 24 percent of native forest cover (BirdLife International 2010, entire).
Because the black-capped petrel is primarily a pelagic species, forest fires only affect the species directly during the nesting season. However, effects may be significant and potentially long-term, as fires set to clear land for agriculture can result in substantial loss and conversion of forested nesting habitat. Moreover, fires during the incubation and brooding phase can cause injury or mortality for adults and nestlings within nest burrows.
The incidence of anthropogenic fires increases with growth of human populations (Wingate 1964, p. 154; Simons
Fires also indirectly affect petrel nesting habitat by increasing erosion and mudslides following elimination of previously existing vegetation and ground cover. In the Massif de la Selle in Haiti, deliberately-set fires likely caused increased erosion of cliffs used for nesting by petrels; the fires were set to facilitate clearing of land and for fuel wood harvesting (Woods
Like most native Antillean species, the black-capped petrel evolved in the absence of mammalian ground predators. However, following European colonization, many Caribbean islands quickly became host to populations of introduced black rats (
While all of these introduced mammals have negatively affected other native Caribbean species (
Dogs are commonly kept by security personnel and allowed to roam free at night at communication towers near petrel nest sites in the Dominican Republic (Rupp
Feral cats have also been documented at elevations up to 2,100 meters in the Sierra de Bahoruco of the Dominican Republic at the base of petrel nesting cliffs (Simons
While these introduced species currently appear to be relatively scarce and at low densities near known black-capped petrel nest locations, even low numbers of these avian nest predators could significantly impact the few active nests that currently exist, particularly those in more accessible sites (Simons
Recent years have seen the proliferation of telecommunication towers throughout the Caribbean islands. These towers are typically located on high mountain ridges, hills, and other prominent topographic features, and the structures extend several meters above canopy level. Many of the tallest are also secured by numerous guy wires (Longcore
The increasing use of wind farms on and near Caribbean islands may constitute a potential threat to flying petrels (Simons
Offshore oil and gas activity occurs off the coast of Cuba and northern South America near Venezuela and Colombia. Black-capped petrels use the area of the Caribbean Sea off Hispaniola to northern South America (Jodice
In the United States, proposed exploratory test drilling for oil and production along the edge of the continental shelf off the coast of North Carolina (Simons
Oil platforms and related structures are also typically well-lit for worker safety, and lights disorient flying petrels, especially on foggy nights. Moreover, helicopters are frequently used to transport crew and equipment to offshore production facilities, and the effects of these low-altitude overflights on foraging petrels is unknown. Regardless, because most petrels that forage in this area are adults (Simons
Although black-capped petrels have recently been recorded in the central and northeastern Gulf of Mexico where oil and gas activities are ongoing, the extent of use of this area is not yet understood. The species has recently been detected in the northern Gulf of Mexico (Service 2018, appendix A). Oil and gas operations are well-established in the northern Gulf of Mexico; however, based on the best available information, black-capped petrels have not been detected in close proximity to platforms (Farnsworth and Russell 2007, entire). Black-capped petrels were also not identified as a species affected by the Deepwater Horizon oil spill in 2010, which occurred in the northern Gulf of Mexico (NOAA 2016 pp. 4-461—4-515; Haney
In a long-term study of plastic ingestion by seabirds off the coast of North Carolina, plastic was present in stomach contents of over 55 percent of 38 species sampled (Moser and Lee 1992, entire). However, only 1.8 percent of 57 black-capped petrels sampled during the study contained plastic. Black-capped petrels appear far less likely to incidentally ingest plastic fragments than many other seabirds (Simons
Black-capped petrels do not forage heavily in areas along current edges where such residue and flotsam tend to collect, but rather in areas of current upwelling where nutrient-rich waters promote increased abundance of primary producers and prey species; this aspect of black-capped petrel foraging behavior may make them less vulnerable to incidental ingestion of such material (Simons
Marine fisheries contribute to injury and mortality of seabirds through entanglement in clear monofilament fishing lines or getting caught in hooks (Furnuss 2003, entire, Li
Under current projections of climate change, the black-capped petrel faces potential effects on both the foraging and breeding areas (Simons
Threats from climate change to the terrestrial requirements of black-capped petrel ecology are considered greater (Simons
To assess black-capped petrel viability, we used the three conservation biology principles of resiliency, representation, and redundancy (together, “the three Rs,” (3Rs)) (Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency refers to the ability of populations to withstand environmental and demographic stochasticity (for example, wet or dry, warm or cold years or fluctuations in recruitment or adult survival); representation refers to the ability of the species to adapt over time to long-term changes in the environment that influence adaptive capacity through natural selection processes (for example, climate changes); and redundancy refers to the ability of the species to withstand catastrophic events (for example, droughts, hurricanes). In general, the more redundant and resilient a species is and the more representation it has, the more likely it is to sustain populations over time, even under changing environmental conditions. Using these principles, we identified the species' ecological requirements for survival and reproduction at the individual, population, and species levels, and described the beneficial and risk factors influencing the species' viability.
The SSA process can be divided into three sequential stages. During the first stage, we used the 3Rs to evaluate individual life-history needs. During the next stage, we assessed the historical and current condition of species' demographics and habitat characteristics, including explaining how the species arrived at its current condition. In the final stage, we made predictions about the species' responses to positive and negative environmental and anthropogenic influences.
We assessed a range of conditions to allow us to consider the species' resiliency, representation, and redundancy. For redundancy, populations were defined as isolated nesting areas across the known breeding range of the species. The four known extant nesting areas are on the island of Hispaniola: Pic Macaya, Pic la Visite, Morne Vincent/Sierra de Bahoruco, and Valle Nuevo. Black-capped petrels have also been detected through acoustic detections and radar “petrel-like targets” on the island of Dominica, but breeding has not been confirmed there, and, therefore, we will not consider this area as a population until more information is available. Accordingly, we conclude that there are four populations of the black-capped petrel.
These populations were evaluated for resiliency based the number of acoustic and radar detections and nest success. To provide context for the current condition of the species, we considered the historic range to assess the species' resiliency, redundancy, and representation in the past. However, in addressing the species' current condition, only extant populations were analyzed. We evaluated the condition of each population based on nest success, the number of radar petrel-like targets per night and acoustic detections per minute. Overall population condition rankings and habitat condition rankings were determined by combining these factors and elements.
We described representation for the black-capped petrel based on the two distinct color forms of unknown genetic or geographic origins. Geographic representation for the species consists currently of a loose assemblage of the four breeding populations on a single Caribbean island, Hispaniola.
The black-capped petrel spends most of its life at sea, except during breeding, which takes place in high-elevation areas on Caribbean islands. The actual population size of the black-capped petrel is unknown: Published estimates range from approximately 2,000 to 4,000 birds, among which are 500 to 1,000 breeding pairs (Simons
Population resiliency is the ability to respond to stochastic disturbances that may affect individual populations; examples of such disturbances affecting the black-capped petrel include climatic factors such as droughts (and associated fires), hurricanes, and excessive rainfall. These disturbances can reduce habitat quality and nesting success on the breeding grounds, and thus may negatively affect population growth. The black-capped petrel has a large parental investment, as they typically produce only one egg per year. The low reproductive output subjects the species to declines in nesting success due to varying environmental conditions (Simons 1984, entire). Resiliency, measured at the population level, is best characterized by the number of individuals per breeding population and nest success. A resilient black-capped petrel population requires multiple areas of suitable nesting habitat and consistent and adequate pelagic food resources in traditional feeding areas. There is currently an estimated total of 500 to 1,000 breeding pairs across the species' range given data and observations over the past 10 to 15 years (Simons
To determine and quantify current species-level overall resiliency, we compared current population resiliency to the historical optimal, based on known prior distribution and number of breeding populations. From the calculations, the current overall resiliency of the black-capped petrel is low, being approximately one-third (.333) of its historical resiliency. The results of our assessment reflect that the black-capped petrel has experienced a progressive reduction in two key demographic parameters over (at least) the past five centuries: (1) Population size and (2) number of breeding populations. These components are not mutually exclusive, as loss of breeding populations typically results in a decline in total population. Historical information also indicates that reductions were, and continue to be, primarily a result of human activities on the Caribbean islands, which historically hosted black-capped petrel breeding populations. Although declines largely occurred following European colonization of the Caribbean region in the 16th century, at least one breeding population (Martinique) was eliminated during pre-Columbian times by overharvesting for food by the resident Carib Indians. Thus, the cumulative actions of human populations on Caribbean islands have progressively reduced the overall extent of known black-capped petrel breeding populations from that of at least seven populations on four different islands, to four current populations, all located on one island (
Once breeding populations of the black-capped petrel became geographically limited to southwestern Hispaniola, a suite of additional factors began to work synergistically to further reduce the overall population of the species. Among these, habitat loss and degradation have been, and continue to be, the most pernicious. Anthropogenic habitat loss and associated factors threaten the remaining breeding populations on Hispaniola and have almost certainly contributed to the substantial decline in overall numbers of the black-capped petrel over the past 50 years. There has also been an apparent concomitant decrease in petrel numbers within most individual breeding populations. Our estimate of low resiliency for the black-capped petrel reflects extensive nesting habitat loss and degradation, and subsequent declines in petrel population size.
Redundancy reflects the capacity of a species to persist in the face of catastrophic events, and is best achieved by having multiple, widely distributed populations across the geographical range of the species. Black-capped petrel redundancy is characterized by the number and geographic dispersion of breeding populations. Historically, the species' breeding range included Hispaniola, Dominica, Guadaloupe, Martinique, and possibly Cuba. Currently, redundancy is characterized by only four known breeding populations occurring on one island. Moreover, given the relatively close proximity and analogous life-history characteristics of all known nesting colonies, the probability that all colonies would be similarly affected by a given extreme climatic event is quite high. Although total numbers of nests per population are highly uncertain, the majority (80 to 90 percent) of nests are believed to be within the Pic Visite nesting area (J. Goetz, pers. comm.), an area currently subject to significant and increasing pressure from deforestation and other anthropogenic activities.
Current representation in terms of nesting habitat is limited to a relatively narrow range of characteristics shared by all four known breeding areas. Historical records up to at least the early 19th century documented nesting by the petrel on at least three additional islands: Dominica, Guadeloupe, and Martinique (Simons
Over at least the past decade, the threats to continued viability of the black-capped petrel have become well-known both locally (
Because most of the threats to the black-capped petrel are directly the result of anthropogenic activities, these NGOs have been providing technical assistance and education on sustainable agricultural practices, watershed management, and reforestation of previously deforested and degraded areas in the regions where petrels nest. These actions are in addition to “traditional” conservation efforts such as environmental education and heightened awareness of, and appreciation for, the black-capped petrel at the local level.
For example, in the community of Boukan Chat, Haiti (adjacent the Morne Vincent petrel nesting area), NGOs have developed black-capped petrel educational programs for local schoolchildren, provided financial and technical assistance with construction of freshwater cisterns, and provided tree seeds and technical assistance for local
Other such NGO efforts include production of a documentary video highlighting the black-capped petrel and detailing local efforts to save the species. Additional efforts include active monitoring for forest fires near petrel nesting areas, continued monitoring of petrel nest success in the Morne Vincent/Sierra del Bahoruco nesting area, continued radar and bioacoustical monitoring for petrel detections, and working with owners of a local communication tower to reduce nocturnal lighting intensity as a means to reduce black-capped petrel collisions with these structures (Brown 2016, entire; IBPCG 2016, entire; IBPCG 2017, entire). However, these NGO efforts, albeit locally successful, are still relatively limited in both geographic scope and funding, and there are yet other areas of Hispaniola that harbor black-capped petrel nesting colonies (
The black-capped petrel was added to an existing international agreement in 2014, under the Protocol Concerning Specially Protected Areas and Wildlife in the Wider Caribbean Region (SPAW). The SPAW Protocol is pursuant to the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region. The SPAW Protocol was adopted in 1990, and entered into force in 2000. The United States ratified the SPAW Protocol in 2003. There are currently 16 State Parties to the SPAW Protocol from throughout the wider Caribbean region. At least 90 to 95 percent of all black-capped petrel nests are within Haiti or along its border with the Dominican Republic. Although the Dominican Republic is a party to the SPAW Protocol, Haiti is not, and the lack of conservation efforts in Haiti leaves the species vulnerable to ongoing and future impacts to the petrel's nesting habitat.
To assess the future condition of the species, we define viability as the ability of the species to sustain wild populations, both across its range and among representative units beyond a biologically meaningful timeframe. The estimated generation time of the black-capped petrel is 5 years (Goetz
We used the best available information to assess the predicted future viability of the black-capped petrel. In doing so, we considered all recognized threats to the species and how and why they may impinge upon species viability. In the process, we observed that the numerous distinct threats shared common underlying drivers, and of these, the two that encompassed virtually all threats were (1) Regional climate change, and (2) human population growth, particularly on Hispaniola, where all currently known nesting by the petrel occurs. Importantly, for both of these identified drivers, there exists a body of empirical data on which to base reasonable predictions of future conditions for the black-capped petrel. Rather than attempting to predict future levels of all of the diverse threats, many of which lack adequate quantitative data, we chose instead to examine future projections for these two overarching drivers. To employ this approach, we used a combination of black-capped petrel population trajectories over the past 50 years, past trends and current levels of threats, and recognized causal relationships between and among drivers and threats, to incorporate them into a model to arrive at what we believe to be the most likely future status of the black-capped petrel.
When determining the effects of climate on the black-capped petrel, we used the most recent analyses of projected future climate patterns in the Caribbean region that predict a median increase in annual surface air temperature of 2.8 degrees Celsius (°C) (37 degrees Fahrenheit (°F)) within the current petrel nesting areas on Hispaniola by year 2080 (Campbell
Although the full ecological effects of a projected hotter and drier climate in the current black-capped petrel nesting areas on Hispaniola are complex and yet unknown, such a change will likely increase the frequency and intensity of forest fires. Currently, anthropogenic forest fires cause substantial habitat degradation and loss both within and adjacent to the petrel nesting areas (Sergile
Changes in temperatures and rainfall patterns are not the only projected effects of regional climate change for Hispaniola. Recent projections indicate the frequency of intense hurricanes (
Projected climate change and associated effects on hurricane intensities may also have repercussions for black-capped petrels in their marine foraging areas. Over 100 years of data were used in a model that depicted the relationship between black-capped petrel inland strandings (
The factor that is expected to have the greatest effect on black-capped petrel is human population growth in Haiti. The projected increases in human population discussed below will increase the energy needs of Haiti, further influencing habitat loss due to charcoal production or agricultural conversion.
To assess the influence of human population growth on petrel nesting habitat on Hispaniola, we considered three different plausible scenarios. The three scenarios correspond to baseline, baseline plus 20 percent, and baseline minus 20 percent, of United Nations (UN) population growth projections for Haiti and the Dominican Republic. By “bracketing” our projections, we were attempting to account for inherent uncertainties that can arise from long-term projections. By accounting for potential variation, we increased our confidence that the “true” population growth, and its subsequent effects on black-capped petrel nesting habitat, was captured within the range of our scenarios. This also provided a means of graphically depicting and examining relative differences in population growth over time, which may allow for the identification of “critical time points” beyond which certain threats may more rapidly increase in severity. In order to provide a better understanding of the projected trajectory of the future scenarios, we predicted factors affecting black-capped petrel status at two intermediate time frames, 10 and 25 years, as well as 50 years, which is the end of our predictive time horizon. The complete analyses for all three scenarios are provided in the SSA report (Service 2018, pp. 43-56).
The current population of Haiti is around 11 million people (United Nations 2018). If the population of Hispaniola increases as currently projected, by 2070, there will be 28 million inhabitants on the island, of which 15 million will reside in Haiti. At such time, the human population density of Haiti will exceed 545 persons per square kilometer (/km
The black-capped petrel populations most likely to be adversely affected under this scenario are those within Haiti and along the Haiti-Dominican Republic border. In particular, the Pic Macaya and Pic La Visite breeding populations in Haiti, which have apparently suffered the greatest recent declines in both habitat quality and quantity (Goetz
In Scenario 2, the human population on Hispaniola is projected to increase at an annual rate that is 20 percent less than currently predicted, resulting in approximately 27.5 million inhabitants by 2070, of which 14.6 million of those inhabitants will reside in Haiti. Note that this projected total population is only about 2 percent less than was projected in Scenario 1. Likewise, the projected population density of Haiti under this scenario is 532 persons/km
In Scenario 3, the human population on Hispaniola is projected to increase at an annual rate that is 20 percent greater than predicted in Scenario 1. Under Scenario 3, there will be approximately 34 million inhabitants on the island by 2070, of which just over 20 million will reside in Haiti. Under this scenario, human population densities would reach 740 persons/km
All three of the future scenarios indicate a decline in the species' viability through the loss of resiliency, redundancy, and representation. As the human population on Hispaniola increases, the attendant anthropogenic factors that currently influence species viability are virtually certain to increase concomitantly. Future increases in the human population of Haiti will almost certainly result in increased deforestation rates throughout black-capped petrel nesting areas, both for production of charcoal and for necessary agricultural products and building materials. Based on the best available information, our more conservative projections suggest a future increase of approximately 0.56 to 0.65 percent per year in the areal extent of forest conversion on Hispaniola. Of the four known breeding populations on Hispaniola, two (Pic Macaya and Pic La Visite) are likely to face extirpation by 2070 under all three projected future scenarios: Pic Macaya because of the lack of control of human access or ongoing conservation efforts, and Pic La Visite because of ongoing and increasing rates of degradation and its close proximity to the capital city, Port-au-Prince, where anthropogenic demand for resources (food, fuel, building material) is very high. In the case of Pic La Visite, the discovery of any additional petrel nesting sites in the adjacent and contiguous areas of Pic La Selle could potentially attenuate such losses, but no such additional nest sites have been found to date. The loss of these two breeding populations would represent a potential loss of up to 85 to 95 percent of the entire currently known breeding population of the black-capped petrel.
The primary effects of anthropogenic actions on black-capped petrel viability have apparently occurred over the past four or five centuries, a relatively short time in an evolutionary context. The petrel has been subject to the stochastic occurrences of tropical storms and hurricanes in the Caribbean for much longer, and has presumably evolved adaptive strategies in response to such storm events. However, such adaptations evolved in the context of multiple breeding populations across multiple islands and larger populations, and under previous regional climatic regimes. Furthermore, the conditions in which the black-capped petrel evolved have drastically changed, and this is only predicted to worsen. In the case of regional climate regimes, the best available information suggests a hotter and drier future climate within the specific area where black-capped petrels currently nest, along with a steady increase in the number of intense (Category 3 to Category 5) hurricanes across the region over the next century. Although major hurricanes were likely not a threat to the black-capped petrel under their historic (
There remains an additional factor that we were unable to evaluate that could conceivably influence black-capped petrel viability. For many species, particularly those that form breeding colonies or other such aggregations, as population numbers decline they may reach a “critical level” below which normal social and ecological interactions become impaired or inhibited. This is commonly referred to as the Allee effect (see,
Finally, the best available science at the time of the analysis indicates that the future viability of the black-capped petrel is linked to the complex and challenging socioeconomic and environmental landscape within Haiti,
Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations at 50 CFR part 424, set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants.
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the black-capped petrel. Habitat loss and degradation due to deforestation for agricultural development and charcoal production are currently the major threats to the species on its nesting grounds on the island of Hispaniola (Factor A). Historically, the black-capped petrel also nested on the islands of Guadeloupe, Martinique, Dominica, and possibly Cuba. The species was extirpated from Martinique in pre-Columbian times by island residents that over-harvested the petrel for consumption (Factor B). Nonnative mammalian species are a threat to native wildlife on islands and contributed to the loss and probable extirpation of the species on the island of Dominica in the late 19th century (Factor C). The species' nesting range is limited to the steep, high-elevation areas that can be affected by erosion due to increased hurricane intensity and frequency, reducing available cavities or access to nesting sites (Factor E). Due to the loss of nesting areas across the historical range of the species, the black-capped petrel is currently only confirmed to be reproducing on the island of Hispaniola. The species' range reduction has led to the loss of redundancy of populations, with only four known nesting colonies, all confined to one island, remaining. This also contributes to the loss of representation, as the species has high fidelity to the same nesting sites each year; there is limited genetic exchange between populations. With the loss of populations on other islands, this reduces the potential for additional genetic lineages to increase genotypic diversity within the species.
The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species as any species that is “likely to become endangered within the foreseeable future throughout all or a significant portion of its range.” Foreseeable future was determined to be between 30 and 50 years; based on available data regarding human population growth on Hispaniola and associated sociological factors (energy sources/demand, resource availability, increased need/conversion of land to agriculture to support increasing human populations) and climate change projections, we can reasonably project future conditions out that far.
Climate change data are less reliable in the Caribbean, augmenting the level of uncertainty and reliability of the projections. The most important driving factor for breeding habitat changes into the future is human population growth and resource use (
The current condition of each of the breeding populations was evaluated using the number of radar targets per night, acoustic detections per hour, and nest success at each of the confirmed nesting areas. To determine and quantify current species-level overall resiliency we compared current population resiliency to the historical optimal, based on known prior distribution and number of breeding populations (Service 2018, p. 39-41). In respect to redundancy, the number of populations has declined due to the extirpation of the species on Guadaloupe, Martinique, and Dominica. The contraction of the breeding range and loss of populations on the additional islands results in low redundancy and leaves the species more vulnerable to catastrophic events.
The risk of extinction in the foreseeable future is high because the remaining populations are small, suitable habitat is limited for additional nesting areas, and the impacts from stressors acting on the species on the nesting grounds are expected to increase. Therefore, on the basis of the best available scientific and commercial information, we find that the black-capped petrel is likely to become endangered within the foreseeable future throughout its entire range because of the threats facing the species. However, the current status of the species as evaluated in the SSA report indicates the species is presently not at risk of extinction throughout its range (
Under the Act and our implementing regulations, a species may warrant listing if it is endangered or threatened throughout all or a significant portion of its range. Because we have determined that the black-capped petrel is likely to become an endangered species within the foreseeable future throughout its range, we find it unnecessary to proceed to an evaluation of potentially significant portions of the range. Where the best available information allows the Services to determine a status for the species rangewide, that determination should be given conclusive weight because a rangewide determination of status more accurately reflects the species' degree of imperilment and better promotes the purposes of the statute. Under this reading, we should first consider whether listing is appropriate based on a rangewide analysis and proceed to conduct a “significant portion of its range”
Therefore, we propose to list the black-capped petrel as a threatened species across its entire range in accordance with sections 3(20) and 4(a)(1) of the Act.
Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and conservation by Federal, State, Tribal, and local agencies; private organizations; and individuals. The Act encourages cooperation with the States and other countries, and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Subsection 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.
Recovery planning includes the development of a recovery outline shortly after a species is listed and preparation of a draft and final recovery plan. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan also identifies recovery criteria for review of when a species may be ready for reclassification (
Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, NGOs, businesses, and private landowners. Examples of recovery actions include habitat restoration (
Although the black-capped petrel is only proposed for listing under the Act at this time, please let us know if you are interested in participating in recovery efforts for this species. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see
Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service.
Federal agency actions within the species' habitat that may require conference or consultation or both as described in the preceding paragraph include management of and any other landscape-altering activities on Federal waters used by the Department of Defense or National Oceanic and Atmospheric Administration (NOAA); and offshore energy activities of the Bureau of Ocean Energy Management (BOEM) and Bureau of Safety and Environmental Enforcement (BSEE).
The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to threatened wildlife. Under section 4(d) of the Act, the Secretary of the Interior has the discretion to issue such regulations as he deems necessary and advisable to provide for the conservation of threatened species. The Secretary also has the discretion to prohibit, by regulation with respect to any threatened species of fish or wildlife, any act prohibited under section 9(a)(1) of the Act. The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR 17.31, make it illegal for any person subject to the jurisdiction of the United States to take (which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these) threatened wildlife within the United States or on the high seas. In addition, it is unlawful to import; export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or
The black-capped petrel is protected by the Migratory Bird Treaty Act (MBTA). The MBTA makes it unlawful “at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import, cause to be shipped, exported, or imported, deliver for transportation, transport or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export, any migratory bird, [or] any part, nest, or egg of any such bird . . .” included in the terms of four specific conventions between the United States and certain foreign countries (16 U.S.C. 703). See 50 CFR 10.13 for the list of migratory birds protected by the MBTA.
This proposed rule under section 4(d) of the Act adopts existing requirements under the MBTA as the appropriate regulatory provisions for the black-capped petrel. Accordingly, under the proposed 4(d) rule, incidental take is not prohibited, and purposeful take is not prohibited if the activity is authorized or exempted under the MBTA. Thus, if a permit is issued for activities resulting in purposeful take under the MBTA, it would not be necessary to have an additional permit under the Act.
The terms “conserve”, “conserving”, and “conservation” as defined by the Act, mean to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary. Due to threats acting on the black-capped petrel on the nesting grounds and the projected impacts to the species and its habitat in the foreseeable future, the viability of the species is expected to decline. The loss of habitat due to deforestation along with increased precipitation and drought events leave the species vulnerable to becoming endangered in the foreseeable future. The species that was once abundant continues to decline due to the conditions at the nesting locations on Hispaniola. The primary stressors to the species are occurring on the breeding grounds in Haiti and the Dominican Republic; therefore, prohibiting incidental take in the United States is not going to contribute meaningfully to the conservation of the species. Prohibiting unregulated, purposeful take is beneficial in order to protect the black-capped petrel from activities that may occur within U.S. territory and from import/export of the species or any of its parts, nests, or eggs.
For the reasons discussed above, we find that this rule under section 4(d) of the Act is necessary and advisable to provide for the conservation of the black-capped petrel. We do, however, seek public comment on whether there are additional activities that should be considered under the 4(d) provision for the black-capped petrel (see Information Requested, above). This proposal will not be made final until we have reviewed comments from the public and peer reviewers.
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or protection; and
(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.
Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12), require that, to the maximum extent prudent and determinable, the Secretary designate critical habitat at the time the species is determined to be endangered or threatened. Our regulations (50 CFR 424.12(a)(1)) state that the designation of critical habitat is not prudent when one or both of the following situations exist: (1) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species, or (2) such designation of critical habitat would not be beneficial to the species. In determining whether a designation would not be beneficial, the factors the Service may consider include but are not limited to, whether the present or threatened destruction, modification, or curtailment of a species' habitat or range is not a threat to the species, or whether any areas meet the definition of “critical habitat.” As explained below, we conclude that designation of critical habitat would not be beneficial to the black-capped petrel.
As stated previously in this proposed rule, black-capped petrels have only been confirmed to currently breed and nest on the island of Hispaniola within the countries of Haiti and the Dominican Republic. There are past anecdotal accounts and recent indirect indications of the possible nesting activity on the islands of Cuba and Dominica (Goetz
The black-capped petrel is widely distributed throughout much of its range during the non-breeding season and is considered to have flexible foraging habitat requirements. The species tends to forage near areas of upwelling and other areas where prey species are abundant, and the species is typically found in warmer waters associated with the Gulf Stream (Haney 1987, p. 157; Simons
The critical habitat regulations at 50 CFR 424.12(a)(1)(ii) provide two examples of when designating critical habitat may not be beneficial to the species and, therefore, may be not prudent. These examples are where the present or threatened destruction, modification, or curtailment of a species' habitat or range is not a threat to the species, or where there are no areas that meet the definition of “critical habitat” for the species. In the preamble to the final rule in which these two examples were expressly added to the regulations (81 FR 7414, February 11, 2016), the Service explains: “[I]n some circumstances, a species may be listed because of factors other than threats to its habitat or range, such as disease, and the species may be a habitat generalist. In such a case, on the basis of the existing and revised regulations, it is permissible to determine that critical habitat is not beneficial and, therefore, not prudent. It is also permissible to determine that a designation would not be beneficial if no areas meet the definition of ‘critical habitat' ” (81 FR 7425). Although the present or threatened destruction, modification, or curtailment of nesting habitat is a threat to the petrel's current breeding and nesting habitat, such habitat is not located within U.S. jurisdiction thus cannot be designated as critical habitat. The foraging habitat for the black-capped petrel falls within the second example; although there are extensive areas of foraging habitat within U.S. jurisdiction, the species faces no habitat-based threats there, and designation would not be beneficial to the species.
Therefore, we preliminarily conclude that the designation of critical habitat for the black-capped petrel is not prudent, in accordance with 50 CFR 424(a)(1), because destruction of habitat is not a threat to the species in the U.S. portions of the range. However, we seek public comment on the characteristics of black-capped petrel foraging habitat and its relationship to the needs of the species.
We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in
We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act, need not be prepared in connection with listing a species as an endangered or threatened species under the Endangered Species Act. We published a notice outlining our reasons for this determination in the
A complete list of references cited in this rulemaking is available on the internet at
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless otherwise noted.
(h) * * *
(g) Black-capped petrel (
(1) Except as noted in paragraphs (g)(2) and (g)(3) of this section, all prohibitions and provisions of §§ 17.31 and 17.32 of this part apply to the black-capped petrel.
(2) Incidental take of black-capped petrel is not prohibited.
(3) None of the prohibitions in § 17.31 of this part apply to any activity
Fish and Wildlife Service, Interior.
Proposed rule.
We, the U.S. Fish and Wildlife Service (Service), propose to list the coastal distinct population segment (DPS) of Pacific marten
We will accept comments received or postmarked on or before December 10, 2018. Comments submitted electronically using the Federal eRulemaking Portal (see
You may submit comments by one of the following methods:
(1)
(2)
We request that you send comments only by the methods described above. We will post all comments on
Dan Everson, Field Supervisor, U.S. Fish and Wildlife Service, Arcata Ecological Services Field Office, 1655 Heindon Road, Arcata, California 95521, or by telephone 707-822-7201. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service at 800-877-8339.
We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from the public, other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. We particularly seek comments concerning:
(1) The coastal marten's biology, range, and population trends, including:
(a) Biological or ecological requirements of the species, including habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range including distribution patterns;
(d) Historical and current population levels, and current and projected trends; and
(e) Past and ongoing conservation measures for the species, its habitat or both.
(2) Factors that may affect the continued existence of the species, which may include habitat modification or destruction, overutilization, disease, predation, the inadequacy of existing regulatory mechanisms, or other natural or manmade factors.
(3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this species and existing regulations that may be addressing those threats.
(4) Additional information concerning the historical and current status, range, distribution, and population size of this species, including the locations of any additional populations of this species.
(5) Information on activities that are necessary and advisable for the conservation of the coastal marten to include in a 4(d) rule for the species. Section 4(d) of the Act provides that when a species is listed as a threatened species, the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of such species. The Service has proposed such measures here and will evaluate ideas provided by the public in considering the prohibitions that are appropriate to include in the 4(d) rule.
Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include. Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information do not provide substantial information necessary to support a determination. Section 4(b)(1)(A) of the Act directs that determinations as to whether any species is a threatened or endangered species must be made “solely on the basis of the best scientific and commercial data available.”
You may submit your comments and materials concerning this proposed rule by one of the methods listed in
If you submit information via
Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on
Section 4(b)(5) of the Act provides for one or more public hearings on this proposal, if requested. Requests must be received within 45 days after the date of publication of this proposed rule in the
A species status assessment (SSA) team prepared an SSA report for the coastal marten. The SSA team was composed of Service biologists, who worked throughout the process with other species experts. The SSA report represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the species. The SSA report underwent independent peer review by scientists with expertise in carnivore biology, habitat management, and stressors (factors negatively affecting the species) to the species. The SSA report and other materials relating to this proposal can be found on the Arcata Ecological Services Field Office website at
On September 28, 2010, we received a petition from the Center for Biological Diversity (CBD) and the Environmental Protection Information Center (EPIC), requesting that we consider for listing the (then-classified) subspecies Humboldt marten (
On January 12, 2012, we published in the
On June 23, 2014, we published a scoping notice in the
On December 12, 2015, the Center for Biological Diversity and EPIC filed a complaint for declaratory and injunctive relief, alleging that our determination on the coastal marten violated the Act. By Order Re: Summary Judgment issued on March 28, 2017, the District Court for the Northern District of California remanded for reconsideration the Service's 12-month finding. On May 3, 2017, the court issued a stipulated order that the Service was to submit a 12-month finding to the
A thorough review of the taxonomy, life history, and ecology of the coastal marten is presented in the SSA report (Service 2018; available at
Our SSA report synthesizes the biology and status of the DPS of the Pacific marten (
The coastal marten is a medium-sized carnivore that historically occurred throughout the coastal forests of northwestern California and Oregon. Martens have a long and narrow body type typical of the mustelid family (
In the wild, most martens live less than 5 years. In light of delayed implantation, a small proportion of female martens, perhaps 10 percent at best, are reproducing for more than 3 years, contributing to a slow reproductive output.
Coastal martens have a generalist diet that changes seasonally with prey availability. Overall, their diet is dominated by mammals, but birds, insects, and fruits are seasonally important. They need to eat 15-25 percent of their body mass daily to meet their metabolic requirements.
Martens tend to select older forest stands (
The Act directs us to determine whether any species is an endangered species or a threatened species because of factors affecting its continued existence as set forth in section 4(a)(1) of the Act. The SSA report documents the results of our comprehensive biological status review for the coastal marten, including an assessment of the potential stressors to the species. It does not represent a decision by the Service on whether the species should be proposed for listing as an endangered or threatened species under the Act. It provides the scientific basis that informs our regulatory decision, which involves the further application of standards within the Act and its implementing regulations and policies. The following is a summary of the key results and conclusions from the SSA report.
To evaluate the biological status of the coastal marten both currently and into the future, we assessed a range of conditions to allow us to consider the species' resiliency, redundancy, and representation (together, the 3Rs). The coastal marten needs multiple resilient populations distributed widely across its range to maintain persistence into the future and to avoid extinction. If populations lose resiliency, they are more vulnerable to extirpation, with resulting losses in representation and redundancy. Several factors influence whether coastal marten populations will increase to maximize habitat occupancy, which increases the resiliency of a population to stochastic events. These factors include the connectivity between populations, amount of suitable habitat for establishing home ranges, and amount of habitat that allows for predator avoidance. As we consider the future viability of the species, more populations with high resiliency distributed across the known range of the species are associated with higher overall species viability.
Coastal marten historically ranged throughout coastal Oregon and coastal northern California, but the species has not recently been detected throughout much of the historical range, despite extensive surveys. The species currently exists in four small (<100) populations and is absent from the northern and southern ends of its historical range. This current range is approximately 7.3 percent of its known historical range, with two populations in Oregon and two populations in California. The species has been extirpated from Sonoma and Mendocino Counties, CA, and largely from Humboldt, Del Norte, and Siskiyou Counties, CA. In Oregon, coastal martens have been largely extirpated from much of the inland counties within the historical range and are known to currently occur in Coos, Curry, Josephine, Douglas, Lane, and Lincoln Counties.
We have assessed the coastal marten's levels of resiliency, redundancy, and representation currently and into the future by first ranking the condition of each population. We ranked the four populations into three categories (high, moderate, and low) based on key population factors and habitat elements: Three between-population factors (least-cost path distance, filters, and number of populations in proximity) and four within-population factors (population size, available male home ranges, available female home ranges, and proportion of habitat subject to high predation risk). Least-cost path distance describes the distance a marten must travel for dispersal needs in order to reach the next closest population. Filters are barriers to this movement and can be either natural or manmade, such as large rivers or highways. This analysis provided condition categories to describe the resiliency of each population. A summary of this analysis is provided in Table 1.
Maintaining representation in the form of genetic or ecological diversity is important to maintain the coastal marten's capacity to adapt to future environmental changes. We consider the coastal marten to have representation in the form of two different ecological settings. Some animals are adapted to the dunes ecosystems of coastal dune forest, and others are adapted to late-seral forest and serpentine ridges. One population represents the dune ecological setting, and three represent the forest and serpentine ecological settings. Genetic variation between populations is unknown at this time, as no studies have been conducted to determine the degree of genetic variation between the four populations.
The coastal marten needs to have multiple resilient populations distributed throughout its range to provide for redundancy. The more populations, and the wider the distribution of those populations, the more redundancy the species exhibits. Based on the distributions of current verifiable marten detections and adjacent suitable habitat, we identified four extant population areas (EPAs) within coastal Oregon and northern coastal California:
(1) Central Coastal Oregon Extant Population Area;
(2) Southern Coastal Oregon Extant Population Area;
(3) Oregon-California Border Extant Population Area; and
(4) Northern Coastal California Extant Population Area.
Additional detections of coastal martens have occurred outside of the current EPAs but they did not meet the criteria of a population (most likely, they represent transient individuals in search of new territories) according to methods used in the Humboldt Marten Conservation Strategy and Assessment, a synthesis of literature on marten ecology developed by the Humboldt Marten Conservation Group. This group is made of State, Federal, Tribal, private, and non-governmental organizations in coastal Oregon and northwestern California to conserve and manage coastal martens.
Our analysis of the past, current, and future influences on what the coastal marten needs for long-term viability revealed that two factors pose the largest risk to future viability of the species. These risks are primarily related to habitat loss and associated changes in habitat quality and distribution and include: (1) A decrease in connectivity between populations; and (2) habitat conversion from that suitable for martens to that suitable for generalist predators and competitors, thereby increasing potential interactions and subsequent marten injury, mortality, or predation. These factors are all influenced by vegetation management, wildfire, and changing climate.
Predation of martens (Factor B) has increased due to the changes in forest composition. Bobcats are their predominant predator, with predation accounting for 41 percent of marten mortalities in one study, and the sources of all those predations being bobcat. Bobcats prefer regenerating harvested stands less than 30 years old, and are nearly absent from older forests, the preferred marten habitat. Martens are vulnerable to predation and increased competition in habitats that have been subject to either high-moderate severity fires or intensive logging in the last 40 years because both of these events remove the structural characteristics of the landscape that provide escape cover and are important to marten viability (canopy cover, shrub cover, etc.). These older forests have declined substantially from historical amounts: Older forests historically encompassed >75 percent of the coastal California area, 50 percent of the Klamath and Siskiyou region in northern California and southwest Oregon, and 25 to 85 percent of the Oregon Coast Range. Remaining older forests in the redwood region, Oregon Coast Range, and Klamath-Siskiyou region is estimated around 5, 20, and 38 percent, respectively, of what occurred historically.
In addition to logging, fires are a regular occurrence where the southern 3 marten populations occur; between 2000 and 2014, approximately 17 percent of the suitable habitat in the north coastal California population was burned. In the California—Oregon border population area, roughly 12 percent of suitable habitat was burned in the Longwood Fire of 1987. Substantial amounts of marten habitat in a population area can be burned in single fire events or over a few years at varying severities. Climate change is projected to result in longer fire seasons, producing more and larger fires. Fires large enough to totally encompass all or most of all four individual population areas are already occurring and are expected to increase, raising concern over the resiliency of at least the three southern marten population areas, which have been most affected by recent fires and are in a fire regime particularly vulnerable to future fires.
Dispersal is the means by which marten populations maintain and expand their distribution. Successful dispersal functional habitat between patches of habitat suitable for reproduction to maintain or expand population size and distribution. A resilient coastal marten population would have suitable habitat between populations that provides important habitat for key prey, abundant daily resting sites, and a maximum distance within the range of their average dispersal distance. Both Oregon populations do not have functional connectivity to any other population and if a stochastic or catastrophic event eliminated either of them, natural recolonization would not be feasible. The two California populations have connectivity to one another but not the Oregon populations.
In addition to being mostly isolated, all four populations are relatively small and face other threats in addition to habitat loss. Since 1980, 19 mortalities of coastal martens caused by vehicles (Factor E) have been documented, all in Oregon and mostly along U.S. Highway 101. We expect that some unknown amount of marten roadkills go undetected, so this is likely an underestimate of the number of martens killed by cars. Exposure to rodenticides (Factor E) through direct ingestion or the consumption of exposed prey has lethal and sub-lethal effects on coastal martens. Illegal marijuana cultivation sites on public, tribal, and private forest lands are implicated as the likely source of these rodenticides. In a similar carnivore species, 85% of carcasses tested were exposed to rodenticides, with the exposure in 13% being the direct cause of death.
Certain diseases (Factor C) are also a concern to martens and other carnivore populations, including canine distemper viruses (CDV), rabies viruses, parvoviruses, and the protozoan (single-celled organism)
The coastal marten faces a variety of risks including loss of habitat, wildfire, and increased predation risk. These risks play a large role in the resiliency and future viability of the coastal marten. Given the uncertainty regarding connectivity between populations, suitable habitat, and increases in predation within the populations, we forecasted what the coastal marten may have in terms of resiliency, redundancy, and representation under three plausible future scenarios. All three scenarios were forecast out over the next 15, 30, and 60 years. A range of
Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations in title 50 of the Code of Federal Regulations (at 50 CFR part 424), set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of the Act, we may list a species based on (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) Overutilization for commercial, recreational, scientific, or educational purposes; (C) Disease or predation; (D) The inadequacy of existing regulatory mechanisms; or (E) Other natural or manmade factors affecting its continued existence.
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the coastal marten. The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species as any species “which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act, either singly or in combination. A thorough analysis and discussion of the threats that may impact the coastal marten are included in the final SSA report (Service 2018, entire) associated with this document, and here we apply those threats to the statutory listing criteria to which they apply. We considered whether the coastal marten is presently in danger of extinction and determined that proposing endangered status is not appropriate. While threats are currently acting on the species and many of those threats are expected to continue into the future (see below), we did not find that the species is currently in danger of extinction throughout all of its range. With four populations occurring across the range of the species, the current condition of the species still provides for enough resiliency, redundancy, and representation such that it is not at risk of extinction now.
However, estimates of future resiliency, redundancy, and representation for the coastal marten are low. As discussed in greater detail in the SSA, the species faces a variety of threats including loss of habitat (Factor A) due to wildfire, timber harvest, and vegetation management. Trapping (Factor B), collisions with vehicles (Factor E), and rodenticides (Factor E) are all impacting marten individuals, and the threat of disease (Factor C) carries the risk of further reducing populations. Changes in vegetation composition and distribution have also made coastal martens more susceptible to predation (Factor C) from larger carnivores. These threats, which are expected to be exacerbated by the species' small and isolated populations (Factor E) and the effects of climate change (Factor E), were central to our assessment of the future viability of the coastal marten.
Given current and future decreases in resiliency, populations will become more vulnerable to extirpation from stochastic events, in turn, resulting in concurrent losses in representation and redundancy. The range of plausible future scenarios for coastal marten predicts decreased resiliency in all four currently extant populations. Under most modeled scenarios, the species is likely to lose enough resiliency, redundancy, and representation such that it is at risk of not being viable. All three scenarios presented as representative of plausible future scenarios create conditions where the coastal marten would not have enough resiliency, redundancy, or representation to sustain populations over time. While determining the probability of each scenario was not possible with the available data, the entire risk profile that was provided by looking across the range of the three plausible scenarios showed that the species will likely continue to lose resiliency, redundancy, and representation throughout the range in all scenarios.
In short, our analysis of the species' current and future conditions, including
Under the Act and our implementing regulations, a species may warrant listing if it is endangered or threatened throughout all or a significant portion of its range. Because we have determined that the coastal marten is likely to become an endangered species within the foreseeable future throughout its range, we find it unnecessary to proceed to an evaluation of potentially significant portions of the range. Where the best available information allows the Services to determine a status for the species rangewide, that determination should be given conclusive weight because a rangewide determination of status more accurately reflects the species' degree of imperilment and better promotes the purposes of the statute. Under this reading, we should first consider whether listing is appropriate based on a rangewide analysis and proceed to conduct a “significant portion of its range” analysis if, and only if, a species does not qualify for listing as either endangered or threatened according to the “all” language. We note that the court in
Therefore, on the basis of the best available scientific and commercial information and in accordance with sections 3(6) and 4(a)(1) of the Act, we propose adding the coastal marten as a threatened species to the List of Endangered and Threatened Wildlife at 50 CFR 17.11(h).
Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and conservation by Federal, State, Tribal, and local agencies, private organizations, and individuals. The Act encourages cooperation with the States and other countries and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Subsection 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.
Recovery planning includes the development of a recovery outline shortly after a species is listed and preparation of a draft and final recovery plan. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan also identifies recovery criteria for review of when a species may be ready for downlisting or delisting, and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (composed of species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) are often established to develop recovery plans. When completed, the recovery outline, draft recovery plan, and the final recovery plan will be available on our website (
Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration (
Although the coastal marten is only proposed for listing under the Act at this time, please let us know if you are interested in participating in recovery efforts for this species. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see
Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to
Several Federal agency actions that occur within the species' habitat may require conference or consultation or both as described in the preceding paragraph. These actions include management and any other landscape-altering activities on lands administered by the Service and the Department of the Interior's Bureau of Indian Affairs, Bureau of Land Management, and National Park Service and the Department of Agriculture's U.S. Forest Service; issuance of section 404 Clean Water Act permits by the U.S. Army Corps of Engineers; and construction and maintenance of roads or highways by the Department of Transportation's Federal Highway Administration or the California Department of Transportation (Cal Trans).
Under section 4(d) of the Act, the Secretary of the Interior has the discretion to issue such regulations as he deems necessary and advisable to provide for the conservation of threatened species. The Secretary also has the discretion to prohibit by regulation with respect to any threatened species of fish or wildlife any act prohibited under section 9(a)(1) of the Act. The prohibitions of section 9(a)(1) of the Act make it illegal for any person subject to the jurisdiction of the United States to take (which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these) endangered species of fish or wildlife within the United States or on the high seas. In addition, it is unlawful to import; export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any endangered fish or wildlife species. It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife or fish that has been taken illegally. To the extent the section 9(a)(1) prohibitions apply only to endangered species, this proposed rule would apply those same prohibitions to the coastal marten with some exceptions, in accordance with section 4(d) of the Act.
The courts have recognized the extent of the Secretary's discretion to develop prohibitions, as well as exclusions from those prohibitions, that are appropriate for the conservation of a species. For example, the Secretary may decide not to prohibit take, or to put in place only limited take prohibitions. See
Under this proposed section 4(d) rule, except as noted below, all prohibitions and provisions of section 9(a)(1) would apply to the coastal marten. The following management activities would not be subject to the general prohibitions of section 9(a)(1):
(1) Forestry management activities for the purposes of reducing the risk or severity of wildfire, such as fuels reduction projects, fire breaks, and wildfire firefighting activities.
(2) Forestry management activities included in a State-approved plan or agreement for lands covered by a Natural Communities Conservation Plan, Habitat Management Agreement, or Safe Harbor Agreement that addresses coastal marten as a covered species and is approved by the California Department of Fish and Wildlife under the authority of the California Endangered Species Act.
(3) Forestry management activities consistent with the conservation needs of the coastal marten. These include activities consistent with formal approved conservation plans or strategies, such as Federal or State plans and documents that include coastal marten conservation prescriptions or compliance, and for which the Service has determined that meeting such plans or strategies, or portions thereof, would be consistent with this proposed rule.
Although these management activities may result in some minimal level of harm or temporary disturbance to the coastal marten, overall, these activities benefit the subspecies by contributing to conservation and recovery. With adherence to the limitations described in the preceding paragraphs, these activities will have a net beneficial effect on the species by encouraging active forest management that creates and maintains the complex tree and shrub conditions needed to support the persistence of marten populations, which is essential to the species' long-term viability and conservation.
These provisions are necessary because, absent the protections of the Act, the species is likely to become in danger of extinction in the foreseeable future. Applying the prohibitions of the Act will minimize threats that could cause further declines in the status of the species. Additionally, these provisions are advisable because the species needs active conservation to maintain or improve the quality of its habitat, and to sustain and expand the species' population and occupied range. By exempting some of the forestry management activities from the prohibitions, these provisions can encourage cooperation by landowners and other affected parties in implementing conservation measures that will maintain or enhance habitat and expand the population of the species and its occupied range. These provisions will allow for use of the land while at the same time ensuring the maintenance or enhancement of suitable habitat and minimizing impacts to the species.
For activities funded, permitted, or carried out by a Federal agency that are not covered by the provisions and that may result in take, the Federal agency with jurisdiction would need to ensure, in consultation with the Service, that the activities are not likely to jeopardize the continued existence of the species. Private citizens who would like to have coverage for take resulting from activities not covered by these provisions may wish to seek an incidental take permit from the Service before proceeding with the activity (if there is no Federal nexus).
Based on the explanations above, the prohibitions under section 9(a)(1) would apply to the coastal marten throughout its range, with specific exemptions tailored to the conservation of the species. Nothing in this proposed 4(d) rule would change in any way the recovery planning provisions of section 4(f) and consultation requirements under section 7 of the Act or the ability of the Service to enter into partnerships
Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Arcata Ecological Services Field Office (see
Section 4(a)(3) of the Act, as amended, and implementing regulations in 50 CFR 424.12, require that, to the maximum extent prudent and determinable, we designate critical habitat at the time the species is determined to be an endangered or threatened species. Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 4 of this Act, on which are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or protection; and
(2) Specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 4 of this Act, upon a determination by the Secretary of the Interior that such areas are essential for the conservation of the species.
Our regulations (50 CFR 424.12(a)(1)) state that the designation of critical habitat is not prudent when any of the following situations exist: (1) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species, or (2) such designation of critical habitat would not be beneficial to the species. The regulations also provide that, in determining whether a designation of critical habitat would not be beneficial to the species, the factors that the Service may consider include but are not limited to: Whether the present or threatened destruction, modification, or curtailment of a species' habitat or range is not a threat to the species, or whether any areas meet the definition of “critical habitat” (50 CFR 424.12(a)(1)(ii)).
We do not know of any imminent threat of take attributed to collection or vandalism for the coastal marten. The available information does not indicate that identification and mapping of critical habitat is likely to initiate any threat of collection or vandalism. Therefore, in the absence of finding that the designation of critical habitat would increase threats to the species, if there are benefits to the species from a critical habitat designation, a finding that designation is prudent is appropriate.
The potential benefits of designation may include: (1) Triggering consultation under section 7 of the Act, in new areas for actions in which there may be a Federal nexus where it would not otherwise occur because, for example, it is unoccupied; (2) focusing conservation activities on the most essential features and areas; (3) providing educational benefits to State or county governments or private entities; and (4) preventing people from causing inadvertent harm to the protected species. Because designation of critical habitat would not likely increase the degree of threat to the coastal marten and may provide some measure of benefit, designation of critical habitat may be prudent for the coastal marten.
Our regulations (50 CFR 424.12(a)(2)) further state that critical habitat is not determinable when one or both of the following situations exists: (1) Information sufficient to perform required analysis of the impacts of the designation is lacking; or (2) the biological needs of the species are not sufficiently well known to permit identification of an area as critical habitat. A careful assessment of the economic impacts that may occur due to a critical habitat designation is still ongoing, and we are in the process of working with the States and other partners in acquiring the complex information needed to perform that assessment. The information sufficient to perform a required analysis of the impacts of the designation is lacking, and, therefore, we find designation of critical habitat for the coastal marten to be not determinable at this time.
We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in
We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act (NEPA; 42 U.S.C. 4321
In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to tribes. In development of the SSA, we sent letters noting our intent to conduct a status review and requested information from all tribal entities within the historical range of the coastal DPS of the Pacific marten, as well as providing a draft SSA Report to the Yurok Tribe for review. As we move forward in this listing process, we will continue to consult on a government-to-government basis with tribes as necessary.
The primary authors of this proposed rule are the staff members of the Service's Species Assessment Team, with assistance from the Arcata
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1361-1407; 1531-1544; 4201-4245; unless otherwise noted.
(h) * * *
(s) Coastal marten (
(2)
(i) Forestry management activities for the purposes of reducing the risk or severity of wildfire, such as fuels reduction projects, fire breaks, and wildfire firefighting activities.
(ii) Forestry management activities included in a State-approved plan or agreement for lands covered by a Natural Communities Conservation Plan, Habitat Management Agreement, or Safe Harbor Agreement that addresses coastal marten as a covered species and is approved by the California Department of Fish and Wildlife under the authority of the California Endangered Species Act.
(iii) Forestry management activities consistent with the conservation needs of the coastal marten. These include activities consistent with formal approved conservation plans or strategies, such as Federal or State plans and documents that include coastal marten conservation prescriptions or compliance, and for which the Service has determined that meeting such plans or strategies, or portions thereof, would be consistent with this rule.
Fish and Wildlife Service, Interior.
Proposed rule and 12-month finding.
We, the U.S. Fish and Wildlife Service (Service), announce a 12-month finding on a petition to list the slenderclaw crayfish (
We will accept comments received or postmarked on or before December 10, 2018. Comments submitted electronically using the Federal eRulemaking Portal (see
(1)
(2)
We request that you send comments only by the methods described above. We will post all comments on
For the critical habitat designation, the coordinates or plot points or both from which the maps are generated are included in the administrative record and are available at
William Pearson, Field Supervisor, U.S. Fish and Wildlife Service, Alabama Ecological Services Field Office, 1208-B Main Street, Daphne, AL 36526; telephone 251-441-5870. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service at 800-877-8339.
Under section 4(a)(3) of the Act, we must, to the maximum extent prudent and determinable, designate critical habitat for the species concurrent with the listing determination. Section 4(b)(2) of the Act requires the Secretary of the Interior (Secretary) to designate critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, the impact on national security, and any other relevant impact of specifying any particular area as critical habitat. The Act defines critical habitat as (i) the specific areas within the geographical area occupied by the species, at the time it is listed, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed if such areas are essential to the conservation of the species. In accordance with section 4(b)(2) of the Act, we prepared an analysis of the economic impacts of the proposed critical habitat designation.
We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. Because we will consider all comments and information we receive during the comment period, our final determinations may differ from this proposal. We particularly seek comments concerning:
(1) The slenderclaw crayfish's biology, range, abundance, and population trends, including:
(a) Biological or ecological requirements of the species, including habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns;
(d) Historical and current population levels, and current and projected trends; and
(e) Past and ongoing conservation measures for the species, its habitat, or both.
(2) Factors that may affect the continued existence of the species, which may include habitat modification or destruction, overutilization, disease, predation, the inadequacy of existing regulatory mechanisms, or other natural or manmade factors.
(3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this species
(4) Additional information concerning the historical and current status, range, distribution, and population size of this species, including the locations of any additional populations of this species.
(5) Additional information concerning the nonnative virile crayfish (
(a) Distribution, rate of spread, and effects of the virile crayfish on the slenderclaw crayfish; and
(b) Biological techniques or methods to control and manage the virile crayfish.
(6) Information on activities which might warrant consideration in the rule issued under section 4(d) of the Act (16 U.S.C. 1531
(a) Whether the provision in the proposed 4(d) rule related to streambank stabilization activities should be revised to include additional restrictions; and
(b) Additional provisions the Service may wish to consider for a 4(d) rule in order to conserve, recover, and manage the slenderclaw crayfish, such as the management of invasive species.
(7) The reasons why designation of habitat as “critical habitat” under section 4 of the Act is or is not prudent, including whether there are threats to the species from human activity and/or a lack of benefits of designating critical habitat.
(8) Specific information on:
(a) The amount and distribution of slenderclaw crayfish habitat;
(b) What areas, that were occupied at the time of listing and that contain the physical or biological features essential to the conservation of the species, should be included in the designation and why;
(c) Special management considerations or protection that may be needed in critical habitat areas we are proposing, including managing for the potential effects of climate change; and
(d) What areas not occupied at the time of listing are essential for the conservation of the species and why.
(9) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat.
(10) Any probable economic, national security, or other relevant impacts of designating any area that may be included in the final designation, and the benefits of including or excluding areas that may be impacted.
(11) Information on the extent to which the description of probable economic impacts in the draft economic analysis is a reasonable estimate of the likely economic impacts.
(12) Whether any specific areas we are proposing for critical habitat designation should be considered for exclusion under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act.
(13) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments.
You may submit your comments and materials concerning this proposed rule by one of the methods listed in
Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include. All comments submitted electronically via
Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on
Please note that submissions merely stating support for or opposition to the listing action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.” We also invite additional comments from peer reviewers during the public comment period.
Section 4(b)(5) of the Act provides for a public hearing on this proposal, if requested. Requests for a public hearing must be received by the date specified in
On April 20, 2010, we were petitioned by the Center for Biological Diversity and others to list 404 aquatic species in the southeastern United States, including the slenderclaw crayfish, under the Act. In response to the petition, we completed a partial 90-day finding on September 27, 2011 (76 FR 59836), in which we announced our finding that the petition contained substantial information indicating that listing may be warranted for numerous species, including the slenderclaw crayfish. On June 17, 2014, the Center for Biological Diversity filed a complaint against the Service for failure to complete a 12-month finding for the slenderclaw crayfish in accordance with statutory deadlines. On September 22, 2014, the Service and the Center for Biological Diversity filed stipulated settlements in the District of Columbia, agreeing that the Service would submit to the
An SSA team prepared an SSA report for the slenderclaw crayfish. The SSA team was composed of Service biologists, in consultation with other species experts. The SSA report represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the species. The SSA report underwent independent peer review by scientists with expertise in crayfish biology, habitat management, and stressors (factors negatively affecting the species) to the slenderclaw crayfish. The SSA report and other materials relating to this proposal can be found on the Southeast Region website at
A thorough review of the taxonomy, life history, and ecology of the slenderclaw crayfish is presented in the SSA report (Service 2018, entire; available at
The slenderclaw crayfish is a relatively small, cryptic freshwater crustacean that is endemic to streams on Sand Mountain within the Tennessee River Basin in DeKalb and Marshall Counties, Alabama. This species is a stream-dwelling crayfish and is considered a tertiary burrower (Bearden 2017, pers. comm.). The slenderclaw crayfish was described in 1976, from collections from Short Creek in Marshall County, Alabama (Bouchard and Hobbs 1976, p. 7). The largest individual collected was a female with a carapace length of 1.56 inches (in) (39.7 millimeters (mm)), and reproductively-active males have ranged from 1.09 in (27.7 mm) to 1.47 in (37.3 mm) in carapace length (Bouchard and Hobbs, pp. 7-8). The slenderclaw crayfish is likely sexually mature at 1 year of age and has a lifespan of 2 to 3 years (Schuster 2017, pers. comm.).
The slenderclaw crayfish is known to occupy streams in two adjacent watersheds, Short Creek and Town Creek, leading into Guntersville Lake on the Tennessee River in Alabama. The historical (1970-1974) range of the slenderclaw crayfish included four small streams or tributaries within the two watersheds, and the species was known from five sites: One site in Short Creek, one site in Shoal Creek, and two sites in Scarham Creek within the Short Creek population; and one site in Bengis Creek within the Town Creek population (Bouchard and Hobbs 1976, p. 7). The slenderclaw crayfish is currently extant at five sites: Three sites in Shoal Creek within the Short Creek population, and two sites (one in Bengis Creek and one in Town Creek) within the Town Creek population. The species is presumed extirpated from four historically occupied sites, including the type locality within the Short Creek population.
The slenderclaw crayfish occupies small to medium flowing streams (typically 20 feet (ft) (6.1 meters (m) wide or smaller, with depths of 2.3 ft (0.7 m) or shallower), intact riparian cover, and boulder/cobble structure (Bouchard and Hobbs 1976, p. 8; Bearden 2017, pers. comm.). The stream habitat consists of predominately large boulders and fractured bedrock in sites from the Short Creek watershed (Bouchard and Hobbs 1976, p. 8; Bearden 2017, pers. comm.) and streams dominated by smaller substrate types with a mix of gravel and cobble in sites from the Town Creek watershed (Bearden 2017, pers. comm.). The species needs abundant interstitial space within each habitat type for sheltering (Schuster 2017, pers. comm.; Taylor 2017, pers. comm.) and adequate seasonal water flows to maintain benthic habitats and maintain connectivity of streams. During low stream flow periods, slenderclaw crayfish appear to use any available water, so during the low water flow events, individuals have been found in pool habitats or near undercut banks (Bearden 2017, pers. comm.). Slenderclaw crayfish likely feed upon aquatic macroinvertebrates in the juvenile stage and shift toward omnivory in the adult stage (Schuster 2017, pers. comm.).
Section 4(a)(1) of the Act directs us to determine whether any species is an endangered species or a threatened species because of one or more of five factors affecting its continued existence: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. These factors represent broad categories of natural or human-caused actions or conditions that could have an effect on a species' continued existence. In evaluating these actions and conditions, we look for those that may have a negative effect on individuals of the species, as well as other actions or conditions that may ameliorate any negative effects or may have positive effects.
We use the term “threat” to refer in general to actions or conditions that are known to or are reasonably likely to negatively affect individuals of a species. The term “threat” includes actions or conditions that have a direct impact on individuals (direct impacts), as well as those that affect individuals through alteration of their habitat or required resources (stressors). The term “threat” may encompass—either together or separately—the source of the action or condition or the action or condition itself. However, the mere identification of any threat(s) does not necessarily mean that the species meets the statutory definition of an “endangered species” or a “threatened species.” In determining whether a species meets either definition, we must evaluate all identified threats by considering the expected response by the species, and the effects of the threats—in light of those actions and conditions that will ameliorate the threats—on an individual, population, and species level. We evaluate each threat and its expected effects on the species, then analyze the cumulative effect of all of the threats on the species as a whole. We also consider the cumulative effect of the threats in light of those actions and conditions that will have positive effects on the species—such as any existing regulatory mechanisms or conservation efforts. The Secretary determines whether the species meets the definition of an “endangered species” or a “threatened species” only after conducting this cumulative analysis and describing the expected effect on the species now and in the foreseeable future.
The SSA report documents the results of our comprehensive biological status review for the slenderclaw crayfish, including an assessment of these potential stressors to the species (factors). It does not represent a decision by the Service on whether the species should be proposed for listing as an endangered or a threatened species under the Act. It does, however, provide the scientific basis that informs our regulatory decision, which involves the further application of standards within the Act and its implementing regulations and policies. The following is a summary of the key results and conclusions from the SSA report.
To assess slenderclaw crayfish viability, we used the three conservation biology principles of resiliency, representation, and redundancy (Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency refers to the ability of a species to withstand environmental and demographic stochasticity (for example, wet or dry years, flood events); representation refers to the ability of the species to adapt over time to long-term changes in the environment (for example, climate changes); and redundancy refers to the ability of the species to withstand catastrophic events (for example, droughts). In general, the more redundant and resilient a species is and the more representation it has, the more likely it is to sustain
The SSA process can be divided into three sequential stages. During the first stage, we evaluated the life-history needs of individual slenderclaw crayfish, assessed the historical and current distribution of the species, and delineated populations. During the next stage, we assessed the current condition of the species' demographics and habitat characteristics, including explaining how it arrived at its current condition. In the final stage, we made predictions about the species' responses to positive and negative environmental and anthropogenic influences. This process used the best available information to characterize viability as the ability of a species to sustain populations in the wild over time. We utilized this information to inform our regulatory decision in this finding.
To evaluate the current and future viability of the slenderclaw crayfish, we assessed a range of conditions to allow us to consider the species' resiliency, representation, and redundancy. Populations were delineated using the U.S. Geological Survey Hydrological Unit Code (HUC) 12 watershed boundaries and tributaries leading to the Tennessee River, which species experts identified as the most appropriate unit for assessing population-level resiliency; this delineation aligned with the two watersheds, Short and Town Creeks, that slenderclaw crayfish historically occupied.
To assess resiliency, we qualitatively analyzed data related to two demographic factors (abundance and evidence of reproduction) and two habitat factors (presence of virile crayfish and water quality). Overall population condition rankings were determined by combining the demographic and habitat factors.
Finally, we described representation for the slenderclaw crayfish in terms of habitat variability (known from two slightly different habitat types) and morphometric variability (as described above under
The historical range of the slenderclaw crayfish included two known populations, Short and Town Creeks, in watersheds leading into the Tennessee River in Alabama. Within the Short Creek population, 90 total slenderclaw crayfish, with 56 of those being juveniles, were collected from 1970-1974 (Bouchard and Hobbs 1976, entire; Schuster 2017, unpublished data). Only one crayfish was historically collected in the Town Creek population from 1970-1974 (Bouchard and Hobbs 1976, entire; Schuster 2017, unpublished data). Surveys conducted from 2009-2017 have documented the slenderclaw crayfish within the same two populations, Short Creek (three sites in Shoal Creek) and Town Creek (one site in Bengis Creek and one site in Town Creek) (Kilburn
At the population level, the overall current condition in terms of resiliency was estimated to be low for both Short Creek and Town Creek populations. We estimated that the slenderclaw crayfish currently has some adaptive potential (
The slenderclaw crayfish exhibits limited redundancy given its narrow range and that four out of five sites within the species' historical range are presumed extirpated. In addition, connectivity between the Short Creek and Town Creek populations is likely low, because both Short and Town Creek streams flow downstream into, and thus are separated by, Guntersville Lake. To date, no slenderclaw crayfish have been documented in impounded areas including Guntersville Lake. Multiple sites in the same population could allow recolonization following a catastrophic event (
We reviewed the potential risk factors (see discussion of section 4(a)(1) of the Act, above) that are affecting the slenderclaw crayfish now and are expected to affect it into the future. We have determined that competition from a nonnative species (Factors A and E) and habitat degradation resulting from poor water quality (Factor A) pose the largest risk to the future viability of the slenderclaw crayfish. Other potential stressors to the species are hydrological variation and alteration (Factors A and E), land use (Factor A), low abundance (Factor E), and scientific collection (Factor B). There are currently no existing regulatory mechanisms that adequately address these threats to the slenderclaw crayfish such that it does not warrant listing under the Act (Factor D). We find the species does not face significant threats from disease or predation (Factor C). We also reviewed the conservation efforts being undertaken for the habitat in which the slenderclaw crayfish occurs. A brief summary of relevant stressors is presented below; for a full description, refer to chapter 3 of the SSA report.
The virile crayfish (
Based on comparison of body size, average claw size, aggression levels, and growth rates, it appears that virile crayfish has an ecological advantage over several native crayfish species, including those in the
Virile crayfish were first collected near the range of slenderclaw crayfish in 1967 (Schuster 2017, unpublished data). Since then, the virile crayfish has been documented in Guntersville Lake (a Tennessee Valley Authority reservoir constructed in 1939, on the Tennessee River mainstem) (Schuster 2017, unpublished data; Taylor 2017, unpublished data). In addition, the virile crayfish was found at the type locality (location where the species was first described) for the slenderclaw crayfish in Short Creek (Short Creek population) in 2015, in which the slenderclaw crayfish no longer occurs (Schuster 2017, unpublished data; Taylor 2017, unpublished data). In 2016, the virile crayfish was found at two sites in Drum Creek within the Short Creek population boundary and at the confluence of Short Creek and Guntersville Lake (Schuster 2017, unpublished data; Taylor 2017, unpublished data). During 2017, 20 virile crayfish were found again at the location where slenderclaw crayfish was first described in Short Creek (Taylor 2017, unpublished data). Also during 2017, this nonnative crayfish was documented at four new sites in adjacent watersheds outside of the Short Creek population boundary. Juvenile virile crayfish have been collected in the Short Creek population, indicating that the species is established there (Taylor 2017, unpublished data). To date, no virile crayfish have been documented within the Town Creek population boundary (Schuster 2017, unpublished data; Taylor 2017, unpublished data).
The adaptive nature of the virile crayfish, the effects of this nonnative species on other crayfish species in their native ranges, and records of the virile crayfish's presence in the slenderclaw crayfish's historical and current range indicate that the virile crayfish is a factor that negatively influences the viability of the slenderclaw crayfish in the near term and future. Also, considering that the virile crayfish is a larger crayfish, is a strong competitor, and tends to migrate, while the slenderclaw crayfish has low abundance and is a smaller-bodied crayfish, it is reasonable to infer that once the virile crayfish is established at a site, it will out-compete slenderclaw crayfish.
Direct impacts of poor water quality on the slenderclaw crayfish are unknown; however, aquatic macroinvertebrates (
Within the range of the slenderclaw crayfish, Scarham Creek and Town Creek were identified as impaired waters by the Alabama Department of Environmental Management (ADEM), and were listed on Alabama's 303(d) list of impaired water bodies (list of waterbodies that do not meet established state water quality standards) in 1996 and 1998, respectively (ADEM 1996, p. 1; ADEM 2001, p. 11). Scarham Creek was placed on the 303(d) list for impacts from pesticides, siltation, ammonia, low dissolved oxygen/organic enrichment, and pathogens from agricultural sources; this section of Scarham Creek stretched 24 mi (39 km) upstream from its confluence with Short Creek to its source (ADEM 2013, p. 1). However, Scarham Creek was removed from Alabama's 303(d) list of impaired waters in 2004, after the total maximum daily loads (TMDLs; maximum amount of a pollutant or pollutants allowed in a water body while still meeting water quality standards) were developed in 2002 (ADEM 2002, p. 5; ADEM 2006, entire). Town Creek was previously listed on the 303(d) list for ammonia and organic enrichment/dissolved oxygen impairments. Although TMDLs have been in development for these issues (ADEM 1996, entire), all of Town Creek is currently on the 303(d) list for mercury contamination due to atmospheric deposition (ADEM 2016a, appendix C). One identified source of wastewater discharge to Town Creek is Hudson Foods near Geraldine, Alabama (ADEM 1996, p. 1).
Pollution from nonpoint sources stemming from agriculture, animal production, and unimproved roads has been documented within the range of the slenderclaw crayfish (Bearden
During recent survey efforts for the slenderclaw crayfish, water quality analysis indicated that water quality was impaired due to nutrients and bacteria within the Short Creek population, and levels of atrazine may be of concern in the watershed (Bearden
Dams and reservoirs on the Tennessee River have reduced connectivity between slenderclaw crayfish populations by altering some of the habitat from a flowing stream to standing, impounded water. The Town Creek and Short Creek watersheds, each containing one of the two extant populations of the slenderclaw crayfish, drain into Guntersville Lake, a Tennessee Valley Authority reservoir constructed in 1939, on the Tennessee River. Despite survey efforts, no slenderclaw crayfish has been found in Guntersville Lake, and to date, the slenderclaw crayfish has not been documented in any impounded areas. Guntersville Lake likely poses a barrier between the two slenderclaw crayfish populations and prevents the exchange of genetic material (Schuster 2017, unpublished data). It should be noted that slenderclaw crayfish was first collected in 1970 (approximately 31 years after the completion of Guntersville Lake), and, therefore, the range of the slenderclaw crayfish prior to Guntersville Lake's creation is unknown, and the impacts of the lake's creation on the slenderclaw crayfish during that time are unknown.
Streams on Sand Mountain, which include streams in Short and Town Creek watersheds, are prone to seasonal low water conditions during the fall and early winter months before the winter wet season (USGS 2017, unpaginated), and the Pottsville aquifer is not a reliable source of large amounts of groundwater for recharge of these streams (Kopaska-Merkel
Within DeKalb and Marshall Counties, the amount of land area in farms (pastureland, poultry production, and row crop production) has decreased over time (Bearden
The current estimated low abundance (n=32), scientific collection, and genetic drift may negatively affect populations of the slenderclaw crayfish. In general, the fewer populations a species has or the smaller its population size, the greater the likelihood of extinction by chance alone (Shaffer and Stein 2000, p. 307). Genetic drift occurs in all species, but is more likely to negatively affect populations that have a smaller effective population size (Caughley 1994, pp. 219-220; Huey
Due to its small size, slenderclaw crayfish are difficult to identify in the field during surveys. Therefore, experts have historically collected individuals for later identification, resulting in removal of individuals from the populations. These vouchered specimens are important for identification and documentation purposes; however, if collection is removing breeding adults from the population, then it could make the overall population unsustainable as individual populations may decline. With the current estimated low number of individuals (n=32), as evidenced by low capture rates, collection, and particularly repeated collection (for example, in multiple subsequent years), could further deplete the number of breeding adults.
In addition to impacting the species individually, it is likely that several of the above summarized risk factors are acting synergistically or additively on the species. The combined impact of multiple stressors is likely more harmful than a single stressor acting alone. For example, in the Town Creek watershed, Town Creek was previously listed as an impaired stream due to ammonia and organic enrichment/dissolved oxygen impairments, and recent surveys documented eutrophic conditions of elevated nutrients and low dissolved oxygen. In addition, hydrologic variation and alteration has occurred within the Town Creek watershed. Low water conditions naturally occur in streams where the slenderclaw crayfish occurs, and alteration causing prolonged low water periods could have a negative impact on the reproductive success of the slenderclaw crayfish. Further, connectivity between Town Creek and Short Creek watersheds is likely low due to Guntersville Lake. The combination of all of these stressors on the sensitive aquatic species in this habitat has probably impacted slenderclaw crayfish, in that only four individuals have been recorded here since 2009.
TMDLs have been developed in Scarham Creek for siltation, ammonia, pathogens, organic enrichment/low dissolved oxygen, and pesticides (ADEM 2002, p. 5). Town Creek is currently on the 303(d) list for mercury contamination due to atmospheric deposition (ADEM 2016a, appendix C). However, a TMDL for organic enrichment/dissolved oxygen has been
The U.S. Department of Agriculture's Natural Resources Conservation Service (NRCS) National Water Quality Initiative program identified the Guntersville Lake/Upper Scarham Creek in DeKalb County as an Alabama Priority Watershed in 2015 (NRCS 2017, unpaginated). This watershed is within the historical range of the slenderclaw crayfish. It is recognized as in need of conservation practices, as it was listed on the Alabama 303(d) list as impaired due to organic enrichment/low dissolved oxygen and ammonia as nitrogen (ADEM 2002, p. 4). The National Water Quality Initiative helps farmers, ranchers, and forest landowners improve water quality and aquatic habitats in impaired streams through conservation and management practices. Such practices include controlling and trapping nutrient and manure runoff, and installation of cover crops, filter strips, and terraces.
For the purpose of this assessment, we define viability as the ability of the species to sustain populations in the wild over time. To help address uncertainty associated with the degree and extent of potential future stressors and their impacts on the needs of the species, the concepts of resiliency, redundancy, and representation were applied using three plausible future scenarios. We devised these scenarios by identifying information on the following primary stressors that are anticipated to affect the species in the future: Nonnative virile crayfish, hydrological variation (precipitation and water quantity), land-use change, and water quality.
Our three scenarios reflected differing levels of impacts on hydrological variation (precipitation change), land-use change, and nonnative virile crayfish spread. In the future, the virile crayfish will expand farther and is anticipated to occupy both the Short Creek and Town Creek watersheds where slenderclaw crayfish is known to occur. Water quality may improve on Sand Mountain; however, the presence of virile crayfish is expected to be a more powerful driver in the future condition of the slenderclaw crayfish. In addition, the effect of the other factors identified to be impacting the species is expected to reduce available habitat through time.
To understand how precipitation will change in the future and apply this to our future scenarios, we used the U.S. Geological Survey's National Climate Change Viewer (Alder and Hostetler 2013, entire) to predict change in precipitation through 2040. We used the Slope, Land use, Excluded, Urban, Transportation and Hillshade (SLEUTH-3r) urban-growth model to explore potential land-use change and urbanization on Sand Mountain and the surrounding area through 2040 (Belyea and Terando 2013, entire; Terando et al. 2014, entire). Regarding spread of virile crayfish, there is uncertainty regarding the rate at which the virile crayfish is expected to expand, and it has been documented to spread at a rate of approximately 124 mi (200 km) over 15 years (3,609 ft per month (1,100 m per month)) (Williams 2018, pers. comm.; Williams
In Scenario 1, we projected continuation of the current rate of seasonal low water events, continued impact from land-use on water quality, low level of urban sprawl, and continued rate of virile crayfish spread to 2040. Current impacts to the landscape due to farming practices are expected to continue as evident in the water quality conditions, and low water events during the late summer to winter season will also continue. We expect the virile crayfish to spread farther into the Short Creek population, specifically into the currently occupied Shoal Creek sites, and to occupy the Town Creek population and its known slenderclaw crayfish sites. This Shoal Creek site is currently considered the most abundant slenderclaw crayfish location (n=26) (Schuster 2017, unpublished data; Bearden
In Scenario 2, we projected a continuation of the current rate of seasonal low water events, but with additional conservation measures to improve and protect water quality, a reduced level of urban sprawl, and a slower rate of virile crayfish spread to 2040. We projected that best management practices and conservation programs would improve conditions on farm land, and, therefore, water quality conditions gradually improve. Low water events during the late summer to winter season will continue, but will not become longer than the current average. Although this scenario projected a lower rate of spread than Scenario 1, the virile crayfish is still expected to spread farther into the Short Creek population and will occupy the lower reaches of the Town Creek mainstem in the Town Creek population by 2040. Despite improved water quality conditions for the slenderclaw crayfish and aquatic macroinvertebrates, we expect that the presence of virile crayfish will still cause the extirpation of the slenderclaw crayfish in the Short Creek population, and keep the Town Creek population in low condition, by 2040.
In Scenario 3, we projected an increased frequency and extended rate of seasonal low water events, reduction in water quality from poor land management practices, a moderate to high rate of urban sprawl, and a faster rate of virile crayfish spread to 2040. We expect that poor land management practices will result in degraded water
In summary, the resiliency of the Short Creek population is expected to remain low under Scenarios 1 and 2 in the year 2020, and the resiliency of the Town Creek population is expected to remain low under all three scenarios in the year 2020. By the year 2030, we expect the Short Creek population to become extirpated under Scenario 1 and under Scenario 3. By 2030, we expect the resiliency of the Town Creek population to remain low under Scenarios 1 and 2 and to be reduced to very low condition under Scenario 3. By the year 2040, we expect the Short Creek population to become extirpated under all three scenarios, and the Town Creek population to become extirpated under Scenario 3, remain in low resiliency under Scenario 2, and reduced to very low resiliency under Scenario 1.
We evaluated future representation by assessing the habitat variability and morphological variation of the slenderclaw crayfish. With the expected extirpation of the Short Creek population under all of the above scenarios by 2040, we expect habitat variability to be lost to the slenderclaw crayfish. The Short Creek population occurs in the large boulder, wider stream habitat type, and, therefore, this population is adapted to this habitat type, which is expected to be lost, as well as the morphological variation of the species encountered in the Short Creek population. Thus, representation will be further reduced.
We anticipate a reduction in the occupied range of the species (redundancy) through the loss of the Short Creek population, and, at a minimum, the species' range within the Town Creek population will be highly restricted to the headwaters due to the expansion of virile crayfish. Therefore, the slenderclaw crayfish is expected to have very limited redundancy in the future. The recolonization of sites (or one of the populations) following a catastrophic event would be very difficult given the loss of additional sites (and one or both populations) and reduced habitat available to the remaining population.
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the slenderclaw crayfish. The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species as any species that “is likely to become endangered within the foreseeable future throughout all or a significant portion of its range.”
We considered whether the slenderclaw crayfish is presently in danger of extinction and determined that proposing endangered status is not appropriate. Our review of the best available information indicates that there are currently two populations of slenderclaw crayfish occurring across the species' historical range in Alabama. Although there is some evidence of reduced abundance and presumed extirpation at four historical sites, the species has also been identified at three new sites as reflected by recent increased survey efforts. In addition, the best available information does not suggest that this species occurred in much greater numbers than it does today. While there are potentially several sources of indirect water quality impacts, no direct water quality-related impacts to the slenderclaw crayfish are known at this time, and crayfish generally have a higher tolerance to poor water quality conditions compared to other aquatic species such as mussels. However, water quality was identified as a potential factor that may indirectly affect the viability of the slenderclaw crayfish. Currently, the primary threat to the slenderclaw crayfish is the nonnative virile crayfish, which is expanding into the slenderclaw crayfish's range. At present, the virile crayfish has been reported as occurring at only one site, the type locality, where the slenderclaw crayfish was known to occur. The slenderclaw crayfish no longer occurs at this site, but we do not know whether the virile crayfish is the cause. At this time, the virile crayfish occupies a few sites approximately 7 mi (11 km) downstream of current slenderclaw crayfish sites in one (Short Creek) of the two watersheds. There are currently no records of the virile crayfish in the Town Creek population. Therefore, we expect the slenderclaw crayfish to continue to persist in this watershed, as long as the virile crayfish does not expand its range. In addition, given that the species occurs in two different watersheds, a single catastrophic event (
However, we expect that resiliency, redundancy, and representation for the slenderclaw crayfish will be reduced from its current condition. The nonnative virile crayfish is the primary threat to the slenderclaw crayfish in the foreseeable future. The term foreseeable future extends only so far as the Services can reasonably rely on predictions about the future in making determinations about the future conservation status of the species. Those predictions can be in the form of extrapolation of population or threat trends, analysis of how threats will affect the status of the species, or assessment of future events that will have a significant new impact on the species. The foreseeable future described here, uses the best available data and takes into account considerations such as the species' life history characteristics, threat projection timeframes, and environmental variability, which may affect the reliability of projections. We also considered the time frames applicable to the relevant threats and to the species' likely responses to those threats in view of its life history characteristics. The foreseeable future for a particular status determination extends only so far as predictions about the future are reliable.
In cases where the available data allow for projections, the time horizon for such analyses does not necessarily dictate what constitutes the “foreseeable future” or set the specific threshold for determining when a species may be in danger of extinction. Rather, the foreseeable future can only extend as far as the Service can reasonably explain reliance on the available data to formulate a reliable prediction and avoid reliance on assumption, speculation, or preconception. Regardless of the type of data available underlying the Service's analysis, the key to any analysis is a clear articulation of the facts, the rationale, and conclusions regarding foreseeability.
We determined the foreseeable future for the slenderclaw crayfish to be 10 to 20 years from present. The SSA's future scenarios modeled and projected both precipitation and land-use change, and the threat and rate of the virile crayfish's expansion, out to 2040, and we
There is uncertainty regarding the rate at which virile crayfish may extend into the range of the slenderclaw crayfish and the effects on slenderclaw crayfish populations should the virile crayfish become established. We acknowledge this uncertainty, and we are specifically seeking additional information from the public to better inform our final determination (see Information Requested, above). However, based on the documented past expansion of the virile crayfish, future invasion and expansion into the slenderclaw crayfish's range is expected to occur within the foreseeable future. As discussed above and based on the scenarios, we expect the Short Creek population to be extirpated and the Town Creek population to have lower resiliency or become extirpated within the foreseeable future. We expect the remaining population of the slenderclaw crayfish to become more vulnerable to extirpation, as evidenced by concurrent losses in representation and redundancy. Primarily due to this nonnative species invasion reducing or extirpating most, if not all, of the sites and both populations, we expect the species to be in danger of extinction in the foreseeable future. Accordingly, we find that the slenderclaw crayfish is likely to become in danger of extinction within the foreseeable future throughout its range.
Under the Act and our implementing regulations, a species may warrant listing if it is endangered or threatened throughout all or a significant portion of its range. Because we have determined that the slenderclaw crayfish is likely to become an endangered species within the foreseeable future throughout its range, we find it unnecessary to proceed to an evaluation of potentially significant portions of the range. Where the best available information allows the Services to determine a status for the species rangewide, that determination should be given conclusive weight because a rangewide determination of status more accurately reflects the species' degree of imperilment and better promotes the purposes of the statute. Under this reading, we should first consider whether listing is appropriate based on a rangewide analysis and proceed to conduct a “significant portion of its range” analysis if, and only if, a species does not qualify for listing as either endangered or threatened according to the “all” language. We note that the court in
Therefore, on the basis of the best available scientific and commercial information, we propose to list the slenderclaw crayfish as a threatened species in accordance with sections 3(20) and 4(a)(1) of the Act.
The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness and conservation by Federal, State, Tribal, and local agencies; private organizations; and individuals. The Act encourages cooperation with the States and other countries and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.
Subsection 4(f) of the Act requires the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems. Recovery planning includes the development of a recovery outline shortly after a species is listed and preparation of a draft and final recovery plan. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan also identifies recovery criteria for review of when a species may be ready for reclassification (such as “downlisting” from endangered to threatened) or removal from the Federal Lists of Endangered and Threatened Wildlife and Plants (“delisting”), and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (composed of species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) are often established to develop recovery plans. When completed, the recovery outline, draft recovery plan, and the final recovery plan will be available on our website (
Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration (
If we list the slenderclaw crayfish, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the State of Alabama would be eligible for Federal funds to implement management actions that promote the protection or recovery of the slenderclaw crayfish. Information on our grant programs that are available to aid species recovery can be found at:
Although the slenderclaw crayfish is only proposed for listing under the Act at this time, please let us know if you
The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to threatened wildlife. Under section 4(d) of the Act, the Service has discretion to issue regulations that we find necessary and advisable to provide for the conservation of threatened species. The Secretary also has the discretion to prohibit, by regulation with respect to any threatened species of fish or wildlife, any act prohibited under section 9(a)(1) of the Act. The same prohibitions of section 9(a)(1) of the Act, as applied to threatened wildlife and codified at 50 CFR 17.31, make it illegal for any person subject to the jurisdiction of the United States to take (which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these) threatened wildlife within the United States or on the high seas. In addition, it is unlawful to import; export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any listed species. It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally.
In accordance with section 4(d) of the Act, the regulations implementing the Act include a provision that generally applies to threatened wildlife the same prohibitions that apply to endangered wildlife (50 CFR 17.31(a)). However, for any threatened species, the Service may instead develop a protective regulation that is specific to the conservation needs of that species. Such a regulation would contain all of the protections applicable to that species (50 CFR 17.31(c)); this may include some of the general prohibitions and exceptions under 50 CFR 17.31 and 17.32, but would also include species-specific protections that may be more or less restrictive than the general provisions at 50 CFR 17.31.
For the slenderclaw crayfish, the Service has developed a proposed 4(d) rule that is tailored to the specific threats and conservation needs of this species. The proposed 4(d) rule will not remove or alter in any way the consultation requirements under section 7 of the Act.
Under this proposed 4(d) rule, the following prohibitions apply to the slenderclaw crayfish except as otherwise noted:
Protecting the slenderclaw crayfish from direct forms of take, such as physical injury or killing, whether incidental or intentional, will help preserve and recover the remaining populations of the species. Therefore, we propose to prohibit intentional take of slenderclaw crayfish, including, but not limited to, capturing, handling, trapping, collecting, or other activities. In addition, we propose to prohibit the import, export, possession, sale, offer for sale, delivery, carry, transport, or shipment, by any means whatsoever, any slenderclaw crayfish.
Protecting the slenderclaw crayfish from indirect forms of take, such as harm that results from habitat degradation, will likewise help preserve the species' populations and also decrease negative effects from other stressors impeding recovery of the species. We determined that the primary threat to the slenderclaw crayfish is the nonnative virile crayfish, which is expanding farther into the slenderclaw crayfish's range. Therefore, any intentional or incidental introduction of nonnative species, such as the virile crayfish, that compete with, prey upon, or destroy the habitat of the slenderclaw crayfish would further impact the species and its habitat. Also, destruction or alteration of the species' habitat by discharge of fill material, draining, ditching, tiling, pond construction, stream channelization or diversion, or diversion or alteration of surface or ground water flow into or out of the stream, will impact the habitat for the slenderclaw crayfish, and therefore potentially harm the slenderclaw crayfish. In addition, a further reduction in streamwater availability due to hydrological alteration from modification of water flow of any stream in which the slenderclaw crayfish is known to occur could harm the crayfish as it resides in flowing streams, not impounded waters. Finally, water quality impacts have been documented to occur in both watersheds in which the slenderclaw crayfish occurs, and any discharge of chemicals or fill material into these watersheds will further impact the habitat of the slenderclaw crayfish. Therefore, we propose to prohibit actions that result in the incidental take of slenderclaw crayfish by altering or degrading the habitat.
The proposed 4(d) rule includes the following exceptions from the above-stated prohibitions:
We may issue permits to carry out otherwise prohibited activities, including those described above, involving threatened wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.32. With regard to threatened wildlife, a permit may be issued for the following purposes: Scientific purposes, to enhance propagation or survival, for economic hardship, for zoological exhibition, for educational purposes, for incidental taking, or for special purposes consistent with the purposes of the Act. There are also certain statutory exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.
We may allow take of the slenderclaw crayfish without a permit by any employee or agent of the Service or a State conservation agency designated by his agency for such purposes and when acting in the course of his official duties if such action is necessary to aid a sick, injured or orphaned specimen; dispose of a dead specimen; or salvage a dead specimen which may be useful for scientific study. In addition, Federal and State law enforcement officers may possess, deliver, carry, transport, or ship slenderclaw crayfish taken in violation of the Act as necessary.
Streambank stabilization is used as a habitat restoration technique to restore degraded and eroded streambanks back to vegetated, stable streambanks. When done correctly, these projects reduce bank erosion and instream sedimentation, resulting in improved habitat conditions for aquatic species. However, given the slenderclaw crayfish's current low abundance, any take from streambank stabilization projects using equipment instream would be harmful to the species. Therefore, we would allow streambanks to be stabilized using the following bioengineering methods: Live stakes (live, vegetative cuttings inserted or tamped into the ground in a manner that allows the stake to take root and grow), live fascines (live branch cuttings, usually willows, bound together into
This provision of the proposed 4(d) rule for streambank stabilization would promote conservation of the slenderclaw crayfish by excepting from prohibitions activities that would improve habitat conditions by reducing bank erosion and instream sedimentation.
The terms “conserve”, “conserving”, and “conservation” as defined by the Act, mean to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary. Due to threats acting on the slenderclaw crayfish and the projected impacts to the species and its habitat in the foreseeable future, its viability is expected to decline. The encroachment of the virile crayfish along with reduced water quality leave the species vulnerable to becoming in danger of extinction within the foreseeable future. The species has historically continued to persist in two populations despite its narrow endemic nature; however, the viability is expected to decline due to the virile crayfish and the conditions of the habitat. Prohibiting intentional take as described above as well as incidental take by altering or degrading the habitat will be beneficial in order to protect the slenderclaw crayfish from activities that negatively affect the species and further exacerbate population declines.
For the reasons discussed above, we find that this rule under section 4(d) of the Act is necessary and advisable to provide for the conservation of the slenderclaw crayfish. We do, however, seek public comment on whether there are additional activities that should be considered under the 4(d) provision for the slenderclaw crayfish (see Information Requested, above). This proposal will not be made final until we have reviewed comments from the public and peer reviewers.
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or protection; and
(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area occupied by the species as an area that may generally be delineated around species' occurrences, as determined by the Secretary (
Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) of the Act would apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical or biological features within an area, we focus on the specific features that support the life-history needs of the species, including but not limited to, water characteristics, soil type, geological features, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic, or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity.
Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. We will determine whether unoccupied areas are essential for the conservation of the species by considering the life-history, status, and conservation needs of the species. This will be further informed by any generalized conservation strategy, criteria, or outline that may have been
Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards under the Endangered Species Act (published in the
When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information from the SSA report and information developed during the listing process for the species. Additional information sources may include any generalized conservation strategy, criteria, or outline that may have been developed for the species; the recovery plan for the species; articles in peer-reviewed journals; conservation plans developed by States and counties; scientific status surveys and studies; biological assessments; other unpublished materials; or experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act; (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species; and (3) section 9 of the Act's prohibitions on taking any individual of the species, including taking caused by actions that affect habitat. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans, or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.
Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12) require that the Secretary shall designate critical habitat at the time the species is determined to be an endangered or threatened species to the maximum extent prudent and determinable. Our regulations (50 CFR 424.12(a)(1)) state that the designation of critical habitat is not prudent when one or both of the following situations exist:
(1) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species, or
(2) Such designation of critical habitat would not be beneficial to the species. In determining whether a designation would not be beneficial, the factors the Service may consider include, but are not limited to, whether the present or threatened destruction, modification, or curtailment of a species' habitat or range is not a threat to the species, or whether any areas meet the definition of “critical habitat.”
There is currently no imminent threat of take attributed to collection or vandalism identified under Factor B for this species, and identification and mapping of critical habitat is not expected to initiate any such threat. In the absence of finding that the designation of critical habitat would increase threats to a species, we next determine whether such designation of critical habitat would not be beneficial to the species. In the information provided above on threats to the species, we determined that there are habitat-based threats to the slenderclaw crayfish identified under Factor A; therefore, we cannot say that the designation of critical habitat would not be beneficial to the species. Rather, we determine that critical habitat would be beneficial to the species through the application of section 7 of the Act to actions that affect habitat as well as those that affect the species.
Because we have determined that the designation of critical habitat will not likely increase the degree of threat to the species and would be beneficial, we find that designation of critical habitat is prudent for the slenderclaw crayfish.
Having determined that designation is prudent, under section 4(a)(3) of the Act we must find whether critical habitat for the slenderclaw crayfish is determinable. Our regulations at 50 CFR 424.12(a)(2) state that critical habitat is not determinable when one or both of the following situations exist:
(i) Data sufficient to perform required analyses are lacking, or
(ii) The biological needs of the species are not sufficiently well known to identify any area that meets the definition of “critical habitat.”
We reviewed the available information pertaining to the biological needs of the species and habitat characteristics where the species is located. We find that this information is sufficient for us to conduct both the biological and economic analyses required for the critical habitat determination. Therefore, we conclude that the designation of critical habitat is determinable for the slenderclaw crayfish.
In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12(b), in determining which areas within the geographical area occupied by the species at the time of listing to designate as critical habitat, we consider the physical or biological features that are essential to the conservation of the species and which may require special management considerations or protection. These include, but are not limited to:
(1) Space for individual and population growth and for normal behavior;
(2) Food, water, air, light, minerals, or other nutritional or physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development) of offspring; and
(5) Habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distributions of a species.
The features may also be combinations of habitat characteristics and may encompass the relationship between characteristics or the necessary amount of a characteristic needed to support the life history of the species. In considering whether features are essential to the conservation of the species, the Service may consider an appropriate quality, quantity, and spatial and temporal arrangement of habitat characteristics in the context of the life-history needs, condition, and status of the species.
We derive the specific physical or biological features essential for slenderclaw crayfish from studies of this species' and similar crayfish species' habitat, ecology, and life history. The primary habitat elements that influence resiliency of the slenderclaw crayfish include water quantity, water quality, substrate, interstitial space, and habitat connectivity. More detail of the habitat and resource needs are summarized above under
In summary, we derive the specific physical or biological features essential to the conservation of the slenderclaw crayfish from studies of this species' and similar crayfish species' habitat, ecology, and life history, as described above. Additional information can be found in the SSA report (Service 2018, entire) available on
(1) Geomorphically stable, small to medium, flowing streams:
(a) That are typically 19.8 feet (ft) (6 meters (m)) wide or smaller;
(b) With attributes ranging from:
(i) Streams with predominantly large boulders and fractured bedrock, with widths from 16.4 to 19.7 ft (5 to 6 m), low to no turbidity, and depths up to 2.3 ft (0.7 m), to
(ii) Streams dominated by small substrate types with a mix of cobble, gravel, and sand, with widths of approximately 9.8 feet (3 m), low to no turbidity, and depths up to 0.5 feet (0.15 m);
(c) With substrate consisting of boulder and cobble containing abundant interstitial spaces for sheltering and breeding; and
(d) With intact riparian cover to maintain stream morphology and to reduce erosion and sediment inputs.
(2) Seasonal water flows, or a hydrologic flow regime (which includes the severity, frequency, duration, and seasonality of discharge over time), necessary to maintain benthic habitats where the species is found and to maintain connectivity of streams with the floodplain, allowing the exchange of nutrients and sediment for maintenance of the crayfish's habitat and food availability.
(3) Appropriate water and sediment quality (including, but not limited to, conductivity; hardness; turbidity; temperature; pH; and minimal levels of ammonia, heavy metals, pesticides, animal waste products, and nitrogen, phosphorus, and potassium fertilizers) necessary to sustain natural physiological processes for normal behavior, growth, and viability of all life stages.
(4) Prey base of aquatic macroinvertebrates and detritus. Prey items may include, but are not limited to, insect larvae, snails and their eggs, fish and their eggs, and plant and animal detritus.
When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features which are essential to the conservation of the species and which may require special management considerations or protection. The features essential to the conservation of the slenderclaw crayfish may require special management considerations or protections to reduce the following threats: (1) Impacts from invasive species, including the nonnative virile crayfish; (2) nutrient pollution from agricultural activities that impact water quantity and quality; (3) significant alteration of water quality and water quantity, including conversion of streams to impounded areas; (4) culvert and pipe installation that creates barriers to movement; and (5) other watershed and floodplain disturbances that release sediments or nutrients into the water.
Management activities that could ameliorate these threats include, but are not limited to: Control and removal of introduced invasive species; limiting the spreading of poultry litter to time periods of dry, stable weather conditions; use of best management practices designed to reduce sedimentation, erosion, and bank side destruction; protection of riparian corridors and retention of sufficient canopy cover along banks; moderation of surface and ground water withdrawals to maintain natural flow regimes; and reduction of other watershed and floodplain disturbances
As required by section 4(b)(2) of the Act, we use the best scientific data available to designate critical habitat. In accordance with the Act and our implementing regulations at 50 CFR 424.12(b), we review available information pertaining to the habitat requirements of the species and identify specific areas within the geographical area occupied by the species at the time of listing and any specific areas outside the geographical area occupied by the species to be considered for designation as critical habitat.
The current distribution of the slenderclaw crayfish is much reduced from its historical distribution in one (Short Creek watershed) of the two populations. The currently occupied sites in the Short Creek watershed occur in a single tributary (Shoal Creek), and one catastrophic event could impact this entire population. In addition, the nonnative virile crayfish occupies sites within the Short Creek watershed, including the type locality for the slenderclaw crayfish in Short Creek in which the slenderclaw crayfish no longer occurs. We anticipate that recovery will require continued protection of existing populations and habitat, as well as establishing sites in additional streams that more closely approximate its historical distribution in order to ensure there are adequate numbers of crayfish in stable populations and that these populations have multiple sites occurring in at least two streams within each watershed. This will help ensure that catastrophic events, such as a chemical spill, cannot simultaneously affect all known populations.
Sources of data for this proposed critical habitat designation include numerous survey reports on streams throughout the species' range and databases maintained by crayfish experts and universities (Bouchard and Hobbs 1976, entire; Bearden 2017, unpublished data; Schuster 2017, unpublished data; Taylor 2017, unpublished data; Service 2018, entire). We have also reviewed available information that pertains to the habitat requirements of this species. Sources of information on habitat requirements include surveys conducted at occupied sites and published in agency reports, and data collected during monitoring efforts.
For locations within the geographic area occupied by the species at the time of listing, we identified stream channels that currently support populations of the slenderclaw crayfish. We defined “current” as stream channels with observations of the species from 2009 to the present. Due to the recent breadth and intensity of survey efforts for the slenderclaw crayfish throughout the historical range of the species, it is reasonable to assume that streams with no positive surveys since 2009 should not be considered occupied for the purpose of our analysis. Within these areas, we delineated critical habitat unit boundaries using the following process:
We evaluated habitat suitability of stream channels within the geographical area occupied at the time of listing, and retained for further consideration those streams that contain one or more of the physical and biological features to support life-history functions essential to conservation of the species. We refined the starting and ending points of units by evaluating the presence or absence of appropriate physical and biological features. We selected the headwaters as upstream cutoff points for each stream and downstream cutoff points that omit areas that are not suitable habitat. For example, the Guntersville Lake Tennessee Valley Authority project boundary was selected as an endpoint for one unit, as there was a change to unsuitable parameters (
Based on this analysis, the following streams meet criteria for areas occupied by the species at the time of listing: Bengis Creek, Scarham Creek, Shoal Creek, Short Creek, Town Creek, and Whippoorwill Creek (see
To consider for designation areas not occupied by the species at the time of listing, we must demonstrate that these areas are essential for the conservation of the species. To determine if these areas are essential for the conservation of the slenderclaw crayfish, we considered the life history, status, and conservation needs of the species such as: (1) The importance of the stream to the overall status of the species, the importance of the stream to the prevention of extinction, and the stream's contribution to future recovery of the slenderclaw crayfish; (2) whether the area could be maintained or restored to contain the necessary habitat to support the slenderclaw crayfish; (3) whether the site provides connectivity between occupied sites for genetic exchange; (4) whether a population of the species could be reestablished in the location; and (5) whether the virile crayfish is currently present in the stream.
For areas outside the geographical area occupied by the species at the time of listing, we delineated critical habitat unit boundaries by evaluating stream segments not known to have been occupied at listing (
(a) Expand the geographical distribution within areas not occupied at the time of listing across the historical range of the species; and
(b) Are connected to other occupied areas, which will enhance genetic exchange between populations.
When determining proposed critical habitat boundaries, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands lack physical or biological features necessary for slenderclaw crayfish. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this proposed rule have been excluded by text in the proposed rule and are not proposed for designation as critical habitat. Therefore, if the critical habitat is finalized as proposed, a Federal action involving these lands would not trigger section 7 consultation under the Act with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the physical or biological features in the adjacent critical habitat.
The proposed critical habitat designation is defined by the map or maps, as modified by any accompanying regulatory text, presented at the end of
We are proposing to designate approximately 78 river miles (mi) (126 river kilometers (km)) in two units as critical habitat for the slenderclaw crayfish. These proposed critical habitat areas, described below, constitute our current best assessment of areas that meet the definition of critical habitat for the slenderclaw crayfish. The two units proposed as critical habitat are: (1) Town Creek Unit, and (2) Short Creek Unit. Unit 2 is subdivided into two subunits: (2a) Shoal Creek and Short Creek subunit, and (2b) Scarham-Laurel Creek subunit. Table 2 shows the name, occupancy of the unit, land ownership of the riparian areas surrounding the units, and approximate river miles of the proposed designated units for the slenderclaw crayfish.
We present brief descriptions of all proposed units, and reasons why they meet the definition of critical habitat for the slenderclaw crayfish, below.
Unit 1 consists of 41.8 river mi (67.2 river km) of Bengis and Town creeks in DeKalb County, Alabama. Unit 1 includes stream habitat up to bank full height, consisting of the headwaters of Bengis Creek to its confluence with Town Creek and upstream to the headwaters of Town Creek. Stream channels in and lands adjacent to Unit 1 are privately owned except for bridge crossings and road easements, which are owned by the State and County. The slenderclaw crayfish occupies all stream reaches in this unit, and the unit currently supports all breeding, feeding, and sheltering needs essential to the conservation of the slenderclaw crayfish.
Special management considerations or protection may be required for control and removal of introduced invasive species, including the nonnative virile crayfish, which occupies the boulder and cobble habitats and interstitial spaces within these habitats that the slenderclaw crayfish needs. At present, the virile crayfish is not present in this unit, although it has been documented just outside the watershed boundary. However, based on future projections in the SSA report, the virile crayfish is expected to be present in the Town Creek watershed within the next 2 years.
In addition, special management considerations or protection may be required to address water withdrawals and drought as well as excess nutrients, sediment, and pollutants that enter the streams and serve as indicators of other forms of pollution, such as bacteria and toxins. A primary source of these types of pollution is agricultural runoff. However, during recent survey efforts for the slenderclaw crayfish, water quality analysis found lead measurements in Bengis Creek that exceeded the acute and chronic aquatic life criteria set by U.S. Environmental Protection Agency and ADEM, and elevated ammonia concentrations in Town Creek. Special management or protection may include moderating surface and ground water withdrawals, using best management practices to reduce sedimentation, and reducing watershed and floodplain disturbances that release pollutants and nutrients into the water.
Special management considerations or protection may be required for control and removal of introduced invasive species, including the virile crayfish (see Unit 1 discussion, above). At present, the virile crayfish is present at sites in Short Creek and Drum Creek
In addition, special management considerations or protection may be required to address water withdrawals and drought as well as excess nutrients, sediment, and pollutants that enter the streams and serve as indicators of other forms of pollution such as bacteria and toxins. A primary source of these types of pollution is agricultural runoff. During recent survey efforts for the slenderclaw crayfish, water quality analysis indicated that impaired water quality due to nutrients, bacteria, and levels of atrazine may be of concern in the Short Creek watershed. Special management or protection may include moderating surface and ground water withdrawals, using best management practices to reduce sedimentation, and reducing watershed and floodplain disturbances that release pollutants and nutrients into the water.
This unoccupied subunit is considered to be essential for the conservation of the species. Scarham-Laurel Creek is within the historical range of the slenderclaw crayfish but is not within the geographical range currently occupied by the species at the time of listing. The slenderclaw crayfish has not been documented at sites in Scarham-Laurel Creek in over 40 years. We presume these sites to be extirpated. Scarham-Laurel Creek is in restorable condition and is currently devoid of the virile crayfish. Water quality concerns have been documented within Scarham-Laurel Creek, with it listed on Alabama's 303(d) list of impaired waters for impacts from pesticides, siltation, ammonia, low dissolved oxygen/organic enrichment, and pathogens from agricultural sources in 1998 (ADEM 1996, p. 1). However, in 2004, Scarham Creek was removed from the 303(d) list after TMDLs were established (ADEM 2002, p. 5). Recent water quality analysis indicated that water quality was impaired within the Short Creek watershed in which Scarham-Laurel Creek is located (Bearden
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) provides that: “The Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan [INRMP] prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.” There are no Department of Defense lands with a completed INRMP within the proposed critical habitat designation.
Section 4(b)(2) of the Act states that the Secretary shall designate critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the statute on its face, as well as the legislative history, are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor.
As discussed below, we are not proposing to exclude any areas from critical habitat. However, the final decision on whether to exclude any areas will be based on the best scientific data available at the time of the final designation, including information obtained during the comment period and information about the economic impact of designation. Accordingly, we have prepared a draft economic analysis concerning the proposed critical habitat designation, which is available for review and comment (see
Section 4(b)(2) of the Act and its implementing regulations require that we consider the economic impact that may result from a designation of critical habitat. To assess the probable economic impacts of a designation, we must first evaluate specific land uses or activities and projects that may occur in the area of the critical habitat. We then must evaluate whether a specific critical habitat designation may restrict or modify such land uses or activities for the benefit of the species and its habitat within the areas proposed. We then identify which conservation efforts may be the result of the species being listed under the Act versus those attributed solely to the designation of critical habitat. The probable economic impact of a proposed critical habitat designation is analyzed by comparing scenarios both “with critical habitat” and “without critical habitat.” The “without critical habitat” scenario represents the baseline for the analysis, which includes the existing regulatory and socioeconomic burden imposed on landowners, managers, or other resource users potentially affected by the designation of critical habitat (
For this proposed designation, we developed an incremental effects memorandum (IEM) considering the probable incremental economic impacts that may result from this proposed
Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to assess the costs and benefits of available regulatory alternatives in quantitative (to the extent feasible) and qualitative terms. Consistent with the E.O. regulatory analysis requirements, our effects analysis under the Act may take into consideration impacts to both directly and indirectly affected entities, where practicable and reasonable. If sufficient data are available, we assess to the extent practicable the probable impacts to both directly and indirectly affected entities. As part of our screening analysis, we considered the types of economic activities that are likely to occur within the areas likely affected by the proposed critical habitat designation. In our June 6, 2018, IEM, we first identified probable incremental economic impacts associated with each of the following categories of activities: (1) Agriculture and poultry farming; (2) development; (3) recreation; (4) restoration activities; (5) flood control; and (6) transportation and utilities. Additionally, we considered whether their activities have any Federal involvement. Critical habitat designation generally will not affect activities that do not have any Federal involvement; under the Act, designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies. If we list the species, as proposed in this document, in areas where the slenderclaw crayfish is present, under section 7 of the Act, Federal agencies would be required to consult with the Service on activities they fund, permit, or implement that may affect the species. If we finalize this proposed critical habitat designation, consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the consultation process.
In our IEM, we attempted to clarify the distinction between the effects that would result from the species being listed and those attributable to the critical habitat designation (
The proposed critical habitat designation for the slenderclaw crayfish totals approximately 78 river mi (126 river km), which includes both occupied and unoccupied streams. Within the occupied streams, any actions that may affect the species would likely also affect proposed critical habitat, and it is unlikely that any additional conservation efforts would be required to address the adverse modification standard over and above those recommended as necessary to avoid jeopardizing the continued existence of the species. Within the unoccupied streams, the Service will consult with Federal agencies on any projects that occur within the watershed boundaries containing unoccupied critical habitat due to overlap with the ranges of other listed species such as Indiana bat (
As we stated earlier, we are soliciting data and comments from the public on the draft economic analysis, as well as all aspects of this proposed rule and our required determinations. See
Under section 4(b)(2) of the Act, we consider the economic impacts of specifying any particular area as critical habitat. As discussed above, we prepared an analysis of the probable economic impacts of the proposed critical habitat designation and related factors. The Secretary does not propose to exercise his discretion to exclude any areas from the final designation based on economic impacts.
Under section 4(b)(2) of the Act, we consider whether there are lands owned or managed by the Department of Defense or Department of Homeland Security where a national security impact might exist. In preparing this
Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security. We consider a number of factors including whether there are permitted conservation plans covering the species in the area, such as habitat conservation plans, safe harbor agreements, or candidate conservation agreements with assurances, or whether there are non-permitted conservation agreements and partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at the existence of tribal conservation plans and partnerships and consider the government-to-government relationship of the United States with tribal entities. We also consider any social impacts that might occur because of the designation.
In preparing this proposal, we have determined that there are currently no habitat conservation plans or other management plans for the slenderclaw crayfish, and the proposed critical habitat does not include any tribal lands or trust resources. We anticipate no impact on tribal lands, partnerships, or habitat conservation plans from this proposed critical habitat designation. Accordingly, the Secretary does not intend to exercise his discretion to exclude any areas from the final designation based on other relevant impacts.
During the development of a final designation, we will consider any additional information we receive during the public comment period, including, but not limited to, economic impact information, which may result in areas being excluded from the final critical habitat designation under section 4(b)(2) of the Act and our implementing regulations at 50 CFR 424.19.
Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat.
We published a final regulation with a new definition of destruction or adverse modification on February 11, 2016 (81 FR 7214). Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat for the conservation of a listed species. Such alterations may include, but are not limited to, those that alter the physical or biological features essential to the conservation of a species or that preclude or significantly delay development of such features.
If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of actions that are subject to the section 7 consultation process are actions on State, tribal, local, or private lands that require a Federal permit or that involve some other Federal action. Federal agency actions within the species' habitat that may require conference or consultation or both include management and any other landscape-altering activities on private lands seeking funding by Federal agencies, which may include, but are not limited to, the U.S. Department of Agriculture (USDA) Farm Service Agency, USDA Natural Resources Conservation Service, and Federal Emergency Disaster Service; issuance of section 404 Clean Water Act (33 U.S.C. 1251
As a result of section 7 consultation, we document compliance with the requirements of section 7(a)(2) through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or
(2) A biological opinion for Federal actions that may affect, and are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species and/or destroy or adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy and/or destruction or adverse modification of critical habitat. We define “reasonable and prudent alternatives” (50 CFR 402.02) as alternative actions identified during consultation that:
(1) Can be implemented in a manner consistent with the intended purpose of the action,
(2) Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Service Director's opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where we have newly listed a species or subsequently designated critical habitat that may be affected and the Federal agency has retained discretionary involvement or control over the action (or the agency's discretionary involvement or control is authorized by law). Consequently, Federal agencies sometimes may need to request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions with discretionary involvement or control may affect subsequently listed species or designated critical habitat.
The key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would continue to serve its intended conservation role for the species. Activities that may destroy or adversely modify critical habitat are those that result in a direct or indirect alteration that appreciably diminishes the value of critical habitat for the conservation of the slenderclaw crayfish. Such alterations may include, but are not limited to, those that alter the physical or biological features essential to the conservation of the species or that preclude or significantly delay development of such features. As discussed above, the role of critical habitat is to support physical or biological features essential to the conservation of a listed species and provide for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation. Activities that may affect critical habitat, when carried out, funded, or authorized by a Federal agency, should result in consultation for the slenderclaw crayfish These activities include, but are not limited to:
(1) Actions that would alter the minimum flow or the existing flow regime. Such activities could include, but are not limited to, impoundment, channelization, water diversion, and water withdrawal. These activities could eliminate or reduce the habitat necessary for the growth and reproduction of the slenderclaw crayfish by decreasing or altering seasonal flows to levels that would adversely affect the species' ability to complete its life cycle.
(2) Actions that would significantly alter water chemistry or quality. Such activities could include, but are not limited to, release of chemicals (including pharmaceuticals, metals, and salts) or biological pollutants into the surface water or connected groundwater at a point source or by dispersed release (non-point source). These activities could alter water conditions to levels that are beyond the tolerances of the slenderclaw crayfish and result in direct or cumulative adverse effects to these individuals and their life cycles.
(3) Actions that would significantly increase sediment deposition within the stream channel. Such activities could include, but are not limited to, excessive sedimentation from livestock grazing, road construction, channel alteration, timber harvest, off-road vehicle use, and other watershed and floodplain disturbances. These activities could eliminate or reduce the habitat necessary for the growth and reproduction of the slenderclaw crayfish by increasing the sediment deposition to levels that would adversely affect the species' ability to complete its life cycle.
(4) Actions that would significantly increase eutrophic conditions. Such activities could include, but are not limited to, release of nutrients into the surface water or connected groundwater at a point source or by dispersed release (non-point source). These activities can result in excessive nutrients and algae filling streams and reducing habitat for the slenderclaw crayfish, degrading water quality from excessive nutrients and during algae decay, and decreasing oxygen levels to levels below the tolerances of the slenderclaw crayfish.
(5) Actions that would significantly alter channel morphology or geometry, or decrease connectivity. Such activities could include, but are not limited to, channelization, impoundment, road and bridge construction, mining, dredging, and destruction of riparian vegetation. These activities may lead to changes in water flows and levels that would degrade or eliminate the slenderclaw crayfish and its habitats. These actions can also lead to increased sedimentation and degradation in water quality to levels that are beyond the tolerances of the slenderclaw crayfish.
(6) Actions that result in the introduction, spread, or augmentation of nonnative aquatic species in occupied stream segments, or in stream segments that are hydrologically connected to occupied stream segments, or introduction of other species that compete with or prey on the slenderclaw crayfish. Possible actions could include, but are not limited to, stocking of nonnative crayfishes and fishes, stocking of sport fish, or other related actions. These activities can introduce parasites or disease; result in direct predation or direct competition; or affect the growth, reproduction, and survival of the slenderclaw crayfish.
We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in
This rule is not an E.O. 13771 (“Reducing Regulation and Controlling Regulatory Costs”) (82 FR 9339, February 3, 2017) regulatory action because this rule is not significant under E.O. 12866.
Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601
According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.
The Service's current understanding of the requirements under the RFA, as amended, and following recent court decisions, is that Federal agencies are only required to evaluate the potential incremental impacts of rulemaking on those entities directly regulated by the rulemaking itself, and, therefore, are not required to evaluate the potential impacts to indirectly regulated entities. The regulatory mechanism through which critical habitat protections are realized is section 7 of the Act, which requires Federal agencies, in consultation with the Service, to ensure that any action authorized, funded, or carried out by the agency is not likely to destroy or adversely modify critical habitat. Therefore, under section 7, only Federal action agencies are directly subject to the specific regulatory requirement (avoiding destruction and adverse modification) imposed by critical habitat designation. Consequently, it is our position that only Federal action agencies would be directly regulated if we adopt the proposed critical habitat designation. There is no requirement under RFA to evaluate the potential impacts to entities not directly regulated. Moreover, Federal agencies are not small entities. Therefore, because no small entities would be directly regulated by this rulemaking, the Service certifies that, if promulgated, the proposed critical habitat designation will not have a significant economic impact on a substantial number of small entities.
In summary, we have considered whether the proposed designation would result in a significant economic impact on a substantial number of small entities. For the above reasons and based on currently available information, we certify that, if promulgated, the proposed critical habitat designation will not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required.
Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. In our economic analysis, we did not find that the designation of this proposed critical habitat will significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
(1) This proposed rule would not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.”
The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments.
(2) We do not believe that this proposed rule would significantly or uniquely affect small governments because the lands within and adjacent to the streams being proposed for critical habitat designation are owned by private landowners. These government entities do not fit the definition of “small governmental jurisdiction.” Therefore, a Small Government Agency Plan is not required.
In accordance with E.O. 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for slenderclaw crayfish in a takings implications assessment. The Act does not authorize the Service to regulate private actions on private lands or confiscate private property as a result of critical habitat designation. Designation of critical habitat does not affect land ownership, or establish any closures, or restrictions on use of or access to the designated areas. Furthermore, the designation of critical habitat does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. However, Federal agencies are prohibited from carrying out, funding, or authorizing actions that would destroy or adversely modify critical habitat. A takings implications assessment has been completed and concludes that, if adopted, this designation of critical habitat for slenderclaw crayfish does not pose significant takings implications for lands within or affected by the designation.
In accordance with E.O. 13132 (Federalism), this proposed rule does not have significant Federalism effects. A federalism summary impact statement is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of this proposed critical habitat designation with, the appropriate State resource agency in Alabama. From a federalism perspective, the designation of critical habitat directly affects only the responsibilities of Federal agencies. The Act imposes no other duties with respect to critical habitat, either for States and local governments, or for anyone else. As a result, the proposed rule does not have substantial direct effects either on the State, or on the relationship between the national government and the State, or on the distribution of powers and responsibilities among the various levels of government. The proposed designation may have some benefit to these governments because the areas that contain the features essential to the conservation of the species are more clearly defined, and the physical or biological features of the habitat necessary to the conservation of the species are specifically identified. This information does not alter where and what federally sponsored activities may occur. However, it may assist these local governments in long-range planning (because these local governments no longer have to wait for case-by-case section 7 consultations to occur).
Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) would be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency.
In accordance with Executive Order 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. We have proposed designating critical habitat in accordance with the provisions of the Act. To assist the public in understanding the habitat needs of the species, this proposed rule identifies the elements of physical or biological features essential to the conservation of the species. The proposed areas of designated critical habitat are presented on maps, and the proposed rule provides several options for the interested public to obtain more detailed location information, if desired.
This proposed rule does not contain any new collections of information that require approval by the Office of Management and Budget under the Paperwork Reduction Act of 1995. This rule will not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. 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.
We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act (NEPA), need not be prepared in connection with listing a species as an endangered or threatened species under the Act. We published a notice outlining our reasons for this determination in the
It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses pursuant to NEPA in connection with designating critical habitat under the Act. We published a notice outlining our reasons for this determination in the
In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to tribes. We have identified no tribal interests that will be affected by this proposed rulemaking.
A complete list of references cited in this rulemaking is available on the internet at
The primary authors of this proposed rule are the staff members of the U.S. Fish and Wildlife Service Species Assessment Team and Alabama Ecological Services Field Office.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless otherwise noted.
(h) * * *
(b) Slenderclaw crayfish (
(i)
(A) Intentional take of slenderclaw crayfish, including capture, handling, or other activities, and
(B) Actions that result in the incidental take of slenderclaw crayfish by altering or degrading the habitat.
(ii)
(iii)
(iv)
(v)
(B) An advertisement for the sale of slenderclaw crayfish that carries a warning to the effect that no sale may be consummated until a permit has been obtained from the Service shall not be considered an offer for sale within the meaning of this section.
(2)
(i) All of the provisions of § 17.32 apply to the slenderclaw crayfish.
(ii) Any employee or agent of the Service or a State conservation agency, who is designated by his agency for such purposes, may, when acting in the course of his official duties, take the slenderclaw crayfish without a permit if such action is necessary to:
(A) Aid a sick, injured or orphaned specimen;
(B) Dispose of a dead specimen; or
(C) Salvage a dead specimen which may be useful for scientific study.
(iii) Any take under paragraph (b)(2)(ii) of this section must be reported in writing to the U.S. Fish and Wildlife Service, Office of Law Enforcement, 5275 Leesburg Pike, Falls Church, VA 22041, within 5 days of the taking. The specimen may only be retained, disposed of, or salvaged under directions from the Office of Law Enforcement.
(iv) Streambank stabilization projects that replace pre-existing bare, eroding streambanks with vegetated, stable streambanks are allowed in accordance with the provisions of this paragraph, thereby reducing current and future bank erosion and instream sedimentation, and improving habitat conditions for the slenderclaw crayfish.
(A) Streambanks may be stabilized using live stakes (live, vegetative cuttings inserted or tamped into the ground in a manner that allows the stake to take root and grow), live fascines (live branch cuttings, usually willows, bound together into long, cigar shaped bundles), or brush layering (cuttings or branches of easily rooted tree species layered between successive lifts of soil fill).
(B) The methods of streambank stabilization described in paragraph (b)(2)(iv)(A) must not include the sole use of quarried rock (rip-rap) or the use of rock baskets or gabion structures; however, rip-rap, rock baskets, or gabion structures may be used in conjunction with the methods of streambank stabilization described in paragraph (b)(2)(iv)(A).
(C) Streambank stabilization projects must be performed at base-flow or low
(D) Streambank stabilization projects must keep all equipment out of the stream channels and water.
(v) Federal and State law enforcement officers may possess, deliver, carry, transport or ship slenderclaw crayfish taken in violation of the Act as necessary in performing their official duties.
(h)
(1) Critical habitat units are depicted for DeKalb and Marshall Counties, Alabama, on the maps in this entry.
(2) Within these areas, the physical or biological features essential to the conservation of the slenderclaw crayfish consist of the following components:
(i) Geomorphically stable, small to medium, flowing streams:
(A) That are typically 19.8 feet (ft) (6 meters (m)) wide or smaller;
(B) With attributes ranging from:
(
(
(C) With substrate consisting of boulder and cobble containing abundant interstitial spaces for sheltering and breeding; and
(D) With intact riparian cover to maintain stream morphology and to reduce erosion and sediment inputs.
(ii) Seasonal water flows, or a hydrologic flow regime (which includes the severity, frequency, duration, and seasonality of discharge over time), necessary to maintain benthic habitats where the species is found and to maintain connectivity of streams with the floodplain, allowing the exchange of nutrients and sediment for maintenance of the crayfish's habitat and food availability.
(iii) Appropriate water and sediment quality (including, but not limited to, conductivity; hardness; turbidity; temperature; pH; and minimal levels of ammonia, heavy metals, pesticides, animal waste products, and nitrogen, phosphorus, and potassium fertilizers) necessary to sustain natural physiological processes for normal behavior, growth, and viability of all life stages.
(iv) Prey base of aquatic macroinvertebrates and detritus. Prey items may include, but are not limited to, insect larvae, snails and their eggs, fish and their eggs, and plant and animal detritus.
(3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on the effective date of this rule.
(4)
(5) Index map follows:
(6) Unit 1: Town Creek, DeKalb County, Alabama.
(i) This unit consists of 41.8 river miles (67.2 river kilometers) of occupied habitat in Bengis and Town creeks. Unit 1 includes stream habitat up to bank full height consisting of the headwaters of Bengis Creek to its confluence with Town Creek and upstream to the headwaters of Town Creek.
(ii) Map of Unit 1 follows:
(7) Unit 2: Short Creek, DeKalb and Marshall Counties, Alabama.
(i) Subunit 2a: Shoal Creek and Short Creek, DeKalb and Marshall Counties, Alabama.
(A) This subunit consists of 10.3 river miles (16.6 river kilometers) of occupied habitat in Scarham, Shoal, Short, and Whippoorwill Creeks. Subunit 2a includes stream habitat up to bank full height consisting of the headwaters of Shoal Creek to its confluence with Whippoorwill Creek, Whippoorwill Creek to its confluence with Scarham Creek, Scarham Creek to its confluence with Short Creek, and Short Creek to its downstream extent to the Guntersville Lake Tennessee Valley Authority project boundary.
(B) Map of Subunit 2a follows:
(ii) Subunit 2b: Scarham-Laurel Creek, DeKalb and Marshall Counties, Alabama.
(A) This subunit consists of 25.9 river miles (41.7 river kilometers) of unoccupied habitat in Scarham-Laurel Creek. Subunit 2b includes stream habitat up to bank full height consisting of the headwaters of Scarham-Laurel Creek to its confluence with Whippoorwill Creek.
(B) Map of Subunit 2b follows:
Fish and Wildlife Service, Interior.
Proposed rule.
We, the U.S. Fish and Wildlife Service (Service), announce a 12-month petition finding on a petition to list the eastern black rail (
We will accept comments received or postmarked on or before December 10, 2018. Comments submitted electronically using the Federal eRulemaking Portal (see
You may submit comments by one of the following methods:
(1)
(2)
We request that you send comments only by the methods described above. We will post all comments on
Tom McCoy, Field Supervisor, South Carolina Ecological Services Field Office, 176 Croghan Spur Road, Suite 200, Charleston, SC 29407; telephone 843-727-4707; facsimile 843-300-0204. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service at 800-877-8339.
We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. We particularly seek comments concerning:
(1) The eastern black rail's biology, range, and population trends, including:
(a) Biological or ecological requirements of the subspecies, including habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns;
(d) Historical and current population levels, and current and projected trends; and
(e) Past and ongoing conservation measures for the subspecies, its habitat, or both.
(2) Factors that may affect the continued existence of the subspecies, which may include habitat modification or destruction, overutilization, disease, predation, the inadequacy of existing regulatory mechanisms, or other natural or manmade factors.
(3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to the eastern black rail and existing regulations that may be addressing those threats.
(4) Additional information concerning the historical and current status, range, distribution, and population size of the eastern black rail, including the locations of any additional populations of this subspecies.
(5) The reasons why areas should or should not be designated as critical habitat as provided by section 4 of the Act (16 U.S.C. 1531
(6) Whether the measures outlined in the proposed section 4(d) rule are necessary and advisable for the conservation and management of the eastern black rail. We particularly seek comments concerning:
(a) Whether the provision related to the prescribed burn activities should be revised to include additional spatial or temporal restrictions or deferments, or additional best management practices;
(b) Whether the provision related to the haying, mowing, and mechanical treatment activities should be revised to include additional spatial or temporal restrictions or deferments;
(c) Whether the provision related to the grazing activities should be revised to include spatial or temporal restrictions or deferments. We also seek comment on the level of grazing density that is compatible with eastern black rail occupancy; and
(d) Whether there are additional provisions the Service may wish to consider for the section 4(d) rule in order to conserve, recover, and manage the eastern black rail, such as limitations on road construction and other infrastructure or construction activities, moist soil management, or structural marsh management activities.
Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.
Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.”
You may submit your comments and materials concerning this proposed rule by one of the methods listed in
If you submit information via
Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on
Section 4(b)(5) of the Act provides for a public hearing on this proposal, if requested. We must receive requests within 45 days after the date of publication of this proposed rule in the
The purpose of peer review is to ensure that our listing determination is based on scientifically sound data, assumptions, and analyses. In accordance with our joint policy on peer review published in the
In April 2010, the Center for Biological Diversity (CBD) petitioned the Service to list 404 aquatic, riparian, and wetland species from the southeastern United States under the Act. The eastern black rail was among these 404 species. On September 27, 2011, the Service published a 90-day finding that the petition presented substantial scientific or commercial information indicating that listing may be warranted for 374 species, including the eastern black rail (76 FR 59836). On September 13, 2012, CBD filed a complaint against the Service for failure to complete a 12-month finding for the eastern black rail. On April 25, 2013, the Service entered into a settlement agreement with CBD to resolve the complaint; the court approved the agreement on April 26, 2013. The agreement specified that a 12-month finding for the eastern black rail would be delivered to the
A thorough review of the taxonomy, life history, and ecology of the eastern black rail is presented in the SSA report (Service 2018, entire).
The eastern black rail is a subspecies of black rail, which is a member of the family Rallidae (rails, gallinules, and coots) in the order Gruiformes (rails, cranes, and allies; American Ornithologists' Union, 1998, p. 130). The eastern black rail is one of four recognized subspecies of black rail. The California black rail (
The black rail is the smallest rail in North America. Males and females are similar in size, and adults are generally pale to blackish gray, with a small blackish bill and bright red eyes. The eastern black rail is larger (mean mass=35 grams) but has less brightly colored plumage than the California black rail (mean mass = 29 grams) (Eddleman
The eastern black rail has four life stages: egg, chick, juvenile, and adult; we discuss specifics of each of these life stages in detail in our SSA report (Service 2018, pp. 8-12). Eastern black rail egg laying and incubation primarily occur from May to August, with some early nesting in March and April (Watts 2016, pp. 10-11; A. Moore and J. Wilson 2018, unpublished data). The chick stage occurs from May through September. The juvenile stage begins when a chick has fledged and is independent from the parents. Eastern black rails reach the sexually mature adult life stage the spring after hatch year. Adults undergo a complete postbreeding molt each year between July and September on the breeding grounds (Pyle 2008, p. 477; Hand 2017b, p. 15). During that time, individuals simultaneously lose all of their wing flight feathers and tail flight feathers, and are unable to fly for approximately 3 weeks (Flores and Eddleman 1991, pp. iii, 62-63; Eddleman, Flores, and Legare 1994, unpaginated). We recognize that there is latitudinal variability of these life-history events across the range of the eastern black rail. The subspecies' lifespan is not known.
The nature of migration for the eastern black rail is poorly understood. Preliminary results suggest there are two populations of eastern black rail in the south-central United States: A migratory population breeding in Colorado and Kansas, and wintering in Texas; and a non-migratory population living in Texas year-round (Butler 2017, pers. comm.). Additionally, it is suspected that the northern U.S. Atlantic coast population migrates and winters on the southern Atlantic coast (
The eastern black rail occupies portions of the eastern United States (east of the Rocky Mountains), Mexico, Central America, and the Caribbean. Individuals that are presumed to be the eastern black rail have also been reported on occasion in Brazil. In the United States, eastern black rails are found in both coastal and inland areas, but the majority of detections are from coastal sites. In a recent assessment of 23 States that comprise the primary area of the subspecies' range within the contiguous United States (
See the figure, below, for a distribution map for the eastern black rail. This figure shows the current areas where black rails are found year-round and in the spring and summer. Shaded countries and U.S. States are those that may have detections of eastern black rails; however, detections in these countries or U.S. States may be few in number and the bird may not be detected regularly,
Eastern black rails are found in a variety of salt, brackish, and freshwater marsh habitats that can be tidally or non-tidally influenced. Within these habitats, the birds occupy relatively high elevations along heavily vegetated wetland gradients, with soils that are moist or flooded to a shallow depth (Eddleman, Knopf, Meanley, Reid, and Zembal 1988, p. 463; Nadeau and Conway 2015, p. 292). Eastern black rails require dense vegetative cover that allows movement underneath the canopy. Plant structure is considered more important than plant species composition in predicting habitat suitability for the subspecies (Flores and Eddleman 1995, pp. 357, 362). Occupied habitat tends to be primarily composed of fine-stemmed emergent plants (rushes, grasses, and sedges) with high stem densities and dense canopy cover (Flores and Eddleman 1995, p. 362; Legare and Eddleman 2001, pp. 173-174). However, when shrub densities become too high, the habitat becomes less suitable for eastern black rails. Soils are moist to saturated (occasionally dry) and interspersed with or adjacent to very shallow water (1 to 6 centimeters) (Legare and Eddleman 2001, pp. 173, 175). Eastern black rails forage on a variety of small (<1 centimeter (cm) (0.39 inches (in))) aquatic and terrestrial invertebrates, especially insects, and seeds (
The eastern black rail is a wetland dependent subspecies. While it can be found in salt, brackish, and freshwater marshes that are tidally or non-tidally influenced, it has a very specific niche habitat. It requires dense herbaceous vegetation to provide shelter and cover and areas for protected nest sites; it is not found in areas with woody vegetation.
The bird requires shallow water or moist soil for its nesting sites. Ideally, the water level is 1 to 6 cm (0.39 to 2.36 in), although less than 3 cm (1.18 in) is ideal for foraging and chick rearing. Water levels must be below the nests during egg laying and incubation for nests to be successful. Eastern black rails require elevated refugia with dense cover to survive high water events, because juvenile and adult black rails prefer to walk and run rather than fly and chicks are unable to fly. Eastern black rails fly little during the breeding and wintering seasons—they prefer to remain on the ground, running quickly through dense vegetation—and are considered secretive because of this behavior. Having higher elevation areas with dense vegetation allows the birds to escape flood events during the flightless molt period, and provides shelter from predators.
We completed a comprehensive assessment of the biological status of the eastern black rail, and prepared a report of the assessment (SSA report; Service 2018, entire), which provides a thorough account of the subspecies' overall viability. Below, we summarize the key results and conclusions of the SSA report, which can be viewed under Docket No. FWS-R4-ES-2018-0057 at
To assess eastern black rail viability, we used the three conservation biology principles of resiliency, representation, and redundancy (together, “the three Rs,” (3Rs)) (Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency refers to the ability of a species to withstand environmental and demographic stochasticity (for example, wet or dry years); representation refers to the ability of the species to adapt over time to long-term changes in the environment (for example, climate change); and redundancy refers to the ability of the species to withstand catastrophic events (for example, hurricanes). In general, the more redundant and resilient a species is and the more representation it has, the more likely it is to sustain populations over time, even under changing environmental conditions. Using these principles, we identified the eastern black rail's ecological requirements for survival and reproduction at the individual, population, and subspecies levels, and described the beneficial and risk factors influencing the subspecies' viability.
We delineated analysis units for the eastern black rail based on environmental variables (aquifer permeability, slope, mean precipitation, mean potential evapotranspiration, and percent sand in soil). We used 8,281 point localities from combined datasets (
To assess resiliency, we analyzed occupancy within the analysis units through the creation of a dynamic occupancy model. We used data from repeated presence/absence surveys across the range of the eastern black rail to estimate the probability of presence at a site and related the occupancy probability to environmental covariates of interest (wettest month precipitation, temperature range, annual mean temperature, coldest month mean temperature, presence/absence of fire ants, and State identification). The lower the occupancy probability in an analysis unit, the less resiliency that analysis unit exhibits. We found the four extant analysis units (Southeast Coastal Plain, Mid-Atlantic Coastal Plain, Great Plains, and Southwest Coastal Plain) to have very low occupancy probabilities ranging from 0.099 to 0.25. The results also indicated fairly high site extinction probabilities with accompanying low site persistence.
To assess representation, we used two metrics to estimate and predict representative units that reflect the subspecies' adaptive capacity: Habitat variability and latitudinal variability. The eastern black rail exhibits adaptive potential by using similar habitat elements within different wetland types (habitat variability) within analysis units,
To assess redundancy, we evaluated the current distribution of eastern black rail analysis units through their present-day spatial locations. To have high redundancy, the eastern black rail would need to have multiple resilient analysis units spread throughout its range.
Historically, the eastern black rail ranged across the eastern, central, and southern United States; historical records also exist from the Caribbean and Central America. It occupied multiple areas of wetlands (including salt marshes, coastal prairies, and hay fields) throughout the range; approximately 90 percent of documented breeding-season occurrence records occurred at coastal locations and less than 10 percent were inland records, with more than 60 percent of the inland records occurring before 1950 (Watts 2016, entire). The eastern black rail also occupied multiple areas of wetlands within each analysis unit. Within the northeastern United States, historical (1836-2010) records document the eastern black rail as present during breeding months from Virginia to Massachusetts, with 70 percent of historical observations (773 records) in Maryland, Delaware, and New Jersey (Watts 2016, p. 22).
While the Appalachians and Central Lowlands analysis units supported less habitat for eastern black rails compared to the more coastal analysis units, interior occurrences were more common historically. Current population estimates for States with a large area occurring within the boundaries of the Appalachians analysis unit are effectively zero (Watts 2016, p. 19). Within that unit, an estimated 0 to 5 breeding pairs currently occur in Pennsylvania, and no breeding pairs are thought to occur in New York or West Virginia (Watts 2016, p. 19). Birds previously detected in the Appalachians analysis unit were found in small depressional wetlands within active pastures; other freshwater wetlands dominated by cattails, rushes, or sedges; and drainage ditches (Watts 2016, pp. 48, 74). While these wetland types still exist within the analysis unit and may support individuals or a very low-density, scattered population (Watts 2016, pp. 48, 74), a substantial amount of this kind of habitat has been lost primarily due to the draining of freshwater wetlands for agricultural purposes. These estimates likely hold true for the interior portions of the other States within the Appalachians analysis unit (based on few current detections). Similar losses of habitat have occurred in the Central Lowlands analysis unit, and there are currently few detections of eastern black rails across this unit. Moreover, the current detections are not consistent from year to year even when habitat remains suitable. For example, Indiana Department of Natural Resources surveys for eastern black rails at multiple sites from 2010-2016 yielded one detection at a single site previously known to support eastern black rails (Gillett 2017, unpublished data).
In the Chesapeake Bay region, the distribution of eastern black rail has contracted, and the counts of birds have declined. A series of systematic surveys for eastern black rails has been conducted around the Chesapeake Bay since the early 1990s (Watts 2016, pp. 59, 67). Surveys estimated 140 individuals in the 1990-1992 survey period, decreasing to 24 individuals in 2007, and only 8 individuals in 2014, a decline of over 90 percent in less than 25 years (Watts 2016, p. 59; D. Brinker, unpublished data). Of 328 points surveyed in Virginia in 2007, 15 birds were detected; a second round of surveys in 2014 yielded two detections at 135 survey points (including all survey points with positive occurrences in the 2007 survey effort), equating to an 85 percent decline over 7 years (Watts 2016, pp. 67, 71; Wilson
Historically, the eastern black rail was also present during breeding months at inland and coastal locations throughout southeastern coastal States (the Southeast), a region that included North Carolina, South Carolina, Georgia, Florida, Tennessee, Mississippi, Alabama, Louisiana, and Texas (Watts 2016, pp. 75-76). Of these States, Texas, Florida, South Carolina, and North Carolina contained 89 percent of all historical observations (734 records) (Watts 2016, p. 77). The other States (Georgia, Tennessee, Mississippi, Alabama, and Louisiana) either do not have a history of supporting eastern black rails consistently or are considered to be on the peripheries of known breeding areas (Watts 2016, p. 77). Recently, there have been 108 records of eastern black rails during the breeding season, and at a coarse view, the same four southeastern States that substantially supported the subspecies historically still support the subspecies (Watts 2016, pp. 77, 79). However, North Carolina shows a severe decline in the number of occupied sites, with only four properties occupied in 2014-2015, down from nine in 1992-1993 (Watts 2016, p. 80). Additional surveys in 2017 yielded no new occupied sites in coastal North Carolina (B. Watts and F. Smith 2017, unpublished data). South Carolina shows a limited distribution, with two known occupied areas (Wiest 2018, pers. comm.) and an estimated 50 to 100 breeding pairs, leaving Texas and Florida as the current strongholds for the Southeast. At the time of the 2016 coastal assessment, it was surmised that coastal Georgia may support a breeding population of unknown size (Watts 2016, pp. 93-95); however, a coastwide survey in 2017 at 409 survey points in Georgia yielded no detections of eastern black rails (B. Watts and F. Smith 2017, unpublished data). In short, across the Atlantic and Gulf Coasts, recent observations show poor presence inland and a widespread reduction in the number of sites used across coastal habitats (Watts 2016, p. 79).
The history of the subspecies' distribution in the interior continental United States is poorly known. Historical literature indicates that a wide range of interior States were occupied by the eastern black rail, either regularly or as vagrants (Smith-Patten and Patten 2012, entire). Eastern black rails are currently vagrants (casual or accidental) in Arkansas, Illinois, Indiana, Iowa, Michigan, Minnesota, Missouri, Nebraska, New Mexico, Ohio, South Dakota, and Wisconsin (Smith-Patten and Patten 2012, entire). Presently, eastern black rails are reliably located within the Arkansas River Valley of Colorado (presumed breeder in the State), and in southcentral Kansas in Stafford, Finney, Franklin, Barton, and Riley Counties (confirmed breeder in the State) (Butler, Tibbits, and Hucks 2014, p. 20; Smith-Patten and Patten 2012, pp. 9, 17). In Colorado, the subspecies is encountered in spring and summer at Fort Lyon Wildlife Area, Bent's Old Fort, Oxbow State Wildlife Area, Bristol (Prowers County), and John Martin Reservoir State Park (Smith-Patten and Patten 2012, p. 10). In Kansas, eastern black rails are regularly present during the breeding months at Quivira National Wildlife Refuge (NWR) and Cheyenne Bottoms Wildlife Area (Smith-Patten and Patten 2012, p. 17), and at Cheyenne Bottoms Preserve during wet years when habitat conditions are suitable (Penner 2017, pers. comm.). In Oklahoma, occurrence mapping suggests that this subspecies had at a maximum a patchy historical distribution throughout the State.
Eastern black rail analysis units currently have low to no resiliency in the contiguous United States (Service 2018, pp. 79-82). The Great Plains, Southwest Coastal Plain, and Southeast Coastal Plain analysis units have low resiliency based on the dynamic occupancy model results, which indicate very low occupancy
To assess current representation, we evaluated both habitat variability and latitudinal variability. When considering habitat variability, we determined the eastern black rail has a level of adaptive potential by using similar habitats elements (
Despite having a wide distribution, the eastern black rail currently has low redundancy across its range. With the loss of three analysis units in upper latitudes of the range, the subspecies has reduced ability to withstand catastrophic events, such as hurricanes and tropical storms, which could impact the lower latitudinal analysis units. Given the lack of habitat connectivity, and patchy and localized distribution, it would be difficult for the subspecies to recover from a catastrophic event in one or more analysis units.
The Act directs us to determine whether any species is an endangered species or a threatened species because of any factors affecting its continued existence. Under section 4(a)(1) of the Act, we may list a species based on (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence.
We reviewed the potential risk factors (
The eastern black rail is a wetland-dependent bird requiring dense emergent cover and extremely shallow water depths (less than 6 cm) over a portion of the wetland-upland interface to support its resource needs. Grasslands and their associated palustrine (freshwater) and estuarine wetland habitats have experienced significant loss and conversion since European settlement (Bryer, Maybury, Adams, and Grossman 2000, p. 232; Noss, LaRoe, III, and Scott 1995, pp. 57-76, 80-84; Hannah, Carr, and Lankerani 1995, pp. 137, 151). Approximately 50 percent (greater than 100 million acres) of the wetlands in the conterminous United States have been lost over the past 200 years; the primary cause of this loss was conversion for agricultural purposes (Dahl T. E. 1990, p. 9). Wetland losses for the States within the eastern black rail's historical range have been from 9 percent to 90 percent, with a mean of 52 percent (Dahl T. E. 1990, p. 6). Similarly, most of the native grassland/prairie habitats associated with eastern black rail habitat have been lost since European settlement (Sampson and Knopf 1994, pp. 418-421).
The eastern black rail also uses the transition zone (ecotone) between emergent wetlands and upland grasslands. These transitional areas are critical to eastern black rails, as they provide refugia during high-water events caused by precipitation or tidal flooding. These habitat types have also experienced significant declines over time (Sampson and Knopf 1994, pp. 418-421), with many areas within the eastern black rail's historical range losing over 90 percent of their prairie habitat. Most of this loss can be attributed to agricultural conversion (Sampson and Knopf 1994, pp. 419-420). Many of the freshwater wetlands associated with these grasslands were emergent and ephemeral in nature, and would have supported eastern black rails. For example, in Texas, between the 1950s and 1990s, 235,000 acres, or 29 percent, of freshwater wetlands within Gulf coastal prairie were converted primarily to agriculture. This value does not include the numbers of
Despite regulatory efforts to minimize the loss of wetland habitats, losses and alterations continue to occur to habitats occupied by the eastern black rail. Marshes continue to face substantial impacts from dikes, impoundments, canals, altered freshwater inflows, erosion, relative sea level rise, tidal barriers, tropical storm events, and other natural and human-induced factors (Adam 2002, entire; Turner 1990, entire; Kennish 2001, entire; Gedan
Within the range of the eastern black rail, land use in the United States has affected and continues to affect groundwater and surface water resources (Johnston 1997, entire; McGuire 2014, pp. 1-2, 7, 9; Juracek and Eng 2017, pp. 1, 11-16; Barfield 2016, pp. 2-4). The conversion of wetland habitat, largely for agricultural use, was mentioned above. However, habitat conversion and land use directly and indirectly affect water resources, largely tied to the interaction of groundwater and surface water resources (Glazer and Likens 2012, entire; Sophocleous 2002, entire; Tiner R. W. 2003, p. 495; U.S. Geological Survey (USGS) 2016a, unpaginated; Konikow L. F. 2015, entire).
Where groundwater resources are hydraulically connected to surface water resources, these connections can either be unconfined (water table) or confined (springs) aquifers. In unconfined aquifers, locations can support surface features such as wetlands or riparian habitats where groundwater is located near the land surface (Haag and Lee 2010, pp. 16-19, 21-24). Lowering of groundwater through withdrawals via wells or ditches can cause wetlands to shrink or become dry. Withdrawals of confined aquifers can lead to the drying of springs and associated wetland habitats (Weber and Perry 2006, p. 1255; Metz 2011, p. 2). In the central and southcentral United States, high groundwater use, largely attributed to cropland irrigation and other human activities, may affect the long-term sustainability of water resources, including causing wetland loss (McGuire 2014, entire; Juracek 2015, entire; Juracek and Eng 2017, entire; Juracek, Eng, Carlisle, and Wolock 2017, entire; Perkin
Human modifications to the environment have led to significant changes in vegetation. Some of these modifications include water withdrawals and the construction of levees, drainage canals, and dams. Changes to native vegetation can result in changes to the structure of the habitat (
Subsidence (lowering of the earth's surface) is caused by the withdrawal of liquids from below the ground's surface, which relieves supporting hydraulic pressure of liquids by the long-term compression of unconsolidated, geologically deposited sediments, or by other geologic processes (Day
Subsidence can affect the eastern black rail and its habitat in both fresh and tidal wetlands. Vegetated wetland habitats used by the eastern black rail can be converted to unvegetated open water or mudflats through drowning of vegetation or erosion from increased wave energy. Locations with higher subsidence rates can experience increased tidal flooding sooner than areas with lower subsidence rates. The effect of increased tidal flooding will change black rail habitat over time (
Extensive drainage features have been created or modified in the United States, primarily to reduce flooding to protect agricultural land or infrastructure. These include excavation of drainage ditches, channelization of rivers and streams, construction of levees and berms, tidal restrictions, and diversions of waterways. Extensive areas of Florida were channelized in an effort to drain wetlands in the early 1900s (Renken
Levees have been constructed in flood-prone areas to minimize damage to crops and local communities. Levees can modify the duration, intensity, and frequencies of hydroperiods associated with riparian and tidal wetlands and thus change the nature and quality of wetland habitat, including that used by marsh-dependent species (Kennish 2001, p. 734; Adam 2002, p. 46; Walker, Coleman, Roberts, and Tye 1987, pp. 197-198; Bryant and Chabreck 1998, p. 421; Kuhn, Mendelssohn, and Reed 1999, p. 624). They also facilitate the movement patterns of mesopredators and improve their access to wetland
All of these alterations to drainage affect the hydrology, sediment and nutrient transport, and salinities of wetland habitats used by the eastern black rail, which in turn affect the habitat's composition and structure. These changes can lead to instability in the duration and intensity of hydroperiods, affect associated vegetation communities, and impact the ability of marsh habitats to adapt to changing conditions. This ultimately affects the ability of the habitat to support populations of the eastern black rail, by exposing eastern black rails to unsuitable water regimes or converted habitats.
Representative concentration pathways (RCPs) are the current set of scenarios used for generating projections of climate change; for further discussion, please see the SSA report (Service 2018, entire). Recent studies project global mean sea level rise to occur within the range of 0.35 to 0.95 meters (m) (1.14 to 3.11 feet (ft)) for RCP 4.5, and within the range of 0.5 to 1.3 m (1.64 to 4.27 ft) for RCP 8.5, by 2100 (Sweet
Sea level rise will amplify coastal flooding associated with both high tide floods and storm surge (Buchanan, Oppenheimer, and Kopp 2017, p. 6). High tide flooding currently has a negative impact on coastal ecosystems and annual occurrences of high tide flooding have increased five- to ten-fold since the 1960s (Reidmiller
Along the Texas Gulf Coast, relative sea level rise is twice as large as the global average (Reidmiller
Even with sea level rise, some tidal wetlands may persist at slightly higher elevations (
Sea level rise will reduce the availability of suitable habitat for the eastern black rail and overwhelm habitat persistence. Sea level rise and its effects (
Fire suppression has been detrimental to habitats used by the eastern black rail by allowing encroachment of woody plants. Without fire or alternate surrogate methods of disturbing woody vegetation such as mowing, the amount of preferred habitat for eastern black rails is expected to decrease in some regions, such as coastal Texas (Grace
While fire is needed for the maintenance of seral stages for multiple rail species, the timing and frequency of the burns, as well as the specific vegetation types targeted, can lead to undesirable effects on rail habitats in some cases (Eddleman
Prescribed fire that occurs during critical time periods for the subspecies (
Fire pattern can have profound effects on birds. Controlled burns can result in indirect rail mortality, as avian predators attracted to smoke are able to capture rails escaping these fires (Grace
Haying and mowing are used throughout the range of the eastern black rail. Haying and mowing maintain grasslands by reducing woody vegetation encroachment. These practices can have detrimental impacts to wildlife when used too frequently or at the wrong time of year. For example, at Quivira NWR in Kansas, haying at a frequency of once or twice per year resulted in no occupancy of hayed habitats by eastern black rails during the following year (Kane 2011, pp. 31-33). Further, haying or mowing timed to avoid sensitive stages of the life cycle (nesting and molt period) would be less detrimental to eastern black rails (Kane 2011, p. 33). Mowing during the spring or summer will disrupt reproductive efforts of migratory birds. Eastern black rails reproduce from approximately mid-March through August, and mowing during this time period disturbs eastern black rail adults and can potentially crush eggs and chicks. As with fire, when mowing is alternated to allow areas of unmown habitat at all times, the site can continue to support cover-dependent wildlife.
Cattle grazing occurs on public and private lands throughout the range of the eastern black rail. Because eastern black rails occupy drier areas in wetlands and require dense cover, these birds are believed to be more susceptible to grazing impacts than other rallids (Eddleman, Knopf, Meanley, Reid, and Zembal 1988, p. 463). Based on current knowledge of grazing and eastern black rail occupancy, the specific timing, duration, and intensity of grazing will result in varying impacts to the eastern black rail and its habitat. Light-to-moderate grazing may be compatible with eastern black rail occupancy under certain conditions, while intensive or heavy grazing is likely to have negative effects on eastern black rails and the quality of their habitat. It may benefit black rail habitat (or at least not be detrimental) when herbaceous plant production is stimulated (Allen-Diaz, Jackson, Bartolome, Tate, and Oates 2004, p. 147) and the necessary overhead cover is maintained. In Kansas, eastern black rails were documented in habitats receiving rotational grazing during the nesting season that preserved vegetation canopy cover (Kane 2011, pp. 33-34). Black rails occur in habitats receiving light-to-moderate grazing (
In addition to the loss of vegetation cover and height (Kirby, Fessin, and Clambey 1986, p. 496; Yeargan 2001, p. 87; Martin J. L. 2003, p. 22; Whyte and Cain 1981, p. 66), intensive grazing may also have direct negative effects on eastern black rails by livestock disturbing nesting birds or even trampling birds and nests (Eddleman, Knopf, Meanley, Reid, and Zembal 1988, p. 463). Heavy disturbance from grazing can also lead to a decline in eastern black rail habitat quality.
Extreme weather effects, such as storms associated with frontal boundaries or tropical disturbances, can also directly affect eastern black rail survival and reproduction, and can result in direct mortality. Tropical storms and hurricanes are projected to increase in intensity and precipitation rates along the North Atlantic coast and Gulf Coast (Kossin
Weather extremes associated with climate change can have direct effects on the eastern black rail, leading to reduced survival of eggs, chicks, and adults. Indirect effects on the eastern black rail are likely to occur through a variety of means, including long-term degradation of both inland and coastal wetland habitats. Other indirect effects may include loss of forage base of wetland-dependent organisms. Warmer and drier conditions will most likely reduce overall habitat quality for the eastern black rail. Because eastern black rails tolerate a narrow range of water levels and variation within those water levels, drying as a result of extended droughts may result in habitat becoming unsuitable, either on a permanent or
Human disturbance can stress wildlife, resulting in changes in distribution, behavior, demography, and population size (Gill 2007, p. 10). Activities such as birding, birdwatching, and hiking, have been shown to disturb breeding and nesting birds. Disturbance may result in nest abandonment, increased predation, and decreased reproductive success, and in behavioral changes in non-breeding birds. Singing activity of male birds declines in sites that experience human intrusion, although the response varies among species and level of intrusion (Gutzwiller
Many birders strive to add rare birds to their “life list,” a list of every bird species identified within a birder's lifetime. Locations of rare birds are often posted online on local birding forums or eBird, leading to an increased number of people visiting the location in an attempt to see or hear the bird. Due to its rarity, the eastern black rail is highly sought after by birders (Beans and Niles 2003, p. 96). Devoted birders may go out of their way to add an eastern black rail to their life list (McClain 2016, unpaginated). The efforts of birders to locate and identify rare birds, such as the eastern black rail, can have both positive and negative impacts on the bird and its habitat. Birders play an especially important role in contributing to citizen science efforts, such as the eBird online database, and have helped further our understanding of species' distributions and avian migration ecology in crucial ways (Sullivan
While amateur and professional birding have made important contributions to our understanding of rare species like the eastern black rail, some birders may be more likely to pursue a sighting of a rare bird, as they may perceive the benefits of observing the bird to outweigh the impacts to the bird (Bireline 2005, pp. 55-57). As a result, methods may be employed to increase the likelihood of observing a rare bird, including the use of vocalized calls or audio recordings, as is the case for eastern black rails, or approaching birds in order to get a sighting (Beans and Niles 2003, p. 96; Bireline 2005, p. 55). These methods have the potential to disturb nesting birds or trample nests or eggs, and may lead to increased predation (Beans and Niles 2003, p. 96).
With the prevalence of smartphones, the use of playback calls has increased as recordings of birds are readily available on the internet, and birding websites and geographic site managers (State, Federal, or nongovernmental organizations) often provide guidance on the use of playback calls (Sibley 2001, unpaginated). The American Birding Association's Code of Birding Ethics encourages limited use of recordings and other methods of attracting birds, and recommends that birders never use such methods in heavily birded areas or for attracting any species that is endangered, threatened, of special concern, or rare in the local area (American Birding Association 2018, unpaginated). While most birders likely follow these ethical guidelines, using playback calls of eastern black rail vocalizations in attempts to elicit responses from the birds and potentially lure them into view is commonly done outside of formal eastern black rail surveys (see comments for eastern black rail detections on eBird; eBird 2017, unpaginated). Due to the rarity of the eastern black rail, a few cases of trespassing are known from people looking for the bird. Trespassing has been documented on private lands and in areas on public lands specifically closed to the public to protect nesting eastern black rails (Hand 2017, pers. comm.; Roth 2018, pers. comm.). Trespassing may not only disturb the bird, but can also result in trampling of the bird's habitat, as well as of eggs and nests. Some State resource managers and researchers have expressed concern that releasing locations of eastern black rail detections may increase human disturbance and harassment of the subspecies.
It is likely that several of these stressors are acting synergistically or additively on the subspecies. The combination of multiple stressors may be more harmful than a single stressor acting alone. For the eastern black rail, a combination of stressors result in habitat loss, reduced survival, reduced productivity, and other negative impacts on the subspecies. Sea level rise, coupled with increased tidal flooding, results in the loss of the high marsh habitat required by the subspecies. Land management activities, such as prescribed burning, that occur in these habitats will further exacerbate impacts, especially if conducted during sensitive life-history periods (nesting, brood-rearing, or flightless molt). If these combined stressors occur too often within and across generations, they will limit the ability of the subspecies to maintain occupancy at habitat sites, which would become lost or unsuitable for the subspecies and limit its ability to colonize other previously occupied sites or new sites. For example, tidal marshes in Dorchester County, Maryland, in the Chesapeake Bay (specifically the areas of Blackwater NWR and Elliott Island) served as a former stronghold for the eastern black rail. These marshes have and continue to experience marsh erosion from sea level rise, prolonged flooding, a lack of a sufficient sediment supply, and land subsidence, as well as habitat destruction from nutria (now eradicated) and establishment of the invasive common reed (
The Migratory Bird Treaty Act of 1918 (MBTA; 16 U.S.C. 703
Section 404 of the Clean Water Act (CWA; 33 U.S.C. 1251
The black rail is listed as endangered under State law by seven States within the subspecies' range: Delaware, Illinois, Indiana, Maryland, New Jersey, New York, and Virginia. The species was formerly listed as endangered in Connecticut, but was considered extirpated during the last listing review based on extant data and was subsequently delisted. Protections are afforded to wildlife listed as either endangered or threatened by a State, but those protections vary by State. Although we have no information as to the effectiveness of these State regulations as they pertain to the conservation of the eastern black rail, one benefit of being State-listed is to bring heightened public awareness of the bird's existence.
In Delaware, the importation, transportation, possession, or sale of any endangered species or parts of endangered species is prohibited, except under license or permit (title 7 of the Delaware Code, sections 601-605). Illinois also prohibits the possession, take, transport, selling, and purchasing, or giving, of a listed species, and allows incidental taking only upon approval of a conservation plan (Illinois Compiled Statutes, chapter 520, sections 10/1-10/11). Indiana prohibits any form of possession of listed species, including taking, transporting, purchasing, or selling, except by permit (title 14 of the Indiana Code, article 22, chapter 34, sections 1-16 (I.C. 14-22-34-1 through 16)). Listed species may be removed, captured, or destroyed only if the species is causing property damage or is a danger to human health (I.C. 14-22-34-16). Similar prohibitions on the possession of a listed species in any form, except by permit or license, are in effect in Maryland (Code of Maryland, Natural Resources, section 10-2A-01-09), New Jersey (title 23 of the New Jersey Statutes, sections 2A-1 to 2A-15), New York (New York's Environmental Conservation Law, article 11, title 5, section 11-0535; title 6 of the New York Codes, Rules and Regulations, chapter I, part 182, sections 182.1-182.16), and Virginia (Code of Virginia, title 29.1, section 29.1, sections 563-570 (29.1-563-570)). Violations of these statutes typically are considered misdemeanor, generally resulting in fines or forfeiture of the species or parts of the species and the equipment used to take the species. Some States also have provisions for nongame wildlife and habitat preservation programs (
Black rail is listed as a “species in need of conservation” in Kansas, which requires conservation measures to attempt to keep the species from becoming a State-listed endangered or threatened species (Kansas Department of Wildlife, Parks and Tourism 2018, unpaginated). Black rail also is listed as a species of “special concern” in North Carolina and requires monitoring (North Carolina Wildlife Resources Commission 2014, p. 6). The species is identified as a “species of greatest conservation need” in 19 State wildlife action plans as of 2015 (U.S. Geological Survey (USGS) 2017, unpaginated). However, no specific conservation measures for black rail are associated with these listings, and most are unlikely to address habitat alteration or sea level rise.
The Atlantic Coast Joint Venture (ACJV) recently decided to focus efforts on coastal marsh habitat and adopted three flagship species, one being the eastern black rail, to direct conservation attention in this habitat. As part of this initiative, the ACJV Black Rail Working Group has drafted population goals for the eastern black rail and is developing habitat delivery options within the Atlantic Flyway. In addition, the ACJV is coordinating the development of a “saltmarsh conservation business plan.” The business plan will identify stressors to Atlantic and Gulf Coast tidal marshes and the efforts needed to conserve these habitats to maintain wildlife populations. The business plan is expected to be completed in late 2018.
The Gulf Coast Joint Venture (GCJV) has had the eastern black rail listed as a priority species since 2007 (Gulf Coast Joint Venture 2005). As a priority species, the black rail is provided consideration during the review of North American Wetland Conservation grant applications (Vermillion 2018, pers. comm.). Although detailed planning for the eastern black rail is not yet complete, the subspecies is considered in coastal marsh habitat delivery efforts discussed by GCJV Initiative Teams. Eastern black rails are believed to benefit from a plethora of coastal marsh habitat delivery efforts of GCJV partners, including projects authorized under the North American Wetland Conservation Act (16 U.S.C. 4401
In November 2016, the Texas Parks and Wildlife Department, in partnership with the Texas Comptroller's Office, initiated the Texas Black Rail Working Group (Shackelford 2018, pers. comm.). The main purpose of the group is to provide a forum for collaboration between researchers and stakeholders to share information about what is known about the species, identify information needs, and support conservation actions (see discussion under Critical Habitat, below).
As discussed above, we define viability as the ability of a species to sustain populations in the wild over time. To help address uncertainty associated with the degree and extent of potential future stressors and their impacts on the eastern black rail's needs, we applied the 3Rs using five plausible future scenarios. We devised these five scenarios by identifying information on the primary stressors anticipated to affect the subspecies into the future: habitat loss, sea level rise, groundwater loss, and incompatible land management practices. These scenarios represent a realistic range of plausible future scenarios for the eastern black rail.
We used the results of our occupancy model to create a dynamic site-occupancy, projection model that allowed us to explore future conditions under these scenarios for the Mid-Atlantic, Great Plains, Southeast Coastal Plain, and Southwest Coastal Plain analysis units. We did not project future scenarios for the New England, Appalachian, or Central Lowlands analysis units because, as discussed earlier in this document, we consider these analysis units to be currently effectively extirpated and do not anticipate that this will change in the future. Our projection model incorporated functions to account for changes in habitat condition (positive and negative) and habitat loss over time. The habitat loss function was a simple reduction in the total number of possible eastern black rail sites at each time step in the simulation by a randomly drawn percentage that was specified under different scenarios to represent habitat loss due to development or sea level rise. We used the change in “developed” land cover from the National Land Cover Database (NLCD 2011) to derive an annual rate of change in each region, and we used National Oceanic and Atmospheric Administration (NOAA) climate change and sea level rise projections to estimate probable coastal marsh habitat loss rates; storm surge was not modeled directly (Sweet
Our five scenarios reflected differing levels of sea level rise and land management, and the combined effects of both. These future scenarios forecast site occupancy for the eastern black rail out to 2100, with time steps at 2043 and 2068 (25 and 50 years from present, respectively). Each scenario evaluates the response of the eastern black rail to changes in three primary risks we identified for the subspecies: habitat loss, sea level rise, and land management (grazing, fire, and haying). The trends of urban development and agricultural development remain the same,
The model predicted declines in all analysis units across all five plausible future scenarios. Specifically, they predicted a high probability of complete extinction for all four analysis units under all five scenarios by 2068. The model predicted that, depending on the scenario, the Southeast Coastal Plain and Mid-Atlantic Coastal Plain analysis units would reach complete extinction between 35 and 50 years from the present; the Great Plains analysis unit would reach complete extinction between 15 to 25 years from the present; and the Southwest Coastal Plain analysis unit would reach complete extinction between 45 to 50 years from the present. Most predicted occupancy declines were driven by habitat loss rates that were input into each scenario. The model results exhibited little sensitivity to changes in the habitat quality components in the simulations for the range of values that we explored. For a detailed discussion of the model results for the five scenarios, please refer to the SSA report (Service 2018, entire).
Under our future scenarios, the Mid-Atlantic Coastal Plain, Great Plains, Southwest Coastal Plain, and Southeast Coastal Plain analysis units generally exhibited a consistent downward trend in the proportion of sites remaining occupied after the first approximately 25 years for all scenarios. Given that most of the predicted declines in eastern black rail occupancy were driven by habitat loss rates, and future projections of habitat loss are expected to continue and be exacerbated by sea level rise or groundwater loss, resiliency of the four remaining analysis units is expected to decline further. We expect all eastern black rail analysis units to have no resiliency by 2068, as all are likely to be extirpated by that time. We have no reason to expect the resiliency of eastern black rail outside the contiguous United States to improve in such a manner that will substantially contribute to its viability within the contiguous U.S. portion of the subspecies' range. Limited historical and current data, including nest records, indicate that resiliency outside of the contiguous United States will continue to be low into the future, or decline if habitat loss or other threats continue to impact these areas.
We evaluated representation by analyzing the latitudinal variability and habitat variability of the eastern black rail. Under our future scenarios, the Great Plains analysis unit is projected to be extinct within the next 15 to 25 years, which will result in the loss of that higher latitudinal representative unit for the subspecies. In addition, the three remaining analysis units (Mid-Atlantic Coastal Plain, Southwest Coastal Plain, and Southeast Coastal Plain) are predicted to decline and reach extinction within the next 50 years. Thus, the subspecies' representation will continue to decline.
The eastern black rail will have very limited redundancy in the future. The Great Plains analysis unit will likely be extirpated in 15 to 25 years, leading to further reduction in redundancy and resulting in only coastal populations of the eastern black rail remaining. Having only coastal analysis units remaining (and with even lower resiliency than at present) will further limit the ability of the eastern black rail to withstand catastrophic events, such flooding from hurricanes and tropical storms.
Please refer to the SSA report (Service 2018, entire) for a more detailed discussion of our evaluation of the biological status of the eastern black rail, the influences that may affect its continued existence, and the modeling efforts undertaken to further inform our analysis.
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the eastern black rail. We propose to list the species as a threatened species throughout its range given the threats acting upon the subspecies currently and into the future.
When viewing historical occurrences on the State level compared to what is known of present distribution, the range contraction (from Massachusetts to New Jersey) and site abandonment (patchy coastal distribution) noted by Watts (2016, entire) appear to be occurring throughout the eastern United States. Over the past 10 to 20 years, reports indicate that populations have declined by 75 percent or greater. North of South Carolina, occupancy has declined by 64 percent and the number of birds detected has declined by 89 percent, equating to a 9.2 percent annual rate of decline (Watts 2016, p. 1). In relative terms, regional strongholds still exist for this subspecies; however, the best available scientific data suggest that the remaining strongholds support a relatively small total population size: an estimated 1,299 individuals on the upper Texas coast within protected areas prior to Hurricane Harvey, and an estimated 355 to 815 breeding pairs on the Atlantic Coast from New Jersey to Florida (including the Gulf Coast of Florida). There are no current population estimates from the interior States (Colorado, Kansas, or Oklahoma), although there are consistent populations of eastern black rails at Quivira NWR in Kansas and at least four sites in Colorado where the subspecies is encountered in the spring and summer. We have no information to indicate that the eastern black rail is present in large numbers in the Caribbean or Central America.
Based on our review of the available science, we identified the current threats to eastern black rail. Habitat loss and degradation (Factor A) as a result of sea level rise along the coast and ground and surface water withdrawals are having a negative impact on the eastern black rail now and will continue to impact this subspecies into the future. Incompatible land management techniques (Factor E), such as the application of prescribed fire, haying, mowing, and grazing, have negative impacts on the bird and its habitat, especially when conducted at sensitive times, such as the breeding season or the flightless molt period. Stochastic events (Factor E), such as flood events and hurricanes, can have significant impacts on populations and the subspecies' habitat. For example, the impacts of Hurricane Harvey on the Texas coastal populations of eastern black rail likely caused direct mortality as well as short-term habitat loss, as the hurricane occurred during the flightless molt period and resulted in the habitat being flooded for a long period of time. Human disturbance (Factor B) to the eastern black rail occurs throughout the bird's range and is driven by the bird's rarity and interest by the birding community to add this bird to individual life lists.
As we consider the future risk factors to the eastern black rail, we recognize that a complex interaction of factors have synergistic effects on the subspecies as a whole. In coastal areas, sea level rise, as well as increasing storm frequency and intensity and increased flood events (which are both associated with high tides and storms), will have both direct and indirect effects on the subspecies. Extensive patches of high marsh required for breeding are projected to be lost or converted to low marsh as a result of sea level rise. Demand for groundwater is increasing, which will reduce soil moisture and surface water, and thus negatively impact wetland habitat. We expect to see localized subsidence, which can occur when groundwater withdrawal rates are greater than the aquifer recharge rates. Also, warmer and drier conditions (associated with projected drought increases) will reduce overall habitat quality for the eastern black rail. Further, incompatible land management (such as fire application and grazing) will continue to negatively impact the subspecies throughout its range, especially if done during the breeding season or flightless molt period.
These stressors contribute to the subspecies' occupancy at sites and thus its population numbers. Some stressors have already resulted in permanent or long-term habitat loss, such the historical conversion of habitat to agriculture, while other factors may only affect sites temporarily, such as a fire or annually reduced precipitation. Even local but too frequent intermittent stressors, such as unusual high tides or prescribed fire, can cause reproductive failure or adult mortality, respectively, and thus reduce eastern black rail occupancy at a site and the ability of a site to allow for successful reproduction of individuals to recolonize available sites elsewhere. While these intermittent stressors allow for recolonization at sites, recolonization is based on productivity at other sites within a generational timescale for the subspecies. If these stressors, combined, occur too often within and across generations, they limit the ability of the subspecies to maintain occupancy at habitat sites and also limit its ability to colonize other previously occupied sites or new sites.
It is likely that several of these stressors are acting synergistically on the subspecies. Sea level changes, together with increasing peak tide events and higher peak flood events, wetland subsidence, past wetland filling and wetland draining, and incompatible land management (
Our estimates of future resiliency, redundancy, and representation for the eastern black rail are further reduced from the current condition, consistent with this analysis of future threats. Currently, three analysis units are effectively extirpated, and four analysis units that continue to support populations of the eastern black rail all have low levels of resiliency. Given the projected future decreases in resiliency for these four analysis units, the eastern black rail will become more vulnerable to extirpation from ongoing threats, consequently resulting in concurrent losses in representation and redundancy. The range of plausible future scenarios of the eastern black rail all predict extirpation for all four analysis units by mid-century (2068) with the Great Plain analysis unit blinking out within 15 to 25 years (depending on the scenario). In short, our analysis of the subspecies' current and future conditions show that the population and habitat factors used to determine the resiliency, representation, and redundancy for the subspecies will continue to decline so that it is likely to become in danger of extinction throughout its range within the foreseeable future.
The term foreseeable future extends only so far as the Services can reasonably rely on predictions about the future in making determinations about the future conservation status of the species. Those predictions can be in the form of extrapolation of population or threat trends, analysis of how threats will affect the status of the species, or assessment of future events that will have a significant new impact on the species. The foreseeable future described here, uses the best available data and takes into account considerations such as the species' life
In cases where the available data allow for quantitative modelling or projections, the time horizon for such analyses does not necessarily dictate what constitutes the “foreseeable future” or set the specific threshold for determining when a species may be in danger of extinction. Rather, the foreseeable future can only extend as far as the Service can reasonably explain reliance on the available data to formulate a reliable prediction and avoid reliance on assumption, speculation, or preconception. Regardless of the type of data available underlying the Service's analysis, the key to any analysis is a clear articulation of the facts, the rationale, and conclusions regarding foreseeability.
We identify the foreseeable future for the eastern black rail to be 25 to 50 years from the present. We consider 25 to 50 years “foreseeable” in this case because this timeframe includes projections from our modeling efforts and takes into account the threats acting upon the eastern black rail and its habitat and how we consider the eastern black rail will respond to these threats in the future. For all five plausible scenarios, all analysis units exhibited a consistent downward trend in the proportion of sites remaining occupied after the first 25 years (by 2043), with extirpation for all analysis units by 2068. The Great Plains analysis unit is predicted to be extirpated by 2043. Given that future projections of habitat loss are expected to continue and be exacerbated by sea level rise and tidal flooding, resiliency of the four remaining analysis units is expected to decline further over the next 25 to 50 years.
Under the Act, the term “species” includes any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature. The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species as any species that “is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” We find that the eastern black rail is likely to become endangered throughout all of its range within the foreseeable future. The eastern black rail meets the definition of threatened because it is facing threats across its range that have led to reduced resiliency, redundancy, and representation. Although the eastern black rail is not in danger of extinction throughout its range at present, we expect the subspecies to continue to decline into the future. We did not find that it is currently in danger of extinction throughout its range. Although the eastern black rail has experienced reductions in its numbers and seen a range contraction, this subspecies is still relatively widespread. It continues to maintain a level of representation in four analysis units, which demonstrates continued latitudinal variability across its range. These four analysis units are spread throughout most of the subspecies' range, providing for some level of redundancy. Although the resiliency in the four currently occupied analysis units is low, Florida and Texas remain strongholds for the subspecies in the Southeast and Southwest. The current condition of the subspecies still provides for resiliency, redundancy, and representation such that it is not at risk of extinction now throughout its range.
Under the Act and our implementing regulations, a species may warrant listing if it is endangered or threatened throughout all or a significant portion of its range. Because we have determined that the eastern black rail is likely to become an endangered species within the foreseeable future throughout its range, we find it unnecessary to proceed to an evaluation of potentially significant portions of the range. Where the best available information allows the Services to determine a status for the species rangewide, that determination should be given conclusive weight because a rangewide determination of status more accurately reflects the species' degree of imperilment and better promotes the purposes of the statute. Under this reading, we should first consider whether listing is appropriate based on a rangewide analysis and proceed to conduct a “significant portion of its range” analysis if, and only if, a species does not qualify for listing as either endangered or threatened according to the “all” language. We note that the court in
Therefore, on the basis of the best available scientific and commercial information, we propose to list the eastern black rail as a threatened species in accordance with sections 3(20) and 4(a)(1) of the Act.
Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and conservation by Federal, State, Tribal, and local agencies; private organizations; and individuals. The Act encourages cooperation with the States and other countries and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Subsection 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.
Recovery planning includes the development of a recovery outline shortly after a species is listed and preparation of a draft and final recovery plan. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan also identifies recovery criteria for review of when a species may be ready for reclassification from endangered to threatened (“downlisting”) or removal from the Lists of Endangered and Threatened Wildlife and Plants (“delisting”), and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams
Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration (
If this species is listed, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the U.S. States and territories of Alabama, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Mississippi, Missouri, Nebraska, New Hampshire, New Jersey, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Tennessee, Texas, Virginia, U.S. Virgin Islands, and West Virginia would be eligible for Federal funds to implement management actions that promote the protection or recovery of the eastern black rail. Information on our grant programs that are available to aid species recovery can be found at:
Although the eastern black rail is only proposed for listing under the Act at this time, please let us know if you are interested in participating in recovery efforts for this subspecies. Additionally, we invite you to submit any new information on this subspecies whenever it becomes available and any information you may have for recovery planning purposes (see
Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service.
Federal agency actions within the eastern black rail's habitat that may require conference or consultation or both as described in the preceding paragraph include management and any other landscape-altering activities on Federal lands administered by the U.S. Fish and Wildlife Service and National Park Service; issuance of section 404 Clean Water Act (33 U.S.C. 1251
The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to threatened wildlife. Under section 4(d) of the Act, the Secretary of the Interior has the discretion to issue such regulations as he deems necessary and advisable to provide for the conservation of threatened species. The Secretary also has the discretion to prohibit, by regulation with respect to any threatened species of fish or wildlife, any act prohibited under section 9(a)(1) of the Act.
The regulations at 50 CFR 17.31(a) provide that the prohibitions set forth for endangered wildlife at 50 CFR 17.21 also apply to threatened wildlife, except as discussed below. The regulations at 50 CFR 17.21, which codify the prohibitions in section 9(a)(1) of the Act, make it illegal for any person subject to the jurisdiction of the United States to take (which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these) endangered wildlife within the United States or on the high seas. In addition, it is unlawful to import; export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce endangered wildlife. It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. To the extent the section 9(a)(1) prohibitions apply only to endangered species, this proposed rule would apply those same prohibitions to the eastern black rail.
Instead of generally applying the same prohibitions to threatened wildlife that apply to endangered wildlife, in accordance with section 4(d) of the Act, the Service may instead develop a protective regulation (“4(d) rule”) that is specific to the conservation needs of any threatened species. Such a regulation would contain all of the protections applicable to that species (50 CFR 17.31(c)); this may include some of the general prohibitions and exceptions set forth at 50 CFR 17.31 and 17.32, but would also include species-specific protections that may be more or less restrictive than the general provisions at 50 CFR 17.31.
For the eastern black rail, the Service has developed a proposed 4(d) rule that is tailored to the specific threats and conservation needs of this subspecies. The proposed 4(d) rule contains specific prohibitions and exceptions to those prohibitions. It would not remove or alter in any way the consultation requirements under section 7 of the Act.
Under this proposed 4(d) rule, the following activities would be prohibited unless otherwise noted:
Prescribed fire can be used to re-initiate succession and seral sequencing on public and private lands, which is important to ensure suitable habitat for the eastern black rail. However, the application of prescribed fire should avoid burning during the nesting, brood rearing, and flightless molt periods (mid-March through September 30) where eastern black rails are present. Prescribed fire that takes place during critical time periods for the subspecies (
We realize that prohibiting prescribed fire during the months these activities take place may conflict with land management goals, for example, the use of prescribed fire to control shrub or tree encroachment and improve habitat suitability for species such as the eastern black rail. However, prescribed fire during this period will reduce survival of eggs, chicks, juveniles, and adults and will reduce recruitment of individuals into the next generation. Opportunities to reach management goals still remain available during a significant period of the year.
For prescribed fires outside of the nesting, brood rearing, and flightless molt period, best management practices (BMPs) can minimize the take of eastern black rails. Therefore, we propose to allow prescribed burns that follow identified BMPs; this would not adversely affect the likelihood of survival of the eastern black rail in occupied areas that are burned. BMPs include:
• The application of prescribed fire should avoid perimeter fires, ring fires, or fires that have long, unbroken boundaries that prevent species dependent on dense cover from escaping a fire.
• Prescribed fire should be employed to move slowly across a tract. Fast fires can cause significant mortality for eastern black rails.
• Prescribed fire should be applied in a patchy manner or with small patches to allow eastern black rails a place of refuge. Patches can be small but numerous enough to support multiple eastern black rails.
This provision of the proposed 4(d) rule for fire management activities would promote conservation of the eastern black rail by encouraging continued management of the landscape in ways that meet management needs while simultaneously ensuring the continued survival of the eastern black rail and providing suitable habitat.
Haying and mowing can maintain grasslands by reducing woody vegetation encroachment and also for the production of forage for livestock. Mechanical treatment activities include disking (using a disk harrow or other tool) and brush clearing (using a variety of tools that may be attached to a tractor or a stand-alone device). While these practices are used to enhance eastern black rail habitat, when done at the wrong time, they can impact recruitment and survival.
Haying, mowing, and mechanical treatment activities in emergent wetlands should be avoided during the nesting, brood rearing, and flightless molt periods (mid-March through September 30) where eastern black rail are present. We define emergent wetlands as areas where “emergent plants—
Haying, mowing, and mechanical treatment activities in emergent wetlands that take place during critical time periods for the subspecies (
We recognize mowing or mechanical treatment activities may need to be used for maintenance requirements to ensure safety and operational needs for existing infrastructure, and understand that these maintenance activities may need to take place during the nesting, brooding, or post-breeding molt period. These include maintenance of existing fire breaks, roads, transmission corridors rights-of-way, and fence lines. These activities are an exception to this prohibition.
We do not propose to prohibit mowing, haying, or mechanical treat activities outside of the nesting, brood rearing, and flightless molt time periods. However, we encourage land managers to employ voluntary BMPs outside of these time periods. BMPs for haying, mowing, and mechanical treatment activities include avoidance of emergent wetlands; providing untreated (
This provision of the proposed 4(d) rule for haying, mowing, and mechanical treatment activities in emergent wetlands would promote conservation of the eastern black rail by prohibiting activities that would reduce survival and limit recruitment during the period when breeding and flightless molt takes place.
Based on current knowledge of grazing and eastern black rail occupancy, the specific timing, duration, and intensity of grazing will result in varying impacts to the eastern black rail and its habitat. Light-to-moderate grazing may be compatible with eastern black rail occupancy under certain conditions, while intensive or heavy grazing is likely to have negative effects on eastern black rails and the quality of their habitat. Grazing densities should allow for the maintenance of the dense vegetative cover required by the eastern black rail.
Intensive or heavy grazing should be avoided during the nesting, brood rearing, and flightless molt periods (mid-March through September 30) in emergent wetlands where eastern black rail are present. Intensive or heavy grazing that takes place during critical time periods for the subspecies (
Although we are not proposing to prohibit year-round light to moderate grazing, or intensive grazing outside of the nesting season, we do recommend that land managers follow voluntary BMPs to provide for additional conservation of the eastern black rail and its habitat. BMPs to avoid negative impacts to the eastern black rail from grazing activities include the use of fences to exclude grazing from emergent wetland areas during the breeding and flightless molt periods, and rotational grazing practices so that a mosaic
This provision of the proposed 4(d) rule for grazing activities would promote conservation of the eastern black rail by encouraging land managers to continue managing the landscape in ways that meet their needs while simultaneously providing suitable habitat for the eastern black rail.
Protecting the eastern black rail from direct forms of take, such as physical injury or killing, whether incidental or intentional, will help preserve and recover the remaining populations of the subspecies. Protecting the eastern black rail from indirect forms of take, such as harm that results from habitat degradation, will likewise help preserve the subspecies' populations and also decrease synergistic, negative effects from other stressors impeding recovery of the subspecies. We propose to extend the Act's section 9(a)(1)(A), 9(a)(1)(D), 9(a)(1)(E), and 9(a)(1)(F) prohibitions to the eastern black rail throughout its range.
We may issue permits to carry out otherwise prohibited activities involving threatened wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.32. With regard to threatened wildlife, a permit may be issued for the following purposes: for scientific purposes, to enhance propagation or survival, for economic hardship, for zoological exhibition, for educational purposes, for incidental taking, or for special purposes consistent with the purposes of the Act. There are also certain statutory exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features:
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or protection; and
(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.
Conservation, as defined at section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) of the Act would apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.
Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the
Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12), require that, to the maximum extent prudent and determinable, the Secretary designate critical habitat at the time the species is determined to be endangered or threatened. Our regulations (50 CFR 424.12(a)(1)) state that the designation of critical habitat is not prudent when one or both of the following situations exist: (1) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species, or (2) such designation of critical habitat would not be beneficial to the species.
Designation of critical habitat requires the publication of maps and a narrative description of specific critical habitat areas in the
Eastern black rails are unique in they are extremely secretive; they walk or run under dense vegetation and are rarely seen in flight. They are generally detected by employing playback calls. As the eastern black rail is difficult to see, birders generally record an eastern black rail on their life list by documenting the bird's call. Because the eastern black rail is highly sought after, birders will play calls repeatedly to garner a response and sometimes to lure a bird in an attempt to see the individual. The constant playing of a call to the bird for days, if not weeks, at a time is a form of harassment to the bird. The use of playback calls has been documented to alter the behavior of eastern black rails, resulting in a threats display that includes spreading the wings and charging the tape recorder (Taylor and Van Perlo 1998, p. 223; Eddleman, Flores, and Legare 1994, unpaginated). The American Birding Association Code of Birding Ethics
The eastern black rail is highly vulnerable to disturbance, especially during the brooding and nesting season. Birders attempting to see or hear the bird by using vocalized calls or recordings has the potential to disturb nesting birds and to trample nests or eggs, and may lead to increased predation (Beans and Niles 2003, p. 96). We believe that the threat of disturbance will be exacerbated by the publication of maps and descriptions outlining the specific locations of this secretive bird in the
Identification and publication of critical habitat may also increase the likelihood of inadvertent or purposeful habitat destruction. As discussed above, trespassing has been documented on private lands and in areas on public lands specifically closed to the public to protect nesting eastern black rails (Roth 2018, pers. comm.; Hand 2017, pers. comm.). Trespassing may not only disturb the bird, but can also result in trampling of the bird's habitat, as well as eggs and nests. State resource managers and researchers are concerned that releasing locations of eastern black rail detections may increase human disturbance and harassment to the subspecies. Trespassing on private land is also a concern, as it likely results in increased harassment to the rails and to the private landowners who are providing habitat to the rails (Hand 2017, pers. comm.). We recognize with the advent of eBird that locations of rare birds, including the eastern black rail, are widely distributed and readily available if those location data are posted to this website. Given the eastern black rail's rarity and near grail-like status in the birding community, when a location has been published on eBird, birders often flock to the site in large numbers in an attempt to see or hear the bird. For example, in June 2010, an eastern black rail was detected at the Parker River NWR in Massachusetts, and the detection was posted on eBird (eBird 2018, unpaginated). On June 2, a birder posted on eBird that he assembled with a group of 34 birders to hear the one or two eastern black rails at the site (eBird 2018, unpaginated). On June 4, another birder posted that he waited more than 2 hours with about 50 other individuals to hear the eastern black rail call (eBird 2018, unpaginated). On June 8, a birder noted that about 30 people heard the eastern black rail (eBird 2018, unpaginated). The 2010 record is the only eastern black rail occurrence recorded in eBird for this specific coordinate location and demonstrates the great interest an eastern black rail generates among the birding community.
To minimize harmful disturbances, eBird identifies a list of birds it considers “sensitive species.” This list is developed in collaboration with partners to identify birds for which demonstrable harm, such as targeted capture, targeted hunting, or targeted disturbance of nests or individual birds from birders or photographers, may occur from publicly posting location records. In most cases, these birds identified as “sensitive species” are species that have been listed by a local entity or that appear on the International Union for Conservation of Nature (IUCN) Red List. These birds have a customized display in eBird that omits checklist details, such as date and location, among other restrictions. While researchers have access to this information, the general public is not able to view more specific information on the record. Although the eastern black rail is not currently on eBird's “sensitive species” list, given the increased risk of harassment to the eastern black rail from posting location data, we will request that it be added if we list the subspecies.
We acknowledge that general location information is provided within this proposed rule, and more-specific location information can be found through other sources. However, we maintain that designation of critical habitat would more widely publicize the potential locations of the eastern black rail and its habitat, and lead to an increased threat of disturbance to the bird from birders. We believe that identification and advertisement of critical habitat may exacerbate the threat of disturbance, thus making sensitive areas more vulnerable to purposeful harmful impacts from humans. Certain life stages, including eggs, chicks, nesting/brooding adults, and adults experiencing the flightless molt period, are particularly vulnerable. Identification and publication of detailed critical habitat information and maps would likely increase exposure of sensitive habitats and increase the likelihood and severity of threats to both the subspecies and its habitat. Identification and publication of critical habitat may lead to increased attention to the subspecies, or increased attempts to observe or hear it.
Under our regulations at 50 CFR 424.12(a)(1)(i), this finding that designating critical habitat is likely to increase the threat of disturbance to the subspecies provides a sufficient basis for making a not-prudent finding. As demonstrated by the use of the word “or” in 50 CFR 424(a) between subsections (1)(i) and (1)(ii), the regulations do not require that we also determine that designating critical habitat would not be beneficial to the subspecies.
Based on the above discussion, we preliminarily conclude that the designation of critical habitat is not prudent, in accordance with 50 CFR 424.12(a)(1), because the eastern black rail and its habitat face a threat by overzealous birders, and designation can reasonably be expected to increase the degree of these threats to the subspecies and its habitat by making location information more readily available. However, we seek public comment on threats of taking or other human activity, including the impacts of birders to the eastern black rail and its habitat, and the extent to which designation might increase those threats.
We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in
We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act, need not be prepared in connection with listing a species as an endangered or threatened species under the Endangered Species Act. We published a notice outlining our reasons for this determination in the
In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to tribes. Although we have no records of the eastern black rail occurring on tribal lands, the range of the eastern black rail overlaps with tribal lands.
A complete list of references cited in this proposed rule is available on the internet at
The primary authors of this proposed rule are the staff members of the Species Assessment Team, U.S. Fish and Wildlife Service.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless otherwise noted.
(h) * * *
(f) Eastern black rail (
(i) Purposeful take of an eastern black rail, including capture, handling, or other activities.
(ii) Prescribed burn activities that result in the incidental take of eastern black rails when the activity occurs:
(A) During the nesting, brooding, or post-breeding flightless molt period; or
(B) Outside of the nesting, brooding, or post-breeding flightless molt period, unless best management practices that minimize effects of the prescribed burn on the eastern black rail are employed. Examples of best management practices include employing slow burn fires, limiting the block of land burned to ensure suitable dense cover habitat remains for the eastern black rail, employing patch or refugia techniques to allow for eastern black rails to survive or escape fire, and avoiding the use of ring fires or perimeter fires.
(iii) Mowing, haying, and mechanical treatment activities in emergent wetlands that result in the incidental take of eastern black rails when the activity occurs during the nesting, brooding, or post-breeding flightless molt period, except in accordance with paragraph (f)(2)(iii) of this section.
(iv) Grazing activities on public lands that result in the incidental take of eastern black rails when the activity:
(A) Occurs during the nesting, brooding, or post-breeding flightless molt period;
(B) Involves intensive or high-density grazing that occurs on suitable occupied eastern black rail habitat; and
(C) Does not support the maintenance of appropriate dense vegetation cover for the eastern black rail.
(v) Possession and other acts with unlawfully taken eastern black rails. It is unlawful to possess, sell, deliver, carry, transport, or ship, by any means whatsoever, any eastern black rail that was taken in violation of section 9(a)(1)(B) and 9(a)(1)(C) of the Act or State laws.
(vi) Import and export of the eastern black rail.
(vii) Delivery, receipt, carry for transport, or shipment in interstate or
(viii) Sale or offer for sale in interstate or foreign commerce of any eastern black rail.
(2)
(ii) Any employee or agent of the Service, of the National Marine Fisheries Service, or of a State conservation agency that is operating a conservation program for the eastern black rail pursuant to the terms of a cooperative agreement with the Service in accordance with section 6(c) of the Act, who is designated by his agency for such purposes, may, when acting in the course of his official duties, take eastern black rails.
(iii) Mowing or mechanical treatment activities in emergent wetlands that:
(A) Occur during the nesting, brooding, or post-breeding flightless molt period; and
(B) Are maintenance requirements to ensure safety and operational needs for existing infrastructure. Existing infrastructure may include existing fire breaks, roads, transmission corridor rights-of-way, and fence lines.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding (1) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments regarding this information collection received by November 8, 2018 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
The Department of Agriculture will submit the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13 on or after the date of publication of this notice. Comments are requested regarding: (1) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, Washington, DC; New Executive Office Building, 725 17th Street NW, Washington, DC 20503. Commenters are encouraged to submit their comments to OMB via email to:
Comments regarding these information collections are best assured of having their full effect if received by November 8, 2018. Copies of the submission(s) may be obtained by calling (202) 720-8681.
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
In this substantive change renewal, NASS has been directed by the USDA to expand the survey to add greater detail to the summarized data. This will involve an increase in the currently approved sample size to collect more data on agricultural labor that is performed under each of the standard occupational classification (SOC) codes. In addition NASS will resume collecting data on a quarterly basis rather than biannual basis which collected the quarterly data. This should help to reduce the potential for any memory bias that may have occurred previously. This change is expected to take place in January 2019, contingent on the passage of the 2019 FY Federal Budget. If there is a delay in the passage of the Federal Budget the changes will take place in July 2019. In addition the biannual survey will be conducted in April 2019 and the data for the January and April quarters will be collected as they are currently approved. After that the data collections will collect data on a quarterly basis. Response to these data collections by the sampled farm and ranch operators is on a voluntary basis.
Food Safety and Inspection Service, USDA.
Notice soliciting nominations for membership.
The U.S. Department of Agriculture (USDA) is soliciting nominations for membership for the National Advisory Committee on Meat and Poultry Inspection (NACMPI). The full Committee consists of 20 members, and each person selected is expected to serve a 2-year term. There are 15 available positions.
Nominations, including a cover letter to the Secretary, the nominee's typed resume or curriculum vitae, and a completed USDA Advisory Committee Membership Background Information form AD-755, must be received by November 8, 2018.
Valeria Green, Deputy Director, Risk, Innovations, and Management Staff, Food Safety and Inspection Service, U.S. Department of Agriculture, Telephone: (301) 504-0846, Email:
In accordance with the Federal Advisory Committee Act (5 U.S.C. App. 2), USDA is seeking nominees for membership on the National Advisory Committee on Meat and Poultry Inspection (NACMPI). The Committee provides advice and recommendations to the Secretary on meat and poultry inspection programs (
To ensure that recommendations of the Committee consider the needs of the diverse groups served by the Department, membership will include, to the extent practicable, individuals with demonstrated ability to represent minorities, women, and persons with disabilities. It is anticipated that the Committee will meet at least once annually.
Please note that federally registered lobbyists cannot be considered for USDA advisory committee membership. Members can only serve on one advisory committee at a time. All nominees will undergo a USDA background check.
To receive consideration for service on the NACMPI, a nominee must submit a resume and the USDA Advisory Committee Membership Background Information form AD-755. The resume or curriculum vitae must be limited to five one-sided pages and should include nominee's educational background and expertise. For submissions received that are more than five one-sided pages in length, only the first five pages will be reviewed. The USDA Advisory Committee Membership Background Information form AD-755 is available online at:
Nomination packages should be accompanied by a resume or curriculum vitae and AD-755 form and can be sent by mail to: Valeria Green, Deputy Director, Risk, Innovations, and Management Staff, Food Safety and Inspection Service, U.S. Department of
All members who are associated with colleges and universities will be designated as Special Government Employees (SGE) and must complete the Office of Government (OGE)450 Confidential Financial Disclosure Report electronically through the USDA online system before rendering any advice or before their first meeting. SGEs are required to update financial forms yearly. An invitation to fill out the 450 form will be sent via email before the NACMPI meeting.
All members will be reviewed for conflict of interest pursuant to 18 U.S.C. 208 in relation to specific NACMPI work changes. Advisory Committee members serve a two-year term, renewable for two consecutive terms.
Public awareness of all segments of rulemaking and policy development is important. Consequently, FSIS will announce this
FSIS also will make copies of this publication available through the FSIS
No agency, officer, or employee of the USDA shall, on the grounds of race, color, national origin, religion, sex, gender identity, sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, or political beliefs, exclude from participation in, deny the benefits of, or subject to discrimination, any person in the United States under any program or activity conducted by the USDA.
To file a complaint of discrimination, complete the USDA Program Discrimination Complaint Form, which may be accessed online at:
Send your completed complaint form or letter to USDA by mail, fax, or email:
Persons with disabilities who require alternative means for communication (Braille, large print, audiotape, etc.), should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD).
Food Safety and Inspection Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 and Office of Management and Budget (OMB) regulations, the Food Safety and Inspection Service (FSIS) is announcing its intention to renew the approved information collection regarding records to be kept by official establishments and retail stores that grind raw beef products. The approval for this information collection will expire on February 28, 2019. FSIS is making no changes to the approved collection.
Submit comments on or before December 10, 2018.
FSIS invites interested persons to submit comments on this
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Gina Kouba, Office of Policy and Program Development, Food Safety and Inspection Service, USDA, 1400 Independence Avenue SW, Room 6065, South Building, Washington, DC 20250-3700; (202) 720-5627.
FSIS is requesting a renewal of the information collection regarding records to be kept by official establishments and retail stores that grind raw beef
(A) The establishment numbers of the establishments supplying the materials used to prepare each lot of raw ground beef product;
(B) All supplier lot numbers and production dates;
(C) The names of the supplied materials, including beef components and any materials carried over from one production lot to the next;
(D) The date and time each lot of raw ground beef product is produced; and
(E) The date and time when grinding equipment and other related food-contact surfaces are cleaned and sanitized.
Copies of this information collection assessment can be obtained from Gina Kouba, Office of Policy and Program Development, Food Safety and Inspection Service, USDA, 1400 Independence Avenue SW, Room 6065, South Building, Washington, DC 20250-3700; (202) 720-5627.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of FSIS's functions, including whether the information will have practical utility; (b) the accuracy of FSIS's estimate of the burden of the proposed collection of information, including the validity of the method 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, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques, or other forms of information technology. Comments may be sent to both FSIS, at the addresses provided above, and the Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20253.
Responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Public awareness of all segments of rulemaking and policy development is important. Consequently, FSIS will announce this
FSIS also will make copies of this publication available through the FSIS
No agency, officer, or employee of the USDA shall, on the grounds of race, color, national origin, religion, sex, gender identity, sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, or political beliefs, exclude from participation in, deny the benefits of, or subject to discrimination any person in the United States under any program or activity conducted by the USDA.
To file a complaint of discrimination, complete the USDA Program Discrimination Complaint Form, which may be accessed online at
Send your completed complaint form or letter to USDA by mail, fax, or email:
Persons with disabilities who require alternative means for communication (Braille, large print, audiotape, etc.), should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD).
Food Safety and Inspection Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 and Office of Management and Budget (OMB) regulations, the Food Safety and Inspection Service (FSIS) is announcing its intention to renew the approved information collection regarding laboratories. The approval for this information collection will expire on February 28, 2019. FSIS is making no changes to the approved collection.
Submit comments on or before December 10, 2018.
FSIS invites interested persons to submit comments on this
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•
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Gina Kouba, Office of Policy and Program Development, Food Safety and Inspection Service, USDA, 1400 Independence Avenue SW, Room 6065, South Building, Washington, DC 20250-3700; (202) 720-5627.
FSIS is requesting a renewal of the information collection regarding laboratories. The approval for this information collection will expire on February 28, 2019. FSIS is making no changes to the approved collection.
FSIS uses the PEPRL-F-0008.04 form as a self-assessment audit checklist to collect information related to the quality assurance and quality control procedures in place at in-plant and private laboratories participating in the Pasteurized Egg Product Recognized Laboratory (PEPRLab) program (9 CFR 590.580). FSIS uses the data collected in the desk audit of existing labs or in the appraisal of new applicants.
Any non-Federal laboratory that is applying for the FSIS Accredited Laboratory program regarding the testing of meat and poultry products needs to complete FSIS Form 10,110-2, Application for FSIS Accredited Laboratory Program. (9 CFR 439). State or private laboratories only submit the application once for entry into the program. FSIS uses the information collected by the form to help assess the laboratory applying for admission to the FSIS Accredited Laboratory program. FSIS has made the following estimates based upon an information collection assessment.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of FSIS's functions, including whether the information will have practical utility; (b) the accuracy of FSIS's estimate of the burden of the proposed collection of information, including the validity of the method 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, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques, or other forms of information technology. Comments may be sent to both FSIS, at the addresses provided above, and the Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20253.
Responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Public awareness of all segments of rulemaking and policy development is important. Consequently, FSIS will announce this
FSIS also will make copies of this publication available through the FSIS
No agency, officer, or employee of the USDA shall, on the grounds of race, color, national origin, religion, sex, gender identity, sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, or political beliefs, exclude from participation in, deny the benefits of, or subject to discrimination any person in the United States under any program or activity conducted by the USDA.
To file a complaint of discrimination, complete the USDA Program Discrimination Complaint Form, which may be accessed online at
Send your completed complaint form or letter to USDA by mail, fax, or email:
Persons with disabilities who require alternative means for communication (Braille, large print, audiotape, etc.), should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD).
Bureau of the Census, Department of Commerce.
Notice and request for comment; reopening of comment period.
The Bureau of the Census (Census Bureau) is reopening the comment period provided in the notice entitled “Soliciting Feedback from Users on 2020 Census Data Products,” which was published in the
The Census Bureau is reopening the comment period for the notice entitled “Soliciting Feedback from Users on 2020 Census Data Products,” which was published in the
Please address all written comments to Karen Battle, Chief, Population Division, U.S. Census Bureau, 4600 Silver Hill Road, Room 6H174, Washington, DC 20233, or to
You may also submit comments, identified by Census Bureau Docket Identification Number USBC-2018-0009, to the Federal e-Rulemaking Portal:
Karen Battle, U.S. Census Bureau, 4600 Silver Hill Road, Room 6H174, Washington, DC 20233 or
The Census Bureau is conducting a comprehensive review of the decennial census data products in preparation for the 2020 Census. It seeks feedback to understand how the public uses decennial census data products. Public feedback is essential for a complete review of the decennial census data products and will assist the Census Bureau in prioritizing products for the 2020 Census. In response to individuals and organizations who have requested more time to submit comments, the Census Bureau has decided to extend the comment period to November 8, 2018. This document announces the extension of the comment period.
The Census Bureau is not seeking feedback on apportionment counts and redistricting data products, which are constitutionally and statutorily mandated, respectively. For more information about this program, please see the original document published in the
On June 1, 2018, Black & Decker (U.S.), Inc., submitted a notification of proposed production activity to the FTZ Board for its facility within FTZ 12—Site 4, in Mission, Texas.
The notification was processed in accordance with the regulations of the FTZ Board (15 CFR part 400), including notice in the
Enforcement and Compliance, International Trade Administration, Department of Commerce
The Department of Commerce (Commerce) has conducted a new shipper review (NSR) of Qingdao Doo Won Foods Co., Ltd. (Doo Won) regarding the antidumping duty order on fresh garlic from the People's Republic of China (China). Based on our analysis of the comments received, we continue to find Doo Won is not the producer of the fresh garlic it exported to the United States. Consequently, we are rescinding this NSR.
Applicable October 9, 2018.
Kathryn Wallace and Alex Cipolla, 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) 482-6251 and (202) 482-4956, respectively.
On July 10, 2017, Commerce published a notice of initiation of a new shipper review of fresh garlic from China for the period November 1, 2016, through April 30, 2017.
The merchandise covered by this order is all grades of garlic, whether whole or separated into constituent cloves. The subject merchandise is currently classifiable under the Harmonized Tariff Schedule of the United States (“HTSUS”) subheadings: 0703.20.0000, 0703.20.0005, 0703.20.0010, 0703.20.0015, 0703.20.0020, 0703.20.0090, 0710.80.7060, 0710.80.9750, 0711.90.6000, 0711.90.6500, 2005.90.9500, 2005.90.9700, and 2005.99.9700. A full description of the scope of the order is contained in the Issues and Decision Memorandum.
As explained in the Issues and Decision Memorandum, we continue to find that Doo Won is not the producer of the garlic subject to this review. Accordingly, its new shipper review request was invalid under 19 CFR 351.214(b)(2)(ii). As a result, we are rescinding the new shipper review of Doo Won.
All issues raised in the case and rebuttal briefs are addressed in the Issues and Decision Memorandum. A list of the issues that are raised in the briefs and addressed in the Issues and Decision Memorandum is in the Appendix to this notice.
Effective upon publication of the final rescission of the NSR of Doo Won, Commerce will instruct U.S. Customs and Border Protection (CBP) to collect cash deposits for exports of subject merchandise by Doo Won entered, or withdrawn from warehouse, for consumption on or after the publication date, at the China-wide rate.
As the result of this rescission of the NSR of Doo Won, the entries of Doo Won covered by this NSR will be assessed at the cash deposit rate required at the time of entry, which is the China-wide rate.
This notice serves as 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 POR. Failure to comply with this requirement could result in the Secretary of Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of business proprietary information disclosed under the APO in accordance with 19 CFR 351.305(a)(3). We request timely written notification of return or destruction of APO materials or conversion to judicial protective order. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
This notice is issued and published this notice in accordance with sections 751(i) and 777(i)(1) of the Act and 19 CFR 351.221(b)(5).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) preliminarily determines that sales of subject merchandise to the United States have been made at prices below normal value during the period of review (POR) September 1, 2016, through August 31, 2017. Further, Commerce preliminarily finds that Banduoo Ltd. (Banduoo), Fujian Rongshu Industry Co., Ltd. (Fujian Rongshu), Roung Shu Industry Corporation (Roung Shu), and Xiamen Yi-He Textile Co., Ltd. (Xiamen Yi-He)
Applicable October 9, 2018.
David Crespo, 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) 482-3693.
The merchandise subject to this order covers narrow woven ribbons with woven selvedge.
Commerce is conducting this review in accordance with section 751(a)(2) of the Tariff Act of 1930, as amended (the Act). Because mandatory respondent Ming Wei Co., Ltd. (Ming Wei) withdrew from participation in the administrative review and failed to respond to Commerce's questionnaire, we preliminarily determine to apply adverse facts available (AFA) to this respondent, in accordance with sections 776(a) and (b) of the Act and 19 CFR 351.308. For a full discussion of the rationale underlying our preliminary results,
A list of the topics included in the Preliminary Decision Memorandum is attached as an Appendix to this notice. 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
On November 20, 2017, and November 30, 2017, Fujian Rongshu, Roung Shu, and Xiamen Yi-He, and Banduoo, respectively, timely filed statements reporting that they made no shipments of subject merchandise to the United States during the POR. Subsequently, we received information from U.S. Customs and Border Protection (CBP) confirming the no shipment claims from Banduoo, Fujian Rongshu, and Xiamen Yi-He.
With respect to Roung Shu, we determined that it was necessary to request additional information from CBP and Roung Shu related to various POR entries of merchandise produced by Roung Shu. After reviewing the additional information provided by Roung Shu,
Based on the foregoing, Commerce preliminarily determines that Banduoo, Fujian Rongshu, Roung Shu, and Xiamen Yi-He had no shipments during the POR. For additional information regarding this determination,
Commerce preliminarily determines that the following weighted-average dumping margin exists:
Interested parties may submit case briefs to Commerce no later than 30 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 document must be received successfully in its entirety by ACCESS by 5:00 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 raised in any written briefs, not later than 120 days after the publication date of this notice, pursuant to section 751(a)(3)(A) of the Act.
Upon issuance of the final results, Commerce shall determine, and CBP shall assess, antidumping duties on all appropriate entries covered by this review.
Further, if we continue to find in the final results that Banduoo, Fujian Rongshu, Roung Shu, and Xiamen Yi-He had no shipments of subject merchandise during the POR, we will instruct CBP to liquidate any suspended entries that entered under their antidumping duty case numbers (
The following 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 date of publication as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for Ming Wei will be that established in the final results of this review; (2) for merchandise exported by manufacturers or exporters not covered in this 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; (3) if the exporter is not a firm covered in this review, or the original investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recently completed segment for the manufacturer of the merchandise; and (4) the cash deposit rate for all other manufacturers or exporters will continue to be 4.37 percent, the all-others rate determined in the less-than-fair-value investigation.
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 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.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Based on affirmative final determinations by the Department of Commerce (Commerce) and the International Trade Commission (ITC), Commerce is issuing an antidumping duty order on stainless steel flanges from India.
Applicable October 9, 2018.
Benito Ballesteros or Christian Llinas, 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) 482-7425 and (202) 482-4877, respectively.
In accordance with section 735(d) and 777(i)(1) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.210(c), on August 16, 2018, Commerce published its affirmative
The products covered by this order are stainless steel flanges from India. For a complete description of the scope of the order,
In accordance with sections 735(b)(1)(A) and 735(d) of the Act, the ITC has notified Commerce of its final determination in this investigation, in which it found that imports of stainless steel flanges from India are materially injuring a U.S. industry.
As a result of the ITC's final determination, in accordance with section 736(a)(1) of the Act, Commerce will direct U.S. Customs and Border Protection (CBP) to assess, upon further instruction by Commerce, antidumping duties equal to the amount by which the normal value of the merchandise exceeds the export price (or constructed export price) of the merchandise, for all relevant entries of stainless steel flanges from India. These antidumping duties
In accordance with section 735(c)(1)(B) of the Act, we will instruct CBP to continue to suspend liquidation on entries of subject merchandise from India. We will also instruct CBP to require cash deposits equal to the estimated amount by which the normal value exceeds the U.S. price as indicated in the chart below. These instructions suspending liquidation will remain in effect until further notice.
Accordingly, effective on the date of publication of the ITC's final affirmative injury determination, CBP will require, at the same time as importers would normally deposit estimated duties on this subject merchandise, a cash deposit equal to the estimated antidumping duty margin.
Section 733(d) of the Act states that instructions to suspend liquidation issued pursuant to an affirmative preliminary determination may not remain in effect for more than four months, except where exporters representing a significant proportion of exports of subject merchandise request to extend the four-month period to six months. The four-month period beginning on March 28, 2018, the date of publication of the
Therefore, in accordance with section 733(d) of the Act and our practice, we will instruct CBP to terminate the suspension of liquidation and to liquidate, without regard to antidumping duties, unliquidated entries of stainless steel flanges from India entered, or withdrawn from warehouse, for consumption on or after August 10, 2018, the day after which the provisional measures expired, until and through the day preceding the date of publication of the ITC's final injury determination in the
Commerce determines that the estimated final weighted-average dumping margins are as follows:
This notice constitutes the antidumping duty order with respect to stainless steel flanges from India, pursuant to section 736(a) of the Act. Interested parties can find a list of antidumping duty orders currently in effect at
This order is issued and published in accordance with section 736(a) of the Act and 19 CFR 351.211(b).
The products covered by this investigation are certain forged stainless-steel flanges, whether unfinished, semi-finished, or finished (certain forged stainless-steel flanges). Certain forged stainless steel flanges are generally manufactured to, but not limited to, the material specification of ASTM/ASME A/SA182 or comparable domestic or foreign specifications. Certain forged stainless steel flanges are made in various grades such as, but not limited to, 304, 304L, 316, and 316L (or combinations thereof). The term “stainless steel” used in this scope refers to an alloy steel containing, by actual weight, 1.2 percent or less of carbon and 10.5 percent or more of chromium, with or without other elements.
Unfinished stainless-steel flanges possess the approximate shape of finished stainless steel flanges and have not yet been machined to final specification after the initial forging or like operations. These machining processes may include, but are not limited to, boring, facing, spot facing, drilling, tapering, threading, beveling, heating, or compressing. Semi-finished stainless steel flanges are unfinished stainless-steel flanges that have undergone some machining processes.
The scope includes six general types of flanges. They are: (1) Weld neck, generally used in butt-weld line connection; (2) threaded, generally used for threaded line connections; (3) slip-on, generally used to slide over pipe; (4) lap joint, generally used with stub-ends/butt-weld line connections; (5) socket weld, generally used to fit pipe into a machine recession; and (6) blind, generally used to seal off a line. The sizes and descriptions of the flanges within the scope include all pressure classes of ASME B16.5 and range from one-half inch to twenty-four inches nominal pipe size. Specifically excluded from the scope of this investigation are cast stainless steel flanges. Cast stainless steel flanges generally are manufactured to specification ASTM A351.
The country of origin for certain forged stainless-steel flanges, whether unfinished, semi-finished, or finished is the country where the flange was forged. Subject merchandise includes stainless steel flanges as defined above that have been further processed in a third country. The processing includes, but is not limited to, boring, facing, spot facing, drilling, tapering, threading, beveling, heating, or compressing, and/or any other processing that would not otherwise remove the merchandise from the scope of
Merchandise subject to this investigation is typically imported under headings 7307.21.1000 and 7307.21.5000 of the Harmonized Tariff Schedule of the United States (HTSUS). While HTSUS subheadings and ASTM specifications are provided for convenience and customs purposes, the written description of the scope is dispositive.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Gulf of Mexico Fishery Management Council (Council) will hold a four-day meeting to consider actions affecting the Gulf of Mexico fisheries in the exclusive economic zone (EEZ).
The meeting will be held on Monday, October 22 through Thursday, October 25, 2018.
The meeting will take place at the Battle House Renaissance Mobile Hotel & Spa, located at 26 North Royal Street, Mobile, AL 36602-3802; telephone: (251) 338-2000.
Dr. Carrie Simmons, Executive Director, Gulf of Mexico Fishery Management Council; telephone: (813) 348-1630.
The meeting will begin in a Full Council session to assign council members to the October 2018 through October 2019 Committees. The Committee Sessions will begin approximately 8:30 a.m. with the Coral Committee reviewing analysis for the Vessel Monitoring System (VMS) and Electronic Logbooks (ELB) Information for the Flower Garden Banks National Marine Sanctuary Expansion. The Mackerel Committee will receive an update on Coastal Migratory Pelagics (CMP) Landings; and discuss taking final action on CMP Framework Amendment 7—Modifications to Gulf Cobia Size and Possession Limits. The Administrative/Budget Committee will convene to review and approve the funded budget, and proposed modifications to the Statement of Organization Practices and Procedures (SOPPs).
After lunch, the Gulf SEDAR Committee will receive a summary from the SEDAR Steering Committee Meeting; and review the Gulf of Mexico SEDAR Schedule. The Sustainable Fisheries Committee will review the revised draft of the Conversion of Historical Captain Endorsements to Federal For-Hire Permits; Revised Generic Amendment for Carryover of Unharvested Quota; and the Gulf of Mexico Allocation Review Triggers.
The Reef Fish Management Committee will review Reef Fish Landings and the revised draft for Amendment 50: State Management Program for Recreational Red Snapper and Individual State Amendments. After lunch, the committee with discuss Reef Fish Management Objectives; review draft amendment for Establishing Gray Snapper Status Determination Criteria, Reference Points, and Modifications to Annual Catch Limits; receive a presentation on the Great Red Snapper Count; receive a summary from the Scientific and Statistical Committee (SSC) meeting; and discuss the Status of Convening the Ad Hoc Reef Fish Headboat and Red Snapper Charter For-hire Advisory Panels.
The Data Committee will review revisions to the Marine Recreational Information Program's (MRIP) Recreational Data Collection Program; receive a presentation summary report from the For-Hire Electronic Reporting Workshop hosted by the Quality Management Professional Specialty Group, and an update from the MRIP Red Snapper Survey Design Workshop. The Ecosystem Committee will review a draft outline of the Fishery Ecosystem document. The Shrimp Committee will review draft options for Shrimp Amendment 18: Evaluation of Shrimp Effort Threshold Reduction in the Area Monitored for Juvenile Red Snapper Bycatch; and, the Law Enforcement Committee will give a summary from the Joint Law Enforcement Technical Committee and Law Enforcement Committee meeting; and approve the 2019-20 Operations Plan.
Late morning (approximately 11:15 a.m.), the Full Council will reconvene with a Call to Order, Announcements, and Introductions; Adoption of Agenda and Approval of Minutes; and presenting the Recipient of the 2017 Law Enforcement Officer of the Year Award. The Council will review Exempted Fishing Permit (EFP) applications, if any; receive a presentation on Alabama Law Enforcement efforts; and a summary on Highly Migratory Species (HMS) Advisory Panel efforts. After lunch, the Council will receive public testimony from 1:30 p.m. until 4:30 p.m. on the following items: Final Action: CMP Framework Amendment 7: Modifications to Gulf Cobia Size and Possession Limits; and, open testimony on any other fishery issues or concerns. Anyone wishing to speak during public comment should sign in at the registration station located at the entrance to the meeting room. Following public testimony, the Council will begin receiving committee reports from the Coral, Administrative/Budget, and Gulf SEDAR Management Committees.
The Council will continue to receive committee reports from Mackerel, Sustainable Fisheries, Data Collection, Shrimp, Ecosystem, Law Enforcement, and Reef Fish Management Committees. After lunch, the Council will vote on Exempted Fishing Permit (EFP) applications, if any; and receive updates from the following supporting agencies: South Atlantic Fishery Management Council; NOAA Office of Law Enforcement (OLE), Gulf States Marine Fisheries Commission; U.S. Coast Guard; U.S. Fish and Wildlife Service; and, the Department of State.
Lastly, the Council will discuss any Other Business items. Discussion on Aquaculture Court Decision
The meeting will be broadcast via webinar. You may register for the webinar by visiting
The timing and order in which agenda items are addressed may change as required to effectively address the issue, and the latest version along with other meeting materials will be posted on
Although other non-emergency issues not contained in this agenda may come
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kathy Pereira (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; solicitation of nominations.
NMFS solicits nominations for the Atlantic Highly Migratory Species (HMS) Advisory Panel (AP). NMFS consults with and considers the comments and views of the HMS AP when preparing and implementing Fishery Management Plans (FMPs) or FMP amendments for Atlantic tunas, swordfish, sharks, and billfish. Nominations are being sought to fill approximately one-third (11) of the seats on the HMS AP for a 3-year appointment. Individuals with definable interests in the recreational and commercial fishing and related industries, environmental community, academia, and non-governmental organizations are considered for membership on the HMS AP.
Nominations must be received on or before November 8, 2018.
You may submit nominations and requests for the Advisory Panel Statement of Organization, Practices, and Procedures by any of the following methods:
•
•
Peter Cooper at (301) 427-8503.
The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801
Nomination packages should include:
1. The name of the nominee and a description of his/her interest in HMS or HMS fisheries, or in particular species of sharks, swordfish, tunas, or billfish;
2. Contact information, including mailing address, phone, and email of the nominee;
3. A statement of background and/or qualifications;
4. A written commitment that the nominee shall actively participate in good faith, and consistent with ethics obligations, in the meetings and tasks of the HMS AP; and
5. A list of outreach resources that the nominee has at his/her disposal to communicate Qualifications for HMS AP Membership.
Qualification for membership includes one or more of the following: (1) Experience in HMS recreational fisheries; (2) experience in HMS commercial fisheries; (3) experience in fishery-related industries (
Member tenure will be for 3 years (36 months), with approximately one-third of the members' terms expiring on December 31 of each year. Nominations are sought for terms beginning January 2019 and expiring December 2021.
Nominations for the HMS AP will be accepted to allow representation from commercial and recreational fishing interests, academic/scientific interests, and the environmental/non-governmental organization community, who are knowledgeable about Atlantic HMS and/or Atlantic HMS fisheries. Current representation on the HMS AP, as shown in Table 1, consists of 12 members representing commercial interests, 12 members representing recreational interests, 4 members representing environmental interests, 4 academic representatives, and the International Commission for the Conservation of Atlantic Tunas (ICCAT) Advisory Committee Chairperson. Each HMS AP member serves a 3-year term with approximately one-third of the total number of seats (33) expiring on December 31 of each year. NMFS seeks to fill 3 commercial, 4 recreational, 3 academic and 1 environmental organization vacancies by December 31, 2018. NMFS will seek to fill vacancies based primarily on maintaining the current representation from each of the sectors. NMFS also considers species expertise and representation from the fishing regions (Northeast, Mid-Atlantic, Southeast, Gulf of Mexico, and Caribbean) to ensure the diversity and balance of the AP. Table 1 includes the current representation on the HMS AP by sector, region, and species with terms that are expiring identified in bold. It is not meant to indicate that NMFS will only consider persons who have expertise in the species or fishing regions that are listed. Rather, NMFS will aim toward having as diverse and balanced an AP as possible.
The intent is to have a group that, as a whole, reflects an appropriate and equitable balance and mix of interests given the responsibilities of the HMS AP.
Five additional members on the HMS AP include one member representing each of the following Councils: New England Fishery Management Council, the Mid-Atlantic Fishery Management Council, the South Atlantic Fishery Management Council, the Gulf of Mexico Fishery Management Council, and the Caribbean Fishery Management Council. The HMS AP also includes 22 ex-officio participants: 20 representatives of the coastal states and two representatives of the interstate commissions (the Atlantic States Marine Fisheries Commission and the Gulf States Marine Fisheries Commission).
NMFS will provide the necessary administrative support, including technical assistance, for the HMS AP. However, NMFS will not compensate participants with monetary support of any kind. Depending on availability of funds, members may be reimbursed for travel costs related to the HMS AP meetings.
Meetings of the HMS AP will be held as frequently as necessary but are routinely held twice each year—once in the spring, and once in the fall. The meetings may be held in conjunction with public hearings.
National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before December 10, 2018.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW, Washington, DC 20230 (or via the internet at
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Tom Sminkey, Ph.D., National Marine Fisheries Service, Office of Science and Technology, 1315 East-West Hwy./FST1, Rm 12358, Silver Spring, MD 21910, Phone: (301) 427-8177 or
This request is for extension of a currently approved information collection.
Marine recreational anglers are surveyed to collect catch and effort data, fish biology data, and angler socioeconomic characteristics. These data are required to carry out provisions of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801
Marine recreational fishing catch and effort data are collected through a combination of mail surveys, telephone surveys and on-site intercept surveys with recreational anglers. Amendments to the Magnuson-Stevens Fishery Conservation and Management Act (MSA) require the development of an improved data collection program for recreational fisheries. To partially meet these requirements, NOAA Fisheries designed and implemented a new Access-Point Angler Intercept Survey (APAIS) in 2013 to ensure better coverage and representation of recreational fishing activity.
The APAIS intercepts marine recreational fishers at public-access sites in coastal counties from Maine to Mississippi and Hawaii to obtain information about the just-completed day's fishing activity. Respondents are asked about the time and type of fishing, the angler's avidity and residence location, and details of any catch of finfish. Species identification, number, and size are collected for any available landed catch. Data collected from the APAIS are used to estimate the catch per angler of recreational saltwater fishers. These APAIS estimates are combined with estimates derived from independent but complementary surveys of fishing effort, the Fishing Effort Survey and the For-Hire Survey, to estimate total, state-level fishing catch, by species, and participation. These estimates are used in the development, implementation, and monitoring of fishery management programs by the NMFS, regional fishery management councils, interstate marine fisheries commissions, and state fishery agencies.
Information will be collected through onsite in-person interviews.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) 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.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before December 10, 2018.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW, Washington, DC 20230 (or via the internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Gabrielle Aberle, 907-586-7228.
This request is for extension of a currently approved information collection.
The Community Quota Entity (CQE) Program provides eligible communities in Alaska the means for starting or supporting commercial fisheries activities that will result in an ongoing, regionally based, fisheries-related economy. Under the Community Quota Entity Program, 46 eligible communities are authorized to form nonprofit entities called CQEs to participate in certain Federal limited access privilege programs.
Under the Individual Fishing Quota (IFQ) CQE Program, CQEs may purchase commercial halibut and sablefish quota share (QS) for lease to residents of the eligible community. Under the Charter Halibut Limited Access Program, CQEs may request community charter halibut permits (CHPs) for use in southeast Alaska and the central Gulf of Alaska. Under the License Limitation Program (LLP), CQEs may request non-trawl groundfish LLP licenses endorsed for Pacific cod in the central or western Gulf of Alaska.
This information collection contains the applications and reporting requirements for CQEs. This collection contains applications used by a nonprofit corporation to become a CQE; by CQEs to receive nontrawl groundfish LLP licenses and CHP permits; by CQEs to transfer or receive IFQ QS; by CQEs to transfer IFQ to an eligible community resident or non-resident; and by CQEs to transfer between commercial halibut IFQ and halibut guided angler fish (GAF). In addition, this collection contains two reporting requirements: An annual report and an authorization letter. Annually each CQE must submit a report describing its business operations and fishing activities for each eligible community it represents. CQEs requesting LLP groundfish licenses must annually submit an authorization letter that assigns each community LLP license to a user and vessel.
The applications are available as fillable PDFs on the NMFS Alaska Region website at
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) 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.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before December 10, 2018.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW, Washington, DC 20230 (or via the internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Stephanie Warpinski, 907-586-7228.
This request is for extension of a currently approved information collection.
Amendment 80 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area allocates several Bering Sea and Aleutian Islands Management Area non-pollock trawl groundfish fisheries among trawl fishery sectors, established a limited access privilege program, and facilitated the formation of harvesting cooperatives in the non-American Fisheries Act (non-AFA) trawl catcher/processor sector.
The Amendment 80 Program encourages the formation of cooperatives and cooperative fishing practices among all persons holding Amendment 80 quota share (QS) permits. The cooperatives that receive allocations of cooperative quota (CQ) allow vessel operators to make operational choices to improve fishery returns, reduce prohibited species catch usage, and reduce fish discards.
This information collection is necessary to manage participation in the Amendment 80 Program. This collection contains applications used by persons to apply for QS, to apply for an Amendment 80 limited access fishery permit, and to transfer QS; by cooperatives to apply for CQ and transfer CQ; by cooperatives or CDQ groups to exchange CQ for one eligible flatfish species with CQ of a different eligible flatfish species; and by Amendment 80 vessel owners to replace their vessels. Additionally, this collection includes the process used to appeal an application that is denied.
The applications are available as fillable PDFs on the NMFS Alaska Region website at
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) 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.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of application.
Notice is hereby given that the NMFS Northeast Fisheries Science Center, 166 Water Street, Woods Hole, MA 02543 [Responsible Party: Dr. Jon Hare], has applied in due form for a permit to take green (
Written, telefaxed, or email comments must be received on or before November 8, 2018.
The application and related documents are available for review by selecting “Records Open for Public Comment” from the “Features” box on the Applications and Permits for Protected Species (APPS) home page,
These documents are also available upon written request or by appointment in the Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427-8401; fax (301) 713-0376.
Written comments on this application should be submitted to the Chief, Permits and Conservation Division, at the address listed above. Comments may also be submitted by facsimile to (301) 713-0376, or by email to
Those individuals requesting a public hearing should submit a written request to the Chief, Permits and Conservation Division at the address listed above. The request should set forth the specific reasons why a hearing on this application would be appropriate.
Amy Hapeman or Erin Markin, (301) 427-8401.
The subject permit is requested under the authority of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531
The applicant requests a 10-year permit to conduct research on sea turtles in the Northwest Atlantic Ocean in its coastal and estuarine environments from North Carolina to Maine and international waters. The objectives of the research are to (1) identify sea turtle stocks and breeding population origins for juvenile through adult life stages, (2) improve knowledge of sea turtle life history, vital rates, and sex ratios, (3) identify important marine habitats, (4) estimate sea turtle distribution and abundance, (5) assess anthropogenic impacts to sea turtles, and (6) provide data to assist in agency mitigation and monitoring efforts. Researchers request 100 takes of each species and 75 unidentified sea turtles annually for harassment during aerial (manned and unmanned) and vessel surveys for sighting, counting, and monitoring animals and methods that do not result in capture—remote scanning for PIT tags, remote suction cup tagging, observation, photography, photogrammetry, and tracking. Researchers request to capture (by hand, dip net, cast net, encirclement net, hoop net or seine) or obtain from other legal sources up to 74 green, 90 Kemp's ridley, 72 leatherback, one unidentified, and 115 loggerhead sea turtles annually for study; each animal may be recaptured two times a year for monitoring and removing gear. These animals may be observed via manned and unmanned aircraft prior to capture, and examined, measured, marked, biologically sampled, and have up to two transmitters attached prior to release. Animals may be temporarily observed via a remotely operated vehicle underwater after release. Sea turtle parts, tissues and carcasses from 500 animals annually may be received, imported or exported for study.
National Oceanic and Atmospheric Administration (NOAA), Office of Oceanic and Atmospheric Research (OAR), Technology Partnerships Office (TPO), Department of Commerce (DOC).
Notice of awards process change and announcement of upcoming Small Business Innovation Research grants opportunity for FY 2019.
The U.S. Department of Commerce, National Oceanic and Atmospheric Administration (NOAA) will be processing all Small Business Innovation Research Program (SBIR) awards as grants beginning in FY 2019. Our goals are:
1. To transition the SBIR award process from acquisition (Contracts) to financial assistance (Grants), in order to:
a. Expand the scope of SBIR research projects, allowing more creativity on the part of interested small businesses and generating interest beyond “veteran” SBIR participants; and
b. Streamlining the award and funds distribution processes, refining NOAA's internal operations and facilitating prompt and seamless payments for participating small businesses.
2. To provide Phase I awards as grants in FY 2019 and all new NOAA SBIR awards, Phase I and Phase II, in FY 2020 and beyond.
For over thirty years—since FY 1985—NOAA has awarded contracts to small, science and technology-focused companies under the Small Business Administration (SBA) administered Small Business Innovation Research Program. Historically, NOAA has carried out the goals and directives of the program using contract procurement processes. However, given the increased emphasis for broader participation, specially by socially and economically disadvantaged persons and women-owned small businesses, NOAA aims to meet these programmatic goals by broadening the potential research areas and engendering more innovative solutions that have potential for the commercial market.
The SBIR program is a highly competitive program that encourages domestic small businesses to engage in Federal Research/Research and Development with the potential for commercialization. Through a competitive awards-based program, SBIR enables small businesses to explore their technological potential and provides the incentive to profit from its commercialization. By including qualified small businesses in the nation's research and development arena, high-tech innovation is stimulated and the United States gains entrepreneurial spirit as it meets its specific research and development needs.
Beginning in FY19, however, all new Phase I awards will be made through a competitive grants process. During Phase I of the NOAA SBIR Program, small businesses are invited to submit innovative research proposals related to the research topic areas derived from the Department of Commerce Strategic Plan, 2018-2022,
Phase I gives small businesses the opportunity to establish technical merit, feasibility, and proof of concept for the proposed innovative solution. At NOAA SBIR, we anticipate awarding multiple Phase I grants, with a period of performance of six (6) months and a not-to-exceed value of $120,000.00 each. Any organizations or individuals receiving grants under Phase I is eligible to compete for a follow-up Phase II award.
The NOFO is a restricted eligibility solicitation which is limited to small businesses. For purposes of this upcoming NOFO announcement for NOAA SBIR, eligibility requirements can be found on
All potential grantees must be registered with the federal government System for Award Management (SAM) through the SAM.gov website (formerly the Central Contractor Registration database). No award can be made unless the vendor is registered in SAM.gov. For additional information and to register in SAM, please go to
Grant applicants must obtain a DUNS number and register in the SAM prior to submitting an application pursuant to 2 CFR 25.200(b). If the applicant does not provide documentation that they are registered in SAM and their DUNS number, the application will not be considered for funding. In addition, an entity applicant must maintain registration in SAM at all times during which it has an active Federal award or an application or plan under consideration by the Agency.
Additional information concerning DUNS and SAM can be obtained on the
Vince Garcia, SBIR Program Manager at
Consumer Product Safety Commission.
Notice.
It is the policy of the Commission to publish settlements which it provisionally accepts under the Consumer Product Safety Act in the
Any interested person may ask the Commission not to accept this agreement or otherwise comment on its contents by filing a written request with the Office of the Secretary by October 24, 2018.
Persons wishing to comment on this Settlement Agreement should send written comments to the Comment 19-C0001, Office of the Secretary, Consumer Product Safety Commission, 4330 East-West Highway, Room 820, Bethesda, Maryland 20814-4408.
Michele Melnick, Trial Attorney, Division of Compliance, Office of the General Counsel, Consumer Product Safety Commission, 4330 East-West Highway, Bethesda, Maryland 20814-4408; telephone (301) 504-7592.
The text of the Agreement and Order appears below.
1. In accordance with the Consumer Product Safety Act, 15 U.S.C. §§ 2051-2089 (“CPSA”) and 16 C.F.R. § 1118.20, Costco Wholesale Corporation (“Costco”) and the United States Consumer Product Safety Commission (“Commission”), through its staff, hereby enter into this Settlement Agreement (“Agreement”). The Agreement and the incorporated attached Order resolve staff's charges set forth below.
2. The Commission is an independent federal regulatory agency, established pursuant to, and responsible for, the enforcement of the CPSA, 15 U.S.C. §§ 2051-2089. By executing the Agreement, staff is acting on behalf of the Commission, pursuant to 16 C.F.R. § 1118.20(b). The Commission issues the Order under the provisions of the CPSA.
3. Costco Wholesale Corporation is a corporation, organized and existing under the laws of the state of Washington, with its principal place of business in Issaquah, Washington.
4. Between December 2013 and May 2015, Costco imported and sold approximately 367,000 EKO Sensible Eco Living Trash Cans (“Subject Products” or “Trash Cans”) at its warehouse stores throughout the United States.
5. The Trash Cans are 80 liter stainless steel, metal-cylinder Trash Cans with a black plastic protective collar in the opening on the back of the Trash Can.
6. The Trash Cans are a “consumer product,” “distribut[ed] in commerce,” as those terms are defined or used in sections 3(a)(5) and (8) of the CPSA, 15 U.S.C. § 2052(a)(5) and (8). Costco is a “manufacturer” and “retailer” of the Trash Cans, as such terms are defined in section 3(a)(11) and (13) of the CPSA, 15 U.S.C. § 2052(a)(11) and (13).
7. The Trash Cans contain a defect which could create a substantial product hazard and create an unreasonable risk of serious injury because the black plastic protective collar in the opening on the back of the Trash Can can become dislodged and expose a sharp edge, posing a laceration hazard to consumers.
8. Between December 2013 and May 2015, Costco received 92 complaints about the Trash Cans, including 60 complaints from consumers who received injuries, including some serious injuries as defined in 16 C.F.R. § 1115.6(c).
9. Despite having information that reasonably supported the conclusion that the Trash Cans contained a defect which could create a substantial product hazard or created an unreasonable risk of serious injury, Costco did not notify the Commission immediately of such defect or risk, as required by sections 15(b)(3) and (4) of the CPSA, 15 U.S.C. §§ 2064(b)(3) and (4).
10. The Trash Cans were recalled on July 17, 2015.
11. In failing to immediately inform the Commission about the defect or unreasonable risk associated with the Trash Cans, Costco knowingly violated section 19(a)(4) of the CPSA, 15 U.S.C. § 2068(a)(4), as the term “knowingly” is defined in section 20(d) of the CPSA, 15 U.S.C. § 2069(d).
12. Pursuant to Section 20 of the CPSA, 15 U.S.C. § 2069, Costco is subject to civil penalties for its knowing violation of section 19(a)(4) of the CPSA, 15 U.S.C. § 2068(a)(4).
13. Costco's Product Safety Committee reviewed reports associated with the Trash Cans that Costco received over time. The large majority of reports that Costco received about the Trash Cans were comments from Members who were returning the Trash Cans to Costco for a refund. Further, in December 2014, the Safety Committee found that the black plastic protective collar in the opening on the back of the Trash Can could not be removed easily from the exemplar sample it reviewed. Based on the available information, the Safety Committee did not believe that Costco had a duty to notify CPSC pursuant to CPSA Section 15(b) before May 2015. Costco does not believe that it knowingly violated the CPSA as that term is defined in the statute.
14. During May 2015, Costco identified additional reported incidents, and learned that the vendor had made a design change to prevent the black plastic protective collar in the opening on the back of the Trash Cans from becoming loose and exposing a sharp metal edge. The Safety Committee also learned that the exemplar sample it had previously reviewed included the modified protective collar. Based on all of the available information, Costco voluntarily notified CPSC in May 2015 pursuant to CPSA Section 15(b). At Costco's request, the vendor also notified CPSC pursuant to CPSA Section 15(b) and then recalled the Trash Cans in cooperation with CPSC.
15. Costco's settlement of this matter does not constitute an admission of staff's charges as set forth in paragraphs 4 through 12 above.
16. Under the CPSA, the Commission has jurisdiction over the matter involving the Trash Cans and over Costco.
17. The parties enter into the Agreement for settlement purposes only. The Agreement does not constitute an admission by Costco or a determination by the Commission that Costco violated the CPSA's reporting requirements.
18. In settlement of staff's charges, and to avoid the cost, distraction, delay, uncertainty, and inconvenience of protracted litigation, Costco shall pay a civil penalty in the amount of $3.85 million (US $3,850,000) within thirty (30) calendar days after receiving service of the Commission's final Order accepting the Agreement. All payments to be made under the Agreement shall constitute debts owing to the United States and shall be made by electronic wire transfer to the United States via:
19. All unpaid amounts, if any, due and owing under the Agreement shall constitute a debt due and immediately owing by Costco to the United States, and interest shall accrue and be paid by Costco at the federal legal rate of interest set forth at 28 U.S.C. § 1961(a) and (b) from the date of Default, until all amounts due have been paid in full (hereinafter “Default Payment Amount” and “Default Interest Balance”). Costco shall consent to a Consent Judgment in the amount of the Default Payment Amount and Default Interest Balance, and the United States, at its sole option, may collect the entire Default Payment Amount and Default Interest Balance, or exercise any other rights granted by law or in equity, including, but not limited to, referring such matters for private collection; and Costco agrees not to contest, and hereby waives and
20. After staff receives this Agreement executed on behalf of Costco, staff shall promptly submit the Agreement to the Commission for provisional acceptance. Promptly following provisional acceptance of the Agreement by the Commission, the Agreement shall be placed on the public record and published in the
21. This Agreement is conditioned upon, and subject to, the Commission's final acceptance, as set forth above, and it is subject to the provisions of 16 C.F.R. § 1118.20(h). Upon the later of: (i) the Commission's final acceptance of this Agreement and service of the accepted Agreement upon Costco, and (ii) the date of the issuance of the final Order, this Agreement shall be in full force and effect and shall be binding upon the parties.
22. Effective upon the later of: (i) the Commission's final acceptance of this Agreement and service of the accepted Agreement upon Costco, and (ii) the date of the issuance of the final Order, for good and valuable consideration, Costco hereby expressly and irrevocably waives and agrees not to assert any past, present or future rights to the following, in connection with the matter described in this Agreement: (i) an administrative or judicial hearing; (ii) judicial review or other challenge or contest of the Commission's actions; (iii) a determination by the Commission of whether Costco failed to comply with the CPSA and the underlying regulations; (iv) a statement of findings of fact and conclusions of law; and (v) any claims under the Equal Access to Justice Act.
23. Costco has and will maintain a compliance program designed to achieve compliance with the CPSA, and which shall contain the following elements: (i) written standards, policies and procedures, including those designed to ensure that information relevant to CPSA compliance is conveyed effectively to personnel responsible for compliance, whether or not an injury is referenced; (ii) a mechanism for confidential employee reporting of compliance-related questions or concerns to either a compliance officer or to another senior manager with authority to act as necessary; (iii) effective communication of company CPSA compliance-related policies and procedures to all appropriate employees through regular training programs or otherwise; (iv) Costco's senior management participation in a compliance committee responsible for the review and oversight of compliance matters related to the CPSA; (v) retention of CPSA compliance-related records for at least five (5) years, and availability of such records to staff upon request, provided that retention of cumulative copies of such records shall not be required; and (vi) procedures designed to ensure that: information required to be disclosed by Costco to the Commission is recorded, processed and reported in accordance with applicable law; that all reporting made to the Commission is timely, truthful, complete, accurate and in accordance with applicable law; and that prompt disclosure is made to Costco's management of any significant deficiencies or material weaknesses in the design or operation of such internal controls that are reasonably likely to affect adversely, in any material respect, Costco's ability to record, process and report to the Commission in accordance with applicable law.
24. Upon reasonable request of staff, Costco shall provide written documentation of its internal controls and procedures, including, but not limited to, the effective dates of the procedures and improvements thereto. Costco shall cooperate fully and truthfully with staff and shall make available relevant non-privileged information and materials, and personnel deemed necessary by staff to evaluate Costco's compliance with the terms of the Agreement.
25. The parties acknowledge and agree that the Commission may publicize the terms of the Agreement and Order.
26. Costco represents that the Agreement: (i) is entered into freely and voluntarily, without any degree of duress or compulsion whatsoever; (ii) has been duly authorized; and (iii) constitutes the valid and binding obligation of Costco, enforceable against Costco in accordance with its terms. Costco will not directly or indirectly receive any reimbursement, indemnification, insurance-related payment or other payment in connection with the civil penalty to be paid by Costco pursuant to the Agreement and Order.
27. The signatories represent that they are authorized to execute this Agreement.
28. The Agreement is governed by the law of the United States.
29. The Agreement and Order shall apply to, and be binding upon, Costco and each of its successors, transferees, and assigns, and a violation of the Agreement or Order may subject Costco, and each of its successors, transferees, and assigns, to appropriate legal action.
30. The Agreement and the Order constitute the complete agreement between the parties on the subject matter contained therein. The Agreement may be used in interpreting the Order. Understandings, agreements, representations, or interpretations apart from those contained in the Agreement and the Order may not be used to vary or contradict their terms. For purposes of construction, the Agreement shall be deemed to have been drafted by both of the parties and shall not, therefore, be construed against any party, for that reason, in any subsequent dispute.
31. The Agreement may not be waived, amended, modified or otherwise altered, except as in accordance with the provisions of 16 C.F.R. § 1118.20(h). The Agreement may be executed in counterparts.
32. If any provision of the Agreement or the Order is held to be illegal, invalid, or unenforceable under present or future laws effective during the terms of the Agreement and Order, such provision shall be fully severable. The balance of the Agreement and the Order shall remain in full force and effect, unless the Commission and Costco agree in writing that severing the provision materially affects the purpose of the Agreement and the Order.
Upon consideration of the Settlement Agreement entered into between Costco Wholesale Corporation (“Costco”) and the U.S. Consumer Product Safety Commission (“Commission”), and the Commission having jurisdiction over the subject matter and over the parties, and it appearing that the Settlement Agreement and the Order are in the public interest, it is:
Department of the Air Force, DoD.
30-Day information collection notice.
The Department of Defense has submitted to OMB for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by November 8, 2018.
Comments and recommendations on the proposed information collection should be emailed to Ms. Jasmeet Seehra, DoD Desk Officer, at
Fred Licari, 571-372-0493, or
You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:
•
Requests for copies of the information collection proposal should be sent to Mr. Licari at
Federal Energy Regulatory Commission.
Notice of information collection and request for comments.
In compliance with the requirements of the Paperwork Reduction Act of 1995, the Federal Energy Regulatory Commission (Commission or FERC) is soliciting public comment on the currently approved information collection, FERC-919 (Market Based Rates for Wholesale Sales of Electric Energy, Capacity and Ancillary Services by Public Utilities).
Comments on the collection of information are due December 10, 2018.
You may submit comments (identified by Docket No. IC18-20-000) by either of the following methods:
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Ellen Brown may be reached by email at
In 18 Code of Federal Regulations (CFR) Part 35, Subpart H,
Market power analyses must address both horizontal and vertical market power. To demonstrate lack of horizontal market power, the Commission requires two indicative market power screens: the uncommitted pivotal supplier screen (which is based on the annual peak demand of the relevant market) and the uncommitted market share screen applied on a seasonal basis. The Commission presumes sellers that fail either screen to have market power and such sellers may submit a delivered price test analysis or alternative evidence to rebut the presumption of horizontal market power. If a seller fails to rebut the presumption of horizontal market power, the Commission sets the just and reasonable rate at the default cost-based rate unless it approves different mitigation based on case specific circumstances. When submitting horizontal market power analyses, a seller must use the workable electronic spreadsheet provided in Appendix A of Subpart H and include all materials referenced.
To demonstrate a lack of vertical market power, if a public utility with market-based rates, or any of its affiliates, owns, operates or controls transmission facilities, that public utility must:
In addition to the market power analyses, a seller must submit an asset appendix with its initial application for market-based rate authorization or updated market power analysis, and all relevant change in status filings. The asset appendix must:
• List, among other things, all affiliates that have market-based rate authority
• List all generation assets owned (clearly identifying which affiliate owns which asset) or controlled (clearly identifying which affiliate controls which asset) by the corporate family by balancing authority area, and by geographic region, and provide the in-service date and nameplate and/or seasonal ratings by unit
• Must reflect all electric transmissions and natural gas interstate pipelines and/or gas storage facilities owned or controlled by the corporate family and the location of such facilities.
Sellers that own or control 500 megawatts or more of generation and/or that own, operate or control transmission facilities, are affiliated with any entity that owns, operates or controls transmission facilities in the same region as the seller's generation assets, or with a franchised public utility in the same region as the seller's generation assets are required to file updated market power analyses every three years. The updated market power analyses must demonstrate that a seller does not possess horizontal market power.
Concerning change of status filings, the Commission requires that sellers file notices of such changes no later than 30 days after the change in status occurs. The Commission also requires that each seller include an appendix identifying specified assets with each pertinent change in status notification filed.
Wholesale power marketers and wholesale power producers that are not affiliated with franchised public utilities or transmission owners, that do not own transmission, and that do not, together with all of their affiliates, own or control 500 MW or more of generation in a relevant region are not required to submit updated market power analyses. The Commission determines which sellers are in this category through information filed by the utility either when the seller files its initial application for market-based rate authorization or through a separate filing made to request such a determination.
The average hourly cost (salary plus benefits), weighing all of these skill sets evenly, is $94.18. The Commission rounds it down to $94/hour.
Federal Energy Regulatory Commission.
Comment request.
In compliance with the requirements of the Paperwork Reduction Act of 1995, the Federal Energy Regulatory Commission (Commission or FERC) is submitting its information collection FERC-725R (Mandatory Reliability Standards: BAL Reliability Standards) to the Office of Management and Budget (OMB) for review of the information collection requirements. Any interested person may file comments with the Commission as explained below.
The North American Electric Reliability Corporation submitted a petition (on August 17, 2018) requesting Commission approval of proposed Reliability Standard BAL-002-3 and the retirement of currently effective Reliability Standard BAL-002-2. On August 24, 2018, the Commission issued a Notice in the
Comments on the collection of information are due by December 10, 2018.
Comments should be sent to the Commission, in Docket No. RD18-7-000 by either of the following methods:
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Ellen Brown may be reached by email at
The Office of Electric Reliability approved the NERC proposal in a Delegated Order on September 25, 2018.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
The Commission strongly encourages electronic filing. Please file scoping comments using the Commission's eFiling system at
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k. This application is not ready for environmental analysis at this time.
The existing Granby Hydroelectric Project (Granby Project) consists of: (1) An 88-foot-wide reinforced concrete intake structure that includes two bays containing trashracks and fixed-roller, vertical-lift type gates; (2) a 17-foot-wide sluice opening adjacent to the intake structure; (3) a 112-foot-long, 88-foot-wide powerhouse containing two 5.04-megawatt (MW) turbine-generator units, with a total capacity of 10.08 MW; (4) a 3,000-foot-long, 100-foot-wide tailrace; (5) two 4.16-kilovolt, 120-foot-long underground generator leads; (6) a 60-foot-long by 48-foot-wide electrical switchyard; and (7) appurtenant facilities.
The Granby Project is operated in a modified run-of-river mode. The Granby Project and the Fulton Development at Erie's Oswego River Hydroelectric Project (FERC Project No. 2474) are located at opposite ends of the same dam and share a single bypassed reach and reservoir. The flow and impoundment elevation requirements in the Oswego Project license,
m. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's website at
n. You may also register online at
The Commission staff intends to prepare an Environmental Assessment (EA) for the Granby Hydroelectric Project in accordance with the National Environmental Policy Act. The EA will consider both site-specific and cumulative environmental impacts and reasonable alternatives to the proposed action.
Commission staff does not propose to conduct any on-site scoping meetings at this time. Instead, we are soliciting comments, recommendations, and information, on the Scoping Document 1 (SD1) issued on September 28, 2018.
Copies of SD1 outlining the subject areas to be addressed in the EA were distributed to the parties on the Commission's mailing list. Copies of SD1 may be viewed on the web at
On June 18, 2018, Texas Eastern Transmission, LP filed an application in Docket No. CP18-505-000 requesting a Certificate of Public Convenience and Necessity pursuant to Section 7(b) of the Natural Gas Act to abandon certain natural gas pipeline facilities. The
On June 29, 2018, the Federal Energy Regulatory Commission (Commission or FERC) issued its Notice of Application for the Project. Among other things, that notice alerted agencies issuing federal authorizations of the requirement to complete all necessary reviews and to reach a final decision on a request for a federal authorization within 90 days of the date of issuance of the Commission staff's Environmental Assessment (EA) for the Project. This instant notice identifies the FERC staff's planned schedule for the completion of the EA for the Project.
If a schedule change becomes necessary, additional notice will be provided so that the relevant agencies are kept informed of the Project's progress.
Texas Eastern proposes to abandon 62.3 miles of 30-inch-diameter pipeline, between the Grand Chenier Compressor Station in Cameron Parish, Louisiana to the end of the Cameron System in the shallow waters of the Gulf of Mexico in the West Cameron, East Cameron, and Vermillion offshore areas.
In order to receive notification of the issuance of the EA and to keep track of all formal issuances and submittals in specific dockets, the Commission offers a free service called eSubscription. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Additional information about the Project is available from the Commission's Office of External Affairs at (866) 208-FERC or on the FERC website (
The staff of the Federal Energy Regulatory Commission (FERC or Commission) has prepared a draft environmental impact statement (EIS) for the Port Arthur Liquefaction Project proposed by Port Arthur LNG, LLC and PALNG Common Facilities Company LLC (collectively referred to as PALNG), and the Texas Connector Project and Louisiana Connector Project proposed by Port Arthur Pipeline, LLC (PAPL) in the above-referenced dockets. PALNG requests authorization pursuant to section 3(a) of the Natural Gas Act (NGA) to construct and operate liquefied natural gas (LNG) export facilities in Jefferson County, Texas, and PAPL requests a Certificate of Public Convenience and Necessity pursuant to section 7(c) of the NGA to construct, operate, and maintain certain natural gas pipeline facilities in Jefferson and Orange Counties, Texas and Cameron, Calcasieu, Beauregard, Allen, Evangeline, and St. Landry Parishes, Louisiana. Together, these proposed facilities are referred to as “the Projects.”
The draft EIS assesses the potential environmental effects of the construction and operation of the Projects in accordance with the requirements of the National Environmental Policy Act (NEPA). The FERC staff concludes that approval of the proposed Projects, with the mitigation measures recommended in the EIS, would have some adverse environmental impact; however, these impacts would be avoided or reduced to less-than-significant levels.
The U.S. Army Corps of Engineers, U.S. Coast Guard, U.S. Department of Energy, U.S. Environmental Protection Agency, and the U.S. Department of Transportation's Pipeline and Hazardous Materials Safety Administration participated as cooperating agencies in the preparation of the EIS. Cooperating agencies have jurisdiction by law or special expertise with respect to resources potentially affected by the proposal and participate in the NEPA analysis. Although the cooperating agencies provided input to the conclusions and recommendations presented in the draft EIS, the agencies will present their own conclusions and recommendations in their respective Records of Decision for the Projects.
The draft EIS addresses the potential environmental effects of the construction and operation of the following proposed facilities:
• Two liquefaction trains, each with a capacity of 6.73 million tons per annum of LNG for export;
• Three LNG storage tanks, each with a capacity of 160,000 cubic meters;
• A refrigerant storage area and truck unloading facilities;
• A condensate storage area and truck loading facilities;
• A new marine slip with two LNG vessel berths, an LNG vessel and support vessel maneuvering area, and an LNG transfer system;
• A materials off-loading facility and Pioneer Dock;
• Approximately 34.2 miles of 42-inch-diameter pipeline to bring feed gas from interconnections with Kinder Morgan Louisiana Pipeline LLC, Natural Gas Pipeline Company of America, Houston Pipeline Company LP, Texas Eastern Transmission, LP (TETCO), Florida Gas Transmission Company, LLC, and Golden Triangle Storage, Inc./Centana Intrastate Pipeline, LLC to the terminal site;
• Approximately 130.8 miles of 42-inch-diameter pipeline to bring feed gas from interconnections with Centana Interstate Pipeline, LP, TETCO, Tennessee Gas Pipeline Company, Market Hub Partners—Egan, Pine Prairie Energy Center, Texas Gas Transmission, LLC, ANR Pipeline Company, and Columbia Gulf Transmission, LLC to the terminal site;
• Three compressor stations;
• Meter stations at the pipeline interconnects; and
• Other associated utilities, systems, and facilities (yards, access roads, etc.).
The Commission mailed a copy of the
Any person wishing to comment on the draft EIS may do so. Your comments should focus on draft EIS's disclosure and discussion of potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. To ensure consideration of your comments on the proposal in the final EIS, it is important that the Commission receive your comments on or before 5:00 p.m. Eastern Time on November 19, 2018.
For your convenience, there are four methods you can use to submit your comments to the Commission. The Commission will provide equal consideration to all comments received, whether filed in written form or provided verbally. The Commission encourages electronic filing of comments and has staff available to assist you at (866) 208-3676 or
(1) You can file your comments electronically using the eComment feature on the Commission's website (
(2) You can file your comments electronically by using the eFiling feature on the Commission's website (
(3) You can file a paper copy of your comments by mailing them to the following address. Be sure to reference the Projects docket numbers (CP17-20-000, CP17-21-000, and CP18-7-000) with your submission: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Room 1A, Washington, DC 20426.
(4) In lieu of sending written or electronic comments, the Commission invites you to attend one of the public comment sessions its staff will conduct in the Projects area to receive comments on the draft EIS, scheduled as follows:
The primary goal of these comment sessions is to have you identify the specific environmental issues and concerns with the draft EIS. Individual verbal comments will be taken on a one-on-one basis with a court reporter. This format is designed to receive the maximum amount of verbal comments in a convenient way during the timeframe allotted.
Each scoping session is scheduled from 4:00 p.m. to 7:00 p.m. local time. You may arrive at any time after 4:00 p.m. There will not be a formal presentation by Commission staff when the session opens. If you wish to speak, the Commission staff will hand out numbers in the order of your arrival. Comments will be taken until 7:00 p.m. However, if no additional numbers have been handed out and all individuals who wish to provide comments have had an opportunity to do so, staff may conclude the session at 6:30 p.m. Please see appendix 1 for additional information on the session format and conduct.
Your verbal comments will be recorded by the court reporter (with FERC staff or representative present) and become part of the public record for this proceeding. Transcripts will be publicly available on FERC's eLibrary system (see below for instructions on using eLibrary). If a significant number of people are interested in providing verbal comments in the one-on-one settings, a time limit of 5 minutes may be implemented for each commentor.
It is important to note that verbal comments hold the same weight as written or electronically submitted comments. Although there will not be a formal presentation, Commission staff will be available throughout the comment session to answer your questions about the environmental review process.
Any person seeking to become a party to the proceeding must file a motion to intervene pursuant to Rule 214 of the Commission's Rules of Practice and Procedures (18 CFR part 385.214). Motions to intervene are more fully described at
Additional information about the Projects is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website (
In addition, the Commission offers a free service called eSubscription that allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
The Commission strongly encourages electronic filing. Please file motions to intervene and protests using the Commission's eFiling system at
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k. This application has been accepted, but is not ready for environmental analysis at this time.
l. The existing Granby Hydroelectric Project (Granby Project) consists of: (1) An 88-foot-wide reinforced concrete intake structure that includes two bays containing trashracks and fixed-roller, vertical-lift type gates; (2) a 17-foot-wide sluice opening adjacent to the intake structure; (3) a 112-foot-long, 88-foot-wide powerhouse containing two 5.04-megawatt (MW) turbine-generator units, with a total capacity of 10.08 MW; (4) a 3,000-foot-long, 100-foot-wide tailrace; (5) two 4.16-kilovolt, 120-foot-long underground generator leads; (6) a 60-foot-long by 48-foot-wide electrical switchyard; and (7) appurtenant facilities.
The Granby Project is operated in a modified run-of-river mode. The Granby Project and the Fulton Development at Erie's Oswego River Hydroelectric Project (FERC Project No. 2474) are located at opposite ends of the same dam and share a single bypassed reach and reservoir. The flow and impoundment elevation requirements in the Oswego Project license,
m. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's website at
n. You may also register online at
o. Anyone may submit a protest or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, 385.211, and 385.214. In determining the appropriate action to take, the Commission will consider all protests filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any protests or motions to intervene must be received on or before the specified deadline date for the particular application.
All filings must (1) bear in all capital letters the title “PROTEST” or “MOTION TO INTERVENE;” (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person protesting or intervening; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. Agencies may obtain copies of the application directly from the applicant. A copy of any protest or motion to intervene must be served upon each representative of the applicant specified in the particular application.
p.
Final amendments to the application must be filed with the Commission no later than 30 days from the issuance
Take notice that the following hydroelectric application has been filed with the Federal Energy Regulatory Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j. Deadline for filing comments, motions to intervene, and protests is 30 days from the issuance of this notice by the Commission. The Commission strongly encourages electronic filing. Please file motions to intervene, protests, and comments using the Commission's eFiling system at
k.
l.
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
n.
o.
On September 26, 2018, the Wallowa Resources Community Solutions Inc., filed a notice of intent to construct a qualifying conduit hydropower facility, pursuant to section 30 of the Federal Power Act (FPA), as amended by section 4 of the Hydropower Regulatory Efficiency Act of 2013 (HREA). The proposed Arrowhead Pipeline Hydro Station Project would have an installed capacity of 61 kilowatts (kW), and would be located on the existing Arrowhead Irrigation Pipeline. The project would be located near the Township of Joseph in Wallowa County, Oregon.
A qualifying conduit hydropower facility is one that is determined or deemed to meet all of the criteria shown in the table below.
Deadline for filing motions to intervene is 30 days from the issuance date of this notice.
Anyone may submit comments or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210 and 385.214. Any motions to intervene must be received on or before the specified deadline date for the particular proceeding.
The Commission strongly encourages electronic filing. Please file motions to intervene and comments using the Commission's eFiling system at
Thursday, October 11, 2018 at 10:00 a.m.
1050 First Street NE, Washington, DC (12th Floor)
This meeting will be open to the public.
Judith Ingram, Press Officer, Telephone: (202) 694-1220.
Individuals who plan to attend and require special assistance, such as sign language interpretation or other reasonable accommodations, should contact Dayna C. Brown, Secretary and
The Depository Library Council (DLC) to the Acting Deputy Director, Government Publishing Office (GPO) will meet on Monday, October 22, 2018 through Wednesday, October 24, 2018 in Arlington, Virginia. The sessions will take place from 8:00 a.m. to 5:30 p.m., Monday and Tuesday and 8:00 a.m. to 11:30 p.m., on Wednesday. The meeting will be held at the Doubletree Hotel, 300 Army Navy Drive, Arlington, Virginia. The purpose of this meeting is to discuss the Federal Depository Library Program. All sessions are open to the public. The United States Government Publishing Office is in compliance with the requirements of Title III of the Americans with Disabilities Act and meets all Fire Safety Act regulations.
Food and Drug Administration, HHS.
Notice; establishment of a public docket; request for comments.
The Food and Drug Administration (FDA) announces a forthcoming public advisory committee meeting of the Anesthetic and Analgesic Drug Products Advisory Committee. The general function of the committee is to provide advice and recommendations to FDA on regulatory issues. The meeting will be open to the public. FDA is establishing a docket for public comment on this document.
The meeting will be held on November 15, 2018, from 8 a.m. to 5 p.m.
FDA White Oak Campus, 10903 New Hampshire Ave., Bldg. 31 Conference Center, the Great Room (Rm. 1503), Silver Spring, MD 20993-0002. Answers to commonly asked questions including information regarding special accommodations due to a disability, visitor parking, and transportation may be accessed at:
FDA is establishing a docket for public comment on this meeting. The docket number is FDA-2018-N-3479. The docket will close on November 14, 2018. Submit either electronic or written comments on this public meeting by November 14, 2018. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before November 14, 2018. The
Comments received on or before October 31, 2018, will be provided to the committee. Comments received after that date will be taken into consideration by FDA.
You may submit comments as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” FDA will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Moon Hee V. Choi, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 31, Rm. 2417, Silver Spring, MD 20993-0002, 301-796-9001, Fax: 301-847-8533, email:
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its website prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's website after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that FDA is not responsible for providing access to electrical outlets.
For press inquiries, please contact the Office of Media Affairs at
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with disabilities. If you require accommodations due to a disability, please contact Moon Hee V. Choi (see
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our website at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Food and Drug Administration, HHS.
Notice, establishment of a public docket; request for comments.
The Food and Drug Administration (FDA) announces a forthcoming public advisory committee meeting of the Anesthetic and Analgesic Drug Products Advisory Committee and the Drug Safety and Risk Management Advisory Committee. The general function of the committees is to provide advice and recommendations to FDA on regulatory issues. The meeting will be open to the public. FDA is establishing a docket for public comment on this document.
The meeting will be held on November 14, 2018, from 8 a.m. to 5 p.m.
FDA White Oak Campus, 10903 New Hampshire Ave., Bldg. 31 Conference Center, the Great Room (Rm. 1503), Silver Spring, MD 20993-0002. Answers to commonly asked questions about FDA Advisory Committee meetings may be accessed at:
FDA is establishing a docket for public comment on this meeting. The docket number is FDA-2018-N-3467. The docket will close on November 13, 2018. Submit either electronic or written comments on this public meeting by November 13, 2018. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before November 13, 2018. The
Comments received on or before October 30, 2018, will be provided to the committees. Comments received after that date will be taken into consideration by FDA.
You may submit comments as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” FDA will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Moon Hee V. Choi, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 31, Rm. 2417, Silver Spring, MD 20993-0002, 301-796-9001, Fax: 301-847-8533, email:
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its website prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's website after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that FDA is not responsible for providing access to electrical outlets.
For press inquiries, please contact the Office of Media Affairs at
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with disabilities. If you require accommodations due to a disability, please contact Moon Hee V. Choi (see
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our website at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Health Resources and Services Administration (HRSA), Department of Health and Human Services (HHS).
Notice.
HHS is hereby giving notice that the Council on Graduate Medical Education (COGME) has been rechartered. The date the renewed charter took effect is September 30, 2018.
Kennita R. Carter, MD, Designated Federal Official, COGME at 301-945-3505 or email at
COGME provides advice and recommendations to the Secretary of the Department of Health and Human Services (Secretary), the Senate Committee on Health, Education, Labor and Pensions, and the U.S. House of Representatives Committee on Energy and Commerce on matters concerning the supply and distribution of physicians in the United States, physician workforce trends, training issues, financing policies and other matters of significance concerning graduate medical education, as specified by section 762 of the Public Health Service (PHS) Act, as amended. Additionally, COGME encourages entities providing graduate medical education to conduct activities to voluntarily achieve the recommendations of the Council; develops, publishes, and implements performance measures and longitudinal evaluations; and recommends appropriation levels for certain PHS Act Title VII programs. The charter renewal for COGME was approved on September 30, 2018, which will also stand as the filing date. Renewal of the COGME charter gives authorization for the Council to operate until September 30, 2020.
A copy of the COGME charter is available on the COGME website at:
Title 5, U.S.C. Section 4314(c)(4) of the Civil Service Reform Act of 1978, Public Law 95-454, requires that the appointment of Performance Review Board Members be published in the
The following persons may be named to serve on the Performance Review Boards or Panels, which oversee the evaluation of performance appraisals of Senior Executive Service members of the Department of Health and Human Services.
Office of Disease Prevention and Health Promotion, Office of the Assistant Secretary for Health, Office of the Secretary, Department of Health and Human Services.
Notice.
The National Clinical Care Commission (the Commission) will conduct its inaugural meeting on October 31, 2018. The Commission will evaluate and make recommendations to the U.S. Department of Health and Human Services (HHS) Secretary and Congress regarding improvements to the coordination and leveraging of federal programs related to awareness and clinical care for complex metabolic or autoimmune diseases that result from issues related to insulin that represent a significant disease burden in the United States, which may include complications due to such diseases.
The meeting will take place on October 31, 2018, from 8:00 a.m. to approximately 5:00 p.m. Eastern Time (ET).
National Institutes of Health, Building 35, John Edward Porter Neuroscience Research Center [PNRC II], 35 Convent Drive, Bethesda, MD 20892. The meeting will also be held online via webcast. To register to attend the meeting, please visit the registration website at
Clydette Powell, Designated Federal Official, National Clinical Care Commission, U.S. Department of Health and Human Services, Office of the Assistant Secretary for Health, Office of Disease Prevention and Health Promotion, 1101 Wootton Parkway, Suite LL-100, Rockville, MD 20852. Email:
The National Clinical Care Commission Act (Pub. L. 115-80) requires the HHS Secretary to establish the National Clinical Care Commission. The Commission will consist of representatives of specific federal agencies and non-federal individuals and entities who represent diverse disciplines and views. The Commission will evaluate and make recommendations to the HHS Secretary and Congress regarding improvements to the coordination and leveraging of federal programs related to awareness and clinical care for complex metabolic or autoimmune diseases that result from issues related to insulin that represent a significant disease burden in the United States, which may include complications due to such diseases.
This inaugural meeting of the Commission will consist of swearing-in non-federal Commission members, an overview of various federal interagency efforts surrounding diabetes programs, the establishment of the Commission subcommittee structure, and setting future agenda topics. The names and biographies of the Commission members and final meeting agenda will be available prior to the meeting at
To attend the Commission meeting, individuals must pre-register at the registration website at
The National Clinical Care Commission is required under the National Clinical Care Commission Act (Pub. L. 115-80). The Commission is governed by provisions of the Federal Advisory Committee Act (FACA), Public Law 92-463, as amended (5 U.S.C., App.) which sets forth standards for the formation and use of federal advisory committees.
National Institutes of Health, HHS.
Notice.
The invention listed below is owned by an agency of the U.S. Government and is available for licensing to achieve expeditious commercialization of results of federally-funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage for companies and may also be available for licensing.
Peter Soukas, J.D., 301-594-8730;
Technology description follows.
The NIH/NIAID has developed recombinant human parainfluenza virus type 1 (rHPIV1) bearing a stabilized attenuating mutation in the P/C gene to express the membrane-anchored form of EBOV glycoprotein GP as an intranasal (IN) EBOV vaccine. GP was codon optimized and expressed either as a full-length protein or a chimeric form in which its transmembrane and cytoplasmic tail (TMCT) domains were substituted with those of the HPIV1 F protein in an effort to increase packaging into the vector particle and enhance immunogenicity. GP was inserted either preceding the N gene (pre-N) or between the N and P genes (N-P) of rHPIV1. All vectors replicated to high titers in vitro and had stable GP expression. Viruses were attenuated and replicated at low titers in the respiratory tract of African green monkeys. Two doses of candidates expressing GP from the pre-N position elicited higher GP neutralizing serum antibody titers than the N-P viruses, and unmodified GP induced higher levels than its TMCT counterpart. Unmodified EBOV GP was packaged into the HPIV1 particle, and the TMCT modification did not increase packaging or immunogenicity. Overall, the candidate expressing full-length GP from the Pre-N position was the most immunogenic.
This invention relates to an attenuated and immunogenic IN vaccine candidate expected to be well tolerated in humans and is available for clinical evaluation.
This technology is available for licensing for commercial development in accordance with 35 U.S.C. 209 and 37 CFR part 404, as well as for further development and evaluation under a research collaboration.
National Institutes of Health, HHS.
Notice.
The invention listed below is owned by an agency of the U.S. Government and is available for licensing to achieve expeditious commercialization of results of federally-funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage for companies and may also be available for licensing.
Peter Soukas, J.D., 301-594-8730;
Technology description follows.
This technology is available for licensing for commercial development in accordance with 35 U.S.C. 209 and 37 CFR part 404, as well as for further development and evaluation under a research collaboration.
National Institutes of Health, HHS.
Notice.
The invention listed below is owned by an agency of the U.S. Government and is available for licensing to achieve expeditious commercialization of results of federally-funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage for companies and may also be available for licensing.
Barry Buchbinder, Ph.D., 240-627-3678;
Technology description follows.
HIV-1 is an enveloped virus, which hides from humoral recognition behind a wide array of protective mechanisms. During infection, the major envelope protein of HIV-1 is cleaved by host cell proteases into two smaller versions (gp120 and gp41). Together gp120 and gp41 make up the HIV-1 Env spike, which is a target for neutralizing antibodies. It is believed that immunization with an effective immunogen based on the HIV-1 Env glycoprotein can elicit a neutralizing response, which may be protective against HIV-1 infection.
Researchers at the Vaccine Research Center (VRC) of the National Institute of Allergy and Infectious Diseases used knowledge from the crystal structure of an HIV-1 neutralizing antibody, VRC34.01, in complex with its epitope on the HIV-1 Env trimer, to develop novel immunogens. HIV-1 uses a fusion peptide, located at the N-terminus of the gp41 subunit, to fuse with a target cell to infect the cell. The crystal structure revealed the epitope recognized by VRC34.01 to be composed primarily of the exposed 8 residues of the fusion peptide at the N-terminus of the gp41 subunit. Researchers designed fusion peptide immunogens that were comprised of the exposed residues of the fusion peptide coupled to highly immunogenic carrier proteins to focus the immune response to this conserved site of vulnerability. The fusion peptide can be displayed on scaffold proteins and—when coupled to HIV-1 Env trimer boosts—has the potential to elicit antibodies capable of neutralizing diverse HIV-1 strains in mice, guinea pigs and rhesus macaques, and might therefore serve as the basis for an effective HIV vaccine.
This technology is available for licensing for commercial development in accordance with 35 U.S.C. 209 and 37 CFR part 404.
National Institutes of Health, HHS.
Notice.
The invention listed below is owned by an agency of the U.S. Government and is available for licensing to achieve expeditious commercialization of results of federally-funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage for companies and may also be available for licensing.
Peter Soukas, J.D., 301-594-8730;
Technology description follows.
The present invention provides a reverse genetics system encoding strain B1 of RSV subgroup B containing a codon-optimized G ORF and encoding eGFP. This provides a tool for RSV subgroup B serology assays, for tracking RSV infection, and a starting point for making attenuated subgroup B strains for vaccine purposes.
This technology is available for licensing for commercial development in accordance with 35 U.S.C. 209 and 37 CFR part 404, as well as for further development and evaluation under a research collaboration.
National Institutes of Health, HHS.
Notice.
In compliance with the Paperwork Reduction Act of 1995, the National Institutes of Health (NIH) has submitted to the Office of Management and Budget (OMB) a request for review and approval of the information collection listed below.
Comments regarding this information collection are best assured of having their full effect if received within 30-days of the date of this publication.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to the: Office of Management and Budget, Office of Regulatory Affairs,
To request more information on the proposed project or to obtain a copy of
This proposed information collection was previously published in the
In compliance with Section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the National Institutes of Health (NIH) has submitted to the Office of Management and Budget (OMB) a request for review and approval of the information collection listed below.
OMB approval is requested for 3 years. There are no costs to respondents other than their time. The total estimated annualized burden hours are 750.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of an emergency declaration for the State of Florida (FEMA-3395-EM), dated October 8, 2017, and related determinations.
The change occurred on August 29, 2018.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW, Washington, DC 20472, (202) 646-2833.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, Thomas J. McCool, of FEMA is appointed to act as the Federal Coordinating Officer for this emergency.
This action terminates the appointment of Allan Jarvis as Federal Coordinating Officer for this emergency.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Florida (FEMA-4337-DR), dated September 10, 2017, and related determinations.
The change occurred on August 29, 2018.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW, Washington, DC 20472, (202) 646-2833.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, Thomas J. McCool, of FEMA is appointed to act as the Federal Coordinating Officer for this disaster.
This action terminates the appointment of Allan Jarvis as Federal Coordinating Officer for this disaster.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of South Carolina (FEMA-4394-DR), dated September 16, 2018, and related determinations.
This amendment was issued September 25, 2018.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW, Washington, DC 20472, (202) 646-2833.
The notice of a major disaster declaration for the State of South Carolina is hereby amended to include the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of September 16, 2018.
Chesterfield County for Individual Assistance.
Chesterfield, Darlington, Florence, and Sumter Counties for emergency protective measures (Category B), including direct Federal assistance, under the Public Assistance program.
Federal Emergency Management Agency, DHS.
Notice.
New or modified Base (1-percent annual chance) Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, and/or regulatory floodways (hereinafter referred to as flood hazard determinations) as shown on the indicated Letter of Map Revision (LOMR) for each of the communities listed in the table below are finalized. Each LOMR revises the Flood Insurance Rate Maps (FIRMs), and in some cases the Flood Insurance Study (FIS) reports, currently in effect for the listed communities. The flood hazard determinations modified by each LOMR will be used to calculate flood insurance premium rates for new buildings and their contents.
Each LOMR was finalized as in the table below.
Each LOMR is available for inspection at both the respective Community Map Repository address listed in the table below and online through the FEMA Map Service Center at
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
The Federal Emergency Management Agency (FEMA) makes the final flood hazard determinations as shown in the LOMRs for each community listed in the table below. Notice of these modified flood hazard determinations has been published in newspapers of local circulation and 90 days have elapsed since that publication. The Deputy Associate Administrator for Insurance and Mitigation has resolved any appeals resulting from this notification.
The modified flood hazard determinations are made pursuant to
For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.
The new or modified flood hazard information is the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to remain qualified for participation in the National Flood Insurance Program (NFIP).
This new or modified flood hazard information, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities.
This new or modified flood hazard determinations are used to meet the floodplain management requirements of the NFIP and are used to calculate the appropriate flood insurance premium rates for new buildings, and for the contents in those buildings. The changes in flood hazard determinations are in accordance with 44 CFR 65.4.
Interested lessees and owners of real property are encouraged to review the final flood hazard information available at the address cited below for each community or online through the FEMA Map Service Center at
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of an emergency declaration for the State of Florida (FEMA-3385-EM), dated September 5, 2017, and related determinations.
The change occurred on August 29, 2018.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW, Washington, DC 20472, (202) 646-2833.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, Thomas J. McCool, of FEMA is appointed to act as the Federal Coordinating Officer for this emergency.
This action terminates the appointment of Allan Jarvis as Federal Coordinating Officer for this emergency.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
U.S. Citizenship and Immigration Services (USCIS), Department of Homeland Security (DHS).
Notice of a Re-established Matching Program.
As required by the Privacy Act of 1974, as amended, DHS/USCIS is issuing public notice of the re-establishment of a computer matching program between DHS, USCIS and the California Department of Social Services (CA-DSS), titled “Verification Division DHS-USCIS/CA-DSS.”
This re-established matching program will commence not sooner than 30 days after publication of this notice, provided no comments are received that warrant a change to this notice. This matching program will be conducted for an initial term of 18 months (from approximately October 2018 to April 2020) and within 3 months of expiration may be renewed for one additional year if the parties make no substantive change to the matching program and certify that the program has been conducted in compliance with the matching agreement.
You may submit comments, identified by docket number DHS-2018-0030, at:
•
•
DHS Privacy Office Chief Privacy Officer Sam Kaplan at 202-343-1717.
The DHS-USCIS provides this notice in accordance with the Privacy Act of 1974 (5 U.S.C. 552a), as amended by the Computer Matching and Privacy Protection Act of 1988 (Pub. L. 100-503) and the Computer Matching and Privacy Protection Amendments of 1990 (Pub. L. 101-508) (Privacy Act); Office of Management and Budget (OMB) Final Guidance Interpreting the Provisions of Public Law 100-503, the Computer Matching and Privacy Protection Act of 1988, 54 FR 25818 (June 19, 1989); and OMB Circular A-108, 81 FR 94424 (December 23, 2016).
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Public Law 104-208, 110 Stat. 3009 (1996) grants federal, state, or local government agencies seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency with the authority to request such information from DHS-USCIS for any purpose authorized by law.
CA-DSS will access information contained in the VIS as part of the SAVE Program for the purpose of confirming the immigration status of alien applicants for, or recipients of, benefits it administers to discharge its obligation to conduct such verifications pursuant to Section 1137 of the Social Security Act (42 U.S.C. 1320b-7(a)
CA-DSS will provide the following to DHS-USCIS: CA-DSS records pertaining to alien and naturalized/derived United States citizen applicants for, or recipients of, entitlement benefit programs administered by the State.
DHS-USCIS will match the following records with CA-DSS records:
Office of the Secretary, Department of Homeland Security.
Notice.
This notice announces the appointment of the members of the Senior Executive Service (SES) Performance Review Boards (PRBs) for the Department of Homeland Security (DHS). The purpose of the PRBs is to view and make recommendations concerning proposed performance appraisals, ratings, bonuses, pay adjustments, and other appropriate personnel actions for incumbents of SES, Senior Level and Senior Professional positions of the Department.
This Notice is current as of October 9, 2018.
Julie Hart, Office of the Chief Human Capital Officer,
Each Federal agency is required to establish one or more performance review boards to make recommendations, as necessary, in regard to the performance of senior executives within the agency. 5 U.S.C. 4314(c). This notice announces the appointment of the members of the PRB for DHS. The purpose of the PRB is to review and make recommendations concerning proposed performance appraisals, ratings, bonuses, pay adjustments, and other appropriate personnel actions for incumbents of SES positions within DHS.
The Board shall consist of at least three members. In the case of an appraisal of a career appointee, more than half of the members shall consist of career appointees. Composition of the specific PRBs will be determined on an ad hoc basis from among the individuals listed below:
Office of Cybersecurity and Communications (CS&C), National Protection and Programs Directorate (NPPD), Department of Homeland Security (DHS).
60-Day notice and request for comments; extension.
DHS NPPD CS&C will submit the following information collection request (ICR) to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted until December 10, 2018.
You may submit comments, identified by docket number DHS-2018-0056, by one of the following methods:
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Comments submitted in response to this notice may be made available to the public through relevant websites. For this reason, please do not include in your comments information of a confidential nature, such as sensitive personal information or proprietary information. If you send an email comment, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the internet. Please note that responses to this public comment request containing any routine notice about the confidentiality of the communication will be treated as public comments that may be made available to the public notwithstanding the inclusion of the routine notice.
For specific questions related to collection activities, please contact Kendall Carpenter at 703.705.6376 or at
The Office of Emergency Communications (OEC), formed under Title XVIII of the Homeland Security Act of 2002, 6 U.S.C. 571
OEC uses the Technical Assistance Request Form (DHS Form 9043) to identify the number and type of technical assistance services needed by the State, territory, local, and tribal agencies. This information enables OEC to plan and align resources accordingly. OEC considers each request based on the priority indicated by the State, as well as the anticipated impact of the service offering on the implementation of the Statewide Communication Interoperability Plan (SCIP) and the applicability to National Emergency Communications Plan (NECP). The evaluation form (DHS Form 9042) is completed by stakeholders at the completion of OEC technical assistance services and enables OEC to assess the quality of technical assistance services provided and, in a holistic fashion, measure the value of the services. The information collected through these evaluations is used by OEC for continued improvement planning.
Approximately 100 percent of request and evaluation forms are submitted electronically by logging into the portal at
The changes to the collection since the previous OMB approval include: Updating the web address, decreasing the estimated number of responses, decreasing the burden time, and increasing the cost estimates.
This is a renewal of an information collection.
OMB is particularly interested in comments that:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Office of the Assistant Secretary for Public and Indian Housing, PIH, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW, Room 4176, Washington, DC 20410-5000; telephone 202-402-3400 (this is not a toll-free number) or email at
Arlette Mussington, Office of Policy, Programs and Legislative Initiatives, PIH, Department of Housing and Urban Development, 451 7th Street SW, Room 3178, Washington, DC 20410; telephone 202-402-4109, (this is not a toll-free number). Persons with hearing or speech impairments may access this number via TTY by calling the Federal Information Relay Service at (800) 877-8339. Copies of available documents submitted to OMB may be obtained from Ms. Mussington.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
The PHA Plans informs HUD, residents, and the public of the PHA's mission for serving the needs of low, very low-income, and extremely low-income families and its strategy for addressing those needs. This information helps provide accountability to the local community for how PHAs spend their funding and implement their policies. Also, PHA plans allow HUD to monitor the performance of programs and the performance of public housing agencies that administer them.
HUD's most recent action in July of 2016 was to revise the collection in response to public comments urging HUD to return to earlier multiple versions of the PHA Plan templates by specific PHA type (
With this current proposed information collection, HUD intends to add a new template titled HUD-50075-MTW, and further modify the 5-Year and Annual PHA Plan Templates as well as the accompanying certifications in the following manner:
(1) Revise the instructions provided on the Assessment of Fair Housing (AFH) ensuring that program participants continue to conduct the Analysis of Impediments (AI) to fair housing until they are required to submit an AFH.
(2) Create a new section on all certifications to give program participants the option to add an explanation when they cannot certify to being fully compliant with the stated regulations.
(3) Specify on related certifications that the signed acknowledgement of the `authorizing official' must be of the PHA Executive Director (ED) and Board Chairperson.
(4) Add the Moving to Work (MTW) Supplement template to the collections which will serve as the reporting mechanism to the Department for the new 100 MTW agencies that will be designated pursuant to the MTW Expansion authorized by the Appropriations Act of 2016 (
Finally, the burden hours of the collection will increase by 600 hours due to an estimated 6.0 hours needed per MTW Supplement applicable to 100 new MTW agencies. However, it should be noted that, due to the de-coupling of Capital Fund Program activities from PHA Plan submissions in 2016, (HUD-50075.1 and HUD-50075.2 Capital Fund Annual Statement/Performance and Evaluation Report and 5-Year Action Plan forms), the associated burden hours (10,070) were removed from the approval for the PHA Plan under OMB no. 2577-0226. Therefore, the added burden of the MTW Supplement is relatively minor.
Revisions are made to this collection to reflect adjustments in calculations based on the total number of current, active public housing agencies (PHAs) to date. The number of active public housing agencies has changed from 3,819 to 3,780 since the last approved information collection. The number of PHAs can fluctuate due to many factors, including but not limited to performance scoring, the merging of two or more PHAs or the termination of the public housing and/or voucher programs due to the Rental Assistance Demonstration (RAD).
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Office of the Chief Information Officer.
Notice of proposed information collection.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for emergency review and approval, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
This is a request for approval to collect information from eligible applicants and recipients of Indian Housing Block Grants awarded on a competitive basis, as authorized under the Native American Housing and Self-Determination Act of 1996 (25 U.S.C. 4101
Interested persons are invited to submit comments regarding this proposal. Comments must be received within 21 days from the date of this Notice. Comments should refer to the proposal by name and should be sent to: Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW, Room 4176, Washington, DC 20410-5000; telephone 202-402-3400 (this is not a toll-free number) or email at
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202-395-5806. Email:
Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street, SW, Washington, DC 20410; email Colette Pollard at
This Notice informs the public that the U.S. Department of Housing and Urban Development (HUD) has submitted to OMB, for emergency processing, a proposed information collection requirement as described below.
This Notice is soliciting comments from members of the public and affecting agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (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 collection techniques or other forms of information technology,
In Fiscal Year 2018, Congress enacted H.R. 1625—Consolidated Appropriations Act, 2018 (Pub. L. 115-141) (Effective: 3/23/18) that appropriated $99,000,000 for IHBG Competitive funding awards under the Native American Housing Assistance and Self Determination Act (NAHASDA) of 1996 (25 U.S.C. 4101
The Department believes that the funding for IHBG Competitive meets the emergency processing criteria of 5 CFR 1320.13. The appropriations language meets the “unanticipated event” criteria of 5 CFR 1320.13 because this additional funding creates an entirely new competitive grant program to supplement the traditional formula-based block grant program of NAHASDA. Furthermore, the Department believes that the information collection associated with this competitive grant warrants emergency processing because following the regular PRA schedule would impede both the intent of this additional appropriation and HUD's goal to award funding to Native American communities in an expedited manner. The “Consolidated Appropriations Act of 2018” also directs the Department to give priority to projects that will “
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35 as amended.
Department of the Interior.
Notice of availability; request for comments, public meeting and webinar.
In accordance with the Oil Pollution Act (OPA), the National Environmental Policy Act (NEPA), the
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Alternatively, you may request a CD of the Draft RP1/EA (see
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Nanciann Regalado, via email at [email protected] or via phone at 404-679-4161.
In accordance with the Oil Pollution Act (OPA; 33 U.S.C. 2701
On or about April 20, 2010, the
The Trustees conducted the NRDA for the
The
• U.S. Department of the Interior (DOI), as represented by the National Park Service, U.S. Fish and Wildlife Service, and Bureau of Land Management;
• National Oceanic and Atmospheric Administration (NOAA), on behalf of the U.S. Department of Commerce;
• U.S. Department of Agriculture (USDA);
• U.S. Environmental Protection Agency (EPA);
• State of Louisiana Coastal Protection and Restoration Authority, Oil Spill Coordinator's Office, Department of Environmental Quality, Department of Wildlife and Fisheries, and Department of Natural Resources;
• State of Mississippi Department of Environmental Quality;
• State of Alabama Department of Conservation and Natural Resources and Geological Survey of Alabama;
• State of Florida Department of Environmental Protection (FDEP) and Fish and Wildlife Conservation Commission (FWC); and
• State of Texas: Texas Parks and Wildlife Department, Texas General Land Office, and Texas Commission on Environmental Quality.
The Trustees reached and finalized a settlement of their natural resource damage claims with BP in an April 4, 2016, Consent Decree approved by the United States District Court for the Eastern District of Louisiana. Pursuant to that Consent Decree, restoration projects in the Florida Restoration Area are now selected and implemented by the FL TIG. The FL TIG is composed of two State Trustees and four Federal Trustees: FDEP, FWC, DOI, NOAA, EPA, and USDA.
On November 4, 2016, the FL TIG posted a public notice at
On September 29, 2017, the FL TIG announced that it had initiated drafting of its first post-settlement draft restoration plan, and that the first plan would include restoration projects for Habitat Projects on Federally Managed Lands; Nutrient Reduction; Water Quality; and Provide and Enhance Recreational Opportunities.
The Draft RP1/EA is being released in accordance with OPA, NRDA regulations, NEPA, the Consent Decree, and the Final PDARP/PEIS. The 24 preferred restoration alternatives include Habitat Projects on Federally Managed Lands at Gulf Islands National Seashore (FL) and St. Vincent National Wildlife Refuge; Nutrient Reduction projects in Pensacola Bay, Perdido River and Lower Suwannee River Watersheds; projects that restore Water Quality in Pensacola Bay Watershed, Carpenter Creek, Pensacola Beach, Rattlesnake Bluff Road, Alligator Lake, St. Andrew Bay, City of Port St. Joe, City of Carrabelle, Lower Suwanee National
In compliance with NEPA, an environmental assessment is integrated into the plan. The FL TIG also analyzes eight additional alternatives, as well as no action. One or more alternatives may be selected for implementation by the FL TIG in the Final RP1/EA or in future restoration plans.
The proposed alternatives are intended to continue the process of using DWH restoration funding to restore natural resources injured or lost as a result of the
As described above, one public open house/meeting and one public webinar are scheduled to facilitate the public review and comment process on the Draft RP1/EA. After the public comment period ends, the FL TIG will consider and address the comments received before issuing the Final RP1/EA.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
The documents comprising the Administrative Record for the Draft RP1/EA can be viewed electronically at
The authority for this action is the Oil Pollution Act of 1990 (33 U.S.C. 2701
Department of the Interior.
Notice of availability; request for comments.
In accordance with the Oil Pollution Act, the National Environmental Policy Act,
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Alternatively, you may request a CD of the Draft RP1/EA (see
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For more information, see Public Availability of Comments under
Nanciann Regalado, via email at
On or about April 20, 2010, the mobile offshore drilling unit
The Trustees conducted the natural resource damage assessment (NRDA) for the
The
• U.S. Department of the Interior (DOI), as represented by the National Park Service, U.S. Fish and Wildlife Service, and Bureau of Land Management;
• National Oceanic and Atmospheric Administration (NOAA), on behalf of the U.S. Department of Commerce;
• U.S. Department of Agriculture (USDA);
• U.S. Environmental Protection Agency (EPA);
• State of Louisiana Coastal Protection and Restoration Authority, Oil Spill Coordinator's Office, Department of Environmental Quality, Department of Wildlife and Fisheries, and Department of Natural Resources;
• State of Mississippi Department of Environmental Quality;
• State of Alabama Department of Conservation and Natural Resources and Geological Survey of Alabama;
• State of Florida Department of Environmental Protection and Fish and Wildlife Conservation Commission; and
• State of Texas: Texas Parks and Wildlife Department, Texas General Land Office, and Texas Commission on Environmental Quality.
The Trustees reached and finalized a settlement of their natural resource damage claims with BP in an April 4, 2016, Consent Decree approved by the U.S. District Court for the Eastern District of Louisiana. Pursuant to that Consent Decree, restoration projects in the Open Ocean Restoration Area are now selected and implemented by the Open Ocean TIG. The Open Ocean TIG is composed of four federal Trustees: DOI, NOAA, EPA, and USDA.
On March 31, 2017, the Open Ocean TIG posted a public notice at
On February 7, 2018, the Open Ocean TIG announced that it had initiated drafting of its first and second post settlement draft restoration plans; and that the first plan would include restoration projects for Birds and Sturgeon, while the second plan would include restoration projects for Sea Turtles, Marine Mammals, Fish and Water Column Invertebrates, and Mesophotic and Deep Benthic Communities.
The Draft RP1/EA is being released in accordance with the OPA, NRDA regulations found in the Code of Federal Regulations (CFR) at 15 CFR part 990, NEPA, the Consent Decree, and the Final PDARP/PEIS.
In the Draft RP1/EA, the Open Ocean TIG proposes three preferred alternatives from the Bird and Sturgeon restoration types, at an estimated total cost of $16,000,000. The preferred alternatives include restoration of common loons in Minnesota through conservation easements or fee title acquisitions of loon nesting habitat, breeding habitat enhancements, and reduction in exposure to lead-based fishing tackle; restoration of black terns in the prairie pothole region of North Dakota and South Dakota through conservation easements of black tern nesting habitat; and characterizing Gulf sturgeon spawning habitat, habitat use, and origins of juvenile sturgeon in the Pearl and Pascagoula River Systems in Louisiana and Mississippi. The Open Ocean TIG also analyzes three additional alternatives, as well as the no-action alternative in the Draft RP1/EA. One or more alternatives may be selected for implementation by the Open Ocean TIG in the Final RP1/EA or in future restoration plans.
The proposed alternatives are intended to continue the process of using
As described above, two public webinars are scheduled to facilitate the public review and comment process on the Draft RP1/EA. After the public comment period ends, the Open Ocean TIG will consider and address the comments received before issuing a final RP1/EA.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
The documents comprising the Administrative Record for the Draft RP1/EA can be viewed electronically at
The authority for this action is the Oil Pollution Act of 1990 (33 U.S.C. 2701
Office of the Secretary, Interior.
Notice of a modified system of records.
Pursuant to the provisions of the Privacy Act of 1974, as amended, the Department of the Interior proposes to modify the Department of the Interior “DOI-16, DOI LEARN (Department-wide Learning Management System)” system of records notice. This system of
This modified system will be effective upon publication. New or modified routine uses will be effective November 8, 2018. Submit comments on or before November 8, 2018.
You may submit comments, identified by docket number DOI-2018-0008, by any of the following methods:
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• Hand-delivering comments to Teri Barnett, Departmental Privacy Officer, U.S. Department of the Interior, 1849 C Street NW, Room 7112, Washington, DC 20240.
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All submissions received must include the agency name and docket number. All comments received will be posted without change to
Teri Barnett, Departmental Privacy Officer, U.S. Department of the Interior, 1849 C Street NW, Room 7112, Washington, DC 20240, email at
The Department of the Interior (DOI), Office of the Secretary maintains the DOI-16, DOI LEARN, system of records to manage Department-wide, bureau and office training and learning programs. This system of record helps DOI maintain and validate training records, manage class rosters and transcripts for course administrators and the student or learner, meet Federal mandatory training and statistical reporting requirements, and manage other programmatic functions related to training and educational programs. DOI collects personal information from students in order to communicate training opportunities, manage course registration and delivery, validate training records necessary for certification or granting of college credit, process billing information for training classes, and to meet Federal training reporting requirements. Information may also be collected to comply with the Americans with Disabilities Act requirements to address facilities accommodations. Training and learning records are maintained in DOI's web-based learning management system, and bureau and office systems and locations where training programs are managed.
DOI is revising the system of records notice to update the system name, system location, system manager and address, categories of individuals, categories of records, storage, retrievability, safeguards, retention and disposal, notification procedures, records access and contesting procedures, and records source categories; reorganize the sections and add new sections to describe the purpose of the system and history in accordance with Office of Management and Budget (OMB) Circular A-108; and provide general and administrative updates to the remaining sections. Additionally, DOI is modifying existing routine uses to provide clarity and transparency, and proposing to add new proposed routine uses to permit sharing of information with other agencies to respond to breaches of personally identifiable information. Routine uses D, E, H, I, and J have been modified to provide additional clarification on external organizations and circumstances where disclosures are proper and necessary to facilitate training functions or to comply with Federal requirements. Routine use G was modified to further clarify disclosures to the Department of Justice or other Federal agencies when necessary in relation to litigation or judicial proceedings.
DOI is proposing to add new routine uses K through S to facilitate sharing of information with agencies and organizations to ensure the efficient and effective management of training for employees, promote the integrity of the records in the system, or carry out a statutory responsibility of the DOI or the Federal Government. Proposed routine use K facilitates sharing of information with the Executive Office of the President to resolve issues concerning individual's records. Routine use L allows DOI to refer matters to the appropriate Federal, state, local, or foreign agencies, or other public authority agencies responsible for investigating or prosecuting violations of law. Routine use M facilitates sharing with other government and tribal organizations pursuant to a court order or discovery request. Modified routine use N and proposed routine use O allow DOI to share information with appropriate Federal agencies or entities when reasonably necessary to respond to a breach of personally identifiable information and to prevent, minimize, or remedy the risk of harm to individuals or the Federal Government, or assist an agency in locating individuals affected by a breach in accordance with OMB Memorandum M-17-12, “Preparing for and Responding to a Breach of Personally Identifiable Information.” Routine use P facilitates sharing of privacy information with OMB as required under OMB Circular A-19, “Legislative Coordination and Clearance.” Routine use Q allows DOI to share information with the Department of the Treasury to recover debts owed to the United States. Routine use R allows DOI to disclose information to the news media and the public when there is a legitimate public interest in the information, or to demonstrate accountability or ensure effective Government functions. Routine use S allows DOI to share information with the Office of Personnel Management to maintain integrity of employee training records and provide training reports to meet Federal training requirements.
The Privacy Act of 1974, as amended, embodies fair information practice principles in a statutory framework governing the means by which Federal agencies collect, maintain, use, and disseminate individuals' records. The Privacy Act applies to records about individuals that are maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency from which information is retrieved by the name of an individual or by some identifying number, symbol, or other identifying particular assigned to the individual. The Privacy Act defines an individual as a United States citizen or an alien lawfully admitted for permanent residence. Individuals may request access to their own records that are maintained in a system of records in the possession or under the control of DOI by complying with DOI Privacy Act regulations at 43 CFR part 2, subpart K, and following the procedures outlined in the Records Access, Contesting Record, and Notification Procedures sections of this notice.
The Privacy Act requires each agency to publish in the
You should be aware your entire comment including your personal identifying information, such as your address, phone number, email address, or any other personal identifying information in your comment, may be made publicly available at any time. While you may request to withhold your personal identifying information from public review, we cannot guarantee we will be able to do so.
Unclassified.
(1) Department-wide training records are centrally managed by the Office of Policy, Management and Budget, Chief Human Capital Office, and are maintained in the Department's learning management system located at a DOI-controlled datacenter at U.S. Department of the Interior, 7301 W Mansfield Avenue, Denver, CO 80235.
(2) Records are also located in DOI bureau and office facilities, systems, and portals that manage or sponsor training and educational programs.
(1) Chief Learning Officer, Office of the Secretary, Department of the Interior, Main Interior Building, 1849 C Street NW, Washington, DC 20240.
(2) Bureau and Office Learning Managers responsible for managing training, educational and learning programs. A current list of the Learning Managers and their addresses is available on the DOI Learn Bureau Contact website at
5 U.S.C. 4101,
The primary purposes of the system are to: (1) Manage training and learning programs; (2) plan and facilitate training courses including outreach, registration, enrollment and payment; (3) maintain and validate training records for certification and mandatory compliance reporting; (4) meet Federal training statistical reporting requirements; (5) maintain class rosters and transcripts for course administrators, students and learners; and (6) generate budget estimates for training requirements.
DOI employees, contractors, interns, emergency workers, volunteers and appointees who receive training related to their official duties, whether or not sponsored by DOI bureaus and offices. Non-DOI individuals who participate in DOI-sponsored training and educational programs, or participate in DOI-sponsored meetings and activities related to training and educational programs. Non-DOI individuals may include individuals from other Federal, state or local agencies, private or not-for-profit organizations, universities and other schools, and members of the public.
Training, educational and learning management records may include course registration, attendance rosters, and course information including course title, class name, objectives, description, and who should attend; class status information including begin and end dates, responsible class instructor, completion status and certification requirements; student transcripts (course(s) completed/not completed, test scores, acquired skills); and correspondence, reports and documentation related to training, education and learning management programs. These records may contain: Name, Social Security number, employee common identifier generated from the DOI Federal Personnel and Payroll System (FPPS), login username, password, agency or organization affiliation, work or personal address, work or personal phone and fax number, work or personal email address, gender, date of birth, organization code, position title, occupational series, pay plan, grade level, supervisory status, type of appointment, education level, duty station code, agency, bureau, office, organization, supervisor's name and phone number, date of Federal service, date of organization or position assignment, date of last promotion, occupational category, race, national origin, and adjusted basic pay. Records may also include billing information such as responsible agency, tax identifier number, DUNS number, purchase order numbers, agency location codes and credit card information. Records maintained on non-DOI individuals is generally limited to name, agency or organization affiliation, address, work and personal phone and fax numbers, work and personal email addresses, supervisor name and contact information, position title, occupational series, and billing information.
Information on DOI employees is obtained directly from individuals on whom the records are maintained, supervisors, or existing DOI records. Historical employee training records may be obtained from other DOI learning management systems. Information from non-DOI individuals who register or participate in DOI-sponsored training programs is obtained from individuals through paper and electronic forms. Information may also be obtained by another agency, institution or organization that sponsored the training event.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, all or a portion of the records or information contained in this system may be disclosed outside DOI as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
A. To release statistical information and training reports to other organizations who are involved with the training.
B. To disclose information to other Government training facilities (Federal, state, and local) and to non-Government training facilities (private vendors of training courses or programs, private schools, etc.) for training purposes.
C. To provide transcript information to education institutions upon the student's request in order to facilitate transfer of credit to that institution, and to provide college and university officials with information about their students working in the Pathways
D. To Federal, state, territorial, local, tribal, or foreign agencies that have requested information relevant or necessary to the hiring, firing or retention of an employee or contractor, or the issuance of a security clearance, license, contract, grant or other benefit, when the disclosure is compatible with the purpose for which the records were compiled.
E. To an expert, consultant, grantee, or contractor (including employees of the contractor) of DOI that performs services requiring access to these records on DOI's behalf to carry out the purposes of the system.
F. To share logistical or attendance information with partner agencies (Government or non-Government) who, based on cooperative training agreements, have a need to know.
G. To the Department of Justice (DOJ), including Offices of the U.S. Attorneys, or other Federal agency conducting litigation or in proceedings before any court, adjudicative, or administrative body, when it is relevant or necessary to the litigation and one of the following is a party to the litigation or has an interest in such litigation:
(1) DOI or any component of DOI;
(2) Any other Federal agency appearing before the Office of Hearings and Appeals;
(3) Any DOI employee or former employee acting in his or her official capacity;
(4) Any DOI employee or former employee acting in his or her individual capacity when DOI or DOJ has agreed to represent that employee or pay for private representation of the employee; or
(5) The United States Government or any agency thereof, when DOJ determines that DOI is likely to be affected by the proceeding.
H. To a congressional office when requesting information on behalf of, and at the request of, the individual who is the subject of the record.
I. To an official of another Federal, state or local government or Tribal organization to provide information needed in the performance of official duties related to reconciling or reconstructing data files, in support of the functions for which the records were collected and maintained, or to enable that agency to respond to an inquiry by the individual to whom the record pertains.
J. To representatives of the National Archives and Records Administration (NARA) to conduct records management inspections under the authority of 44 U.S.C. 2904 and 2906.
K. To the Executive Office of the President in response to an inquiry from that office made at the request of the subject of a record or a third party on that person's behalf, or for a purpose compatible with the reason for which the records are collected or maintained.
L. To any criminal, civil, or regulatory law enforcement authority (whether Federal, state, territorial, local, tribal or foreign) when a record, either alone or in conjunction with other information, indicates a violation or potential violation of law—criminal, civil, or regulatory in nature, and the disclosure is compatible with the purpose for which the records were compiled.
M. To state, territorial and local governments and tribal organizations to provide information needed in response to court order and/or discovery purposes related to litigation, when the disclosure is compatible with the purpose for which the records were compiled.
N. To appropriate agencies, entities, and persons when:
(1) DOI suspects or has confirmed that there has been a breach of the system of records;
(2) DOI has determined that as a result of the suspected or confirmed breach there is a risk of harm to individuals, DOI (including its information systems, programs, and operations), the Federal Government, or national security; and
(3) the disclosure made to such agencies, entities and persons is reasonably necessary to assist in connection with DOI's efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm.
O. To another Federal agency or Federal entity, when DOI determines that information from this system of records is reasonably necessary to assist the recipient agency or entity in:
(1) responding to a suspected or confirmed breach; or
(2) preventing, minimizing, or remedying the risk of harm to individuals, the recipient agency or entity (including its information systems, programs, and operations), the Federal Government, or national security, resulting from a suspected or confirmed breach.
P. To the Office of Management and Budget (OMB) during the coordination and clearance process in connection with legislative affairs as mandated by OMB Circular A-19.
Q. To the Department of the Treasury to recover debts owed to the United States.
R. To the news media and the public, with the approval of the Public Affairs Officer in consultation with counsel and the Senior Agency Official for Privacy, where there exists a legitimate public interest in the disclosure of the information, except to the extent it is determined that release of the specific information in the context of a particular case would constitute an unwarranted invasion of personal privacy.
S. To the Office of Personnel Management to disclose information on employee general training, including recommendations and completion, specialized training obtained, participation in government-sponsored training, or training history as required to provide workforce information for official personnel files.
Pursuant to 5 U.S.C. 552a(b)(12), records may be disclosed to consumer reporting agencies as they are defined in the Fair Credit Reporting Act (15 U.S.C. 1681a(f)) or the Federal Claims Collection Act of 1966 (31 U.S.C. 3701(a)(3)).
Records are stored in systems, databases, electronic media on hard disks, magnetic tapes, compact disks and paper media.
Information from this system is retrieved by either unique identifying fields (
DOI training records are maintained under Department Records Schedule (DRS)—1.2.0004, Short-Term Human Resources Records (DAA-0048-2013-0001-0004) and DRS -1.2.0005, Long-term Human Resources Records (DAA-0048-2013-0001-0005), which were approved by NARA. General employee training records and working files have a temporary disposition authority and are maintained for three years. Records will be cut off at the end of fiscal year in which files are closed, and the records will be destroyed 3 years after cut-off. Employee performance and competency management records maintained under DRS 1.2.0005 have a longer retention period. The records
Training records related to specialized program areas may be covered under other approved records retention schedules based on the program or mission area and agency needs. Retention periods may vary based on the training program or subject matter, and longer retention is authorized for specific training programs when it is necessary to support business use or to meet Federal records requirements. Approved destruction methods for temporary records that have met their retention period include shredding or pulping paper records, and erasing or degaussing electronic records in accordance with 384 Departmental Manual 1 and NARA guidelines.
The records maintained in this system are safeguarded in accordance with 43 CFR 2.226 and other applicable security rules and policies. During normal hours of operation, paper or micro format records are maintained in locked file cabinets in secured rooms under the control of authorized personnel. Information technology systems follow the National Institute of Standards and Technology privacy and security standards developed to comply with the Privacy Act of 1974 as amended, 5 U.S.C. 552a; the Paperwork Reduction Act of 1995, Public Law 104-13; the Federal Information Security Modernization Act of 2014, Public Law 113-283, as codified at 44 U.S.C. 3551,
Computer servers on which electronic records are stored are located in secured DOI facilities with physical, technical and administrative levels of security to prevent unauthorized access to the DOI network and information assets. Security controls include encryption, firewalls, audit logs, and network system security monitoring. Electronic data is protected through user identification, passwords, database permissions and software controls. Access to records in the system is limited to authorized personnel who have a need to access the records in the performance of their official duties, and each person's access is restricted to only the functions and data necessary to perform that person's job responsibilities. System administrators and authorized users for DOI are trained and required to follow established internal security protocols and must complete all security, privacy, and records management training, and sign DOI Rules of Behavior.
Computerized records systems follow the National Institute of Standards and Technology privacy and security standards as developed to comply with the Privacy Act of 1974, 5 U.S.C. 552a; Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3521; Federal Information Security Modernization Act of 2014, 44 U.S.C. 3551-3558; and the Federal Information Processing Standards 199: Standards for Security Categorization of Federal Information and Information Systems. Security controls include user identification, passwords, database permissions, encryption, firewalls, audit logs, and network system security monitoring, and software controls. A privacy impact assessment was conducted on DOI's learning management system to ensure that Privacy Act requirements are met and appropriate privacy controls were implemented to safeguard personally identifiable information.
An individual requesting records on himself or herself should send a signed, written inquiry to the System Manager as identified above. The request must include the specific bureau or office that maintains the record to facilitate location of the applicable records. The request envelope and letter should both be clearly marked “PRIVACY ACT REQUEST FOR ACCESS.” A request for access must meet the requirements of 43 CFR 2.238.
An individual requesting corrections or the removal of material from his or her records should send a signed, written request to the System Manager as identified above. The request must include the specific bureau or office that maintains the record to facilitate location of the applicable records. A request for corrections or removal must meet the requirements of 43 CFR 2.246.
An individual requesting notification of the existence of records on himself or herself should send a signed, written inquiry to the System Manager as identified above. The request must include the specific bureau or office that maintains the record to facilitate location of the applicable records. The request envelope and letter should both be clearly marked “PRIVACY ACT INQUIRY.” A request for notification must meet the requirements of 43 CFR 2.235.
None.
70 FR 58230 (October 5, 2005); modification published at 73 FR 8342 (February 13, 2008).
Office of the Secretary, Interior.
Notice of renewal.
The U.S. Department of the Interior announces the charter renewal of the
Dr. Philip Johnson, U.S. Department of the Interior, Office of Environmental Policy and Compliance, 1689 C Street, Suite 119, Anchorage, Alaska 99501-5126, 907-271-5011.
The Court Order establishing the
In accordance with the provisions of the Federal Advisory Committee Act, as amended (5 U.S.C., App. 2), and in consultation with the General Services Administration, the Secretary of the Interior hereby renews the charter for the
United States International Trade Commission.
October 19, 2018 at 11:00 a.m.
Room 101, 500 E Street SW, Washington, DC 20436, Telephone: (202) 205-2000.
Open to the public.
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.
United States International Trade Commission.
October 16, 2018 at 11:00 a.m.
Room 101, 500 E Street SW, Washington, DC 20436, Telephone: (202) 205-2000.
Open to the public.
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.
United States International Trade Commission.
Institution of investigation and scheduling of public hearing.
The U.S. International Trade Commission has instituted investigation No. 332-565,
February 19, 2019: Deadline for filing requests to appear at the public hearing.
February 22, 2019: Deadline for filing pre-hearing briefs and statements.
March 5, 2019: Public hearing.
March 12, 2019: Deadline for filing post-hearing briefs and statements.
March 22, 2019: Deadline for filing all other written submissions.
September 13, 2019: Transmittal of the Commission's report to the House Committee on Ways and Means and the Senate Committee on Finance.
All Commission offices, including the Commission's hearing rooms, are located in the United States International Trade Commission Building, 500 E Street SW, Washington, DC. All written submissions should be addressed to the Secretary, United States International Trade Commission, 500 E Street SW, Washington, DC 20436. The public record for this investigation may be viewed on the Commission's electronic docket (EDIS) at
Project Leader Kimberlie Freund (202-708-5402 or
On September 13, 2018, the President signed into law the Miscellaneous Tariff Bill Act of 2018 (Public Law 115-239), which triggers the reporting requirement. The Commission expects to transmit its report to the House Committee on Ways and Means and the Senate Committee on Finance by September 13, 2019.
In its request, Congress requires that this report be submitted in unclassified form, but may use a classified appendix. As such, the Commission will not include any CBI or national security classified information in the report that it delivers to the Committees. All information, including CBI, submitted in this investigation may be disclosed to and used: (i) By the Commission, its employees and Offices, and contract personnel (a) for developing or maintaining the records of this or a related proceeding, or (b) in internal investigations, audits, reviews, and evaluations relating to the programs, personnel, and operations of the Commission including under 5 U.S.C. Appendix 3; or (ii) by U.S. government employees and contract personnel for cybersecurity purposes. The Commission will not otherwise disclose any CBI in a manner that would reveal the operations of the firm supplying the information.
By order of the Commission.
United States International Trade Commission.
October 18, 2018 at 9:30 a.m.
Room 101, 500 E Street SW, Washington, DC 20436, Telephone: (202) 205-2000.
Open to the public.
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.
Federal Bureau of Investigation, DOJ.
Meeting notice.
The purpose of this notice is to announce a meeting of the National Crime Prevention and Privacy Compact Council (Council) created by the National Crime Prevention and Privacy Compact Act of 1998 (Compact). Thus far, the Federal Government and 31 states are parties to the Compact which governs the exchange of criminal history records for licensing, employment, and similar purposes. The Compact also provides a legal framework for the establishment of a cooperative federal-state system to exchange such records.
The United States Attorney General appointed 15 persons from state and federal agencies to serve on the Council. The Council will prescribe system rules and procedures for the effective and proper operation of the Interstate Identification Index system for noncriminal justice purposes.
Matters for discussion are expected to include:
The Council will meet in open session from 9 a.m. until 5 p.m., on November 7, 2018 and 9 a.m. until 12 p.m. on November 8, 2018.
The meeting will take place at the Westshore Grand Hotel, 4860 West Kennedy Boulevard, Tampa, Florida, 813-286-4400.
Inquiries may be addressed to: Mrs. Chasity S. Anderson, FBI Compact Officer, Module D3, 1000 Custer Hollow Road, Clarksburg, West Virginia 26306, telephone 304-625-2803, facsimile 304-625-2868.
In accordance with Departmental Policy, 28 CFR 50.7, notice is hereby given that a proposed Consent Decree in
This proposed Consent Decree concerns a complaint filed by the United States against the Saratoga Springs Owners Association, Inc. and Cross Marine Projects, Inc., pursuant to sections 301(a), 309(b), and 309(d) of the Clean Water Act, 33 U.S.C. 1311(a), 1319(b), and 1319(d), to obtain injunctive relief from and impose civil penalties against the Defendants for violating the Clean Water Act by discharging pollutants without a permit into waters of the United States. The proposed Consent Decree resolves these allegations by requiring the Defendants to restore the impacted areas, perform mitigation, and pay a civil penalty.
The Department of Justice will accept written comments relating to this proposed Consent Decree for thirty (30) days from the date of publication of this Notice. Please address comments to David A. Carson, Senior Trial Counsel, United States Department of Justice, Environment and Natural Resources Division, 999 18th Street, South Terrace, Suite 370, Denver, Colorado 80202, and refer to
The proposed Consent Decree may be examined at the Clerk's Office, United States District Court for the District of Utah, 351 South West Temple, Room 1.100, Salt Lake City, Utah 84101. In addition, the proposed Consent Decree may be examined electronically at
Office of Information and Regulatory Affairs, Office of Management and Budget.
Request for Information (RFI).
The Office of Information and Regulatory Affairs (OIRA), within the Office of Management and Budget, is seeking public input on how the Federal Government, under the auspices of the United States-Canada Regulatory Cooperation Council, may reduce or eliminate unnecessary regulatory differences between the United States and Canada. This request for information (RFI) may inform agencies' development of regulatory reform proposals to modify or repeal existing agency requirements to increase efficiency related to economic activity with Canada, reduce or eliminate unnecessary or unjustified regulatory burdens, or simplify regulatory compliance, while continuing to meet agency missions and statutory requirements. OIRA also seeks public comment to identify ongoing or emerging areas for which cooperation could reduce the risk of divergence between U.S. and Canadian regulations. OIRA plans to make all submissions publicly available on
Written comments and information are requested on or before November 8, 2018.
Interested persons are encouraged to submit comments, identified by “US-Canada RCC RFI,” by any of the following methods:
Vlad Dorjets, Office of Information and Regulatory Affairs, 725 17th Street NW, Washington, DC 20503. Telephone: 202-395-7315.
To help promote U.S. regulatory cooperation activities with Canada, OIRA seeks public comment on how to reduce burdens through the reduction of differences between U.S. and Canadian regulatory requirements, conformity assessment procedures, sub-regulatory guidance, and other related policies and procedures. In addition, OIRA invites comment on specific issues and sectors in which future cooperation would prove fruitful, including proposals to align regulatory systems, streamline bilateral cooperation, and improve stakeholder engagement. Although some agencies that participate in the U.S.-Canada Regulatory Cooperation Council (RCC) or are otherwise engaged in regulatory cooperation with Canada have previously sought regulatory reform ideas from the public, this RFI seeks broader input on regulations with respect to which international regulatory cooperation might be beneficial across all agencies, even those not presently engaged in such endeavors.
OIRA intends to communicate regulatory reform suggestions received in response to this RFI for consideration by the appropriate U.S. Federal agencies. OIRA may also communicate suggestions to the Treasury Board of Canada Secretariat (TBC) to get a broader perspective on these policy areas, including the potential cost reductions that could result from cooperation. Suggestions from the public may also inform discussion of these issues at public meetings sponsored by the RCC or participating agencies.
OIRA has identified some key topics on which stakeholder insights would be most helpful, though input on opportunities for international regulatory cooperation beyond these topics is also welcome:
(1) Particular sectors or issues for which the RCC should consider future regulatory cooperation or further regulatory alignment to reduce burden or other cost, including for emerging technologies that are not yet regulated.
(2) Particular forms, surveys, or other information collections that exist in both the United States and Canada where consolidation could reduce burden or increase practical utility.
(3) The appropriate role for stakeholders in furthering international regulatory cooperation and how stakeholders can best engage with Canadian and U.S. regulators on regulatory cooperation opportunities.
(4) Cooperative mechanisms or arrangements such as co-development, co-funding, or co-piloting which can be used to promote future international regulatory alignment.
(5) Potential alternatives to direct regulation or innovative and flexible approaches to regulation, including for emerging technologies.
(6) Whether the RCC should continue the existing set of work plans and/or whether activities in the work plans should be revised better to reflect developments in the relevant sectors.
When providing comments, OIRA requests that commenters identify the relevant regulatory agency or agencies and also specify the regulation, guidance document, form, or reporting requirement at issue, providing legal citation or form number and OMB Control Number where available. Please identify, where applicable, the relevant statutory or regulatory provisions for each jurisdiction (or an indication that such provisions do not exist in one or both jurisdictions). OIRA also requests that commenters provide as much detail as possible in describing the issue or unnecessary difference, as well as an explanation of how and why agencies could align, modify, streamline, or repeal the regulatory requirements, while still achieving their regulatory and/or statutory objectives. OIRA also requests that commenters include, wherever possible, supporting data or other quantitative information such as information about the burdens or cost resulting from the regulatory divergence and the possible burden or cost reduction from alignment, details on measurable benefits for industry, government, or consumers, and an assessment of the net benefits of enhanced regulatory alignment. Please specify the time period over which impacts have or are projected to accrue.
The United States and Canada share many regulatory objectives, including reducing unnecessary or duplicative regulatory costs that discourage economic activity. The two countries, however, often select different approaches for achieving their policy objectives. These divergent approaches can lead to different regulatory requirements in the two countries, hindering national and cross-border economic activity, and imposing unnecessary costs on citizens, businesses, and economies. Even when the two countries opt to address a policy objective in the same way, implementation may result in duplicative paperwork requirements or procedures on both sides of the border. In many cases, these differences are unavoidable due to different statutory or legal requirements or additional policy considerations. In other cases, however, these differences may be avoidable and thus impose unnecessary burdens.
To identify, and reduce or eliminate, these unnecessary regulatory differences and duplicative procedures, as well as to increase regulatory transparency, the United States and Canada created the RCC in 2011. Several months after its creation, the two countries released Terms of Reference (2011 TOR) setting out the RCC's mandate, organization, and guiding principles.
The 2011 TOR acknowledged that each country would maintain its sovereign power to regulate and that regulatory outcomes for consumer protection, health, safety, security, and the environment would not be compromised. At its founding, the RCC understood that unnecessary regulatory differences “do not increase regulatory benefits, and instead impose needless additional burdens and costs for both businesses and consumers.”
1. Following successful implementation of the 2011 Joint Action Plan—which set out 29 initiatives covering a wide range of regulatory work, from transportation and agriculture to nanomaterials
In February 2017, the Joint Statement of President Trump and Prime Minister Trudeau committed the two governments to “continue our dialogue on regulatory issues and pursue shared regulatory outcomes that are business-friendly, reduce costs, and increase economic efficiency without compromising health, safety, and environmental standards.” To that end, on June 4, 2018, OIRA and TBC signed a new Memorandum of Understanding (MOU) on regulatory cooperation.
1. Sectors that are characterized by high levels of integration and a history of cooperative regulatory approaches and supporting activities;
2. Sectors that have well-developed pre-existing regulatory frameworks that are designed to achieve similar outcomes but that are currently a barrier to increased integration and activity;
3. Sectors that offer significant, emerging growth potential and that are characterized by rapidly evolving technologies where regulatory approaches are anticipated or are currently in early stages of development; and
4. Sectors where regulatory cooperation is intended to support export growth in North America.
On January 30, 2017, the President issued Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs.”
In issuing guidance to agencies on the implementation of E.O. 13771, on April 5, 2017, the Office of Management and Budget recognized that international regulatory cooperation may serve deregulatory functions and help agencies achieve the objectives of Executive Order 13771.
Executive Order 13609, “Promoting International Regulatory Cooperation,” signed on May 4, 2012, acknowledges the importance of international regulatory cooperation and recognizes that “differences between the regulatory approaches of U.S. agencies and those of their foreign counterparts might not be necessary and might impair the ability of American businesses to export and compete internationally.” This RFI advances the Executive Order's objective by identifying unnecessary differences between U.S. and Canadian regulatory approaches.
Nuclear Regulatory Commission.
Biweekly notice.
Pursuant to Section 189a.(2) of the Atomic Energy Act of 1954, as amended (the Act), the U.S. Nuclear Regulatory Commission (NRC) is publishing this regular biweekly notice. The Act requires the Commission to publish notice of any amendments issued, or proposed to be issued, and grants the Commission the authority to issue and make immediately effective any amendment to an operating license or combined license, as applicable, upon a determination by the Commission that such amendment involves no significant hazards consideration, notwithstanding the pendency before the Commission of a request for a hearing from any person.
This biweekly notice includes all notices of amendments issued, or proposed to be issued, from September 11, 2018, to September 24, 2018. The last biweekly notice was published on September 25, 2018.
Comments must be filed by November 8, 2018. A request for a hearing must be filed by December 10, 2018.
You may submit comments by any of the following methods (unless this document describes a different method for submitting comments on a specific subject):
•
•
For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Ikeda Betts, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington DC 20555-0001; telephone: 301-415-1959, email:
Please refer to Docket ID NRC-2018-0224 facility name, unit number(s), plant docket number, application date, and subject when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
•
•
•
Please include Docket ID NRC-2018-0224 facility name, unit number(s), plant docket number, application date, and subject> in your comment submission.
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
The Commission has made a proposed determination that the following amendment requests involve no significant hazards consideration. Under the Commission's regulations in § 50.92 of title 10 of the
The Commission is seeking public comments on this proposed determination. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination.
Normally, the Commission will not issue the amendment until the expiration of 60 days after the date of publication of this notice. The Commission may issue the license amendment before expiration of the 60-day period provided that its final determination is that the amendment involves no significant hazards consideration. In addition, the Commission may issue the amendment prior to the expiration of the 30-day comment period if circumstances change during the 30-day comment period such that failure to act in a timely way would result, for example in derating or shutdown of the facility. If the Commission takes action prior to the expiration of either the comment period or the notice period, it will publish in the
Within 60 days after the date of publication of this notice, any persons (petitioner) whose interest may be affected by this action may file a request for a hearing and petition for leave to intervene (petition) with respect to the action. Petitions shall be filed in accordance with the Commission's “Agency Rules of Practice and Procedure” in 10 CFR part 2. Interested persons should consult a current copy of 10 CFR 2.309. The NRC's regulations are accessible electronically from the NRC Library on the NRC's website at
As required by 10 CFR 2.309(d) the petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements for standing: (1) The name, address, and telephone number of the petitioner; (2) the nature of the petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the petitioner's interest.
In accordance with 10 CFR 2.309(f), the petition must also set forth the specific contentions which the petitioner seeks to have litigated in the proceeding. Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner must provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely in proving the contention at the hearing. The petitioner must also provide references to the specific sources and documents on which the petitioner intends to rely to support its position on the issue. The petition must
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene. Parties have the opportunity to participate fully in the conduct of the hearing with respect to resolution of that party's admitted contentions, including the opportunity to present evidence, consistent with the NRC's regulations, policies, and procedures.
Petitions must be filed no later than 60 days from the date of publication of this notice. Petitions and motions for leave to file new or amended contentions that are filed after the deadline will not be entertained absent a determination by the presiding officer that the filing demonstrates good cause by satisfying the three factors in 10 CFR 2.309(c)(1)(i) through (iii). The petition must be filed in accordance with the filing instructions in the “Electronic Submissions (E-Filing)” section of this document.
If a hearing is requested, and the Commission has not made a final determination on the issue of no significant hazards consideration, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to establish when the hearing is held. If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing would take place after issuance of the amendment. If the final determination is that the amendment request involves a significant hazards consideration, then any hearing held would take place before the issuance of the amendment unless the Commission finds an imminent danger to the health or safety of the public, in which case it will issue an appropriate order or rule under 10 CFR part 2.
A State, local governmental body, Federally-recognized Indian Tribe, or agency thereof, may submit a petition to the Commission to participate as a party under 10 CFR 2.309(h)(1). The petition should state the nature and extent of the petitioner's interest in the proceeding. The petition should be submitted to the Commission no later than 60 days from the date of publication of this notice. The petition must be filed in accordance with the filing instructions in the “Electronic Submissions (E-Filing)” section of this document, and should meet the requirements for petitions set forth in this section, except that under 10 CFR 2.309(h)(2) a State, local governmental body, or Federally-recognized Indian Tribe, or agency thereof does not need to address the standing requirements in 10 CFR 2.309(d) if the facility is located within its boundaries. Alternatively, a State, local governmental body, Federally-recognized Indian Tribe, or agency thereof may participate as a non-party under 10 CFR 2.315(c).
If a hearing is granted, any person who is not a party to the proceeding and is not affiliated with or represented by a party may, at the discretion of the presiding officer, be permitted to make a limited appearance pursuant to the provisions of 10 CFR 2.315(a). A person making a limited appearance may make an oral or written statement of his or her position on the issues but may not otherwise participate in the proceeding. A limited appearance may be made at any session of the hearing or at any prehearing conference, subject to the limits and conditions as may be imposed by the presiding officer. Details regarding the opportunity to make a limited appearance will be provided by the presiding officer if such sessions are scheduled.
All documents filed in NRC adjudicatory proceedings, including a request for hearing and petition for leave to intervene (petition), any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities that request to participate under 10 CFR 2.315(c), must be filed in accordance with the NRC's E-Filing rule (72 FR 49139; August 28, 2007, as amended at 77 FR 46562; August 3, 2012). The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases to mail copies on electronic storage media. Detailed guidance on making electronic submissions may be found in the Guidance for Electronic Submissions to the NRC and on the NRC website at
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public website at
A person filing electronically using the NRC's adjudicatory E-Filing system may seek assistance by contacting the
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing stating why there is good cause for not filing electronically and requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff. Participants filing adjudicatory documents in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket which is available to the public at
For further details with respect to these license amendment application(s), see the application for amendment which is available for public inspection in ADAMS and at the NRC's PDR. For additional direction on accessing information related to this document, see the “Obtaining Information and Submitting Comments” section of this document.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed change affects various CNS [Catawba], MNS [McGuire], HNP [Harris], and RNP [Robinson] ventilation system TS. For both CNS and MNS, the proposed change removes the requirement to test the heaters in these systems, and removes the Conditions in the associated TS which provide Required Actions, including reporting requirements, for inoperable heaters. In addition, the proposed change revises the CNS Surveillance Requirement (SR) 3.9.3.2 to operate for 15 continuous minutes without heaters running. For HNP and RNP, the proposed change removes the operability of the heaters from the SR. In addition, the electric heater output test is proposed to be deleted and a corresponding change in the charcoal filter testing to be made to require the testing be conducted at a humidity of at least 95% RH, which is more stringent than the current testing requirement of 70% RH.
These systems are not accident initiators and therefore, these changes do not involve a significant increase in the probability of an accident. The proposed system and filter testing changes are consistent with current regulatory guidance for these systems and will continue to assure that these systems perform their design function, which may include mitigating accidents. Thus the change does not involve a significant increase in the consequences of an accident.
Therefore, it is concluded that this change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of
The proposed change affects various CNS, MNS, HNP, and RNP ventilation system TS. For both CNS and MNS, the proposed change removes the requirement to test the heaters in these systems, and removes the Conditions in the associated TS which provide Required Actions, including reporting requirements, for inoperable heaters. In addition, the proposed change revises the CNS Surveillance Requirement (SR) 3.9.3.2 to operate for 15 continuous minutes without heaters running. For HNP and RNP, the proposed change removes the operability of the heaters from the SR. In addition, the electric heater output test is proposed to be deleted and a corresponding change in the charcoal filter testing to be made to require the testing be conducted at a humidity of at least 95% RH, which is more stringent than the current testing requirement of 70% RH.
The change proposed for these ventilation systems do not change any system operations or maintenance activities. Testing requirements will be revised and will continue to demonstrate that the Limiting Conditions for Operation are met and the system components are capable of performing their intended safety functions. The change does not create new failure modes or mechanisms and no new accident precursors are generated.
Therefore, it is concluded that this change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
The proposed change affects various CNS, MNS, HNP, and RNP ventilation system TS. For both CNS and MNS, the proposed change removes the requirement to test the heaters in these systems, and removes the Conditions in the associated TS which provide Required Actions, including reporting requirements, for inoperable heaters. In addition, the proposed change revises the CNS Surveillance Requirement (SR) 3.9.3.2 to operate for 15 continuous minutes without heaters running. For HNP and RNP, the proposed change removes the operability of the heaters from the SR. In addition, the electric heater output test is proposed to be deleted and a corresponding change in the charcoal filter testing to be made to require the testing be conducted at a humidity of at least 95% RH, which is more stringent than the current testing requirement of 70% RH.
The proposed increase to 95% RH in the required testing of the charcoal filters for HNP and RNP, compensates for the function of the heaters, which was to reduce the humidity of the incoming air to below the currently-specified value of 70% RH for the charcoal. The proposed change is consistent with regulatory guidance and continues to ensure that the performance of the charcoal filters is acceptable.
The CNS and MNS ventilation systems are tested at 95% relative humidity, and, therefore, do not require heaters to heat the incoming air and reduce the relative humidity. The proposed change eliminates Technical Specification requirements for testing of heater operation, and removes administrative actions for heater inoperability.
The proposed changes are consistent with the regulatory guidance and do not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the requested amendments involve no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed change eliminates second Completion Times from the Technical Specifications. Completion Times are not an initiator to any accident previously evaluated. The consequences of an accident during the revised Completion Time are no different than the consequences of the same accident during the existing Completion Times. As a result, the probability and consequences of an accident previously evaluated are not affected by this change. The proposed change does not alter or prevent the ability of systems, structures, and components (SSCs) from performing their intended function to mitigate the consequences of an initiating event within the assumed acceptance limits. The proposed change does not affect the source term, containment isolation, or radiological release assumptions used in evaluating the radiological consequences of an accident previously evaluated. Further, the proposed change does not increase the types or amounts of radioactive effluent that may be released offsite nor significantly increase individual or cumulative occupational/public radiation exposures. The proposed change is consistent with the safety analysis assumptions and resultant consequences.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed change does not involve a physical alteration to the plant (
Thus, based on the above, this change does not create the possibility of a new or different kind of accident from an accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
The proposed change to delete the second Completion Time does not alter the manner in which safety limits, limiting safety system settings, or limited conditions for operation are determined. The safety analysis acceptance criteria are not affected by this change. The proposed change will not result in plant operation in a configuration outside of the design basis.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the requested amendments involve no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed changes to the [site] Emergency Plan do not increase the probability or consequences of an accident. The proposed changes do not impact the function of plant Structures, Systems, or Components (SSCs). The proposed changes do not affect accident initiators or accident precursors, nor do the changes alter design assumptions. The proposed changes do not alter or prevent the ability of the onsite ERO to perform their intended functions to mitigate the consequences of an accident or event. The proposed changes remove ERO positions no longer credited or considered necessary in support of Emergency Plan implementation.
Therefore, the proposed changes to the [site] Emergency Plan do not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed changes have no impact on the design, function, or operation of any plant SSCs. The proposed changes do not affect plant equipment or accident analyses. The proposed changes do not involve a physical alteration of the plant (
Therefore, the proposed changes to the [site] Emergency Plan do not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Margin of safety is associated with confidence in the ability of the fission product barriers (
The proposed changes do not adversely affect existing plant safety margins or the reliability of the equipment assumed to operate in the safety analyses. There are no changes being made to safety analysis assumptions, safety limits, or limiting safety system settings that would adversely affect plant safety as a result of the proposed changes. Margins of safety are unaffected by the proposed changes to the ERO staffing. The proposed changes are associated with the [site] Emergency Plan staffing and do not impact operation of the plant or its response to transients or accidents. The proposed changes do not affect the Technical Specifications. The proposed changes do not involve a change in the method of plant operation, and no accident analyses will be affected by the proposed changes. Safety analysis acceptance criteria are not affected by these proposed changes. The proposed changes to the Emergency Plan will continue to provide the necessary onsite ERO response staff.
Therefore, the proposed changes to the [site] Emergency Plan do not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis for each site and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the requested amendments involve no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
A change is proposed in this License Amendment Request [(LAR)] to eliminate all four 4-element Control Element Assemblies (CEAs) currently used in the reactor core. These CEAs are part of 22 CEAs comprising the Shutdown Bank A. CEAs are required to provide sufficient shutdown margin during accident conditions. Removing these four CEAs does not have any adverse impact on the probability of these accidents, even for events were [sic] CEAs may be the accident initiator (
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
A change is proposed in this LAR to eliminate all four 4-element CEAs currently used in the St. Lucie Unit 2 core, reducing the number of CEAs in the core from 91 down to 87. With the proposed changes, no new or different type of equipment will be installed. The proposed change will not introduce credible new failure mechanisms, malfunctions, or accident initiators not considered in the design and/or licensing bases. As a result, the removal of the 4-element CEAs does not introduce a mechanism for creating a new or different kind of accident.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
A change is proposed in this LAR to eliminate all four 4-element CEAs currently used in the St. Lucie Unit 2 core. This constitutes a very small reduction of CEA worth available for shutdown margin, but will not affect the minimum shutdown margin requirement as used in the accident
The margin of safety is established through the core design limits defined in the COLR, in addition to the equipment design, operating parameters, and the setpoints at which automatic actions are initiated for accident conditions. The proposed changes will not adversely affect operation of plant equipment. These changes will not result in a change to the setpoints at which protective actions are initiated. The response of the plant systems to accidents and transients design limits reported in the Updated Final Safety Analysis Report (UFSAR) is unaffected by this change as nuclear design and fuel management will ensure that the COLR specified shutdown margin requirements are met. The change does not exceed or alter a design basis or safety limit in the UFSAR or the license. Therefore, accident analysis acceptance criteria are not affected.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed changes modify the PXS drain lines to add vent lines to the piping between the PXS collection boxes and IRWST to remove entrained air and improve drain line flow rates, the corresponding ITAAC [inspections, tests, analyses, and acceptance criteria] is modified to reflect this design change. The proposed changes do not have any adverse effects on the design functions of the PXS. The probabilities of accidents evaluated in the UFSAR are not affected.
The changes do not adversely impact the support, design, or operation of mechanical and fluid systems. The changes do not impact the support, design, or operation of any safety-related structures. There is no adverse change to the plant systems or response of the systems to postulated accident conditions. There is no change to the predicted radioactive releases due to normal operation or postulated accident conditions. The plant response to previously evaluated accidents or external events is not adversely affected, nor do the proposed changes create any new accident precursors.
Therefore, the proposed amendment does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed changes modify the PXS drain lines to add vent lines to the piping between the PXS collection boxes and IRWST to remove entrained air and improve drain line flow rates, the corresponding ITAAC is modified to reflect this design change. The proposed changes do not have any adverse effects on the design functions of the PXS, the structures or systems in which the PXS is used, or any other systems, structures, and components (SSCs) design functions or methods of operation that result in a new failure mode, malfunction, or sequence of events that affect safety-related or non-safety related equipment. This activity does not allow for a new fission product release path, [does not] result in a new fission product barrier [failure mode] mode, or create a new sequence of events that result in a significant fuel cladding failure.
Therefore, the proposed amendment does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
The proposed changes modify the PXS drain lines to add vent lines to the piping between the PXS collection boxes and IRWST to remove entrained air and improve drain line flow rates, the corresponding ITAAC is modified to reflect this design change.
The proposed changes do not have any adverse effects on the design functions of the PXS.
No safety analysis or design basis acceptance limit/criterion is challenged or exceeded by these changes. Therefore, the proposed changes do not involve a significant reduction in the margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the requested amendments involve no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed change to TS 6.2.C permits the use of an NRC-approved methodology for analysis of the Small Break Loss of Coolant Accident (SBLOCA) to determine if Surry Power Station (Surry) Units 1 and 2 continue to meet the applicable design and safety analysis acceptance criteria. The proposed change to the list of NRC-approved methodologies in TS 6.2.C has no direct impact upon plant operation or configuration. The list of methodologies in TS 6.2.C does not impact either the initiation of an accident or the mitigation of its consequences. The results of the revised SBLOCA transient analysis and existing pre-transient oxidation limits demonstrate that Surry Units 1 and 2 continue to satisfy the 10 CFR 50.46(b)(1-3) Emergency Core Cooling System performance acceptance criteria using an NRC-approved evaluation model.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed change will not create the possibility of a new or different accident due to credible new failure mechanisms, malfunctions, or accident initiators not previously considered. There is no change to the parameters within which the plant is normally operated and no physical plant modifications are being made; thus, the possibility of a new or different type of accident is not created.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
No design basis or safety limits are exceeded or altered by this change. Approved methodologies have been used to ensure that the plant continues to meet applicable design criteria and safety analysis acceptance criteria.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
The following notices were previously published as separate individual notices. The notice content was the same as above. They were published as individual notices either because time did not allow the Commission to wait for this biweekly notice or because the action involved exigent circumstances. They are repeated here because the biweekly notice lists all amendments issued or proposed to be issued involving no significant hazards consideration.
For details, see the individual notice in the
During the period since publication of the last biweekly notice, the Commission has issued the following amendments. The Commission has determined for each of these amendments that the application complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR chapter I, which are set forth in the license amendment.
A notice of consideration of issuance of amendment to facility operating license or combined license, as applicable, proposed no significant hazards consideration determination, and opportunity for a hearing in connection with these actions, was published in the
Unless otherwise indicated, the Commission has determined that these amendments satisfy the criteria for categorical exclusion in accordance with 10 CFR 51.22. Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared for these amendments. If the Commission has prepared an environmental assessment under the special circumstances provision in 10 CFR 51.22(b) and has made a determination based on that assessment, it is so indicated.
For further details with respect to the action see (1) the applications for amendment, (2) the amendment, and (3) the Commission's related letter, Safety Evaluation and/or Environmental Assessment as indicated. All of these items can be accessed as described in the “Obtaining Information and Submitting Comments” section of this document.
The Commission's related evaluation of the amendments contained in a Safety Evaluation dated September 13, 2018.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated September 17, 2018.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated September 20, 2018.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated September 10, 2018.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated September 19, 2018.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated September 11, 2018.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated September 11, 2018.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Exemption and combined license amendment; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is granting an exemption to allow a departure from the certification information of Tier 1 of the generic design control document (DCD) and is issuing License Amendment Nos. 143 and 142 to Combined Licenses (COLs), NPF-91 and NPF-92, respectively. The COLs were issued to Southern Nuclear Operating Company, Inc., and Georgia Power Company, Oglethorpe Power Corporation, MEAG Power SPVM, LLC, MEAG Power SPVJ, LLC, MEAG Power SPVP, LLC, and the City of Dalton, Georgia (collectively SNC); for construction and operation of the Vogtle Electric Generating Plant (VEGP) Units 3 and 4, located in Burke County, Georgia.
The granting of the exemption allows the changes to Tier 1 information asked for in the amendment. Because the acceptability of the exemption was determined in part by the acceptability of the amendment, the exemption and amendment are being issued concurrently.
The exemption and amendment were issued on September 25, 2018.
Please refer to Docket ID NRC-2008-0252 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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Chandu Patel, Office of New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-3025; email:
The NRC is granting an exemption from paragraph B of section III, “Scope and Contents,” of appendix D, “Design Certification Rule for the AP1000,” to part 52 of title 10 of the
Part of the justification for granting the exemption was provided by the review of the amendment. Because the exemption is necessary in order to issue the requested license amendment, the NRC granted the exemption and issued the amendment concurrently, rather than in sequence. This included issuing a combined safety evaluation containing the NRC staff's review of both the exemption request and the license amendment. The exemption met all applicable regulatory criteria set forth in §§ 50.12, 52.7, and section VIII.A.4 of appendix D to 10 CFR part 52. The license amendment was found to be acceptable as well. The combined safety evaluation is available in ADAMS under Accession No. ML18232A535.
Identical exemption documents (except for referenced unit numbers and license numbers) were issued to SNC for VEGP Units 3 and 4 (COL Nos. NPF-91 and NPF-92). The exemption documents for VEGP Units 3 and 4 can be found in ADAMS under Accession Nos. ML18232A528 and ML18232A529, respectively. The exemption is reproduced (with the exception of abbreviated titles and additional citations) in Section II of this document. The amendment documents for COL Nos. NPF-91 and NPF-92 are available in ADAMS under Accession Nos. ML18232A530 and ML18232A532, respectively. A summary of the amendment documents is provided in Section III of this document.
Reproduced below is the exemption document issued to VEGP Units 3 and 4. It makes reference to the combined safety evaluation that provides the reasoning for the findings made by the NRC (and listed under Item 1) in order to grant the exemption:
1. In a letter dated April 20, 2018, SNC requested from the Commission an exemption to allow departures from Tier 1 information in the certified DCD incorporated by reference in 10 CFR part 52, appendix D, as part of license amendment request 18-010, “Updates to Tier 1 Table 2.5.2-3.”
For the reasons set forth in Section 3.2 of the NRC staff's Safety Evaluation, which can be found in ADAMS under Accession No. ML18232A535, the Commission finds that:
A. The exemption is authorized by law;
B. the exemption presents no undue risk to public health and safety;
C. the exemption is consistent with the common defense and security;
D. special circumstances are present in that the application of the rule in this circumstance is not necessary to serve the underlying purpose of the rule;
E. the special circumstances outweigh any decrease in safety that may result from the reduction in standardization caused by the exemption; and
F. the exemption will not result in a significant decrease in the level of safety otherwise provided by the design.
2. Accordingly, SNC is granted an exemption from the certified DCD Tier 1 information, with corresponding changes to Appendix C of the facility Combined License, as described in the licensee's request dated April 20, 2018. This exemption is related to, and necessary for the granting of License Amendment No. 143 (Unit 3) and No. 142 (Unit 4), which is being issued concurrently with this exemption.
3. As explained in Section 5.0 of the NRC staff's Safety Evaluation (ADAMS Accession No. ML18232A535), this exemption meets the eligibility criteria for categorical exclusion set forth in 10 CFR 51.22(c)(9). Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment needs to be prepared in connection with the issuance of the exemption.
4. This exemption is effective as of the date of its issuance.
By letter dated April 20, 2018 (ADAMS Accession No. ML18110A113), SNC requested that the NRC amend the COLs for VEGP, Units 3 and 4, COLs NPF-91 and NPF-92. The proposed amendment is described in Section I of this
The Commission has determined for these amendments that the application complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR Chapter I, which are set forth in the license amendment.
A notice of consideration of issuance of amendment to facility operating license or COL, as applicable, proposed no significant hazards consideration determination, and opportunity for a hearing in connection with these actions, was published in the
The Commission has determined that these amendments satisfy the criteria for categorical exclusion in accordance with 10 CFR 51.22. Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared for these amendments.
Using the reasons set forth in the combined safety evaluation, the staff granted the exemptions and issued the amendments that SNC requested on April 20, 2018. The exemption and amendment were issued on September 25, 2018, as part of a combined package to SNC (ADAMS Accession No. ML18232A526).
For the Nuclear Regulatory Commission.
Pension Benefit Guaranty Corporation.
Notice of pendency of request.
This notice advises interested persons that the Pension Benefit Guaranty Corporation (“PBGC”) has received a request from the United Food and Commercial Workers International Union—Industry Pension Fund for approval of a plan amendment providing for special withdrawal liability rules. Under PBGC's regulation on Extension of Special Withdrawal Liability Rules, a multiemployer pension plan may, with PBGC approval, be amended to provide for special withdrawal liability rules similar to those that apply to the construction and entertainment industries. Such approval is granted only if PBGC determines that the rules apply to an industry with characteristics that make use of the special rules appropriate and that the rules will not pose a significant risk to the pension insurance system. Before granting an approval, PBGC's regulations require PBGC to give interested persons an opportunity to comment on the request. The purpose of this notice is to advise interested persons of the request and to solicit their views on it.
Comments must be submitted on or before November 23, 2018.
Comments may be submitted by any of the following methods:
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All submissions received must include the agency's name (Pension Benefit Guaranty Corporation, or PBGC) and refer to the UFCW Industry Plan. All comments received will be posted without change to PBGC's website,
Bruce Perlin (
Section 4203(a) of the Employee Retirement Income Security Act of 1974, as amended by the Multiemployer Pension Plan Amendments Act of 1980 (ERISA), provides that a complete withdrawal from a multiemployer plan generally occurs when an employer permanently ceases to have an obligation to contribute under the plan or permanently ceases all covered operations under the plan. Under section 4205 of ERISA, a partial withdrawal generally occurs when an employer: (1) Reduces its contribution base units by seventy percent in each of three consecutive years; or (2) permanently ceases to have an obligation under one or more but fewer than all collective bargaining agreements under which the employer has been obligated to contribute under the plan, while continuing to perform work in the jurisdiction of the collective bargaining agreement of the type for which contributions were previously required or transfers such work to another location or to an entity or entities owned or controlled by the employer; or (3) permanently ceases to have an obligation to contribute under the plan for work performed at one or more but fewer than all of its facilities, while continuing to perform work at the facility of the type for which the obligation to contribute ceased.
Although the general rules on complete and partial withdrawal identify events that normally result in a diminution of the plan's contribution base, Congress recognized that, in certain industries and under certain circumstances, a complete or partial cessation of the obligation to contribute normally does not weaken the plan's contribution base. For that reason, Congress established special withdrawal rules for the construction and entertainment industries.
For construction industry plans and employers, section 4203(b)(2) of ERISA provides that a complete withdrawal occurs only if an employer ceases to have an obligation to contribute under a plan and the employer either continues to perform previously covered work in the jurisdiction of the collective bargaining agreement or resumes such work within 5 years without renewing the obligation to contribute at the time of resumption. In the case of a plan terminated by mass withdrawal (within the meaning of section 4041(A)(2) of ERISA), section 4203(b)(3) provides that the 5-year restriction on an employer's resuming covered work is reduced to 3 years. Section 4203(c)(1) of ERISA applies the same special definition of complete withdrawal to the entertainment industry, except that the pertinent jurisdiction is the jurisdiction of the plan rather than the jurisdiction of the collective bargaining agreement. In contrast, the general definition of complete withdrawal in section 4203(a) of ERISA includes the permanent cessation of the obligation to contribute regardless of the continued activities of the withdrawn employer.
Congress also established special partial withdrawal liability rules for the construction and entertainment industries. Under section 4208(d)(1) of ERISA, “[a]n employer to whom section 4203(b) (relating to the building and construction industry) applies is liable for a partial withdrawal only if the
Section 4203(f)(1) of ERISA provides that PBGC may prescribe regulations under which plans in other industries may be amended to provide for special withdrawal liability rules similar to the rules prescribed in section 4203(b) and (c) of ERISA. Section 4203(f)(2) of ERISA provides that such regulations shall permit the use of special withdrawal liability rules only in industries (or portions thereof) in which PBGC determines that the characteristics that would make use of such rules appropriate are clearly shown, and that the use of such rules will not pose a significant risk to the insurance system under Title IV of ERISA. Section 4208(e)(3) of ERISA provides that PBGC shall prescribe by regulation a procedure by which plans may be amended to adopt special partial withdrawal liability rules upon a finding by PBGC that the adoption of such rules is consistent with the purposes of Title IV of ERISA.
PBGC's regulations on Extension of Special Withdrawal Liability Rules (29 CFR part 4203) prescribe procedures for a multiemployer plan to ask PBGC to approve a plan amendment that establishes special complete or partial withdrawal liability rules. The regulation may be accessed on PBGC's website (
PBGC received a request from the United Food and Commercial Workers International Union—Industry Pension Fund (the “Plan”), for approval of a plan amendment providing for special withdrawal liability rules. The Plan provided supplemental information in response to a request from PBGC. PBGC's summary of the actuarial reports provided by the Plan may be accessed on PBGC's website (
In summary, the Plan is a multiemployer pension plan jointly maintained by Local Unions affiliated with the United Food and Commercial Workers International Union (“UFCW”) and employers signatory to collective bargaining agreements with the UFCW. The Plan covers unionized employees who work predominantly in the retail food industry. The Plan's proposed amendment would be effective for withdrawals occurring under ERISA section 4205(a)(1) during the 3-year testing period ending June 30, 2014, or any subsequent plan year and for any withdrawals occurring under sections 4203 and 4205(a)(2) of ERISA on or after July 1, 2013. Thus, the proposed amendment is intended to apply to cessations of the obligation to contribute that have already occurred. Plans may adopt this retroactive relief as a discretionary provision under ERISA section 4203.3(b)(2). There are two employers that may be eligible for relief from withdrawal liability under the proposed amendment if it is approved.
The proposed amendment would create special withdrawal liability rules for employers contributing to the Plan for work performed under a contract or subcontract for services to federal government agencies (“Employer”). The Plan's submission represents that the industry for which the rule is requested has characteristics similar to those of the construction industry. According to the Plan, the principal similarity is that when an Employer loses a government contract, or subcontract, it usually does so through the competitive bidding process, and the applicable federal government agency typically contracts with a successor Employer that is obligated to contribute to the Plan at the same or substantially the same rate for the same employees. The Plan believes the proposed amendment may induce potential new employers to bid on work at a government facility and agree to continue making contributions to the Plan when they otherwise may avoid seeking a contribution obligation to the Plan to avoid potential withdrawal liability.
Under the proposed amendment, the special withdrawal liability rules would apply to an Employer that ceases to have a contribution obligation to the Plan because it loses a governmental contract to a successor Employer (“Successor Employer”), if all the following conditions are met for the 5 plan years immediately following the year the Employer lost the contract.
A complete withdrawal will
A partial withdrawal will
Alternatively, the proposed amendment provides that an Employer that loses a governmental contract to a Successor Employer will not experience a complete or partial withdrawal if the Successor Employer assumes the Employer's contribution history under the affected contract(s) for the plan year in which the contract is lost and the 5 immediately preceding plan years. Lastly, the Plan's trustees may waive or reduce the bond or escrow requirement if the Employer demonstrates that doing so would not significantly increase the risk of financial loss to the Plan. The Plan's request includes the actuarial data on which the Plan relies to support its contention that the amendment will not pose a significant risk to the insurance system under Title IV of ERISA.
All interested persons are invited to submit written comments on the pending exemption request. All comments will be made part of the administrative record.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Railroad Retirement Board (RRB) is forwarding an Information Collection Request (ICR) to the Office of Information and Regulatory Affairs (OIRA), Office of Management and Budget (OMB). Our ICR describes the information we seek to collect from the public. Review and approval by OIRA ensures that we impose appropriate paperwork burdens.
The RRB invites comments on the proposed collections of information to determine (1) the practical utility of the collections; (2) the accuracy of the estimated burden of the collections; (3) ways to enhance the quality, utility, and clarity of the information that is the subject of collection; and (4) ways to minimize the burden of collections on respondents, including the use of automated collection techniques or other forms of information technology. Comments to the RRB or OIRA must contain the OMB control number of the ICR. For proper consideration of your comments, it is best if the RRB and OIRA receive them within 30 days of the publication date.
Section 2 of the Railroad Retirement Act (RRA), provides for the payment of an annuity to the spouse or divorced spouse of a retired railroad employee. For the spouse or divorced spouse to qualify for an annuity, the RRB must determine if any of the employee's current marriage to the applicant is valid.
The requirements for obtaining documentary evidence to determine valid marital relationships are prescribed in 20 CFR 219.30 through 219.35. Section 2(e) of the RRA requires that an employee must relinquish all rights to any railroad employer service before a spouse annuity can be paid.
The RRB uses Form G-346, Employee's Certification, to obtain the information needed to determine whether the employee's current marriage is valid. Form G-346 is completed by the retired employee who is the husband or wife of the applicant for a spouse annuity. Completion is required to obtain a benefit. One response is requested of each respondent. The RRB proposes no changes to Form G-346.
Consistent with 20 CFR 217.17, the RRB uses Form G-346sum,
2.
Section 6 of the Railroad Retirement Act provides for a lump-sum payment to an employee or the employee's survivors equal to the Tier II taxes paid by the employee on a separation allowance or severance payment for which the employee did not receive credits toward retirement. The lump-sum is not payable until retirement benefits begin to accrue or the employee dies. Also, Section 4(a-1)(iii) of the Railroad Unemployment Insurance Act provides that a railroad employee who is paid a separation allowance is disqualified for unemployment and sickness benefits for the period of time the employee would have to work to earn the amount of the allowance. The reporting requirements are specified in 20 CFR 209.14.
In order to calculate and provide payments, the Railroad Retirement Board (RRB) must collect and maintain records of separation allowances and severance payments which were subject to Tier II taxation from railroad employers. The RRB uses Form BA-9, Report of Separation Allowance or Severance Pay, to obtain information from railroad employers concerning the separation allowances and severance payments made to railroad employees and/or the survivors of railroad employees. Employers currently have the option of submitting their reports on paper Form BA-9, (or in like format) on a CD-ROM, or by File Transfer Protocol (FTP), or Secure Email. Completion is mandatory. One response is requested of each respondent. The
Comments regarding the information collection should be addressed to Brian Foster, Railroad Retirement Board, 844 North Rush Street, Chicago, Illinois 60611-1275 or
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend its rules relating to registration and respective qualification examinations required for Participants that engage in trading activities on the Exchange. The text of the proposed rule change is available from the principal office of the Exchange, at the Commission's Public Reference Room and also on the Exchange's internet 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 these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The SEC recently approved a proposed rule change to restructure the FINRA representative-level qualification examination program.
The SIE would assess basic product knowledge; the structure and function of the securities industry markets, regulatory agencies and their functions; and regulated and prohibited practices. In particular, the SIE will cover four major areas. The first, “Knowledge of Capital Markets,” focuses on topics such as types of markets and offerings, broker-dealers and depositories, and economic cycles. The second, “Understanding Products and Their Risks,” covers securities products at a high level as well as associated investment risks. The third, “Understanding Trading, Customer Accounts and Prohibited Activities,” focuses on accounts, orders, settlement and prohibited activities. The final area, “Overview of the Regulatory Framework,” encompasses topics such as SROs, registration requirements and specified conduct rules. It's anticipated that the SIE would include 75 scored questions plus an additional 10 unscored pretest questions. The passing score would be determined through methodologies compliant with testing industry standards used to develop examinations and set passing standards.
The restructured program eliminates duplicative testing of general securities knowledge on the current representative-level qualification examinations by moving such content into the SIE. The SIE will test fundamental securities related knowledge, including knowledge of basic products, the structure and function of the securities industry, the regulatory agencies and their functions and regulated and prohibited practices, whereas the revised representative-level qualification examinations will test knowledge relevant to day-to-day activities, responsibilities and job functions of representatives. The SIE was developed in consultation with a committee of industry representatives and representatives of several other SROs. Each of the current representative-level examinations covers general securities knowledge, with the exception of the Research Analyst (Series 86 and 87) examinations.
The Exchange proposes to require that effective October 1, 2018, new applicants seeking to register in a representative capacity with the Exchange must pass the SIE before their registrations can become effective. The Exchange proposes to make the requirement operative on October 1, 2018 to coincide with the effective date of FINRA's requirement.
The Exchange notes that individuals who are registered as of October 1, 2018 are eligible to maintain their registrations without being subject to any additional requirements. Individuals who had been registered within the past two years prior to October 1, 2018, would also be eligible to maintain those registrations without being subject to any additional requirements, provided they register within two years from the date of their last registration. However, with respect to an individual who is not registered on the effective date of the proposed rule change but was registered within the past two years prior to the effective date of the proposed rule change, the individual's SIE status in the CRD system would be administratively terminated if such individual does not register with the Exchange within four years from the date of the individual's last registration. The Exchange also notes that consistent with IM-2040-2, the Exchange will consider waivers of the SIE alone or the SIE and the representative or principal-level examination(s) for Participants who are seeking registration in a representative-or principal-level registration category.
Lastly, the Exchange proposes to eliminate references in its rules to alternative foreign examination modules. Particularly, the Exchange notes that FINRA recently announced it was eliminating the United Kingdom Securities Representative and the Canadian Securities Representative registration categories, along with the respective associated exams (
The Exchange also proposes to remove the last sentence from Rule 2020(b)(1) and also remove Rule 2020(b)(3) and Rule 2020(c)(5) in their entirety. The Exchange is making these changes in order to conform to FINRA's rules regarding registration requirements.
The Exchange proposes to make a non-substantive conforming changes to the term “Form U-4” and “Form U-5” throughout the BOX Rulebook. Specifically, BOX proposes to change the term “Form U-4” to “Form U4” and “Form U-5” to “Form U5” in order to conform to both the BOX Rules and FINRA rules.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
The Exchange believes that the proposed rule change will improve the efficiency of the Exchange's examination requirements, without compromising the qualification standards, by eliminating duplicative testing of general securities knowledge on examinations. FINRA has indicated that the SIE was developed in an effort to adopt an examination that would assess basic product knowledge; the structure and function of the securities industry markets, regulatory agencies and their functions; and regulated and prohibited practices. The Exchange also notes that the introduction of the SIE and expansion of the pool of individuals who are eligible to take the SIE, has the potential of enhancing the pool of prospective securities industry professionals by introducing them to securities laws, rules and regulations and appropriate conduct before they join the industry in a registered capacity. Lastly, the Exchange notes adopting the SIE requirement is consistent with the requirement recently adopted by FINRA.
The Exchange believes that the changes to the term “Form U4” and “Form U5” are reasonable as the changes will conform to FINRA's rules and reduce investor confusion. The Exchange also believes that removing and amending certain language from Rule 2020(b)(1), Rule 2020(b)(3), Rule 2020(c)(5) and Rule 2020(d)(1) is reasonable as the changes conform to FINRA's rules regarding registration requirements and will reduce investor confusion.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange believes that the proposed rule change, which harmonizes its rules with recent rule changes adopted by FINRA and which is being filed in conjunction with similar filings by the other national securities exchanges, will reduce the regulatory burden placed on market participants engaged in trading activities across different markets. The Exchange believes that the harmonization of these registration requirements across the various markets will reduce burdens on competition by removing impediments to participation in the national market system and promoting competition among participants across the multiple national securities exchanges.
The Exchange has neither solicited nor received comments on the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6) normally does not become operative for 30 days from the date of filing. However, Rule 19b-4(f)(6)(iii)
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.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Form N-8B-2 (17 CFR 274.12) is the form used by unit investment trusts (“UITs”) other than separate accounts that are currently issuing securities, including UITs that are issuers of periodic payment plan certificates and UITs of which a management investment company is the sponsor or depositor, to comply with the filing and disclosure requirements imposed by section 8(b) of the Investment Company Act of 1940 (15 U.S.C. 80a-8(b)). Form N-8B-2 requires disclosure about the organization of a UIT, its securities, the personnel and affiliated persons of the depositor, the distribution and redemption of securities, the trustee or custodian, and financial statements. The Commission uses the information provided in the collection of information to determine compliance with section 8(b) of the Investment Company Act.
Each registrant subject to the Form N-8B-2 filing requirement files Form N-8B-2 for its initial filing and does not file post-effective amendments on Form N-8B-2.
Estimates of the burden hours are made solely for the purposes of the PRA and are not derived from a comprehensive or even a representative survey or study of the costs of SEC rules and forms. The information provided on Form N-8B-2 is mandatory. The information provided on Form N-8B-2 will not be kept confidential. 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 public may view the background documentation for this information collection at the following website,
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Exchange Act” or “Act”)
The MSRB filed with the Commission a proposed rule change to amend Rule G-3, on professional qualification requirements, to (i) require persons who meet the definition of a municipal advisor principal, as defined under Rule G-3(e)(i), to pass the Municipal Advisor Principal Qualification Examination (“Series 54 examination”) in order to become appropriately qualified as a municipal advisor principal; (ii) specify that such persons who cease to be associated with a municipal advisor for two or more years at any time after having qualified as a municipal advisor principal must requalify by examination unless a waiver is granted; (iii) add the Series 54 examination to the list of qualification examinations for which a waiver can be sought; (iv) provide that municipal advisor representatives may function as a principal for 120 calendar days without being qualified with the Series 54 examination; and (v) make a technical amendment to Rule G-3(e) to clarify that a municipal advisor principal must pass the Municipal Advisor Representative Qualification Examination (“Series 50 examination”) as a prerequisite to becoming qualified
The text of the proposed rule change is available on the MSRB's website at
In its filing with the Commission, the MSRB included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The MSRB has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The MSRB is charged with setting professional qualification standards for municipal advisors. Section 15B(b)(2)(A) of the Act authorizes the MSRB to prescribe “standards of training, experience, competence, and such other qualifications as the Board finds necessary or appropriate in the public interest or for the protection of investors and municipal entities or obligated persons.”
In connection with its statutory mandate, beginning Spring 2014, the MSRB set out on a multi-year effort to establish professional qualification requirements for municipal advisor professionals. The MSRB published Notice 2014-08
In the 2014 filing,
Now that the MSRB has concluded the launch of the Series 50 examination and the one-year grace period has ended
The MSRB is proposing to adopt Rule G-3(e)(ii)(A) to establish additional qualification requirements for municipal advisor principals. Specifically, the proposed amendments would require those who meet the definition of a municipal advisor principal, as defined under Rule G-3(e)(i), (
Proposed Rule G-3(e)(ii)(B) would require any person qualified as a municipal advisor principal who ceases to be associated with a municipal advisor for two or more years at any time after having qualified as a municipal advisor principal to requalify by examination by passing both the Series 50 examination and Series 54 examination prior to becoming qualified as a municipal advisor principal, unless a waiver is granted pursuant to Rule G-3(h)(ii), on waiver of qualification requirements.
The MSRB is also proposing a technical amendment to Rule G-3(e)(i), on definitions, to establish as a separate rule provision, and to clarify, that qualification as a municipal advisor representative is a prerequisite to obtaining qualification as a municipal advisor principal. The MSRB is also proposing a technical amendment to renumber the rule provisions under Rule G-3(e).
A more detailed summary of the Series 54 examination under development is outlined below.
The MSRB believes that professional qualification examinations, such as the Series 50 examination and Series 54 examination, are established means for determining the competency of individuals in a particular qualification classification. The MSRB has, in consultation with the MSRB's Professional Qualification Advisory Committee, developed the Series 54 examination to ensure that a person seeking to qualify as a municipal advisor principal satisfies a specified level of competency and knowledge by measuring a candidate's ability to apply the applicable federal securities laws, including MSRB rules to the municipal advisory activities of a municipal advisor. The MSRB has adhered to recognized test development standards by performing a job study to determine the appropriate topics to be covered and weighting of such topics on the Series 54 examination.
The MSRB will announce the effective date of the permanent Series 54 examination at a later date in an MSRB Notice published on
Consistent with the requirement that all municipal advisor representatives and municipal advisor principals pass the Series 50 examination, the proposed rule change would require those who meet the definition of a municipal advisor principal, as defined under Rule G-3(e), to pass the Series 54 examination regardless of whether such persons have passed other MSRB or MSRB-recognized examinations (such as the Series 53 or Series 24). The MSRB does not intend to waive the principal-level requirement or grandfather individuals who have passed such other examinations or who have experience in functioning in a supervisory capacity. The MSRB believes that, as consistent with the professional qualification standards for the municipal advisor representative-level examination, each municipal advisor principal should demonstrate a specified level of competency of the regulatory requirements and application thereof to the municipal advisory activities of a municipal advisor by passing a principal-level examination.
The MSRB believes that the proposed rule change is consistent with Section 15B(b)(2)(A) of the Act,
The MSRB also believes the proposed amendments are in accordance with Section 15B(b)(2)(C) of the Act,
Additionally, Section 15B(b)(2)(L)(iv) of the Act, requires that MSRB rules not impose a regulatory burden on small municipal advisors that is not necessary or appropriate in the public interest and for the protection of investors, municipal entities, and obligated persons, provided that there is robust protection of investors against fraud.
Section 15B(b)(2)(C) of the Act
As previously indicated, once the Series 54 examination is permanently available, a municipal advisor principal will be required to pass both the Series 50 examination and Series 54 examination prior to becoming qualified as a municipal advisor principal. The
The MSRB recognizes that municipal advisors would incur programmatic costs associated with the proposed Series 54 examination requirement, including costs to meet standards of training, experience and competence.
The Act provides that MSRB rules may not impose a regulatory burden on small municipal advisors that is not necessary or appropriate in the public interest and for the protection of investors, municipal entities, and obligated persons provided that there is robust protection of investors against fraud.
The MSRB has considered whether it is possible that the costs associated with preparing for and taking the municipal advisor principal-level qualification examination, could possibly affect the competitive landscape by leading some municipal advisory firms and principals to exit the market, curtail their activities or consolidate with other firms.
Written comments were neither solicited nor received.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove such proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549.
For the Commission, pursuant to delegated authority.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (“PRA”) (44 U.S.C. 3501
Under Rule 17f-1(b) under the Exchange Act, approximately 10,000 entities in the securities industry are registered in the Lost and Stolen Securities Program (“Program”). Registration fulfills a statutory requirement that entities report and inquire about missing, lost, counterfeit, or stolen securities. Registration also allows entities in the securities industry to gain access to a confidential database that stores information for the Program.
The Commission staff estimates that 10 new entities will register in the Program each year. The staff estimates that the average number of hours necessary to comply with Rule 17f-1(b) is one-half hour. Accordingly, the staff estimates that the total annual burden for all participants is 5 hours (10 × one-half hour). The Commission staff estimates that compliance staff work at subject entities results in an internal cost of compliance, at an estimated hourly wage of $283, of $141.50 per year per entity (.5 hours × $283 per hour = $141.50 per year). Therefore, the aggregate annual internal cost of compliance is approximately $1,415 ($141.50 × 10 = $1,415).
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.
The public may view background documentation for this information collection at the following website:
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
ICE Clear Europe Limited (“ICE Clear Europe” or the “Clearing House”) proposes to adopt a new F&O Risk Policy and related procedures to consolidate and replace certain existing risk policies related to F&O Contracts. The revisions do not involve any changes to the ICE Clear Europe Clearing Rules or Procedures.
In its filing with the Commission, ICE Clear Europe 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
ICE Clear Europe is proposing to adopt a new F&O Risk Policy and related F&O Risk Procedures. The new F&O Risk Policy and F&O Risk Procedures are intended to consolidate and replace several existing ICE Clear Europe F&O policies: The Financials & Softs Backtesting Policy, Energy Backtesting Policy, Financials & Softs Margin Requirement Policy, Energy Margin Requirements Policy, Intraday Risk Management Policy and Wrong Way Risk Policy (collectively, the “Consolidated Policies”).
The F&O Risk Policy and F&O Risk Procedures collectively are intended to restate and reorganize the Consolidated Policies, without making substantive changes to the current risk management practices and procedures set out in the Consolidated Policies used by the Clearing House with respect to F&O Contracts. ICE Clear Europe believes that the new policy and procedures will create a simpler and more consistent documentation structure for its F&O risk management practices and procedures.
The F&O Risk Policy outlines the Clearing House approach to the following risk management matters for F&O Contracts:
• Core initial margin calculation and the key components of the margin model for F&O Contracts
• Margin period of risk
• Procyclicality considerations
• Additional initial margin for various circumstances, including concentration risk, specific wrong way risk, stress margin, shortfall margin, intraday buffer margin and capital to margin ratio
• Additional discretionary initial margin
• Margin call and collection procedures
• Intraday risk monitoring, including intraday margin calls
• Monitoring of IM parameters and margin performance
• Backtesting of margin requirements
• Stress testing of margin requirements
• Sizing and review of the F&O guaranty fund
• Policy governance and exception handling.
The F&O Risk Procedures set out further detail concerning the implementation of these risk management principles, including further details on the operation of F&O initial margin and F&O Guaranty Fund models, consistent with the current approach taken by the Clearing House. As with the existing Consolidated Policies, certain additional procedure or methodological aspects of risk management arrangement are set out in existing margin model and other model documentation, which are not changed by these amendments.
ICE Clear Europe believes that the proposed amendments are consistent with the requirements of Section 17A of the Act
ICE Clear Europe does not believe the proposed amendments would have any impact, or impose any burden, on competition not necessary or appropriate in furtherance of the purposes of the Act. The amendments are being adopted to consolidate and restate the Clearing House's existing risk policies and procedures with respect to F&O Contracts. The amendments do not substantively change the Clearing House's risk policies and procedures, and accordingly should not affect the rights or obligations of F&O Clearing Members. As a result, ICE Clear Europe does not believe the amendments will affect the cost of clearing for F&O Clearing Members or other market participants, the market for cleared services generally or access to clearing by F&O Clearing Members or other market participants, or otherwise affect competition among F&O Clearing Members or market participants.
Written comments relating to the proposed amendments have not been solicited or received by ICE Clear Europe. ICE Clear Europe will notify the Commission of any written comments received with respect to the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act and paragraph (f) of Rule 19b-4 thereunder. At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
All comments received will be posted without change. Persons submitting comments are cautioned that we do not redact or edit personal identifying information from comment submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-ICEEU-2018-013 and should be submitted on or before October 30, 2018.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to establish new pricing for Flash Orders within Section I of the Schedule of Fees and eliminate Section IV.G. of the Exchange's Schedule of Fees.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to establish new fees for Flash Orders
The Exchange proposes to add further detail to the definition of Flash Orders within the Preface of the Schedule of Fees to indicate the applicability of the pricing. Today, the Exchange assesses the applicable “Taker” Fee for the initiation of a Flash Order and does not asses any “Maker” Fee for responses.
The Exchange believes that Flash Orders, which initiate auctions, should be treated as “Taker” because the Member would be removing liquidity on ISE in the event the Member's interest was exposed as a Flash Order. A Member responding to a Flash Order would therefore be providing liquidity when executing against the Flash Order and therefore should be assessed a
The Exchange proposes to eliminate the Flash Order pricing within Section IV. G of the Schedule of Fees and relocate and amend its current Flash Order pricing within Section I of the Schedule of Fees.
The Exchange proposes to memorialize that any market participant's order that initiates a Flash Order will be assessed the appropriate Taker Fee in Section I of the Schedule of Fees.
Today, all market participants are being assessed a Taker Fee. Today, no market participant responding to a Flash Order is assessed a Maker Fee in Section I. Today a credit of $0.05 per contract is paid to a market participant trading against a Priority Customer, Professional Customer or Preferenced Priority Customer
The Exchange believes that the proposal will bring more clarity to the Schedule of Fees with respect to Flash Orders. Also, the Exchange's proposal is intended to incentivize all ISE Members initiate or respond to a Flash Order contra a Priority Customer by submitting interest on ISE.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange's proposal to amend the definition of Flash Orders within the Preface is reasonable because it will add greater transparency to the applicability of the fees. The Exchange believes that indicating how the Exchange will apply Maker or Taker Fees to Flash Orders will bring greater transparency to the manner in which these fees are assessed. This amendment is equitable and not unfairly discriminatory as the Exchange will uniformly assess the Maker and Taker Fees in Section I as described in the Flash Orders definition to Members that either initiate or respond to the Flash Order.
The Exchange believes that Flash Orders, which initiate auctions, should be treated as “Taker” because the Member would be removing liquidity on ISE in the event the Member's interest was exposed as a Flash Order. A Member responding to a Flash Order would therefore be providing liquidity when executing against the Flash Order and therefore should be assessed a Maker Fee. The Exchange believes that Flash Orders encourage Members to price orders fairly to obtain a local execution on ISE.
The Exchange's proposal to eliminate Flash Order pricing within Section IV.G of the Schedule of Fees and relocate and amend its current Flash Order pricing within Section I of the Schedule of Fees is reasonable. The Exchange's proposal will uniformly pay a credit of $0.05 per contract to any market participant responding to a Flash Order in a Select or Non-Select Symbol which executes contra a Priority Customer. Today, the Exchange pays a credit of $0.05 per contract in certain circumstances such as when trading against a Priority Customer or a Professional Customer or a Preferenced Priority Customer
Also, the Exchange would now begin to assess a Maker Fee to all market participants responding to a Flash Order, except Priority Customers. While the Exchange would now assess Maker Fees if responding to a Flash Order, market participants also have the opportunity with this proposal to receive a $0.05 per contract credit for responding to a Priority Customer in Non-Select Symbols. The Exchange believes that assessing the Maker Fee is reasonable because the Exchange believes that there is more opportunity to earn a credit. The Exchange notes that Priority Customers are assessed no Maker Fee. The Exchange does not believe that it is unfairly discriminatory to not assess Priority Customers a Maker Fee because Priority Customer liquidity enhances liquidity on the Exchange for the benefit of all market participants by providing more trading opportunities, which attracts Market Makers. The Exchange's proposal to eliminate Flash Order pricing within Section IV.G of the Schedule of Fees and relocate and amend its current Flash Order pricing within Section I of the Schedule of Fees is equitable and not unfairly discriminatory. Although the Exchange would not pay a credit of $0.05 per contract to a market participant trading against a Professional Customer in a Select Symbol or a Professional Customer in a Non-Select Symbol, the Exchange would uniformly pay all market participants a $0.05 per contract credit when transacting a Flash Order in either a Select or Non-Select Symbol, provided that the contra-side to the transaction is a Priority Customer. The Exchange believes that it is equitable and not unfairly discriminatory to assess market participants who respond to a Flash Order a Section I Maker Fee because the Exchange would be uniformly assessing the fee uniformly to all market participants. The Exchange does not believe that it is unfairly discriminatory to pay a credit only when trading against a Priority Customer Order and not another type of market participant because unlike other order flow, Priority Customer Order flow enhances liquidity on the Exchange for the benefit of all market participants by providing more trading opportunities, which attracts Market Makers. The Exchange believes that the proposed changes provide all market participants that trade on ISE an opportunity to earn an additional rebate when executing against Priority Customer Orders.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The Exchange is amending existing Flash Order pricing to more uniformly apply this pricing to all market participants and therefore does not believe this proposal will cause an undue burden on inter-market competition. The Exchange believes that the proposed pricing remains competitive. The Exchange notes that Professional Customers, unlike Priority Customers, have access to sophisticated trading systems that contain functionality not available to Priority Customers. Also, Professional Customers have the same technological and informational advantages as broker-dealers trading for their own account. The Exchange believes that Professional Customers, who are considered sophisticated algorithmic traders effectively compete with Market Makers and broker-dealers
The Exchange's proposal to eliminate Flash Order pricing within Section IV.G of the Schedule of Fees and relocate and amend its current Flash Order pricing within Section I of the Schedule of Fees does not impose an undue burden on competition. Although the Exchange would not pay a credit of $0.05 per contract to a market participant trading against a Professional Customer in a Select Symbol or a Non-Select Symbol, the Exchange would uniformly pay all market participants a $0.05 per contract credit when transacting a Flash Order in either a Select or Non-Select Symbol, provided that the contra-side to the transaction is a Priority Customer. The Exchange believes that it does not impose an undue burden on competition to assess market participants who respond to a Flash Order a Section I Maker Fee because the Exchange would be uniformly assessing the fee uniformly to all market participants. The Exchange does not believe that it is unfairly discriminatory to pay a credit only when trading against a Priority Customer Order because this type of order flow enhances liquidity on the Exchange for the benefit of all market participants by providing more trading opportunities, which attracts Market Makers. The Exchange notes that Professional Customers, unlike Priority Customers, have access to sophisticated trading systems that contain functionality not available to Priority Customers. Also, Professional Customers have the same technological and informational advantages as broker-dealers trading for their own account. The Exchange believes that Professional Customers, who are considered sophisticated algorithmic traders effectively compete with Market Makers and broker-dealers
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section
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 (“Act”),
The Exchange proposes to amend BOX Rule 7600(a)(4) (Qualified Open Outcry Orders—Floor Crossing). The text of the proposed rule change is available from the principal office of the Exchange, at the Commission's Public Reference Room and also on the Exchange's internet 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 these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend Rule 7600(a)(4) to provide the ability for the Exchange to determine the applicable number of legs for a Complex Qualified Open Outcry Orders (“Complex QOO Order”).
The Exchange will inform Participants in advance of any change to the number of legs via Informational Circular. The Exchange notes that another exchange in the industry has similar rules in place which provide flexibility in determining the maximum number of legs for complex orders at their respective exchange.
The Exchange also proposes to correct the location of a misplaced comma in Rule 7600(a)(4). Rule 7600(a)(4), as amended, will make clear that the cross reference to Rule 7240(a)(5) applies to Complex QOO Orders and not multi-leg orders. The Exchange believes that this correction will add clarity with regard to Complex QOO Orders traded on the BOX Trading Floor.
The Exchange believes that the proposal is consistent with the requirements of Section 6(b) of the Securities Exchange Act of 1934 (the “Act”),
In particular, the Exchange believes the proposed rule change, which provides the Exchange with greater flexibility in determining the maximum number of legs for Complex QOO Orders, will benefit Floor Brokers and their customers by providing the potential for increased opportunities for executions on the BOX Trading Floor. Further, the Exchange believes that the proposed change will provide the potential for greater liquidity which should, in turn, benefit and protect investors and the public interest through the potential for greater volume of orders and executions on the BOX Trading Floor. As discussed above, the Exchange notes that another exchange has a similar rule which allows for the maximum number of legs for complex orders to be determined by the exchange.
Lastly, the Exchange believes that the proposed change to correct the inadvertent error in Rule 7600(a)(4) is reasonable as it will provide clarity with respect to QOO Orders on the Exchange.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. In this regard and as indicated above, the Exchange notes that the proposed rule change is similar to the rules of another exchange.
The Exchange has neither solicited nor received comments on the proposed rule change.
Because the proposed rule change does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On February 10, 2017, the Chicago Stock Exchange, Inc. (“Exchange” or “CHX”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Exchange Act”)
On October 24, 2017, the Secretary of the Commission notified the Exchange that pursuant to Rule 431 of the Commission's Rules of Practice,
On July 25, 2018, CHX withdrew the proposed rule change (SR-CHX-2017-04).
Under Commission Rule of Practice 431(a), the Commission may “affirm, reverse, modify, set aside or remand for further proceedings, in whole or in part, any action made pursuant to” delegated authority.
Accordingly,
By the Commission.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), the Securities and Exchange Commission (“Commission”) has submitted to the Office of Management and Budget a request for extension and approval of the collections of information discussed below.
Section 10(f) of the Investment Company Act of 1940 (15 U.S.C. 80a) (the “Act”) prohibits a registered investment company (“fund”) from purchasing any security during an underwriting or selling syndicate if the fund has certain relationships with a principal underwriter for the security. Congress enacted this provision in 1940 to protect funds and their shareholders by preventing underwriters from “dumping” unmarketable securities on affiliated funds.
Rule 10f-3 (17 CFR 270.10f-3) permits a fund to engage in a securities transaction that otherwise would violate section 10(f) if, among other things: (i) The fund's directors have approved procedures for purchases made in reliance on the rule, regularly review fund purchases to determine whether they comply with these procedures, and approve necessary changes to the procedures; and (ii) a written record of each transaction effected under the rule is maintained for six years, the first two of which in an easily accessible place. The written record must state: (i) From whom the securities were acquired; (ii) the identity of the underwriting syndicate's members; (iii) the terms of the transactions; and (iv) the information or materials on which the fund's board of directors has determined that the purchases were made in compliance with procedures established by the board.
The rule also conditionally allows managed portions of fund portfolios to purchase securities offered in otherwise off-limits primary offerings. To qualify for this exemption, rule 10f-3 requires that the subadviser that is advising the purchaser be contractually prohibited from providing investment advice to any other portion of the fund's portfolio
These requirements provide a mechanism for fund boards to oversee compliance with the rule. The required recordkeeping facilitates the Commission staff's review of rule 10f-3 transactions during routine fund inspections and, when necessary, in connection with enforcement actions.
The staff estimates that approximately 236 funds engage in a total of approximately 2,928 rule 10f-3 transactions each year.
The funds also must maintain and preserve these transactional records in accordance with the rule's recordkeeping requirement, and the staff estimates that it takes a fund approximately 20 minutes per transaction and that annually, in the aggregate, funds spend approximately 976 hours
In addition, fund boards must, no less than quarterly, examine each of these transactions to ensure that they comply with the fund's policies and procedures. The information or materials upon which the board relied to come to this determination also must be maintained and the staff estimates that it takes a fund 1 hour per quarter and, in the aggregate, approximately 944 hours
The staff estimates that reviewing and revising as needed written procedures for rule 10f-3 transactions takes, on average for each fund, two hours of a compliance attorney's time per year.
Based on an analysis of fund filings, the staff estimates that approximately 299 fund portfolios enter into subadvisory agreements each year.
The staff estimates, therefore, that rule 10f-3 imposes an information collection burden of 4,080 hours.
The collection of information required by rule 10f-3 is necessary to obtain the benefits of the rule. Responses will not be kept confidential. 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 public may view the background documentation for this information collection at the following website,
On August 8, 2018, the Cboe Exchange, Inc. (the “Exchange” or “Cboe Options”) filed with the Securities and Exchange Commission (the “Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”)
As described in more detail in the Notice,
Further, Rule 6.57(c) sets forth a trading procedure that requires the entering firm to submit a list of the individual SPX options series, their size, and any net debit or credit bid price received, as well as contact information for the order.
Rule 6.57(c) further specifies that the response that represents the best bid or offer on a net debit or credit basis for the RWA Package has priority.
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of the Act,
The proposed rule change is designed to remove impediments to and perfect the mechanism of a free and open market and a national market system by providing a mechanism to facilitate the reduction of SPX options positions and concomitant RWA.
Further, with respect to trading, the Exchange's rule is based on Rule 6.49A, which establishes a similar process for on-floor transfers, but improves upon that rule by adding certifications to assure compliance and increases transparency by electronically disseminating the list of series in a proposed RWA Package. All Cboe members will be given notice of and the ability to participate in the RWA Package trading process.
Finally, the Commission notes the narrow scope of proposed Rule 6.57. The proposed rule change would apply only to SPX options, which are particularly impacted by current bank-capital regulations, and any transaction must result in a net reduction of RWA. Furthermore, the proposed rule change is only effective for a limited term, ending two years from the approval date.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Commission invites comment on updates to its Electronic Data Collection System database (the Database), which will support information provided by members of the public who would like to file an online tip, complaint or referral (TCR) to the Commission. The Database will be a web based e-filed dynamic report based on technology that pre-populates and establishes a series of questions based on the data that the individual enters. The individual will then complete specific information on the subject(s) and nature of the suspicious activity, using the data elements appropriate to the type of complaint or subject. The information collection is voluntary. The public interface to the Database will be available using the agency's website,
Written comments are invited on: (a) Whether this collection of information is necessary for the proper performance
Background documentation for this information collection may be viewed at the following website:
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to a proposal [sic] to align its existing investigatory and disciplinary processes and related rules with the investigatory and disciplinary processes and related rules of Nasdaq PHLX LLC (“Phlx”).
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
BX proposes to amend certain of its rules to align its existing investigatory and disciplinary processes and related rules with the investigatory and disciplinary processes and related rules of Phlx. BX notes that Phlx amended its rules recently to adopt an investigatory and disciplinary process identical in all material respects to the investigatory and disciplinary processes of Nasdaq, Inc. and BX.
The Exchange proposes to revise the definition of [sic] BX Current Rule 9120(w) (“Exchange's Regulation Department”) to expressly include the Exchange's Enforcement Department. The Exchange's Enforcement Department is specifically charged with pursuing disciplinary action against members, persons associated with a member, and persons subject to the Exchange's jurisdiction, in addition to FINRA's departments of Enforcement and Market Regulation.
Similarly, the Exchange proposes to add references to the “Exchange's Regulation Department” in BX Current Rule 9120(aa) (definition of the term “Party”). The Exchange also proposes to add a definition for the term “Party” as used in the BX Rule 9400 series,
The Exchange proposes to add rule text to certain rules to clarify that FINRA may act on behalf of the Exchange. Today, FINRA is empowered to act on behalf of the Exchange.
The Exchange proposes to replace the current rule text related to jurisdiction of BX to initiate disciplinary actions with text substantially similar to the Phlx's jurisdiction rule text. Current BX Rules 1012(h)
A person whose association with a member has been terminated and is no longer associated with any Exchange member shall continue to be subject to a proceeding to suspend, consistent with Section 12.2 of the Exchange By-Laws, his or her ability to associate with a member based on such person's failure to comply with an arbitration award or a written and executed settlement agreement obtained in connection with an arbitration or mediation submitted for disposition pursuant to the Rules of the Exchange, provided that such proceeding is instituted within two years after the date of entry of such award or settlement.
An individual member, or a partner, officer, director or person employed by or associated with a member may be charged with any violation within the disciplinary jurisdiction of the Exchange committed by employees under his supervision or by the member with which he is associated, as though such violations were his own. A member may be charged with any violation within the disciplinary jurisdiction of the Exchange committed by its officers, directors, or employees or by a member or other person who is associated with such member, as though such violation were its own.
Any member, or any partner, officer, director, or person employed by or associated with a member organization, and any member organization shall continue to be subject to the disciplinary jurisdiction of the Exchange following the termination of such person's permit or the termination of the employment by or the association with a member organization of such member or partner, officer, director or person, or following the deregistration of a member organization from the Exchange; provided, that the Exchange serves written notice to such former member, partner, officer, director, employee, associated person or member organization within one year of receipt by the Exchange of notice of such termination or deregistration that the Exchange is making inquiry into a matter or matters which occurred prior to the termination of such person's status as a member, or as a partner, officer, director or person employed by or associated with a member organization, or prior to the deregistration of such member organization.
The amendment to expand jurisdiction will not apply retroactively and any complaints not filed within the existing two year time-period will be time-barred. The new jurisdiction rule will only apply to the applicable members or associated persons who terminate with the Exchange on or after October 15, 2018.
The Exchange also proposes to eliminate the rule text contained within BX Current Rules 1012(h) and 1031(f) and reserve those sections.
The definition of Interested Staff is being conformed to Phlx's definition and includes references to Exchange and FINRA employees as those terms are proposed to be defined.
The Exchange proposes to add a sentence within Current BX Rule 9270(e)(2), similar to Phlx, to add more
The Exchange also proposes to make certain technical amendments throughout these rules to: (i) Amend “NASD” to the updated name “FINRA”
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
In addition, the Exchange believes that the proposed rule changes are consistent with Section 6(b)(6) of the Act,
The Exchange believes that the proposed changes are consistent with these requirements because the changes further harmonize BX's investigative and adjudicatory processes with similar processes used by Phlx. The new processes are well-established as fair and designed to protect investors and the public interest. Because the Exchange is conforming the BX rule text to the Phlx rule text to eliminate any differences (except for those noted herein), the Exchange believes that the proposed changes should facilitate prompt, appropriate, and effective discipline of members and their associated persons consistent with the Act. The Exchange believes that adding references to the Exchange's Regulation Department within the 8000 and 9000 BX Series rules as described in this proposal clarifies the involvement that the Exchange's Regulation Department plays in the investigation and enforcement of BX's disciplinary rules. In addition, the Exchange believes that adding references to FINRA within the 8000 and 9000 BX Series rules as described in this proposal brings greater transparency to its rules and clarifies the process as it exists today. Today, FINRA is empowered to act on behalf of the Exchange.
The Exchange believes that harmonizing the rule text of the investigative and adjudicatory processes with those of Phlx will reduce the burden on members and their associated persons as they only will need to be familiar with a single rule set going forward. Because the substance of the rules would remain unchanged, the Exchange believes that the proposed change would continue to provide fair procedures for the suspending and disciplining of members and associated persons, the denial of membership to any person seeking membership therein, the barring of any person from becoming associated with a member thereof, and the prohibition or limitation by the Exchange of any person with respect to access to services offered by the Exchange or a member thereof.
The Exchange's proposal to replace the current rule text related to jurisdiction of BX to initiate disciplinary actions with text substantially similar to the Phlx's jurisdiction rule text will permit the Exchange to initiate a disciplinary action beyond two years after the effective date of the member's or associated person's termination with the Exchange. This provision would not apply retroactively, but would permit the Exchange to bring actions after the effective date of termination, so long as the Exchange serves written notice within one year of receipt by the Exchange of notice of such termination that the Exchange is making inquiry into a matter or matters which occurred prior to the termination of status as a member or associated person. The Exchange believes that this provision will provide the Exchange with the same latitude as Phlx to bring actions against its members and associated persons for violations of its rule. The Exchange believes that it is consistent with the Act to provide the Exchange with the ability to initiate violations for members and their associated persons for violations which took place while these members and associated persons were members of the Exchange. The rule change will better protect investors and the public interest by allowing actions to proceed that may otherwise have been time barred under the old rule.
The Exchange's proposal to amend the definition of Interested Staff will conform BX's definition to Phlx's definition, except insofar as BX's proposal omits references to FINRA's Department of Market Regulation for the reasons set forth in footnote 6 above. The Exchange believes that it is consistent with the Act because the definition better defines who falls within the category of Interested Staff without substantively amending the definition.
Finally, making technical amendments in BX Rules 8110, IM-8310-3, 9120, 9211, 9231, 9270, 9331, 9522, 9523, 9552, 9553, 9554, 9555, 9556, 9558, and 9610 removes impediments to and perfects the mechanism of a free and open market by removing confusion that may result from having incorrect or incomplete material in the Exchange's rulebook.
The Exchange believes that its proposal furthers the objectives of Section 6(b)(7) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is intended to more clearly align the text of Phlx's and the Exchange's rules. Specifically and as described in detail above, the Exchange believes that this change will bring efficiency and consistency to the investigative and adjudicatory processes, thereby reducing the burden on members and their associated persons who are also members of Phlx.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes amendments to the Exchange's rules regarding qualification, registration and continuing education requirements applicable to members or member organizations. To the extent the Exchange's rule proposal is intended to harmonize with Financial Regulatory Authority, Inc. (“FINRA”) rules and thus promote consistency within the securities industry, the Exchange is only adopting rules that are relevant to the Exchange's members or member organizations. The Exchange is not adopting registration categories that are not applicable to members or member organizations because members or member organizations do not engage in the type of business that would require such registration. As such, the Exchange is amending current Rule 345A regarding continuing education requirements to reflect the FINRA rule; adopting Commentary .60 to current Rule 345A regarding fingerprint information; adopting new Rule 1210 regarding registration requirements and related Commentary to new Rule 1210; adopting new Rule 1220 regarding registration categories
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend its qualification, registration, and continuing education requirements applicable to members or member organizations. The proposed amendments are intended to: (i) Provide transparency and clarity with respect to the Exchange's registration, qualification and examination requirements; (ii) amend its rules relating to categories of registration and respective qualification examinations required for ETP Holders that engage in trading activities on the Exchange; (iii) harmonize the Exchange's qualification, registration and examination rules with those of FINRA
Rule 345, Commentary .10, provides the definition of a Securities Trader as any person engaged in the purchase or sale of securities or other similar instruments for the account of a member organization with which such person is associated, as an employee or otherwise, and who does not transact any business with the public. With this proposed rule change, the Exchange proposes to adopt FINRA's definition of Securities Trader (as described below) and therefore, proposes to add a reference in Rule 345, Commentary .10 to Rule 2.1220(b)(3) [sic] as the appropriate rule in the Exchange's Rulebook where the definition of Securities Trader can be found.
Further, Rule 345, Commentary .10, states that a Securities Trader must be registered as such on Web CRD and pass the Series 57 examination. Given the formulation of the Securities Industry Essentials (“SIE”) examination (discussed below) which all potential representative-level registrants would be required to pass, the Exchange proposes to amend the current rule to require that a Securities Trader must register as such on Web CRD and must pass both the SIE examination and the Series 57 examination.
Rule 345A provides the continuing education requirements of registered persons
The Exchange proposes to amend Rule 345A(a) to provide, consistent with proposed Rule 2.1210 [sic], Commentary .08, that a waiver-eligible person would be subject to a Regulatory Element program that correlates to his or her most recent registration category, and that the content of the Regulatory Element would be based on the same cycle had the individual remain [sic] registered.
Further, the Exchange proposes to amend Rule 345A(a) to provide that any person whose registration has been deemed inactive under the rule may not accept or solicit business or receive any compensation for the purchase or sale of securities. The proposed amendment provides, however, that such person may receive trail or residual commissions resulting from transactions completed before the inactive status, unless the member or member organization with which the person is associated has a policy prohibiting such trail or residual commissions.
Additionally, under Rule 345A(a), a registered person is required to retake the Regulatory Element in the event that such person (i) is subject to any statutory disqualification as defined in Section 3(a)(39) of the Exchange Act; (ii) is subject to suspension or to the imposition of a fine of $5,000 or more for violation of any provision of any securities law or regulation, or any agreement with or rule or standard of conduct of any securities governmental agency, securities self-regulatory organization, or as imposed by any such regulatory or self-regulatory organization in connection with a disciplinary proceeding; or (iii) is ordered as a sanction in a disciplinary action to retake the Regulatory Element by any securities governmental agency or self-regulatory organization. The Exchange proposes to amend Rule 345A(a) to provide an exception to a waiver-eligible person from retaking the Regulatory Element and satisfy [sic] all of its requirements.
Current Rule 345A(b) provides that programs used to implement a member's or member organization's training program must be appropriate for the business of the member or member organization and, at a minimum must cover specific matters concerning securities products, services, and strategies offered by the member or member organization. The Exchange proposes to amend the current rule to expand the minimum standard for such training programs by requiring that, at a minimum, a firm's training program must also cover training in ethics and professional responsibility.
The Exchange proposes to adopt new Rule 345A, Commentary .60, regarding the submission of fingerprint information by member organizations. As proposed, upon filing an electronic Form U4 on behalf of a person applying for registration, a member organization would be required to promptly submit fingerprint information for that person. If the member organization fails to submit the fingerprint information within 30 days after the Exchange receives the electronic Form U4, the person's registration shall be deemed inactive and the person would be required to immediately cease all activities requiring registration and would be prohibited from performing any duties and functioning in any capacity requiring registration. The proposed rule further provides allows [sic] the Exchange to administratively terminate a registration that is inactive for a period of two years. However, a person whose registration is administratively terminated may seek to reactivate his or her registration by reapplying for registration and meeting the qualification requirements under Exchange rules.
As a general matter, FINRA administers qualification examinations that are designed to establish that persons associated with member organizations have attained specified levels of competence and knowledge. Over time, the examination program has increased in complexity to address the introduction of new products and functions, and related regulatory concerns and requirements. As a result, today, there are a large number of examinations, considerable content overlap across the representative-level examinations and requirements for individuals in various segments of the industry to pass multiple examinations. To address these issues, FINRA has formulated a general knowledge examination called the Securities Industry Essentials examination that all potential representative-level registrants would take.
Proposed Rule 1210 provides that each person engaged in the investment banking or securities business of a member organization must register with the Exchange as a representative or principal in each category of registration appropriate to his or her functions and responsibilities as specified in proposed Rule 1220, unless exempt from registration pursuant to proposed Rule 1230. Proposed Rule 1210 also provides that such person is not qualified to function in any registered capacity other than that for which the person is registered, unless otherwise stated in the rules.
The Exchange currently does not have a specific rule that provides for permissive registrations. With this proposed rule change, and to conform its rules to the FINRA rules, the Exchange proposes to adopt a specific rule regarding permissive registrations.
The Exchange is proposing to permit the registration of such individuals for several reasons. First, a member organization may foresee a need to move a former representative or principal who has not been registered for two or more years back into a position that would require such person to be registered. Currently, such persons are required to requalify (or obtain a waiver of the applicable qualification examinations) and reapply for registration. Second, the proposed rule change would allow member organizations to develop a depth of associated persons with registrations in the event of unanticipated personnel changes. Finally, allowing registration in additional categories encourages greater regulatory understanding.
Individuals maintaining a permissive registration under the proposed rule change would be considered registered persons and subject to all Exchange rules, to the extent relevant to their activities. Additionally, consistent with the requirements of the Exchange's supervision rules, member organizations would be required to have adequate supervisory systems and procedures reasonably designed to ensure that individuals with permissive registrations do not act outside the scope of their assigned functions. With respect to an individual who solely maintains a permissive registration, such as an individual working exclusively in an administrative capacity, the individual's day-to-day supervisor may be a non-registered person. However, for purposes of compliance with the Exchange's supervision rules, a member organization would be required to assign a registered supervisor who would be responsible for periodically contacting such individual's day-to-day supervisor to verify that the individual is not acting outside the scope of his or her assigned functions. If such individual is permissively registered as a representative, the registered supervisor must be registered as a representative or principal. If the individual is permissively registered as a principal, the registered supervisor must be registered as a principal.
Proposed Rule 1210, Commentary .02, provides that before the registration of a person as a representative can become effective under proposed Rule 1210, such person must pass the SIE and an appropriate representative-level qualification examination as specified in proposed Rule 1220.
Further, proposed Rule 1210, Commentary .02, provides that if a registered person's job functions change and he or she needs to become registered in another representative-level category, he or she would not need to pass the SIE again. Rather, the registered person would need to pass only the appropriate representative-level qualification examination.
Moreover, proposed Rule 1210, Commentary .02, provides that all associated persons, such as associated persons whose functions are solely and exclusively clerical or ministerial, are eligible to take the SIE. Proposed Rule 1210, Commentary .02, also provides that individuals who are not associated persons of firms, such as members of the general public, are eligible to take the SIE. The Exchange believes that expanding the pool of individuals who are eligible to take the SIE would enable prospective securities industry professionals to demonstrate to prospective employers a basic level of knowledge prior to submitting a job application. Further, this approach would allow for more flexibility and career mobility within the securities industry. While all associated persons of firms as well as individuals who are not associated persons would be eligible to take the SIE pursuant to the proposed rule, passing the SIE alone would not qualify them for registration with the Exchange. Rather, to be eligible for registration with the Exchange, an individual must pass an applicable representative or principal qualification examination and complete the other requirements of the registration process.
Proposed Rule 1210, Commentary .02, also provides that the Exchange may, in exceptional cases and where good cause is shown, pursuant to the Rule 9600 Series, waive the applicable qualification examination(s) and accept other standards as evidence of an applicant's qualifications for registration. The proposed rule further provides that the Exchange will only consider examination waiver requests submitted by a member organization for individuals associated with the member organization who are seeking registration in a representative- or principal-level registration category. Moreover, the proposed rule states that the Exchange will consider waivers of the SIE alone or the SIE and the representative- and principal-level examination(s) for such individuals. The Exchange would not consider a waiver of the SIE for non-associated persons or for associated persons who are not registering as representatives or principals.
Proposed Rule 1210, Commentary .03, provides that a member organization may designate any person currently registered, or who becomes registered, with the member organization as a representative to function as a principal for a limited period, provided that such person has at least 18 months of experience functioning as a registered representative with [sic] the five-year period immediately preceding the designation. The proposed rule is intended to ensure that representatives designated to function as principals for the limited period under the proposal have an appropriate level of registered representative experience. The proposed rule clarifies that the requirements of the rule apply to designations to any principal category, including those categories that are not subject to a
The proposed rule also clarifies that the individual must fulfill all applicable prerequisite registration, fee and examination requirements before his or her designation as a principal. Further, the proposed rule provides that in no event may such person function as a principal beyond the initial 120 calendar days without having successfully passed an appropriate principal qualification examination. The proposed rule also provides an exception to the experience requirement for principals who are designated by a member organization to function in other principal categories for a limited period. Specifically, the proposed rule states that a member organization may designate any person currently registered, or who becomes registered, with the member organization as a principal to function in another principal category for 120 calendar days before passing any applicable examinations.
Proposed Rule 1210, Commentary .04 states that associated persons taking the SIE would be subject to the SIE Rules of Conduct, and associated persons taking a representative or principal examination would be subject to the Rules of Conduct for representative and principal examinations. Pursuant to proposed Rule 1210, Commentary .04, a violation of the SIE Rules of Conduct or the Rules of Conduct for representative and principal examinations by an associated person would be deemed to be a violation of Rule 2010. Moreover, if an associated person is deemed to have violated the SIE Rules of Conduct or the Rules of Conduct for representative and principal examinations, the associated person may forfeit the results of the examination and may be subject to disciplinary action by the Exchange.
Further, the proposed rule states that individuals taking the SIE who are not associated persons must agree to be subject to the SIE Rules of Conduct. Among other things, the SIE Rules of Conduct would require individuals to attest that they are not qualified to engage in the investment banking or securities business based on passing the SIE and would prohibit individuals from cheating on the examination or misrepresenting their qualifications to the public subsequent to passing the SIE. Moreover, non-associated persons may forfeit their SIE results and may be prohibited from retaking the SIE if the Exchange determines that they cheated on the SIE or that they misrepresented their qualifications to the public subsequent to passing the SIE.
The proposed rule further notes that the Exchange considers all qualification examinations [sic] content to be highly confidential and that the removal of examination content from an examination center, reproduction, disclosure, receipt from or passing to any person, or use for study purposes of any portion of such qualification examination or any other use that would compromise the effectiveness of the examinations and the use in any manner and at any time of the questions or answers to the examinations is prohibited and would be deemed a violation of Rule 2010.
Proposed Rule 1210, Commentary .05 provides that any person who fails a qualification examination may retake that examination after 30 calendar days from the date of the person's last attempt to pass that examination. The proposed rule further provides that if a person fails an examination three or more times in succession within a two-year period, he or she would be prohibited from retaking the examination either until a period of 180 calendar days from the date of the person's last attempt to pass it [sic]. These waiting periods would apply to the SIE and the representative- and principal-level examinations. Moreover, the proposed rule provides that non-associated persons taking the SIE must agree to be subject to the same waiting periods for retaking the SIE.
Pursuant to Rule 345A, the CE requirements applicable to registered persons consist of a Regulatory Element
The Exchange believes that all registered persons, regardless of their activities, should be subject to the Regulatory Element of the CE requirements so that they can keep their knowledge of the securities industry current. Therefore, the Exchange proposes to adopt Rule 1210, Commentary .06, to clarify that all registered persons, including those who solely maintain a permissive registration, are required to satisfy the Regulatory Element, as specified in Rule 345A(a). The Exchange is making corresponding changes to Rule 345A(a) [sic]. The Exchange is not proposing any changes to the Firm Element requirement at this time. Individuals
Proposed Rule 1210, Commentary .06, also provides that a registered person of a member organization who becomes CE inactive would not be permitted to be registered in another registration category with the member organization or be registered in any registration category with another member organization, until the person has satisfied the Regulatory Element.
Proposed Rule 1210, Commentary .07, provides that any person who was last registered as a representative two or more years immediately preceding the date of receipt by the Exchange of a new application for registration as a representative is required to pass a qualification examination for representatives appropriate to the category of registration as specified in proposed Rule 1220(b). Proposed Rule 1210, Commentary .07, also sets forth that a passing result on the SIE would be valid for up to four years. Therefore, under the proposed rule change, an individual who passes the SIE and is an associated person of a member organization at the time would have up to four years from the date he or she passes the SIE to pass a representative-level examination to register as a representative with that member organization, or a subsequent member organization, without having to retake the SIE. In addition, an individual who passes the SIE and is not an associated person at the time would have up to four years from the date he or she passes the SIE to become an associated person of a member organization and pass a representative-level examination and register as a representative without having to retake the SIE.
Moreover, an individual holding a representative-level registration who leaves the industry after the effective date of this proposed rule change would have up to four years to re-associate with a member organization and register as a representative without having to retake the SIE. However, the four-year expiration period in the proposed rule change extends only to the SIE, and not the representative- and principal-level registrations. The representative- and principal-level registrations would continue to be subject to a two-year expiration period as is the case today.
Finally, proposed Rule 1210, Commentary .07, clarifies that, for purposes of the proposed rule, an application would not be considered to have been received by the Exchange if that application does not result in a registration.
Proposed Rule 1210, Commentary .08, provides the process for individuals working for a financial services industry affiliate of a member organization
Under the proposed waiver process, the first time a registered person is designated as eligible for a waiver based on the FSA criteria, the member organization with which the individual is registered would notify the Exchange of the FSA designation. The member organization would concurrently file a full Form U5 terminating the individual's registration with the firm, which would also terminate the individual's other SRO and state registrations. To be eligible for initial designation as an FSA-eligible person by a member organization, an individual must have been registered for a total of five years within the most recent 10-year period prior to the designation, including for the most recent year with that member organization. An individual would have to satisfy these preconditions only for purposes of his or her initial designation as an FSA-eligible person, and not for any subsequent FSA designation(s). Thereafter, the individual would be eligible for a waiver for up to seven years from the date of initial designation,
An individual designated as an FSA-eligible person would be subject to the Regulatory Element of CE while working for a financial services industry affiliate of a member organization. The individual would be subject to a Regulatory Element program that correlates to his or her most recent registration category, and CE would be based on the same cycle had the individual remained registered. If the individual fails to complete the prescribed Regulatory Element during the 120-day window for taking the session, he or she would lose FSA eligibility (
Upon registering an FSA-eligible person, a firm would file a Form U4 and request the appropriate registration(s) for the individual. The firm would also submit an examination waiver request
(1) Prior to the individual's initial designation as an FSA-eligible person, the individual was registered for a total of five years within the most recent 10-year period, including for the most recent year with the member organization that initially designated the individual as an FSA-eligible person;
(2) The waiver request is made within seven years of the individual's initial designation as an FSA-eligible person by a member organization;
(3) The initial designation and any subsequent designation(s) were made concurrently with the filing of the individual's related Form U5;
(4) The individual continuously worked for the financial services affiliate(s) of a member organization since the last Form U5 filing;
(5) The individual has complied with the Regulatory Element of CE; and
(6) The individual does not have any pending or adverse regulatory matters, or terminations, that are reportable on the Form U4, and has not otherwise been subject to a statutory disqualification while the individual was designated as an FSA-eligible person with a member organization.
Following the Form U5 filing, an individual could move between the financial services affiliates of a member organization so long as the individual is continuously working for an affiliate. Further, a member organization could submit multiple waiver requests for the individual, provided that the waiver requests are made during the course of the seven-year period.
Proposed Rule 1210, Commentary .09, provides specific relief to registered persons serving in the Armed Forces of the United States. Among other things, the proposed rule permits a registered person of a member organization who volunteers for or is called into active duty in the Armed Forces of the United States to be registered in an inactive status and remain eligible to receive ongoing transaction-related compensation. The proposed rule also includes specific provisions regarding the deferment of the lapse of registration requirements for formerly registered persons serving in the Armed Forces of the United States. The proposed rule further requires that the member organization with which such person is registered promptly notify the Exchange of such person's return to employment with the member organization. The proposed rule would require a member organization that is a sole proprietor to also similarly notify the Exchange of his or her return to participation in the investment banking or securities business. The proposed rule also provides that the Exchange would defer the lapse of the SIE for formerly registered persons serving in the Armed Forces of the United States.
As set forth in proposed Rule 1220(a)(1), for purposes of these registration rules, the term “Principal” [sic] to mean any Person Associated with a member organization actively engaged in the management of the member organization's securities business, including supervision, solicitation, conduct of the member organization's business, or the training of Authorized Traders and Persons Associated with a member organization for any of these functions. Such Persons include Sole Proprietors, Officers, Partners, and Directors of Corporations.
For purposes of proposed Rule 1220(a)(1), the phrase “actively engaged in the management of the member organization's securities business” includes the management of, and the implementation of corporate policies related to, such business. The term also includes managerial decision-making authority with respect to the member organization's securities business and management-level responsibilities for supervising any aspect of such business, such as serving as a voting member of the member organization's executive, management or operations committee.
Proposed Rule 1220(a)(2)(A) states that each principal as defined in proposed Rule 1220(a)(1) is required to register with the Exchange as a General Securities Principal, subject to the following exceptions. The proposed rule provides that if a principal's activities include the functions of a Compliance Officer, a Financial and Operations Principal (or an Introducing Broker-Dealer Financial and Operations Principal, as applicable), a Principal Financial Officer, a Principal Operations Officer, or a Securities Trader Principal, then the principal must appropriately register in one or more of these categories.
Proposed Rule 1220(a)(2)(A) further provides that if a principal's activities are limited solely to the functions of a General Securities Sales Supervisor, then the principal may appropriately register in that category in lieu of registering as a General Securities Principal.
Proposed Rule 1220(a)(2)(B) requires that an individual registering as a General Securities Principal satisfy the General Securities Representative prerequisite registration and pass the General Securities Principal qualification examination. Proposed Rule 1220(a)(2)(B) also clarifies that an individual may register as a General Securities Sales Supervisor and pass the
As a general matter, the Exchange currently recognizes the Corporate Securities Representative but would no longer recognize this registration category given its elimination by FINRA. Proposed Rule 1220(a)(2)(B), however, provides that, subject to the lapse of registration provisions in proposed Rule 1210, Commentary .07, each person registered with the Exchange as a Corporate Securities Representative and a General Securities Principal on October 1, 2018 and each person who was registered with the Exchange as a Corporate Securities Representative and a General Securities Principal within two years prior to October 1, 2018 would be qualified to register as a General Securities Principal without having to take any additional qualification examinations, provided that such person's supervisory responsibilities in the investment banking and securities business of a member organization are limited to corporate securities activities of the member organization. The proposed rule further provides that all other individuals registering as General Securities Principals after October 1, 2018 shall, prior to or concurrent with such registration, become registered as a General Securities Representative and either (1) pass the General Securities Principal qualification examination; or (2) register as a General Securities Sales Supervisor and pass the General Securities Sales Supervisor qualification examination.
Proposed Rule 1220(a)(3) establishes a Compliance Officer registration category and requires all persons designated as CCOs on Schedule A of Form BD to register as Compliance Officers, subject to an exception for member organizations engaged in limited investment banking or securities business. The proposed rule only addresses the registration requirements for CCOs. However, consistent with proposed Rule 1210, Commentary .01 relating to permissive registrations, a firm may allow other associated persons to register as Compliance Officers.
In addition, the Exchange is proposing to provide CCOs of firms that engage in limited investment banking or securities business with greater flexibility to satisfy the qualification requirements for CCOs. Specifically, proposed Rule 1220(a)(3) set forth the following qualification requirements for Compliance Officer registration:
• Subject to the lapse of registration provisions in proposed Rule 1210, Commentary .07, each person registered with the Exchange as a General Securities Representative and a General Securities Principal on October 1, 2018 and each person who was registered with the Exchange as a General Securities Representative and a General Securities Principal within two years prior to October 1, 2018 would be qualified to register as Compliance Officers without having to take any additional examinations. In addition, subject to the lapse of registration provisions in proposed Rule 1210, Commentary .07, individuals registered as Compliance Officials in the CRD system on October 1, 2018 and individuals who were registered as such within two years prior to October 1, 2018 would also be qualified to register as Compliance Officers without having to take any additional examinations; [sic]
• All other individuals registering as Compliance Officers after October 1, 2018 would have to: (1) Satisfy the General Securities Representative prerequisite registration and pass the General Securities Principal qualification examination; or (2) pass the Compliance Official qualification examination.
• An individual designated as a CCO on Schedule A of Form BD of an ETP Holder [sic] that is engaged in limited investment banking or securities business may be registered in a principal category under proposed Rule 1220(a) that corresponds to the limited scope of the member organization's business.
Proposed Rule 1220(a)(4) provides that each principal who is responsible for the financial and operational management of a member organization that has a minimum net capital requirement of $250,000 under SEA Rules 15c3-1(a)(1)(ii) and 15c3-1(a)(2)(i), or a member organization that has a minimum net capital requirement of $150,000 under SEA Rule 15c3-1(a)(8) must be designated as a Financial and Operations Principal. In addition, proposed Rule 1220(a)(4) provides that a principal who is responsible for the financial and operational management of a member organization that is subject to the net capital requirements of SEA Rule 15c3-1, other than a member organization that is subject to the net capital requirements of SEA Rules 15c3-1(a)(1)(ii), (a)(2)(i) or (a)(8), must be designated and registered as either a Financial and Operations Principal or an Introducing Broker-Dealer Financial and Operations Principal. Financial and Operations Principals and Introducing Broker-Dealer Financial and Operation Principals are not subject to a prerequisite representative registration, but they must pass the Financial and Operations Principal or Introducing Broker-Dealer Financial and Operations Principal examination, as applicable.
Additionally, proposed Rule 1220(a)(4)(B) requires a member organization to designate a Principal Financial Officer with primary responsibility for the day-to-day operations of the business, including overseeing the receipt and delivery of securities and funds, safeguarding customer and firm assets, calculation and collection of margin from customers and processing dividend receivable and payables and reorganization redemptions and those books and records related to such activities. Further, the proposed rule requires that a firm's Principal Financial Officer and Principal Operations Officer qualify and register as Financial and Operations Principals or Introducing Broker-Dealer Financial and Operations Principals, as applicable.
Because the financial and operational activities of member organizations that neither self-clear nor provide clearing services are more limited, such member organizations may designate the same person as the Principal Financial Officer, Principal Operations Officer and Financial and Operations Principal or Introducing Broker-Dealer Financial and Operations Principal (that is, such member organizations are not required to designate different persons to function in these capacities).
Given the level of financial and operational responsibility at clearing and self-clearing members, the Exchange believes that it is necessary for such member organizations to designate separate persons to function as Principal Financial Officer and Principal Operations Officer. Such persons may also carry out the other responsibilities of a Financial and Operations Principal, such as supervision of individuals engaged in financial and operational activities. In addition, the proposed rule provides that a clearing or self-clearing member organization that is limited in size and
Proposed Rule 1220(a)(5) requires that a principal responsible for supervising the securities trading activities specified in proposed Rule 1220(b)(3) register as a Securities Trader Principal. The proposed rule requires that individuals registering as Securities Trader Principals must be registered as Securities Traders and pass the General Securities Principal qualification examination.
Proposed Rule 1220(a)(6) provides that a principal may register with the Exchange as a General Securities Sales Supervisor if his or her supervisory responsibilities in the investment banking or securities business of a member organization are limited to the securities sales activities of the member organization, including the approval or customer accounts, training of sales and sales supervisory personnel and the maintenance of records of original entry or ledger accounts of the member organization required to be maintained in branch offices by Exchange Act record-keeping rules.
A person registering as a General Securities Sales Supervisor must satisfy the General Securities Representative prerequisite registration and pass the General Securities Sales Supervisor examinations.
Proposed Rule 1220(b)(1) defines a representative as any person associated with a member organization, including assistant officers other than principals, who is engaged in the member organization's investment banking or securities business, such as supervision, solicitation, conduct of business in securities or the training of persons associated with a member organizations for any of these functions.
Proposed Rule 1220(b)(2)(A) states that each representative as defined in proposed Rule 1220(b)(1) is required to register with the Exchange as a General Securities Representative, subject to the following exceptions. The proposed rule provides that if a representative's activities include the function of a Securities Trader, then the representative must appropriately register in that category.
The proposed rule further provides that, subject to the lapse of registration provisions in proposed Rule 1210, Commentary .07, each person registered with the Exchange as a General Securities Representative on October 1, 2018 and each person who was registered with the Exchange as a General Securities Representative within two years prior to October 1, 2018 would be qualified to register as a General Securities Representative without having to take any additional qualification examinations. Additionally, the proposed rule would require that individuals registering as General Securities Representatives after October 1, 2018 shall, prior to or concurrent with such registration, pass the SIE and the General Securities Representative examination.
Proposed Rule 1220(b)(3) provides that each representative as defined in proposed Rule 1220(b)(1) is required to register as a Securities Trader if, with respect to transactions in equity (including equity options), preferred or convertible debt securities, such person is engaged in proprietary trading, the execution of transactions on an agency basis, or the direct supervision of such activities. The proposed rule provides an exception from the registration requirement for any associated person of a member organization whose trading activities are conducted primarily on behalf of an investment company that is registered with the SEC pursuant to the Investment Company Act and that controls, is controlled by, or is under common control with a member organization. The Exchange proposes to adopt FINRA's definition of Securities Trader in proposed Rule 1220(b)(3) in order to align the text of the rule to that adopted by FINRA and other exchanges.
The proposed rule also requires that associated persons primarily responsible for the design, development or significant modification of algorithmic trading strategies (or responsible for the day-to-day supervision or direction of such activities) register as Securities Traders. Individuals registering as Securities Traders must pass the SIE and the Securities Trader examination.
Finally, the proposed rule provides that, subject to the lapse of registration provisions in proposed Rule 1210, Commentary .07, each person registered with the Exchange as a Securities Trader on October 1, 2018 and each person who was registered with the Exchange as a Securities Trader within two years prior to October 1, 2018 would be qualified to register as a Securities Trader without having to take any additional qualification examinations. Additionally, the proposed rule would require that individuals registering as Securities Traders after October 1, 2018 shall, prior to or concurrent with such registration, pass the SIE and the Securities Trader qualification examination.
Proposed Rule 1220, Commentary .01, states that individuals who are in good standing as representatives with the Financial Conduct Authority in the United Kingdom or with a Canadian stock exchange or securities regulator would be exempt from the requirement to pass the SIE, and thus would be required only to pass a specialized knowledge examination to register with the Exchange as a representative. The proposed approach would provide individuals with a United Kingdom or Canadian qualification more flexibility to obtain a representative-level registration. Additionally, proposed Rule 1220, Commentary .01, provides that, subject to the lapse of registration provisions in Rule 1210, Commentary .07, each person who is registered with the Exchange as a United Kingdom Securities Representative or a Canada
Proposed Rule 1220, Commentary .02, states that each person who is registered with the Exchange as a General Securities Representative, United Kingdom Securities Representative, Canada Securities Representative, or General Securities Sales Supervisor shall be eligible to engage in security futures activities as a representative or principal, as applicable, provided that such individual completes a Firm Element program as set forth in Rule 345A(b) that addresses security futures products before such person engages in security futures activities.
Proposed Rule 1220, Commentary .03, explains the purpose of the General Securities Sales Supervisor registration category. The General Securities Sales Supervisor category is an alternate category of registration designed to lessen the qualification burdens on principals of general securities firms who supervise sales. Without this category of limited registration, such principals would be required to separately qualify pursuant to the rules of FINRA, the MSRB, and the options exchanges. While persons may continue to separately qualify with all relevant self-regulatory organizations, the General Securities Sales Supervisor examination permits qualification as a supervisor of sales of all securities through one registration category. Persons registered as General Securities Sales Supervisors may also qualify in any other category of principal registration. Persons who are already qualified in one or more categories of principal registration may supervise sales activities of all securities by also qualifying as General Securities Sales Supervisors.
The proposed rule further provides that any person required to be registered as a principal who supervises sales activities in corporate, municipal and option securities, investment company products, variable contracts, and security futures (subject to the requirements of Rule 1220, Commentary .02) may be registered solely as a General Securities Sales Supervisor. In addition to branch office managers, other persons such as regional and national sales managers may also be registered solely as General Securities Sales Supervisors as long as they supervise only sales activities.
Proposed Rule 1230 provides an exemption from registration with the Exchange for certain associated persons. Specifically, the proposed rule provides that persons associated with a member organization whose functions are solely and exclusively clerical or ministerial would be exempt from registration.
Proposed Rule 1230, Commentary .01, clarifies that the function of accepting customer orders is not considered clerical or ministerial and that associated persons who accept customer orders under any circumstances are required to be appropriately registered. However, the proposed rule provides that an associated person is not accepting a customer order where occasionally, when an appropriately registered person is unavailable, the associated person transcribes the order details and the registered person contacts the customer to confirm the order details before entering the order.
The proposed rule change is consistent with Section 6(b) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange believes that the proposed rule change will streamline, and bring consistency and uniformity to, the registration rules, which will, in turn, assist member organizations and their associated persons in complying with these rules and improve regulatory efficiency. The proposed rule change will also improve the efficiency of the examination program, without compromising the qualification standards. In addition, the proposed rule change will expand the scope of permissive registrations, which, among other things, will allow member organizations to develop a depth of associated persons with registrations to respond to unanticipated personnel changes and will encourage greater regulatory understanding. Further, the proposed rule change will provide a more streamlined and effective waiver process for individuals working for a financial services industry affiliate of a member organization, and it will require such individuals to maintain specified levels of competence and knowledge while working in areas ancillary to the investment banking and securities business.
Finally, the Exchange believes that, with the introduction of the SIE and expansion of the pool of individuals who are eligible to take the SIE, the proposed rule change has the potential of enhancing the pool of prospective securities industry professionals by introducing them to securities laws, rules and regulations and appropriate conduct before they join the industry in a registered capacity.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed amendments are intended to promote transparency in the Exchange's rules, and consistency with the rules of other SROs with respect to the examination, qualification, and continuing education requirements applicable to member organizations and their registered personnel. The Exchange believes that in that regard that any burden on competition would be clearly outweighed by the important regulatory goal of ensuring clear and consistent requirements applicable across SROs, avoiding duplication, and mitigating any risk of SROs implementing different standards in these important areas.
Further, the Exchange does not believe that the proposed amendments will affect competition among securities markets since all SROs are expected to adopt similar rules with uniform standards for qualification, registration and continuing education requirements.
No written comments were solicited or received with respect to the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6) normally does not become operative for 30 days from the date of filing. However, Rule 19b-4(f)(6)(iii)
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.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Commission staff estimates that approximately 4,480 respondents will submit an aggregate total 289,780 new fingerprint cards each year or approximately 65 fingerprint cards per year per registrant. The staff estimates that the average number of hours necessary to complete a fingerprint card is one-half hour. Thus, the total estimated annual burden is 144,890 hours for all respondents (289,780 times one-half hour). The average internal labor cost of compliance per hour is approximately $283. Therefore, the total estimated annual internal labor cost of compliance for all respondents is $41,003,870 (144,890 times $283).
Written comments are invited on: (a) 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; (b) the accuracy of the Commission's estimates 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. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
The Commission may not conduct or sponsor a collection of information unless it displays a currently valid OMB 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 OMB control number. Please direct your written comments to: Charles Riddle, Acting Director/Chief Information Officer, Securities and Exchange Commission, c/o Candace Kenner, 100 F Street NE, Washington, DC 20549; or send an email to:
Securities and Exchange Commission (“Commission”).
Notice.
Notice of an application for an order under section 6(c) of the Investment Company Act of 1940 (the “Act”) for an exemption from sections 2(a)(32), 5(a)(1), 22(d), and 22(e) of the Act and rule 22c-1 under the Act, under sections 6(c) and 17(b) of the Act for an exemption from sections 17(a)(1) and 17(a)(2) of the Act, and under section 12(d)(1)(J) for an exemption from sections 12(d)(1)(A) and 12(d)(1)(B) of the Act. The requested order would permit (a) index-based series of certain open-end management investment companies (“Funds”) to issue shares redeemable in large aggregations (“Creation Units”); (b) secondary market transactions in Fund shares to occur at negotiated market prices rather than at net asset value (“NAV”); (c) certain Funds to pay redemption proceeds, under certain circumstances, more than seven days after the tender of shares for redemption; (d) certain affiliated persons of a Fund to deposit securities into, and receive securities from, the Fund in connection with the purchase and redemption of Creation Units; (e) certain registered management investment companies and unit investment trusts outside of the same group of investment companies as the Funds (“Funds of Funds”) to acquire shares of the Funds; and (f) certain Funds to issue Shares in less than Creation Unit size to investors participating in a distribution reinvestment program.
ETF Series Solutions (the “Trust”), a Delaware statutory trust registered under the Act as an open-end management investment company with multiple series and Vident Advisory, LLC (the “Initial Adviser”), a Delaware limited liability company registered as an investment adviser under the Investment Advisers Act of 1940.
The application was filed on June 22, 2018.
An order granting the requested relief will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on October 29, 2018, and should be accompanied by proof of service on applicants, in the form of an affidavit, or for lawyers, a certificate of service. Pursuant to rule 0-5 under the Act, hearing requests should state the nature of the writer's interest, any facts bearing upon the desirability of a hearing on the matter, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090; Applicants: Vident Advisory, LLC, 300 Colonial Center Parkway, Suite 330, Roswell, GA 30076 and ETF Series Solutions, 615 E. Michigan Street, Milwaukee, WI 53202.
Rachel Loko, Senior Counsel, at (202) 551-6883, or Aaron Gilbride, Branch Chief, at (202) 551-6906 (Division of Investment Management, Chief Counsel's Office).
The following is a summary of the application. The complete application may be obtained via the Commission's website by searching for the file number, or for an applicant using the Company name box, at
1. Applicants request an order that would allow Funds to operate as index exchange traded funds (“ETFs”).
2. Each Fund will hold investment positions selected to correspond closely to the performance of an Underlying Index. In the case of Self-Indexing Funds, an affiliated person, as defined in section 2(a)(3) of the Act (“Affiliated Person”), or an affiliated person of an Affiliated Person (“Second-Tier Affiliate”), of the Trust or a Fund, of the Adviser, of any sub-adviser to or promoter of a Fund, or of the Distributor will create the Underlying Index.
3. Shares will be purchased and redeemed in Creation Units and generally on an in-kind basis. Except where the purchase or redemption will include cash under the limited circumstances specified in the application, purchasers will be required to purchase Creation Units by depositing specified instruments (“Deposit Instruments”), and shareholders redeeming their shares will receive specified instruments (“Redemption Instruments”). The Deposit Instruments and the Redemption Instruments will each correspond pro rata to the positions in the Fund's portfolio (including cash positions) except as specified in the application.
4. Because shares will not be individually redeemable, applicants request an exemption from section 5(a)(1) and section 2(a)(32) of the Act that would permit the Funds to register as open-end management investment companies and issue shares that are redeemable in Creation Units.
5. Applicants also request an exemption from section 22(d) of the Act and rule 22c-1 under the Act as secondary market trading in shares will take place at negotiated prices, not at a current offering price described in a Fund's prospectus, and not at a price based on NAV. Applicants state that (a) secondary market trading in shares does not involve a Fund as a party and will not result in dilution of an investment in shares, and (b) to the extent different prices exist during a given trading day, or from day to day, such variances occur as a result of third-party market forces, such as supply and demand. Therefore, applicants assert that secondary market transactions in shares will not lead to discrimination or preferential treatment among purchasers. Finally, applicants represent that share market prices will be disciplined by arbitrage opportunities, which should prevent shares from trading at a material discount or premium from NAV.
6. With respect to Funds that effect creations and redemptions of Creation Units in kind and that are based on certain Underlying Indexes that include foreign securities, applicants request relief from the requirement imposed by section 22(e) in order to allow such Funds to pay redemption proceeds within fifteen calendar days following the tender of Creation Units for redemption. Applicants assert that the requested relief would not be inconsistent with the spirit and intent of section 22(e) to prevent unreasonable, undisclosed or unforeseen delays in the actual payment of redemption proceeds.
7. Applicants request an exemption to permit Funds of Funds to acquire Fund shares beyond the limits of section 12(d)(1)(A) of the Act; and the Funds, and any principal underwriter for the Funds, and/or any broker or dealer registered under the Exchange Act, to sell shares to Funds of Funds beyond the limits of section 12(d)(1)(B) of the Act. The application's terms and conditions are designed to, among other things, help prevent any potential (i) undue influence over a Fund through control or voting power, or in connection with certain services, transactions, and underwritings, (ii) excessive layering of fees, and (iii) overly complex fund structures, which are the concerns underlying the limits in sections 12(d)(1)(A) and (B) of the Act.
8. Applicants request an exemption from sections 17(a)(1) and 17(a)(2) of the Act to permit persons that are Affiliated Persons, or Second Tier Affiliates, of the Funds, solely by virtue of certain ownership interests, to effectuate purchases and redemptions in-kind. The deposit procedures for in-kind purchases of Creation Units and the redemption procedures for in-kind redemptions of Creation Units will be the same for all purchases and redemptions, and Deposit Instruments and Redemption Instruments will be valued in the same manner as those investment positions currently held by the Funds. Applicants also seek relief from the prohibitions on affiliated transactions in section 17(a) to permit a Fund to sell its shares to and redeem its shares from a Fund of Funds, and to engage in the accompanying in-kind transactions with the Fund of Funds.
9. Section 6(c) of the Act permits the Commission to exempt any persons or transactions from any provision of the Act if such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act. Section 12(d)(1)(J) of the Act provides that the Commission may exempt any person, security, or transaction, or any class or classes of persons, securities, or transactions, from any provision of section 12(d)(1) if the exemption is consistent with the public interest and the protection of investors. Section 17(b) of the Act authorizes the Commission to grant an order permitting a transaction otherwise prohibited by section 17(a) if it finds that (a) the terms of the proposed transaction are fair and reasonable and do not involve overreaching on the part of any person concerned; (b) the proposed transaction is consistent with the policies of each registered investment company involved; and (c) the proposed transaction is consistent with the general purposes of the Act.
For the Commission, by the Division of Investment Management, under delegated authority.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94-409, the Securities and Exchange Commission will hold an Open Meeting on Thursday, October 11, 2018 at 1:00 p.m.
The meeting will be held in Auditorium LL-002 at the
This meeting will begin at 1:00 p.m. (ET) and will be open to the public. Seating will be on a first-come, first-served basis. Visitors will be subject to security checks. The meeting will be webcast on the Commission's website at
1. The Commission will consider whether to reopen the comment period and request additional comment (including potential modifications to proposed rule language) regarding: (1) Capital, margin, and segregation requirements for security-based swap dealers and major security-based swap participants, and amendments to Rule 15c3-1 for broker-dealers proposed in October 2012; (2) amendments proposed in May 2013 that would establish the cross-border treatment of security-based swap capital, margin, and segregation requirements; and (3) an amendment proposed in April 2014 that would establish an additional capital requirement for security-based swap dealers that do not have a prudential regulator.
At times, changes in Commission priorities require alterations in the scheduling of meeting items.
For further information and to ascertain what, if any, matters have been added, deleted or postponed; please contact Brent J. Fields from the Office of the Secretary at (202) 551-5400.
By virtue of the authority vested in the Secretary of State by the laws of the United States, including section 1 of the State Department Basic Authorities Act (22 U.S.C. 2651a), and the Memorandum of the President dated August 31, 2018, I hereby delegate to the Administrator of the United States Agency for International Development the functions and authorities conferred upon the President by sections 4, 6, and 7 of the Reinforcing Education Accountability in Development (READ) Act (Div. A, Pub. L. 115-56).
Any reference in this delegation of authority to any act shall be deemed to be a reference to such act as amended from time to time. The Administrator of the United States Agency for International Development may re-delegate the functions delegated by this delegation of authority, as appropriate, to the extent authorized by law.
This document shall be published in the
In accordance with the Federal Advisory Committee Act (FACA), the PEPFAR Scientific Advisory Board (hereinafter referred to as “the Board”) will meet on Friday, October 12, 2018 at 1800 G St. NW, Suite 10300, Washington, DC 20006. The meeting will last from 8:30 a.m. until approximately 5:00 p.m. and is open to the public. The meeting will be hosted by the Office of the U.S. Global AIDS Coordinator and Health Diplomacy, and led by Ambassador Deborah Birx, who leads implementation of the President's Emergency Plan for AIDS Relief (PEPFAR), and the Board Chair, Dr. Carlos del Rio.
The Board serves solely in an advisory capacity concerning scientific developments, program implementation, and policy matters related to the global response to the HIV epidemic, which can influence the priorities and direction of PEPFAR evaluation and research, the content of national and international strategies, and the role of PEPFAR in international discourse regarding an appropriate and resourced response. Topics for the meeting will include the risks and benefits of fixed-dose Dolutegravir in light of a preliminary safety signal for women using it at the time of conception; approaches for monitoring progress as countries approach epidemic control; HPV vaccination to prevent cervical cancer; and new data from the Determined, Resilient, Empowered, AIDS-Free, Mentored, and Safe (DREAMS) initiative.
The public may attend this meeting as seating capacity allows. Admittance to the meeting will be by means of a pre-arranged clearance list. In order to be placed on the list and, if applicable, to request reasonable accommodation, please register
This announcement will appear in the
• On May 18, the World Health Organization (WHO) issued recommendations for Dolutegravir use by women of childbearing age living with HIV, following unscheduled, interim analysis of an ongoing observational study in Botswana that found an increased risk of neural tube defects in children born to women taking Dolutegravir at the time of conception.
• The final results of the study, which are needed to confirm or dispel these observations, are expected in early 2019.
• However, many countries have taken a very conservative interpretation of WHO's recommendations and are withholding a preferred first-line antiretroviral medication from women of child-bearing age, who constitute the majority of persons receiving HIV medical treatment in PEPFAR-supported programs.
• These policies deny women access to a regimen that offers superior time-to-viral suppression, side effect, and resistance profiles.
• Two independent modeling studies have shown that the clinical and public health benefits of Dolutegravir vastly outweigh the risk of possible and rare, birth defects. A consultation with African women living with HIV infection underscored that they be permitted to make informed decisions about their own medical care and to opt to take Dolutegravir rather than other, inferior regimens.
Given the above facts, the Department urgently needs the advice of the PEPFAR SAB to inform treatment considerations that the Department must release as part of its 2019 Country Operational Plan guidance that will be developed in November-December 2018, for release in January 2019. October
For further information about the meeting, please contact Dr. Andrew Forsyth, Designated Federal Officer for the Board, Office of the U.S. Global AIDS Coordinator and Health Diplomacy (
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. This request for clearance reflects requirements necessary under regulations to ensure safety-of-flight by ensuring that complete and adequate training, testing, checking, and experience is obtained and maintained by those who operate under regulation and use flight simulation in lieu of aircraft for these functions. The
Written comments should be submitted by November 8, 2018.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the attention of the Desk Officer, Department of Transportation/FAA, and sent via electronic mail to
Barbara Hall by email at:
The FAA has determined this information collection is necessary to amend the Qualification Performance Standards for FSTDs for the primary purpose of improving existing technical standards and introducing new technical standards for full stall and stick pusher maneuvers, upset recognition and recovery maneuvers, maneuvers conducted in airborne icing conditions, takeoff and landing maneuvers in gusting crosswinds, and bounced landing recovery maneuvers. These new and improved technical standards are intended to fully define FSTD fidelity requirements for conducting new flight training tasks introduced through changes to the air carrier training requirements. This information collection also addresses updated FSTD technical standards to better align with the current international FSTD evaluation guidance and introduces a new FSTD level that expands the number of qualified flight training tasks in a fixed base flight training device. This information collection will help ensure that the training and testing environment is accurate and realistic, in accordance with regulations. The specific regulations are Title 14 CFR part 61, part 63, part 91, part 121, part 135, part 141, and part 142.
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. The collection involves return to the Civil Aviation Aircraft Registry of information relating to the release of a lien that has been recorded with the Registry. Regulations provide for establishing and maintaining a system for the recording of security conveyances affecting title to, or interest in U.S. civil aircraft, as well as certain specifically identified engines, propellers, or spare parts locations, and for recording of releases relating to those conveyances. Federal Aviation Regulations establish procedures for implementation. Regulations describe what information must be contained in a security conveyance in order for it to
Written comments should be submitted by December 10, 2018.
Send comments to the FAA at the following address: Barbara Hall, Federal Aviation Administration, ASP-110, 10101 Hillwood Parkway, Fort Worth, TX 76177.
Barbara Hall by email at:
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirements of the coastwise trade laws to allow the carriage of no more than twelve passengers for hire on vessels, which are three years old or more. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before November 8, 2018.
You may submit comments identified by DOT Docket Number MARAD-2018-0155 by any one of the following methods:
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Bianca Carr, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23-453, Washington, DC 20590. Telephone 202-366-9309, Email
As described by the applicant the intended service of the vessel RAY is:
Please submit your comments, including the attachments, following the
Go to the docket online at
Yes. Be aware that your entire comment, including your personal identifying information, will be made publicly available.
If you wish to submit comments under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Department of Transportation, Maritime Administration, Office of Legislation and Regulations, MAR-225, W24-220, 1200 New Jersey Avenue SE, Washington, DC 20590. Include a cover letter setting forth with specificity the basis for any such claim and, if possible, a summary of your submission that can be made available to the public.
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, to
49 CFR 1.93(a), 46 U.S.C. 55103, 46 U.S.C. 12121.
By Order of the Maritime Administrator.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirements of the coastwise trade laws to allow the carriage of no more than twelve passengers for hire on vessels, which are three years old or more. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before November 8, 2018.
You may submit comments identified by DOT Docket Number MARAD-2018-0153 by any one of the following methods:
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Bianca Carr, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23-453, Washington, DC 20590. Telephone 202-366-9309, Email
As described by the applicant the intended service of the vessel ENDLESS SUMMER is:
The complete application is available for review identified in the DOT docket as MARAD-2018-0153 at
Please submit your comments, including the attachments, following the instructions provided under the above heading entitled
Go to the docket online at
Yes. Be aware that your entire comment, including your personal identifying information, will be made publicly available.
If you wish to submit comments under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Department of Transportation, Maritime Administration, Office of Legislation and Regulations, MAR-225, W24-220, 1200 New Jersey Avenue SE, Washington, DC 20590. Include a cover letter setting forth with specificity the basis for any such claim and, if possible, a summary of your submission that can be made available to the public.
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, to
49 CFR 1.93(a), 46 U.S.C. 55103, 46 U.S.C. 12121.
By Order of the Maritime Administrator.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirements of the coastwise trade laws to allow the carriage of no more than twelve passengers for hire on vessels, which are three years old or more. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before November 8, 2018.
You may submit comments identified by DOT Docket Number MARAD-2018-0154 by any one of the following methods:
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Bianca Carr, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23-453, Washington, DC 20590. Telephone 202-366-9309, Email
As described by the applicant the intended service of the vessel ICONA is:
The complete application is available for review identified in the DOT docket as MARAD-2018-0154 at
Please submit your comments, including the attachments, following the instructions provided under the above heading entitled
Go to the docket online at
Yes. Be aware that your entire comment, including your personal identifying information, will be made publicly available.
If you wish to submit comments under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Department of Transportation, Maritime Administration, Office of Legislation and Regulations, MAR-225, W24-220, 1200 New Jersey Avenue SE, Washington, DC 20590. Include a cover letter setting forth with specificity the basis for any such claim and, if possible, a summary of your submission that can be made available to the public.
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, to
49 CFR 1.93(a), 46 U.S.C. 55103, 46 U.S.C. 12121.
By Order of the Maritime Administrator.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirements of the coastwise trade laws to allow the carriage of no more than twelve passengers for hire on vessels, which are three years old or more. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before November 8, 2018.
You may submit comments identified by DOT Docket Number MARAD-2018-0156 by any one of the following methods:
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•
Bianca Carr, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23-453, Washington, DC 20590. Telephone 202-366-9309, Email
As described by the applicant the intended service of the vessel IREMIA is:
The complete application is available for review identified in the DOT docket as MARAD-2018-0156 at
Please submit your comments, including the attachments, following the instructions provided under the above heading entitled
Go to the docket online at
Yes. Be aware that your entire comment, including your personal identifying information, will be made publicly available.
If you wish to submit comments under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Department of Transportation, Maritime Administration, Office of Legislation and Regulations, MAR-225, W24-220, 1200 New Jersey Avenue SE, Washington, DC 20590. Include a cover letter setting forth with specificity the
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, to
49 CFR 1.93(a), 46 U.S.C. 55103, 46 U.S.C. 12121.
By Order of the Maritime Administrator.
Department of Transportation—Office of the Secretary.
No FEAR Act notice.
This Notice implements Title II of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (No FEAR Act of 2002). It is the annual obligation for Federal agencies to notify all employees, former employees, and applicants for Federal employment of the rights and protections available to them under the Federal Anti-discrimination and Whistleblower Protection Laws.
Yvette Rivera, Associate Director of the Equity and Access Division (S-32), Departmental Office of Civil Rights, Office of the Secretary, U.S. Department of Transportation, 1200 New Jersey Avenue SE, Room W78-306, Washington, DC 20590, 202-366-5131 or by email at
You may retrieve this document online through the Federal Document Management System at
On May 15, 2002, Congress enacted the “Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002,” now recognized as the No FEAR Act (Pub. L. 107-174). One purpose of the Act is to “require that Federal agencies be accountable for violations of antidiscrimination and whistleblower protection laws.” (Pub. L. 107-174, Summary). In support of this purpose, Congress found that “agencies cannot be run effectively if those agencies practice or tolerate discrimination” (Pub. L. 107-174, Title I, General Provisions, section 101(1)). The Act also requires the United States Department of Transportation (USDOT) to provide this Notice to all USDOT employees, former USDOT employees, and applicants for USDOT employment. This Notice informs such individuals of the rights and protections available under Federal antidiscrimination and whistleblower protection laws.
A Federal agency cannot discriminate against an employee or applicant with respect to the terms, conditions, or privileges of employment because of race, color, religion, sex, national origin, age, disability, marital status, genetic information, or political affiliation. One or more of the following statutes prohibit discrimination on these bases: 5 U.S.C. 2302(b)(1), 29 U.S.C. 631, 29 U.S.C. 633a, 29 U.S.C. 206(d), 29 U.S.C. 791, 42 U.S.C. 2000e-16 and 2000ff.
If you believe you have experienced unlawful discrimination on the bases of race, color, religion, sex, national origin, age, genetic information, and/or disability, you must contact an Equal Employment Opportunity (EEO) counselor within 45 calendar days of the alleged discriminatory action, or in the case of a personnel action, within 45 calendar days of the effective date of the action. A directory of EEO officers is available on the Departmental Office of Civil Rights website
If you believe you were a victim of unlawful discrimination based on age, you must either contact an EEO counselor as noted above or give notice of intent to sue to the Equal Employment Opportunity Commission (EEOC) within 180 calendar days of the alleged discriminatory action. As an alternative to filing a complaint pursuant to 29 CFR part 1614, you can file a civil action in a United States district court under the Age Discrimination in Employment Act, against the head of an alleged discriminating agency after giving the EEOC not less than a 30-day notice of the intent to file such action. You may file such notice in writing with the EEOC via mail at P.O. Box 77960, Washington, DC 20013, the EEOC website
If you are alleging discrimination based on marital status or political affiliation, you may file a written discrimination complaint with the U.S. Office of Special Counsel (OSC). Form OSC-11 is available online at the OSC website
If you are alleging compensation discrimination pursuant to the Equal Pay Act, and wish to pursue your allegations through the administrative process, you must contact an EEO counselor within 45 calendar days of the alleged discriminatory action as such complaints are processed under EEOC's regulations at 29 CFR part 1614. Alternatively, you may file a civil action in a court of competent jurisdiction within two years, or if the violation is willful, three years of the date of the alleged violation, regardless of whether you pursued any administrative complaint processing. The filing of a
A USDOT employee with authority to take, direct others to take, recommend, or approve any personnel action must not use that authority to take, or fail to take, or threaten to take a personnel action against an employee or applicant because of a disclosure of information by that individual that is reasonably believed to evidence violations of law, rule, or regulation; gross mismanagement; gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety, unless the disclosure of such information is specifically prohibited by law and such information is specifically required by Executive Order to be kept secret in the interest of national defense or the conduct of foreign affairs.
Retaliation against a USDOT employee or applicant for making a protected disclosure is prohibited (5 U.S.C. 2302(b)(8)). If you believe you are a victim of whistleblower retaliation, you may file a written complaint with the U.S. Office of Special Counsel at 1730 M Street NW, Suite 218, Washington, DC 20036-4505 using Form OSC-11. Alternatively, you may file online through the OSC website at
Under existing laws, USDOT retains the right, where appropriate, to discipline a USDOT employee who engages in conduct that is inconsistent with Federal Antidiscrimination and Whistleblower Protection laws up to and including removal from Federal service. If OSC initiates an investigation under 5 U.S.C. 1214, USDOT must seek approval from the Special Counsel to discipline employees for, among other activities, engaging in prohibited retaliation (5 U.S.C. 1214). Nothing in the No FEAR Act alters existing laws, or permits an agency to take unfounded disciplinary action against a USDOT employee, or to violate the procedural rights of a USDOT employee accused of discrimination.
For more information regarding the No FEAR Act regulations, refer to 5 CFR part 724, as well as the appropriate office(s) within your agency (
Pursuant to section 205 of the No FEAR Act, neither the Act nor this notice creates, expands, or reduces any rights otherwise available to any employee, former employee, or applicant under the laws of the United States, including the provisions of law specified in 5 U.S.C. 2302(d).
Office of the Secretary (OST), U.S. Department of Transportation (DOT).
Notice of request for comments.
The Office of the Secretary of Transportation (OST) invites public comment on the document,
You should submit your comments within 60 days after the publication of
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Please contact us at
The U.S. DOT sees
Your comments must be written and in English. To ensure that your comments are filed correctly in the docket, please include the docket number of this document in your comments.
Please submit one copy (two copies if submitting by mail or hand delivery) of your comments, including the attachments, to the docket following the instructions given above under
Any submissions containing Confidential Information must be delivered to OST in the following manner:
• Submitted in a sealed envelope marked “confidential treatment requested”;
• Accompanied by an index listing the document(s) or information that the submitter would like the Department to withhold. The index should include information such as numbers used to identify the relevant document(s) or information, document title and description, and relevant page numbers and/or section numbers within a document; and
• Submitted with a statement explaining the submitter's grounds for objecting to disclosure of the information to the public.
OST also requests that submitters of Confidential Information include a non-confidential version (either redacted or summarized) of those confidential submissions in the public docket. In the event that the submitter cannot provide a non-confidential version of its submission, OST requests that the submitter post a notice in the docket stating that it has provided OST with Confidential Information. Should a submitter fail to docket either a non-confidential version of its submission or to post a notice that Confidential Information has been provided, we will note the receipt of the submission on the docket, with the submitter's organization or name (to the degree permitted by law) and the date of submission.
The U.S. DOT will consider all comments received before the close of business on the comment closing date indicated above under
You may read the comments received at the address given above under COMMENTS. The hours of the docket are indicated above in the same location. You may also see the comments on the internet, identified by the docket number at the heading of this notice, at
Office of the Secretary (OST), U.S. Department of Transportation (DOT).
Notice of request for comments.
OST is announcing a request for information to solicit comment and feedback on the scope of the congressionally-required comprehensive analysis of the impact of automated vehicle technologies on workforce. This study will be conducted by DOT in consultation with the Department of Labor to provide a comprehensive analysis of the impact of [Advanced Driver Assist Systems] ADAS and [Highly Automated Vehicles] HAV technologies on drivers and operators of commercial motor vehicle, including the potential for any labor displacement. DOT will also coordinate this initiative with the U.S. Departments of Commerce and U.S. Department of Health and Human Services.
Each component of the study will engage the relevant interested and affected stakeholders such as industry representatives, driver and operator groups, and workforce training providers to ensure input from across the diverse commercial and non-commercial driver industry. While it may not be feasible to precisely predict the exact capabilities or timing of new automated vehicles technologies entering the marketplace, this study may construct statistical models, use-cases, and scenarios based projections based on the best available data on market forecasts, industry trends, and relevant labor markets to evaluate different technology penetration scenarios and their potential effects on the workforce and related factors.
The objectives of the request for comments on the comprehensive analysis of the impact of automated vehicle technologies on workforce are to obtain feedback into the scope of the study regarding the magnitude of the potential pace of transition in the transportation workforce and how other sectors of the workforce will adapt to the quality of life effects due to automation. The study will also examine training availability and what will be required to transition the traditional commercial driver into the new environment including transit bus automation. Finally, the study will analyze the issues of driver situational awareness in vehicles which may require operator re-engagement, the safety of truck platooning, and related traffic management.
Advanced transportation technologies present enormous potential for improving the mobility of travelers with disabilities vastly enhancing quality of life, workplace access, and opportunities for full participation in the workforce and in society. Through the Accessible Transportation Technologies Research Initiative (ATTRI), DOT is leading efforts to develop and implement transformative applications to improve mobility options for all travelers, particularly those with disabilities. DOT is seeking to explore innovative travel options focusing its efforts on removing barriers to transportation for people with visual, hearing, cognitive, and mobility disabilities through all steps of the trip-making process. DOT seeks to remove barriers to transportation across the “complete trip” chain leveraging advanced technology to enable people to travel independently any time, to any place, regardless of their individual abilities.
The 2018 Consolidated Appropriations Act provided up to $1.5 million to the Secretary of Transportation, in consultation with the Secretary of Labor, to conduct a comprehensive analysis of the impact of ADAS and HAV technologies on drivers and operators of commercial motor vehicles, including labor displacement. For purposes of this analysis, drivers and operators, who earn an income by driving, of commercial motor vehicles includes drivers which require a commercial driver's license and those that do not; and package delivery drivers, taxi, mobility as a service, and Transportation Network Companies (TNC).
1. Labor force transformation studies including potential statistical models to generate estimates of labor force effects given various HAV and ADAS adoption/timeline scenarios and segments of freight and passenger transportation that could be affected.
2. Labor force training needs including minimum and recommended training requirements, labor market programs that link workers to employment and public or private training programs to address skill gaps.
3. Technology operational safety issues impact to situational awareness caused by HAV and ADAS including options for reducing safety risks of reduced situational awareness and visibility, mobility, and safety issues related to platooning.
4. Quality of life improvements due to automation including mental fatigue related to traffic and queueing; enhanced travel choices, new job opportunities, and accessibility leading to independent travel and workplace access for people with disabilities, older adults, and individuals with functional impairments across the lifespan.
Comments are requested on the following questions regarding the Statement of Work:
1. Is the SOW in line with public interest?
2. Should the SOW be expanded or reduced to include or exclude any topic(s)?
3. Are there specific literature or studies that have been conducted on this subject that DOT and DOL should review before initiating this comprehensive analysis?
All comments and presentations should be submitted to the docket for consideration.
If you have questions about this notice, please contact us at
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○ Submitted in a sealed envelope marked “confidential treatment requested”;
○ Accompanied by an index listing the document(s) or information that the submitter would like the Departments to withhold. The index should include information such as numbers used to identify the relevant document(s) or information, document title and description, and relevant pages numbers and/or section numbers within a document; and
○ Submitted with a statement explaining the submitter's grounds for objecting to disclosure of the information to the public.
OST also requests that submitters of Confidential Information include a non-confidential version (either redacted or summarized) of those confidential submissions in the public docket. In the event that the submitter cannot provide a non-confidential version of its submission, OST requests that the submitter post a notice in the docket stating that it has provided OST with Confidential Information. Should a submitter fail to docket either a non-confidential version of its submission or to post a notice that Confidential Information has been provided, we will note the receipt of the submission on the docket, with the submitter's organization or name (to the degree permitted by law) and the date of submission.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995 (PRA). The IRS is soliciting comments on forms used by business entity taxpayers: Forms 1065, 1065-B, 1066, 1120, 1120-C, 1120-F, 1120-H, 1120-ND, 1120-S, 1120-SF, 1120-FSC, 1120-L, 1120-PC, 1120-REIT, 1120-RIC, 1120-POL; and related attachments to these forms (see the Appendix to this notice).
Written comments should be received on or before December 10, 2018 to be assured of consideration.
Direct all written comments to Laurie Brimmer, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Sara Covington, at (202) 317-6038, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet, at
Today, over 90 percent of all business entity tax returns are prepared using software or with preparer assistance. In this environment, in which many taxpayers' activities are no longer as directly associated with particular forms, estimating burden on a form-by-form basis is not an appropriate measurement of taxpayer burden.
There are 274 forms used by business taxpayers. These include Forms
Tax compliance burden is defined as the time and money taxpayers spend to comply with their tax filing responsibilities. Time-related activities include recordkeeping, tax planning, gathering tax materials, learning about the law and what you need to do, and completing and submitting the return. Out-of-pocket costs include expenses such as purchasing tax software, paying a third-party preparer, and printing and postage. Tax compliance burden does not include a taxpayer's tax liability, economic inefficiencies caused by sub-optimal choices related to tax deductions or credits, or psychological costs.
The TCBM estimates the aggregate burden imposed on business taxpayers, based upon their tax-related characteristics and activities. IRS therefore will seek OMB approval of all 274 business-related tax forms as a single “collection of information.” The aggregate burden of these tax forms will be accounted for under OMB Control Number 1545-0123, which is currently assigned to Form 1120 and its related schedules. OMB Control Number 1545-0123 will be displayed on all business tax forms and other information collections. As a result, burden estimates for business taxpayers will be displayed differently in PRA Notices on tax forms and other information collections, and in
Amounts below are for FY2018 and FY2019. Reported time and cost burdens are national averages and do not necessarily reflect a “typical” case. Most taxpayers experience lower than average burden, with taxpayer burden varying considerably by taxpayer type. Detail may not add due to rounding.
The change in estimated aggregate compliance burden between fiscal year 2017 and 2018 can be explained by technical adjustments since no significant statutory or discretionary agency (IRS) changes occurred. The technical changes are from an adjustment to the baseline FY17 population forecasts and the growth in certain filings between FY18 and FY19. These adjustments lead to a 74,000,000 hour increase in aggregate time and a $3,669,000,000 increase in out-of-pocket costs.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. Currently, the IRS is soliciting comments concerning Treasury Decision 9142 (Final), Deemed IRAs In Qualified Retirement Plans.
Written comments should be received on or before December 10, 2018 to be assured of consideration.
Direct all written comments to Laurie Brimmer, Internal Revenue Service, Room 6529, 1111 Constitution Avenue NW, Washington, DC 20224. Please send separate comments for each specific information collection listed below. You must reference the information collection's title, form number, reporting or record-keeping requirement number, and OMB number (if any) in your comment.
Requests for additional information or copies of the collection tools should be directed to Alissa Berry, at (901) 707-4988, at Internal Revenue Service, Room 6529, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet at
Currently, the IRS is seeking comments concerning the following information collection tools, reporting, and record-keeping requirements:
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Forest Service, Agriculture; Fish and Wildlife Service, Interior.
Final rule.
This final rule establishes regulations for seasons, harvest limits, and methods and means related to the taking of wildlife for subsistence uses in Alaska for the 2018-19 and 2019-20 regulatory years. The Federal Subsistence Board (Board) completes the biennial process of revising subsistence hunting and trapping regulations in even-numbered years and subsistence fishing and shellfish regulations in odd-numbered years; public proposal and review processes take place during the preceding year. The Board also addresses customary and traditional use determinations during the applicable biennial cycle. This rule also revises the general regulations on subsistence taking of fish and wildlife and customary and traditional use determinations for wildlife.
This rule is effective October 9, 2018.
The Board meeting transcripts are available for review at the Office of Subsistence Management, 1011 East Tudor Road, Mail Stop 121, Anchorage, AK 99503, or on the Office of Subsistence Management website (
Chair, Federal Subsistence Board, c/o U.S. Fish and Wildlife Service, Attention: Thomas C. J. Doolittle, Office of Subsistence Management; (907) 786-3888 or
Under Title VIII of the Alaska National Interest Lands Conservation Act (ANILCA) (16 U.S.C. 3111-3126), the Secretary of the Interior and the Secretary of Agriculture (Secretaries) jointly implement the Federal Subsistence Management Program. This program provides a preference for take of fish and wildlife resources for subsistence uses on Federal public lands and waters in Alaska. The Secretaries published temporary regulations to carry out this program in the
Consistent with subpart B of these regulations, the Secretaries established a Federal Subsistence Board to administer the Federal Subsistence Management Program. The Board comprises:
• A Chair appointed by the Secretary of the Interior with concurrence of the Secretary of Agriculture;
• The Alaska Regional Director, U.S. Fish and Wildlife Service;
• The Alaska Regional Director, National Park Service;
• The Alaska State Director, Bureau of Land Management;
• The Alaska Regional Director, Bureau of Indian Affairs;
• The Alaska Regional Forester, USDA Forest Service; and
• Two public members appointed by the Secretary of the Interior with concurrence of the Secretary of Agriculture.
Through the Board, these agencies participate in the development of regulations for subparts C and D, which, among other things, set forth program eligibility and specific harvest seasons and limits.
In administering the program, the Secretaries divided Alaska into 10 subsistence resource regions, each of which is represented by a Regional Advisory Council. The Regional Advisory Councils provide a forum for rural residents with personal knowledge of local conditions and resource requirements to have a meaningful role in the subsistence management of fish and wildlife on Federal public lands in Alaska. The Council members represent varied geographical, cultural, and user interests within each region.
The Board addresses customary and traditional use determinations during the applicable biennial cycle. Section __.24 (customary and traditional use determinations) was originally published in the
The Departments published a proposed rule on May 17, 2017 (82 FR 22621), to amend the wildlife sections of subparts C and D of 36 CFR part 242 and 50 CFR part 100. The proposed rule opened a comment period, which closed on June 16, 2017. The Departments advertised the proposed rule by mail, email, web page, social media, radio, and newspaper. During that period, the Councils met and, in addition to other Council business, generated proposals and received suggestions for proposals from the public. The Board received a total of 57 proposals for changes to subparts C and D. After the comment period closed, the Board prepared a booklet describing the proposals and distributed it to the public. The proposals were also available online. The public then had an additional 45 days in which to comment on the proposals for changes to the regulations.
The 10 Regional Advisory Councils met again, received public comments, and formulated their recommendations to the Board on proposals for their respective regions. The Councils had a substantial role in reviewing the proposed rule and making recommendations for the final rule. Moreover, a Council Chair, or a designated representative, presented each Council's recommendations at the Board meeting that was held April 10-13, 2018. These final regulations reflect Board review and consideration of Regional Advisory Council recommendations, Tribal and Alaska Native corporation consultations, and public comments. The public received extensive opportunity to review and comment on all changes.
Of the 57 valid proposals, 4 were withdrawn by the proponents, 26 were on the Board's non-consensus agenda, and 27 were on the consensus agenda. The consensus agenda is made up of proposals for which there is agreement among the affected Councils, a majority of the Interagency Staff Committee, and the Alaska Department of Fish and Game concerning a proposed regulatory action. Anyone may request that the Board remove a proposal from the consensus agenda and place it on the non-consensus agenda. The Board votes en masse on the consensus agenda after deliberation and action on the non-consensus agenda. Of the proposals on the consensus agenda, the Board adopted 12, adopted 4 with modification, and rejected 11. Analysis and justification for the action taken on each proposal on the consensus agenda are available for review at the Office of Subsistence Management, 1011 East Tudor Road, Mail Stop 121, Anchorage, Alaska 99503, or on the Federal Subsistence Management Programs website (
The Board rejected, took no action, or deferred 9 non-consensus proposals. The rejected proposals were recommended for rejection by one or more of the Councils.
The Board rejected a proposal to increase the harvest quota for wolves in Unit 2. This proposal was found to violate recognized principles of wildlife conservation.
The Board deferred a proposal to establish a community harvest system for moose and caribou in Units 11 and 13 to allow time for staff and the proponent to develop a framework and report back to the Board at its next meeting.
The Board rejected a proposal to allow the use of snow machines to position animals (caribou, wolves, and wolverines) in Unit 17. This proposal was found to violate recognized principles of wildlife conservation and was not supported by substantial evidence.
The Board rejected a proposal to reduce the season for caribou in Unit 18. This proposal was determined to be detrimental to the satisfaction of subsistence needs.
The Board rejected a proposal to allow the sale of brown bear skulls and skulls with hides attached. This proposal was found not to be supported by substantial evidence. This action was contrary to one Council
The Board rejected a proposal to rescind a closure to sheep in Unit 25A. This proposal was determined to be detrimental to the satisfaction of subsistence needs.
The Board rejected a proposal to close public lands to non-federally qualified users to the take of caribou in Units 26A and 26B. This proposal was found not to be supported by substantial evidence. This action was contrary to one Council recommendation and supported by another Council recommendation.
The Board took no action on three proposals, Unit 23 moose, Unit 23 caribou, and Units 22, 23, and 26A caribou, based on its actions on similar proposals.
The Board adopted or adopted with modification 17 non-consensus proposals. Modifications were suggested by the affected Council(s), developed during the analysis process, suggested during Tribal and Alaska Native corporation consultations, or developed during the Board's public deliberations. All of the adopted proposals were recommended for adoption by at least one of the Councils.
The Board adopted a proposal with modification to modify bear baiting restrictions State wide.
The Board adopted a proposal with modification to reduce the harvest limit for deer for non-federally qualified users in Unit 2. The Board struck the portion of the proposal to shorten the season for federally qualified subsistence users.
The Board adopted with modification a proposal to establish a fall moose season in Unit 1C to begin in 2019.
The Board adopted a proposal with modification to align Federal and State regulations for caribou in Unit 9D.
The Board adopted a proposal with modification to revise the harvest limits for caribou in Units 9A, 9B, 9C, 17A, 17B, 17C, 19A, and 19B.
The Board adopted two proposals with modifications to rescind a closure to the take of caribou in Units 17A, 17C, and the Nushagak Peninsula and revised the Customary and Traditional Use determinations in Unit 17, remainder.
The Board adopted a proposal with modification to establish a winter season for moose in Unit 18.
The Board adopted a proposal with modification to reduce the harvest and possession limits for ptarmigan in Unit 18.
The Board adopted a proposal to extend the season for lynx in Unit 24A.
The Board adopted two proposals with modifications to revise closures to the take of moose in Units 22 and 22A.
The Board adopted a proposal with modification to revise the harvest limits, and establish a separate antlerless season for moose in Unit 23.
The Board adopted a proposal with modification to extend the season and increase the harvest limit for brown bear in Unit 23.
The Board adopted a proposal with modification to close public lands along a 10-mile corridor along the Noatak River, except to federally qualified subsistence hunters, for caribou in Unit 23.
The Board adopted a proposal to establish a registration hunt for caribou in Units 22, 23, and 26A.
The Board adopted a proposal to extend the season for moose in Unit 25B.
These final regulations reflect Board review and consideration of Regional Advisory Council recommendations, Tribal and Alaska Native corporation consultations, and public comments. Because this rule concerns public lands managed by an agency or agencies in both the Departments of Agriculture and the Interior, identical text will be incorporated into 36 CFR part 242 and 50 CFR part 100.
The Board has provided extensive opportunity for public input and involvement in compliance with Administrative Procedure Act requirements, including publishing a proposed rule in the
In the more than 25 years that the Program has been operating, no benefit to the public has been demonstrated by delaying the effective date of the subsistence regulations. A lapse in regulatory control could affect the continued viability of fish or wildlife populations and future subsistence opportunities for rural Alaskans, and would generally fail to serve the overall public interest. Therefore, the Board finds good cause pursuant to 5 U.S.C. 553(d)(3) to make this rule effective upon the date set forth in
A Draft Environmental Impact Statement that described four alternatives for developing a Federal Subsistence Management Program was distributed for public comment on October 7, 1991. The Final Environmental Impact Statement (FEIS) was published on February 28, 1992. The Record of Decision (ROD) on Subsistence Management for Federal Public Lands in Alaska was signed April 6, 1992. The selected alternative in the FEIS (Alternative IV) defined the administrative framework of an annual regulatory cycle for subsistence regulations.
The following
A 1997 environmental assessment dealt with the expansion of Federal jurisdiction over fisheries and is available at the office listed under
An ANILCA section 810 analysis was completed as part of the FEIS process on the Federal Subsistence Management Program. The intent of all Federal subsistence regulations is to accord subsistence uses of fish and wildlife on public lands a priority over the taking of fish and wildlife on such lands for other purposes, unless restriction is necessary to conserve healthy fish and wildlife populations. The final section 810 analysis determination appeared in the April 6, 1992, ROD and concluded that the Program, under Alternative IV with an annual process for setting subsistence regulations, may have some local impacts on subsistence uses, but will not likely restrict subsistence uses significantly.
During the subsequent environmental assessment process for extending fisheries jurisdiction, an evaluation of the effects of this rule was conducted in accordance with section 810. That evaluation also supported the Secretaries' determination that the rule will not reach the “may significantly
This rule does not contain any new collections of information that require Office of Management and Budget (OMB) approval. OMB has reviewed and approved the collections of information associated with the subsistence regulations at 36 CFR part 242 and 50 CFR part 100, and assigned OMB Control Number 1018-0075, which expires June 30, 2019. An agency may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number.
Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601
Under the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801
Title VIII of ANILCA requires the Secretaries to administer a subsistence priority on public lands. The scope of this Program is limited by definition to certain public lands. Likewise, these regulations have no potential takings of private property implications as defined by Executive Order 12630.
The Secretaries have determined and certify pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502
The Secretaries have determined that these regulations meet the applicable standards provided in sections 3(a) and 3(b)(2) of Executive Order 12988, regarding civil justice reform.
In accordance with Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. Title VIII of ANILCA precludes the State from exercising subsistence management authority over fish and wildlife resources on Federal lands unless it meets certain requirements.
The Alaska National Interest Lands Conservation Act, Title VIII, does not provide specific rights to tribes for the subsistence taking of wildlife, fish, and shellfish. However, the Board provided federally recognized Tribes and Alaska Native corporations opportunities to consult on this rule. Consultation with Alaska Native corporations are based on Public Law 108-199, div. H, Sec. 161, Jan. 23, 2004, 118 Stat. 452, as amended by Public Law 108-447, div. H, title V, Sec. 518, Dec. 8, 2004, 118 Stat. 3267, which provides that: “The Director of the Office of Management and Budget and all Federal agencies shall hereafter consult with Alaska Native corporations on the same basis as Indian tribes under Executive Order No. 13175.”
The Secretaries, through the Board, provided a variety of opportunities for consultation: Commenting on proposed changes to the existing rule; engaging in dialogue at the Regional Council meetings; engaging in dialogue at the Board's meetings; and providing input in person, by mail, email, or phone at any time during the rulemaking process.
On April 10, 2018, the Board provided federally recognized Tribes and Alaska Native Corporations a specific opportunity to consult on this rule prior to the start of its public regulatory meeting. Federally recognized Tribes and Alaska Native Corporations were notified by mail and telephone and were given the opportunity to attend in person or via teleconference.
This Executive Order requires agencies to prepare Statements of Energy Effects when undertaking certain actions. However, this rule is not a significant regulatory action under E.O. 13211, affecting energy supply, distribution, or use, and no Statement of Energy Effects is required.
Theo Matuskowitz drafted these regulations under the guidance of Thomas C. J. Doolittle of the Office of Subsistence Management, Alaska Regional Office, U.S. Fish and Wildlife Service, Anchorage, Alaska. Additional assistance was provided by
• Daniel Sharp, Alaska State Office, Bureau of Land Management;
• Clarence Summers, Alaska Regional Office, National Park Service;
• Dr. Glenn Chen, Alaska Regional Office, Bureau of Indian Affairs;
• Carol Damberg, Alaska Regional Office, U.S. Fish and Wildlife Service; and
• Thomas Whitford, Alaska Regional Office, USDA Forest Service.
Administrative practice and procedure, Alaska, Fish, National forests, Public lands, Reporting and recordkeeping requirements, Wildlife.
Administrative practice and procedure, Alaska, Fish, National forests, Public lands, Reporting and recordkeeping requirements, Wildlife.
For the reasons set out in the preamble, the Federal Subsistence Board amends title 36, part 242, and title 50, part 100, of the Code of Federal Regulations, as set forth below.
16 U.S.C. 3, 472, 551, 668dd, 3101-3126; 18 U.S.C. 3551-3586; 43 U.S.C. 1733.
(a) * * *
(1) * * *
(a) * * *
(a)
(b)
(1) Shooting from, on, or across a highway.
(2) Using any poison.
(3) Using a helicopter in any manner, including transportation of individuals, equipment, or wildlife; however, this prohibition does not apply to transportation of an individual, gear, or wildlife during an emergency rescue operation in a life-threatening situation.
(4) Taking wildlife from a motorized land or air vehicle when that vehicle is in motion, or from a motor-driven boat when the boat's progress from the motor's power has not ceased.
(5) Using a motorized vehicle to drive, herd, or molest wildlife.
(6) Using or being aided by use of a machine gun, set gun, or a shotgun larger than 10 gauge.
(7) Using a firearm other than a shotgun, muzzle-loaded rifle, rifle, or pistol using center-firing cartridges for
(i) An individual in possession of a valid trapping license may use a firearm that shoots rimfire cartridges to take wolves and wolverine; and
(ii) Only a muzzle-loading rifle of .54-caliber or larger, or a .45-caliber muzzle-loading rifle with a 250-grain, or larger, elongated slug may be used to take brown bear, black bear, elk, moose, musk ox, and mountain goat.
(8) Using or being aided by use of a pit, fire, artificial light, radio communication, artificial salt lick, explosive, barbed arrow, bomb, smoke, chemical, conventional steel trap with a jaw spread over 9 inches, or conibear style trap with a jaw spread over 11 inches.
(9) Using a snare, except that an individual in possession of a valid hunting license may use nets and snares to take unclassified wildlife, ptarmigan, grouse, or hares; and individuals in possession of a valid trapping license may use snares to take furbearers.
(10) Using a trap to take ungulates or bear.
(11) Using hooks to physically snag, impale, or otherwise take wildlife; however, hooks may be used as a trap drag.
(12) Using a crossbow to take ungulates, bear, wolf, or wolverine in any area restricted to hunting by bow and arrow only.
(13) Taking of ungulates, bear, wolf, or wolverine with a bow, unless the bow is capable of casting an inch-wide broadhead-tipped arrow at least 175 yards horizontally, and the arrow and broadhead together weigh at least 1 ounce (437.5 grains).
(14) Using bait for taking ungulates, bear, wolf, or wolverine; except you may use bait to take wolves and wolverine with a trapping license, and you may use bait to take black bears and brown bears with a hunting license as authorized in Unit-specific regulations at paragraphs (n)(1) through (26) of this section. Baiting of black bears and brown bears is subject to the following restrictions:
(i) Before establishing a bear bait station, you must register the site with ADF&G.
(ii) When using bait, you must clearly mark the site with a sign reading “black bear bait station” that also displays your hunting license number and ADF&G-assigned number.
(iii) You may use only biodegradable materials for bait; if fish or wildlife is used as bait, only the head, bones, viscera, or skin of legally harvested fish and wildlife, the skinned carcasses of furbearers, and unclassified wildlife may be used, except that in Units 7 and 15, fish or fish parts may not be used as bait. Scent lures may be used at registered bait stations.
(iv) You may not use bait within
(v) You may not use bait within 1 mile of a house or other permanent dwelling, or within 1 mile of a developed campground or developed recreational facility.
(vi) When using bait, you must remove litter and equipment from the bait station site when done hunting.
(vii) You may not give or receive payment for the use of a bait station, including barter or exchange of goods.
(viii) You may not have more than two bait stations with bait present at any one time.
(15) Taking swimming ungulates, bears, wolves, or wolverine.
(16) Taking or assisting in the taking of ungulates, bear, wolves, wolverine, or other furbearers before 3:00 a.m. following the day in which airborne travel occurred (except for flights in regularly scheduled commercial aircraft). This restriction does not apply to subsistence taking of deer (except on NPS lands) and of caribou on the Nushagak Peninsula (a portion of Units 17A and 17C) during Jan. 1-Mar. 31, provided the hunter is 300 feet from the airplane; moreover, this restriction does not apply to subsistence setting of snares or traps, or the removal of furbearers from traps or snares.
(17) Taking a bear cub or a sow accompanied by cub(s).
(c)
(d)
(1) Disturbing or destroying a den, except that you may disturb a muskrat pushup or feeding house in the course of trapping;
(2) Disturbing or destroying any beaver house;
(3) Taking beaver by any means other than a steel trap or snare, except that you may use firearms in certain Units with established seasons as identified in Unit-specific regulations found in this subpart;
(4) Taking otter with a steel trap having a jaw spread of less than 5
(5) Using a net or fish trap (except a blackfish or fyke trap); and
(6) Taking or assisting in the taking of furbearers by firearm before 3:00 a.m. on the day following the day on which airborne travel occurred; however, this does not apply to a trapper using a firearm to dispatch furbearers caught in a trap or snare.
(e)
(2) An animal taken under Federal or State regulations by any member of a community with an established community harvest limit for that species counts toward the community harvest limit for that species. Except for wildlife taken pursuant to § __.10(d)(5)(iii) or as otherwise provided for by this part, an animal taken as part of a community harvest limit counts toward every community member's harvest limit for that species taken under Federal or State of Alaska regulations.
(f)
(2) A brown/grizzly bear taken in a Unit or portion of a Unit having a harvest limit of “one brown/grizzly bear per year” counts against a “one brown/grizzly bear every four regulatory years” harvest limit in other Units. You may not take more than one brown/grizzly bear in a regulatory year.
(g)
(2) If the subsistence taking of an ungulate, except sheep, is restricted to one sex in the local area, you may not possess or transport the carcass of an animal taken in that area unless sufficient portions of the external sex organs remain attached to indicate conclusively the sex of the animal, except that in Units 1-5 antlers are also considered proof of sex for deer if the antlers are naturally attached to an entire carcass, with or without the viscera; and except in Units 11, 13, 19, 21, and 24, where you may possess
(3) If a moose harvest limit requires an antlered bull, an antler size, or configuration restriction, you may not possess or transport the moose carcass or its parts unless both antlers accompany the carcass or its parts. If you possess a set of antlers with less than the required number of brow tines on one antler, you must leave the antlers naturally attached to the unbroken, uncut skull plate; however, this paragraph (g)(3) does not apply to a moose carcass or its parts that have been butchered and placed in storage or otherwise prepared for consumption after arrival at the place where it is to be stored or consumed.
(h)
(i)
(j)
(2) You may not possess or transport from Alaska the untanned skin or skull of a bear unless the skin and skull have been sealed by an authorized representative of ADF&G in accordance with State or Federal regulations, except that the skin and skull of a brown bear taken under a registration permit in Units 5, 9B, 9E, 17, 18, 19A and 19B downstream of and including the Aniak River drainage, Units 21D, 22, 23, 24, and 26A need not be sealed unless removed from the area.
(3) You must keep a bear skin and skull together until a representative of the ADF&G has removed a rudimentary premolar tooth from the skull and sealed both the skull and the skin; however, this provision does not apply to brown bears taken within Units 5, 9B, 9E, 17, 18, 19A and 19B downstream of and including the Aniak River drainage, Units 21D, 22, 23, 24, and 26A and which are not removed from the Unit.
(i) In areas where sealing is required by Federal regulations, you may not possess or transport the hide of a bear that does not have the penis sheath or vaginal orifice naturally attached to indicate conclusively the sex of the bear.
(ii) If the skin or skull of a bear taken in Units 9B, 17, 18, and 19A and 19B downstream of and including the Aniak River drainage is removed from the area, you must first have it sealed by an ADF&G representative in Bethel, Dillingham, or McGrath; at the time of sealing, the ADF&G representative must remove and retain the skin of the skull and front claws of the bear.
(iii) If you remove the skin or skull of a bear taken in Units 21D, 22, 23, 24, and 26A from the area or present it for commercial tanning within the area, you must first have it sealed by an ADF&G representative in Barrow, Galena, Nome, or Kotzebue; at the time of sealing, the ADF&G representative must remove and retain the skin of the skull and front claws of the bear.
(iv) If you remove the skin or skull of a bear taken in Unit 5 from the area, you must first have it sealed by an ADF&G representative in Yakutat.
(v) If you remove the skin or skull of a bear taken in Unit 9E from Unit 9, you must first have it sealed by an authorized sealing representative. At the time of sealing, the representative must remove and retain the skin of the skull and front claws of the bear.
(4) You may not falsify any information required on the sealing certificate or temporary sealing form provided by the ADF&G in accordance with State regulations.
(k)
(1) In Unit 18, you must obtain an ADF&G seal for beaver skins only if they are to be sold or commercially tanned.
(2) In Unit 2, you must seal any wolf taken on or before the 14th day after the date of taking.
(l)
(m)
(1) The harvest does not violate recognized principles of wildlife conservation and uses the methods and means allowable for the particular species published in the applicable Federal regulations. The appropriate Federal land manager will establish the number, species, sex, or location of harvest, if necessary, for conservation purposes. Other regulations relating to ceremonial harvest may be found in the Unit-specific regulations in paragraph (n) of this section.
(2) No permit or harvest ticket is required for harvesting under this section; however, the harvester must be a federally qualified subsistence user with customary and traditional use in the area where the harvesting will occur.
(3) In Units 1-26 (except for Koyukon/Gwich'in potlatch ceremonies in Unit 20F, 21, 24, or 25):
(i) A tribal chief, village or tribal council president, or the chief's or president's designee for the village in
(ii) Immediately after the wildlife is taken, the tribal chief, village or tribal council president or designee, or other federally qualified subsistence user must create a list of the successful hunters and maintain these records, including the name of the decedent for whom the ceremony will be held. If requested, this information must be available to an authorized representative of the Federal land manager.
(iii) The tribal chief, village or tribal council president or designee, or other federally qualified subsistence user outside of the village in which the religious/cultural ceremony will be held must report to the Federal land manager the harvest location, species, sex, and number of animals taken as soon as practicable, but not more than 15 days after the wildlife is taken.
(4) In Units 20F, 21, 24, and 25 (for Koyukon/Gwich'in potlatch ceremonies only):
(i) Taking wildlife outside of established season and harvest limits is authorized if it is for food for the traditional Koyukon/Gwich'in Potlatch Funerary or Mortuary ceremony and if it is consistent with conservation of healthy populations.
(ii) Immediately after the wildlife is taken, the tribal chief, village or tribal council president, or the chief's or president's designee for the village in which the religious ceremony will be held must create a list of the successful hunters and maintain these records. The list must be made available, after the harvest is completed, to a Federal land manager upon request.
(iii) As soon as practical, but not more than 15 days after the harvest, the tribal chief, village council president, or designee must notify the Federal land manager about the harvest location, species, sex, and number of animals taken.
(n)
(1)
(i) Unit 1A consists of all drainages south of the latitude of Lemesurier Point including all drainages into Behm Canal, excluding all drainages of Ernest Sound.
(ii) Unit 1B consists of all drainages between the latitude of Lemesurier Point and the latitude of Cape Fanshaw including all drainages of Ernest Sound and Farragut Bay, and including the islands east of the center lines of Frederick Sound, Dry Strait (between Sergief and Kadin Islands), Eastern Passage, Blake Channel (excluding Blake Island), Ernest Sound, and Seward Passage.
(iii) Unit 1C consists of that portion of Unit 1 draining into Stephens Passage and Lynn Canal north of Cape Fanshaw and south of the latitude of Eldred Rock including Berners Bay, Sullivan Island, and all mainland portions north of Chichagof Island and south of the latitude of Eldred Rock, excluding drainages into Farragut Bay.
(iv) Unit 1D consists of that portion of Unit 1 north of the latitude of Eldred Rock, excluding Sullivan Island and the drainages of Berners Bay.
(v) In the following areas, the taking of wildlife for subsistence uses is prohibited or restricted on public lands:
(A) Public lands within Glacier Bay National Park are closed to all taking of wildlife for subsistence uses;
(B) Unit 1A—in the Hyder area, the Salmon River drainage downstream from the Riverside Mine, excluding the Thumb Creek drainage, is closed to the taking of bear;
(C) Unit 1B—the Anan Creek drainage within 1 mile of Anan Creek downstream from the mouth of Anan Lake, including the area within a 1-mile radius from the mouth of Anan Creek Lagoon, is closed to the taking of bear; and
(D) Unit 1C:
(
(
(vi) You may not trap furbearers for subsistence uses in Unit 1C, Juneau area, on the following public lands:
(A) A strip within one-quarter mile of the mainland coast between the end of Thane Road and the end of Glacier Highway at Echo Cove;
(B) That area of the Mendenhall Valley bounded on the south by the Glacier Highway, on the west by the Mendenhall Loop Road and Montana Creek Road and Spur Road to Mendenhall Lake, on the north by Mendenhall Lake, and on the east by the Mendenhall Loop Road and Forest Service Glacier Spur Road to the Forest Service Visitor Center;
(C) That area within the U.S. Forest Service Mendenhall Glacier Recreation Area; and
(D) A strip within one-quarter mile of the following trails as designated on U.S. Geological Survey maps: Herbert Glacier Trail, Windfall Lake Trail, Peterson Lake Trail, Spaulding Meadows Trail (including the loop trail), Nugget Creek Trail, Outer Point Trail, Dan Moller Trail, Perseverance Trail, Granite Creek Trail, Mt. Roberts Trail and Nelson Water Supply Trail, Sheep Creek Trail, and Point Bishop Trail.
(vii) Unit-specific regulations:
(A) You may hunt black bear with bait in Units 1A, 1B, and 1D between April 15 and June 15.
(B) You may not shoot ungulates, bear, wolves, or wolverine from a boat, unless you are certified as disabled.
(C) Coyotes taken incidentally with a trap or snare during an open Federal trapping season for wolf, wolverine, or beaver may be legally retained.
(D) A firearm may be used to take beaver under a trapping license during an open beaver season, except on National Park Service lands.
(2)
(i) Unit-specific regulations:
(A) You may use bait to hunt black bear between April 15 and June 15.
(B) You may not shoot ungulates, bear, wolves, or wolverine from a boat, unless you are certified as disabled.
(C) Coyotes taken incidentally with a trap or snare during an open Federal trapping season for wolf, wolverine, or beaver may be legally retained.
(D) A firearm may be used to take beaver under a trapping license during an open beaver season, except on National Park Service lands.
(ii) [Reserved]
(3)
(ii) In the following areas, the taking of wildlife for subsistence uses is prohibited or restricted on public lands:
(A) In the Petersburg vicinity, you may not take ungulates, bear, wolves, and wolverine along a strip one-fourth mile wide on each side of the Mitkof Highway from Milepost 0 to Crystal Lake campground;
(B) You may not take black bears in the Petersburg Creek drainage on Kupreanof Island; and
(C) You may not hunt in the Blind Slough draining into Wrangell Narrows and a strip one-fourth-mile wide on each side of Blind Slough, from the hunting closure markers at the southernmost portion of Blind Island to the hunting closure markers 1 mile south of the Blind Slough bridge.
(iii) Unit-specific regulations:
(A) You may use bait to hunt black bear between April 15 and June 15.
(B) You may not shoot ungulates, bear, wolves, or wolverine from a boat, unless you are certified as disabled.
(C) Coyotes taken incidentally with a trap or snare during an open Federal trapping season for wolf, wolverine, or beaver may be legally retained.
(D) A firearm may be used to take beaver under a trapping license during an open beaver season, except on National Park Service lands.
(4)
(ii) In the following areas, the taking of wildlife for subsistence uses is prohibited or restricted on public lands:
(A) You may not take brown bears in the Seymour Canal Closed Area (Admiralty Island) including all drainages into northwestern Seymour Canal between Staunch Point and the southernmost tip of the unnamed peninsula separating Swan Cove and King Salmon Bay including Swan and Windfall Islands;
(B) You may not take brown bears in the Salt Lake Closed Area (Admiralty Island) including all lands within one-fourth mile of Salt Lake above Klutchman Rock at the head of Mitchell Bay;
(C) You may not take brown bears in the Port Althorp Closed Area (Chichagof Island), that area within the Port Althorp watershed south of a line from Point Lucan to Salt Chuck Point (Trap Rock); and
(D) You may not use any motorized land vehicle for brown bear hunting in the Northeast Chichagof Controlled Use Area (NECCUA) consisting of all portions of Unit 4 on Chichagof Island north of Tenakee Inlet and east of the drainage divide from the northwestern point of Gull Cove to Port Frederick Portage, including all drainages into Port Frederick and Mud Bay.
(iii) Unit-specific regulations:
(A) You may shoot ungulates from a boat. You may not shoot bear, wolves, or wolverine from a boat, unless you are certified as disabled.
(B) Five Federal registration permits will be issued by the Sitka or Hoonah District Ranger for the taking of brown bear for educational purposes associated with teaching customary and traditional subsistence harvest and use practices. Any bear taken under an educational permit does not count in an individual's one bear every four regulatory years limit.
(C) Coyotes taken incidentally with a trap or snare during an open Federal trapping season for wolf, wolverine, or beaver may be legally retained.
(D) A firearm may be used to take beaver under a trapping license during an open beaver season, except on National Park Service lands.
(5)
(A) Unit 5A consists of all drainages east of Yakutat Bay, Disenchantment Bay, and the eastern edge of Hubbard Glacier, and includes the islands of Yakutat and Disenchantment Bays; In Unit 5A, Nunatak Bench is defined as that area east of the Hubbard Glacier, north of Nunatak fiord, and north and east of the East Nunatak Glacier to the Canadian Border.
(B) Unit 5B consists of the remainder of Unit 5.
(ii) You may not take wildlife for subsistence uses on public lands within Glacier Bay National Park.
(iii) Unit-specific regulations:
(A) You may use bait to hunt black bear between April 15 and June 15.
(B) You may not shoot ungulates, bear, wolves, or wolverine from a boat, unless you are certified as disabled.
(C) You may hunt brown bear in Unit 5 with a Federal registration permit in lieu of a State metal locking tag if you have obtained a Federal registration permit prior to hunting.
(D) Coyotes taken incidentally with a trap or snare during an open Federal trapping season for wolf, wolverine, or beaver may be legally retained.
(E) A firearm may be used to take beaver under a trapping license during an open beaver season, except on National Park Service lands.
(6)
(A) Unit 6A consists of Gulf of Alaska drainages east of Palm Point near Katalla including Kanak, Wingham, and Kayak Islands;
(B) Unit 6B consists of Gulf of Alaska and Copper River Basin drainages west of Palm Point near Katalla, east of the west bank of the Copper River, and east of a line from Flag Point to Cottonwood Point;
(C) Unit 6C consists of drainages west of the west bank of the Copper River, and west of a line from Flag Point to Cottonwood Point, and drainages east of the east bank of Rude River and drainages into the eastern shore of Nelson Bay and Orca Inlet; and
(D) Unit 6D consists of the remainder of Unit 6.
(ii) Unit-specific regulations:
(A) You may use bait to hunt black bear between April 15 and June 15. In addition, you may use bait in Unit 6D between June 16 and June 30. The harvest quota in Unit 6D is 20 bears taken with bait between June 16 and June 30.
(B) You may take coyotes in Units 6B and 6C with the aid of artificial lights.
(C) One permit will be issued by the Cordova District Ranger to the Native Village of Eyak to take one moose from Federal lands in Unit 6B or C for their annual Memorial/Sobriety Day potlatch.
(D) A federally qualified subsistence user (recipient) who is either blind, 65 years of age or older, at least 70 percent disabled, or temporarily disabled may designate another federally qualified subsistence user to take any moose, deer, black bear, and beaver on his or her behalf in Unit 6, and goat in Unit 6D, unless the recipient is a member of a community operating under a community harvest system. The designated hunter must obtain a designated hunter permit and must return a completed harvest report. The designated hunter may hunt for any number of recipients, but may have no more than one harvest limit in his or her possession at any one time.
(E) A hunter younger than 10 years old at the start of the hunt may not be issued a Federal subsistence permit to harvest black bear, deer, goat, moose, wolf, and wolverine.
(F) A hunter younger than 10 years old may harvest black bear, deer, goat, moose, wolf, and wolverine under the direct, immediate supervision of a licensed adult, at least 18 years old. The animal taken is counted against the adult's harvest limit. The adult is responsible for ensuring that all legal requirements are met.
(G) Up to five permits will be issued by the Cordova District Ranger to the Native Village of Chenega annually to harvest up to five deer total from Federal public lands in Unit 6D for their annual Old Chenega Memorial and other traditional memorial potlatch ceremonies. Permits will have effective dates of July 1-June 30.
(H) Up to five permits will be issued by the Cordova District Ranger to the Tatitlek IRA Council annually to harvest up to five deer total from Federal public lands in Unit 6D for their annual Cultural Heritage Week. Permits will have effective dates of July 1-June 30.
(7)
(ii) In the following areas, the taking of wildlife for subsistence uses is prohibited or restricted on public lands:
(A) You may not take wildlife for subsistence uses in the Kenai Fjords National Park.
(B) You may not hunt in the Portage Glacier Closed Area in Unit 7, which consists of Portage Creek drainages between the Anchorage-Seward Railroad and Placer Creek in Bear Valley, Portage Lake, the mouth of Byron Creek, Glacier Creek, and Byron Glacier; however, you may hunt grouse, ptarmigan, hares, and squirrels with shotguns after September 1.
(iii) Unit-specific regulations:
(A) You may use bait to hunt black bear between April 15 and June 15, except in the drainages of Resurrection Creek and its tributaries.
(B) [Reserved]
(8)
(i) Unit-specific regulations: If you have a trapping license, you may take beaver with a firearm in Unit 8 from Nov. 10-Apr. 30.
(ii) [Reserved]
(9)
(A) Unit 9A consists of that portion of Unit 9 draining into Shelikof Strait and Cook Inlet between the southern boundary of Unit 16 (Redoubt Creek) and the northern boundary of Katmai National Park and Preserve.
(B) Unit 9B consists of the Kvichak River drainage except those lands drained by the Kvichak River/Bay between the Alagnak River drainage and the Naknek River drainage.
(C) Unit 9C consists of the Alagnak (Branch) River drainage, the Naknek River drainage, lands drained by the Kvichak River/Bay between the Alagnak River drainage and the Naknek River drainage, and all land and water within Katmai National Park and Preserve.
(D) Unit 9D consists of all Alaska Peninsula drainages west of a line from the southernmost head of Port Moller to the head of American Bay, including the Shumagin Islands and other islands of Unit 9 west of the Shumagin Islands.
(E) Unit 9E consists of the remainder of Unit 9.
(ii) In the following areas, the taking of wildlife for subsistence uses is prohibited or restricted on public lands:
(A) You may not take wildlife for subsistence uses in Katmai National Park; and
(B) You may not use motorized vehicles, except aircraft, boats, or snowmobiles used for hunting and transporting a hunter or harvested animal parts from Aug. 1-Nov. 30 in the Naknek Controlled Use Area, which includes all of Unit 9C within the Naknek River drainage upstream from and including the King Salmon Creek drainage; however, you may use a motorized vehicle on the Naknek-King Salmon, Lake Camp, and Rapids Camp roads and on the King Salmon Creek trail, and on frozen surfaces of the Naknek River and Big Creek.
(iii) Unit-specific regulations:
(A) If you have a trapping license, you may use a firearm to take beaver in Unit 9B from April 1-May 31 and in the remainder of Unit 9 from April 1-30.
(B) You may hunt brown bear by State registration permit in lieu of a resident tag in Unit 9B, except that portion within the Lake Clark National Park and Preserve, if you have obtained a State registration permit prior to hunting.
(C) In Unit 9B, Lake Clark National Park and Preserve, residents of Iliamna, Newhalen, Nondalton, Pedro Bay, Port Alsworth, and that portion of the park resident zone in Unit 9B and 13.440 permit holders may hunt brown bear by Federal registration permit in lieu of a resident tag. The season will be closed when 4 females or 10 bears have been taken, whichever occurs first. The permits will be issued and closure announcements made by the Superintendent Lake Clark National Park and Preserve.
(D) Residents of Iliamna, Newhalen, Nondalton, Pedro Bay, and Port Alsworth may take up to a total of 10 bull moose in Unit 9B for ceremonial purposes, under the terms of a Federal registration permit from July 1-June 30. Permits will be issued to individuals only at the request of a local organization. This 10-moose limit is not cumulative with that permitted for potlatches by the State.
(E) For Units 9C and 9E only, a federally qualified subsistence user (recipient) of Units 9C and 9E may designate another federally qualified subsistence user of Units 9C and 9E to take bull caribou on his or her behalf unless the recipient is a member of a community operating under a community harvest system. The designated hunter must obtain a designated hunter permit and must return a completed harvest report and turn over all meat to the recipient. There is no restriction on the number of possession limits the designated hunter may have in his/her possession at any one time.
(F) For Unit 9D, a federally qualified subsistence user (recipient) may designate another federally qualified subsistence user to take caribou on his or her behalf unless the recipient is a member of a community operating under a community harvest system. The designated hunter must obtain a designated hunter permit and must return a completed harvest report. The designated hunter may hunt for any number of recipients but may have no more than four harvest limits in his/her possession at any one time.
(G) The communities of False Pass, King Cove, Cold Bay, Sand Point, and Nelson Lagoon annually may each take, from October 1-December 31 or May 10-25, one brown bear for ceremonial purposes, under the terms of a Federal registration permit. A permit will be issued to an individual only at the request of a local organization. The brown bear may be taken from either Unit 9D or Unit 10 (Unimak Island) only.
(H) You may hunt brown bear in Unit 9E with a Federal registration permit in lieu of a State locking tag if you have obtained a Federal registration permit prior to hunting.
(10)
(ii) You may not take any wildlife species for subsistence uses on Otter Island in the Pribilof Islands.
(iii) In Unit 10—Unimak Island only, a federally qualified subsistence user (recipient) may designate another federally qualified subsistence user to take caribou on his or her behalf unless the recipient is a member of a community operating under a community harvest system. The designated hunter must obtain a designated hunter permit and must return a completed harvest report. The designated hunter may hunt for any number of recipients but may have no more than four harvest limits in his/her possession at any one time.
(iv) The communities of False Pass, King Cove, Cold Bay, Sand Point, and Nelson Lagoon annually may each take, from October 1-December 31 or May 10-25, one brown bear for ceremonial purposes, under the terms of a Federal registration permit. A permit will be issued to an individual only at the request of a local organization. The brown bear may be taken from either Unit 9D or 10 (Unimak Island) only.
(11)
(i) Unit-specific regulations:
(A) You may use bait to hunt black and brown bear between April 15 and June 15.
(B) One moose without calf may be taken from June 20-July 31 in the Wrangell-St. Elias National Park and Preserve in Unit 11 or 12 for the Batzulnetas Culture Camp. Two hunters from either Chistochina or Mentasta
(ii) A joint permit may be issued to a pair of a minor and an elder to hunt sheep during the Aug. 1-Oct. 20 hunt. The following conditions apply:
(A) The permittees must be a minor aged 8 to 15 years old and an accompanying adult 60 years of age or older.
(B) Both the elder and the minor must be federally qualified subsistence users with a positive customary and traditional use determination for the area they want to hunt.
(C) The minor must hunt under the direct immediate supervision of the accompanying adult, who is responsible for ensuring that all legal requirements are met.
(D) Only one animal may be harvested with this permit. The sheep harvested will count against the harvest limits of both the minor and accompanying adult.
(12)
(i) Unit-specific regulations:
(A) You may use bait to hunt black and brown bear between April 15 and June 30; you may use bait to hunt wolves on FWS and BLM lands.
(B) You may not use a steel trap, or a snare using cable smaller than 3/32-inch diameter to trap coyotes or wolves in Unit 12 during April and October.
(C) One moose without calf may be taken from June 20-July 31 in the Wrangell-St. Elias National Park and Preserve in Unit 11 or 12 for the Batzulnetas Culture Camp. Two hunters from either Chistochina or Mentasta Village may be designated by the Mt. Sanford Tribal Consortium to receive the Federal subsistence harvest permit. The permit may be obtained from a Wrangell-St. Elias National Park and Preserve office.
(ii) A joint permit may be issued to a pair of a minor and an elder to hunt sheep during the Aug. 1-Oct. 20 hunt. The following conditions apply:
(A) The permittees must be a minor aged 8 to 15 years old and an accompanying adult 60 years of age or older.
(B) Both the elder and the minor must be federally qualified subsistence users with a positive customary and traditional use determination for the area they want to hunt.
(C) The minor must hunt under the direct immediate supervision of the accompanying adult, who is responsible for ensuring that all legal requirements are met.
(D) Only one animal may be harvested with this permit. The sheep harvested will count against the harvest limits of both the minor and accompanying adult.
(13)
(A) Unit 13A consists of that portion of Unit 13 bounded by a line beginning at the Chickaloon River bridge at Mile 77.7 on the Glenn Highway, then along the Glenn Highway to its junction with the Richardson Highway, then south along the Richardson Highway to the foot of Simpson Hill at Mile 111.5, then east to the east bank of the Copper River, then northerly along the east bank of the Copper River to its junction with the Gulkana River, then northerly along the west bank of the Gulkana River to its junction with the West Fork of the Gulkana River, then westerly along the west bank of the West Fork of the Gulkana River to its source, an unnamed lake, then across the divide into the Tyone River drainage, down an unnamed stream into the Tyone River, then down the Tyone River to the Susitna River, then down the south bank of the Susitna River to the mouth of Kosina Creek, then up Kosina Creek to its headwaters, then across the divide and down Aspen Creek to the Talkeetna River, then southerly along the boundary of Unit 13 to the Chickaloon River bridge, the point of beginning.
(B) Unit 13B consists of that portion of Unit 13 bounded by a line beginning at the confluence of the Copper River and the Gulkana River, then up the east bank of the Copper River to the Gakona River, then up the Gakona River and Gakona Glacier to the boundary of Unit 13, then westerly along the boundary of Unit 13 to the Susitna Glacier, then southerly along the west bank of the Susitna Glacier and the Susitna River to the Tyone River, then up the Tyone River and across the divide to the headwaters of the West Fork of the Gulkana River, then down the West Fork of the Gulkana River to the confluence of the Gulkana River and the Copper River, the point of beginning.
(C) Unit 13C consists of that portion of Unit 13 east of the Gakona River and Gakona Glacier.
(D) Unit 13D consists of that portion of Unit 13 south of Unit 13A.
(E) Unit 13E consists of the remainder of Unit 13.
(ii) Within the following areas, the taking of wildlife for subsistence uses is prohibited or restricted on public lands:
(A) You may not take wildlife for subsistence uses on lands within Mount McKinley National Park as it existed prior to December 2, 1980. Subsistence uses as authorized by this paragraph (n)(13) are permitted in Denali National Preserve and lands added to Denali National Park on December 2, 1980.
(B) You may not use motorized vehicles or pack animals for hunting from Aug. 5-25 in the Delta Controlled Use Area, the boundary of which is defined as: a line beginning at the confluence of Miller Creek and the Delta River, then west to vertical angle benchmark Miller, then west to include all drainages of Augustana Creek and Black Rapids Glacier, then north and east to include all drainages of McGinnis Creek to its confluence with the Delta River, then east in a straight line across the Delta River to Mile 236.7 Richardson Highway, then north along the Richardson Highway to its junction with the Alaska Highway, then east along the Alaska Highway to the west bank of the Johnson River, then south along the west bank of the Johnson River and Johnson Glacier to the head of the Cantwell Glacier, then west along the north bank of the Cantwell Glacier and Miller Creek to the Delta River.
(C) Except for access and transportation of harvested wildlife on Sourdough and Haggard Creeks, Middle Fork trails, or other trails designated by the Board, you may not use motorized vehicles for subsistence hunting in the Sourdough Controlled Use Area. The Sourdough Controlled Use Area consists of that portion of Unit 13B bounded by a line beginning at the confluence of Sourdough Creek and the Gulkana River, then northerly along Sourdough Creek to the Richardson Highway at approximately Mile 148, then northerly along the Richardson Highway to the Middle Fork Trail at approximately Mile 170, then westerly along the trail to the Gulkana River, then southerly along the east bank of the Gulkana River to its confluence with Sourdough Creek, the point of beginning.
(D) You may not use any motorized vehicle or pack animal for hunting, including the transportation of hunters, their hunting gear, and/or parts of game from July 26-September 30 in the Tonsina Controlled Use Area. The Tonsina Controlled Use Area consists of that portion of Unit 13D bounded on the west by the Richardson Highway from the Tiekel River to the Tonsina River at Tonsina, on the north along the south bank of the Tonsina River to where the Edgerton Highway crosses the Tonsina River, then along the Edgerton Highway to Chitina, on the east by the Copper River from Chitina to the Tiekel River, and on the south by the north bank of the Tiekel River.
(iii) Unit-specific regulations:
(A) You may use bait to hunt black bear between April 15 and June 15.
(B) Upon written request by the Camp Director to the Glennallen Field Office, 2 caribou, sex to be determined by the Glennallen Field Office Manager of the BLM, may be taken from Aug. 10-Sep. 30 or Oct. 21-Mar. 31 by Federal registration permit for the Hudson Lake Residential Treatment Camp. Additionally, 1 bull moose may be taken Aug. 1-Sep. 20. The animals may be taken by any federally qualified hunter designated by the Camp Director. The hunter must have in his/her possession the permit and a designated hunter permit during all periods that are being hunted.
(14)
(A) Unit 14A consists of drainages in Unit 14 bounded on the west by the east bank of the Susitna River, on the north by the north bank of Willow Creek and Peters Creek to its headwaters, then east along the hydrologic divide separating the Susitna River and Knik Arm drainages to the outlet creek at lake 4408, on the east by the eastern boundary of Unit 14, and on the south by Cook Inlet, Knik Arm, the south bank of the Knik River from its mouth to its junction with Knik Glacier, across the face of Knik Glacier and along the northern side of Knik Glacier to the Unit 6 boundary;
(B) Unit 14B consists of that portion of Unit 14 north of Unit 14A; and
(C) Unit 14C consists of that portion of Unit 14 south of Unit 14A.
(ii) In the following areas, the taking of wildlife for subsistence uses is prohibited or restricted on public lands:
(A) You may not take wildlife for subsistence uses in the Fort Richardson and Elmendorf Air Force Base Management Areas, consisting of the Fort Richardson and Elmendorf Military Reservations; and
(B) You may not take wildlife for subsistence uses in the Anchorage Management Area, consisting of all drainages south of Elmendorf and Fort Richardson military reservations and north of and including Rainbow Creek.
(iii) Unit-specific regulations:
(15)
(A) Unit 15A consists of that portion of Unit 15 north of the north bank of the Kenai River and the northern shore of Skilak Lake;
(B) Unit 15B consists of that portion of Unit 15 south of the north bank of the Kenai River and the northern shore of Skilak Lake, and north of the north bank of the Kasilof River, the northern shore of Tustumena Lake, Glacier Creek, and Tustumena Glacier; and
(C) Unit 15C consists of the remainder of Unit 15.
(ii) You may not take wildlife, except for grouse, ptarmigan, and hares that may be taken only from October 1 through March 1 by bow and arrow only, in the Skilak Loop Management Area, which consists of that portion of Unit 15A bounded by a line beginning at the easternmost junction of the Sterling Highway and the Skilak Loop (milepost 76.3), then due south to the south bank of the Kenai River, then southerly along the south bank of the Kenai River to its confluence with Skilak Lake, then westerly along the northern shore of Skilak Lake to Lower Skilak Lake Campground, then northerly along the Lower Skilak Lake Campground Road and the Skilak Loop Road to its westernmost junction with the Sterling Highway, then easterly along the Sterling Highway to the point of beginning.
(iii) Unit-specific regulations:
(A) You may use bait to hunt black bear between April 15 and June 15;
(B) You may not trap furbearers for subsistence in the Skilak Loop Wildlife Management Area;
(C) You may not trap marten in that portion of Unit 15B east of the Kenai River, Skilak Lake, Skilak River, and Skilak Glacier; and
(D) You may not take red fox in Unit 15 by any means other than a steel trap or snare.
(16)
(A) Unit 16A consists of that portion of Unit 16 east of the east bank of the Yentna River from its mouth upstream to the Kahiltna River, east of the east bank of the Kahiltna River, and east of the Kahiltna Glacier; and
(B) Unit 16B consists of the remainder of Unit 16.
(ii) You may not take wildlife for subsistence uses in the Mount McKinley National Park, as it existed prior to December 2, 1980. Subsistence uses as authorized by this paragraph (n)(16) are permitted in Denali National Preserve and lands added to Denali National Park on December 2, 1980.
(iii) Unit-specific regulations:
(A) You may use bait to hunt black bear between April 15 and June 15.
(B) [Reserved]
(17)
(A) Unit 17A consists of the drainages between Cape Newenham and Cape Constantine, and Hagemeister Island and the Walrus Islands;
(B) Unit 17B consists of the Nushagak River drainage upstream from, and including the Mulchatna River drainage and the Wood River drainage upstream from the outlet of Lake Beverley; and
(C) Unit 17C consists of the remainder of Unit 17.
(ii) In the following areas, the taking of wildlife for subsistence uses is prohibited or restricted on public lands:
(A) Except for aircraft and boats and in legal hunting camps, you may not use any motorized vehicle for hunting ungulates, bear, wolves, and wolverine, including transportation of hunters and parts of ungulates, bear, wolves, or wolverine in the Upper Mulchatna Controlled Use Area consisting of Unit 17B, from Aug. 1-Nov. 1.
(B) [Reserved]
(iii) Unit-specific regulations:
(A) You may use bait to hunt black bear between April 15 and June 15.
(B) You may hunt brown bear by State registration permit in lieu of a resident tag if you have obtained a State registration permit prior to hunting.
(C) If you have a trapping license, you may use a firearm to take beaver in Unit 17 from April 15-May 31. You may not take beaver with a firearm under a trapping license on National Park Service lands.
(18)
(ii) In the Kalskag Controlled Use Area, which consists of that portion of Unit 18 bounded by a line from Lower Kalskag on the Kuskokwim River, northwesterly to Russian Mission on the Yukon River, then east along the north bank of the Yukon River to the old site of Paimiut, then back to Lower Kalskag, you are not allowed to use aircraft for hunting any ungulate, bear, wolf, or wolverine, including the transportation of any hunter and ungulate, bear, wolf, or wolverine part; however, this does not apply to transportation of a hunter or ungulate, bear, wolf, or wolverine part by aircraft between publicly owned airports in the Controlled Use Area or between a publicly owned airport within the Area and points outside the Area.
(iii) Unit-specific regulations:
(A) If you have a trapping license, you may use a firearm to take beaver in Unit 18 from April 1 through June 10.
(B) You may hunt brown bear by State registration permit in lieu of a resident tag if you have obtained a State registration permit prior to hunting.
(C) You may take caribou from a boat moving under power in Unit 18.
(D) You may take moose from a boat moving under power in that portion of Unit 18 west of a line running from the mouth of the Ishkowik River to the closest point of Dall Lake, then to the east bank of the Johnson River at its entrance into Nunavakanukakslak Lake (N 60°59.41′ Latitude; W 162°22.14′ Longitude), continuing upriver along a line
(E) Taking of wildlife in Unit 18 while in possession of lead shot size T, .20 caliber or less in diameter, is prohibited.
(F) You may not pursue with a motorized vehicle an ungulate that is at or near a full gallop.
(G) You may use artificial light when taking a bear at a den site.
(19)
(A) Unit 19A consists of the Kuskokwim River drainage downstream from and including the Moose Creek drainage on the north bank and downstream from and including the Stony River drainage on the south bank, excluding Unit 19B;
(B) Unit 19B consists of the Aniak River drainage upstream from and including the Salmon River drainage, the Holitna River drainage upstream from and including the Bakbuk Creek drainage, that area south of a line from the mouth of Bakbuk Creek to the radar dome at Sparrevohn Air Force Base, including the Hoholitna River drainage upstream from that line, and the Stony River drainage upstream from and including the Can Creek drainage;
(C) Unit 19C consists of that portion of Unit 19 south and east of a line from Benchmark M#1.26 (approximately 1.26 miles south of the northwestern corner of the original Mt. McKinley National Park boundary) to the peak of Lone Mountain, then due west to Big River, including the Big River drainage upstream from that line, and including the Swift River drainage upstream from and including the North Fork drainage; and
(D) Unit 19D consists of the remainder of Unit 19.
(ii) In the following areas, the taking of wildlife for subsistence uses is prohibited or restricted on public land:
(A) You may not take wildlife for subsistence uses on lands within Mount McKinley National Park as it existed prior to December 2, 1980. Subsistence uses as authorized by this paragraph (n)(19) are permitted in Denali National Preserve and lands added to Denali National Park on December 2, 1980.
(B) In the Upper Kuskokwim Controlled Use Area, which consists of that portion of Unit 19D upstream from the mouth of the Selatna River, but excluding the Selatna and Black River drainages, to a line extending from Dyckman Mountain on the northern Unit 19D boundary southeast to the 1,610-foot crest of Munsatli Ridge, then south along Munsatli Ridge to the 2,981-foot peak of Telida Mountain, then northeast to the intersection of the western boundary of Denali National Preserve with the Minchumina-Telida winter trail, then south along the western boundary of Denali National Preserve to the southern boundary of Unit 19D, you may not use aircraft for hunting moose, including transportation of any moose hunter or moose part; however, this does not apply to transportation of a moose hunter or moose part by aircraft between publicly owned airports in the Controlled Use Area, or between a publicly owned airport within the area and points outside the area.
(iii) Unit-specific regulations:
(A) You may use bait to hunt black bear between April 15 and June 30.
(B) You may hunt brown bear by State registration permit in lieu of a resident tag in those portions of Units19A and 19B downstream of and including the Aniak River drainage if you have obtained a State registration permit prior to hunting.
(C) In Unit 19C, individual residents of Nikolai may harvest sheep during the Aug. 10 to Sep. 20 season and not have that animal count against the community harvest limit (during the Oct. 1 to Mar. 30 season). Individual residents of Nikolai that harvest a sheep under State regulations may not participate in the Oct. 1 to Mar. 30 community harvest.
(20)
(A) Unit 20A consists of that portion of Unit 20 bounded on the south by the Unit 13 boundary, bounded on the east by the west bank of the Delta River, bounded on the north by the north bank of the Tanana River from its confluence with the Delta River downstream to its confluence with the Nenana River, and bounded on the west by the east bank of the Nenana River.
(B) Unit 20B consists of drainages into the northern bank of the Tanana River from and including Hot Springs Slough upstream to and including the Banner Creek drainage.
(C) Unit 20C consists of that portion of Unit 20 bounded on the east by the east bank of the Nenana River and on the north by the north bank of the Tanana River downstream from the Nenana River.
(D) Unit 20D consists of that portion of Unit 20 bounded on the east by the east bank of the Robertson River and on the west by the west bank of the Delta River, and drainages into the north bank of the Tanana River from its confluence with the Robertson River downstream to, but excluding, the Banner Creek drainage.
(E) Unit 20E consists of drainages into the south bank of the Yukon River upstream from and including the Charley River drainage, and the Ladue River drainage.
(F) Unit 20F consists of the remainder of Unit 20.
(ii) In the following areas, the taking of wildlife for subsistence uses is prohibited or restricted on public land:
(A) You may not take wildlife for subsistence uses on lands within Mount McKinley National Park as it existed prior to December 2, 1980. Subsistence uses as authorized by this paragraph (n)(20) are permitted in Denali National Preserve and lands added to Denali National Park on December 2, 1980.
(B) You may not use motorized vehicles or pack animals for hunting Aug. 5-25 in the Delta Controlled Use Area, the boundary of which is defined as: a line beginning at the confluence of Miller Creek and the Delta River, then west to vertical angle benchmark Miller, then west to include all drainages of Augustana Creek and Black Rapids Glacier, then north and east to include all drainages of McGinnis Creek to its confluence with the Delta River, then east in a straight line across the Delta River to Mile 236.7 of the Richardson Highway, then north along the Richardson Highway to its junction with the Alaska Highway, then east along the Alaska Highway to the west bank of the Johnson River, then south along the west bank of the Johnson River and Johnson Glacier to the head of the Canwell Glacier, then west along the north bank of the Canwell Glacier and Miller Creek to the Delta River.
(C) You may not use firearms, snowmobiles, licensed highway vehicles or motorized vehicles, except aircraft and boats, in the Dalton Highway Corridor Management Area, which consists of those portions of Units 20, 24, 25, and 26 extending 5 miles from each side of the Dalton Highway from the Yukon River to milepost 300 of the Dalton Highway, except as follows: Residents living within the Dalton Highway Corridor Management Area may use snowmobiles only for the subsistence taking of wildlife. You may use licensed highway vehicles only on designated roads within the Dalton Highway Corridor Management Area. The residents of Alatna, Allakaket, Anaktuvuk Pass, Bettles, Evansville, Stevens Village, and residents living within the Corridor may use firearms within the Corridor only for subsistence taking of wildlife.
(D) You may not use any motorized vehicle for hunting August 5-September 20 in the Glacier Mountain Controlled Use Area, which consists of that portion of Unit 20E bounded by a line beginning at Mile 140 of the Taylor Highway, then north along the highway to Eagle, then west along the cat trail from Eagle to Crooked Creek, then from Crooked Creek southwest along the west bank of Mogul Creek to its headwaters on North Peak, then west across North Peak to the headwaters of Independence Creek, then southwest along the west bank of Independence Creek to its confluence with the North Fork of the Fortymile River, then easterly along the south bank of the North Fork of the Fortymile River to its confluence with Champion Creek, then across the North Fork of the Fortymile River to the south bank of Champion Creek and easterly along the south bank of Champion Creek to its confluence with Little Champion Creek, then northeast along the east bank of Little Champion Creek to its headwaters, then northeasterly in a direct line to Mile 140 on the Taylor Highway; however, this does not prohibit motorized access via, or transportation of harvested wildlife on, the Taylor Highway or any airport.
(E) You may by permit hunt moose on the Minto Flats Management Area, which consists of that portion of Unit 20 bounded by the Elliot Highway beginning at Mile 118, then northeasterly to Mile 96, then east to the Tolovana Hotsprings Dome, then east to the Winter Cat Trail, then along the Cat Trail south to the Old Telegraph Trail at Dunbar, then westerly along the trail to a point where it joins the Tanana River 3 miles above Old Minto, then along the north bank of the Tanana River (including all channels and sloughs except Swan Neck Slough), to the confluence of the Tanana and Tolovana Rivers and then northerly to the point of beginning.
(F) You may hunt moose only by bow and arrow in the Fairbanks Management Area. The Area consists of that portion of Unit 20B bounded by a line from the confluence of Rosie Creek and the Tanana River, northerly along Rosie Creek to Isberg Road, then northeasterly on Isberg Road to Cripple Creek Road, then northeasterly on Cripple Creek Road to the Parks Highway, then north on the Parks Highway to Alder Creek, then westerly to the middle fork of Rosie Creek through section 26 to the Parks Highway, then east along the Parks Highway to Alder Creek, then upstream along Alder Creek to its confluence with Emma Creek, then upstream along Emma Creek to its headwaters, then northerly along the hydrographic divide between Goldstream Creek drainages and Cripple Creek drainages to the summit of Ester Dome, then down Sheep Creek to its confluence with Goldstream Creek, then easterly along Goldstream Creek to Sheep Creek Road, then north on Sheep Creek Road to Murphy Dome Road, then west on Murphy Dome Road to Old Murphy Dome Road, then east on Old Murphy Dome Road to the Elliot Highway, then south on the Elliot Highway to Goldstream Creek, then easterly along Goldstream Creek to its confluence with First Chance Creek, Davidson Ditch, then southeasterly along the Davidson Ditch to its confluence with the tributary to Goldstream Creek in Section 29, then downstream along the tributary to its confluence with Goldstream Creek, then in a straight line to First Chance Creek, then up First Chance Creek to Tungsten Hill, then southerly along Steele Creek to its confluence with Ruby Creek, then upstream along Ruby Creek to Esro Road, then south on Esro Road to Chena Hot Springs Road, then east on Chena Hot Springs Road to Nordale Road, then south on Nordale Road to the Chena River, to its intersection with the Trans-Alaska Pipeline right of way, then southeasterly along the easterly edge of the Trans-Alaska Pipeline right of way to the Chena River, then along the north bank of the Chena River to the Moose Creek dike, then southerly along the Moose Creek dike to its intersection with the Tanana River, and then westerly along the north bank of the Tanana River to the point of beginning.
(iii) Unit-specific regulations:
(A) You may use bait to hunt black bear April 15-June 30; you may use bait to hunt wolves on FWS and BLM lands.
(B) You may not use a steel trap or a snare using cable smaller than 3/32-inch diameter to trap coyotes or wolves in Unit 20E during April and October.
(C) Residents of Units 20 and 21 may take up to three moose per regulatory year for the celebration known as the Nuchalawoyya Potlatch, under the terms of a Federal registration permit. Permits will be issued to individuals at the request of the Native Village of Tanana only. This three-moose limit is not cumulative with that permitted by the State.
(21)
(A) Unit 21A consists of the Innoko River drainage upstream from and including the Iditarod River drainage.
(B) Unit 21B consists of the Yukon River drainage upstream from Ruby and east of the Ruby-Poorman Road, downstream from and excluding the Tozitna River and Tanana River drainages, and excluding the Melozitna River drainage upstream from Grayling Creek.
(C) Unit 21C consists of the Melozitna River drainage upstream from Grayling Creek, and the Dulbi River drainage upstream from and including the Cottonwood Creek drainage.
(D) Unit 21D consists of the Yukon River drainage from and including the Blackburn Creek drainage upstream to Ruby, including the area west of the Ruby-Poorman Road, excluding the Koyukuk River drainage upstream from the Dulbi River drainage, and excluding the Dulbi River drainage upstream from Cottonwood Creek.
(E) Unit 21E consists of that portion of Unit 21 in the Yukon River and Arhymot Lake drainages upstream from a line starting at the downriver boundary of Paimiut on the north bank of the Yukon River, then south across the Yukon River to the northern terminus of the Paimiut Portage, then south along the Portage to its intersection with Arhymot Lake, then along the northern and western bank of Arhymot Lake to the outlet at Crooked Creek (locally known as Johnson River) drainage, then to, but not including, the Blackburn Creek drainage, and the Innoko River drainage downstream from the Iditarod River drainage.
(ii) In the following areas, the taking of wildlife for subsistence uses is prohibited or restricted on public land:
(A) The Koyukuk Controlled Use Area, which consists of those portions of Units 21 and 24 bounded by a line from the north bank of the Yukon River at Koyukuk at 64°52.58′ N lat., 157°43.10′ W long., then northerly to the confluences of the Honhosa and Kateel Rivers at 65°28.42′ N lat., 157°44.89′ W long., then northeasterly to the confluences of Billy Hawk Creek and the Huslia River (65°57′ N lat., 156°41′ W long.) at 65°56.66′ N lat., 156°40.81′ W long., then easterly to the confluence of the forks of the Dakli River at 66°02.56′ N lat., 156° 12.71′ W long., then easterly to the confluence of McLanes Creek and the Hogatza River at 66°00.31′ N lat., 155°18.57′ W long., then southwesterly to the crest of Hochandochtla Mountain at 65°31.87′ N lat., 154°52.18′ W long., then southwest to the mouth of Cottonwood Creek at 65°3.00′ N lat., 156°06.43′ W long., then southwest to Bishop Rock (Yistletaw) at 64°49.35′ N lat., 157° 21.73′ W long., then westerly along the north bank of the Yukon River (including Koyukuk Island) to the point of beginning, is closed during moose hunting seasons to the use of aircraft for hunting moose, including transportation of any moose hunter or moose part; however, this does not apply to transportation of a moose hunter or moose part by aircraft between publicly owned airports in the controlled use area or between a publicly owned airport within the area and points outside the area; all hunters on the Koyukuk River passing the ADF&G-operated check station at Ella's Cabin (15 miles upstream from the Yukon on the Koyukuk River) are required to stop and report to ADF&G personnel at the check station.
(B) The Paradise Controlled Use Area, which consists of that portion of Unit 21 bounded by a line beginning at the old village of Paimiut, then north along the west bank of the Yukon River to Paradise, then northwest to the mouth of Stanstrom Creek on the Bonasila River, then northeast to the mouth of the Anvik River, then along the west bank of the Yukon River to the lower end of Eagle Island (approximately 45 miles north of Grayling), then to the mouth of the Iditarod River, then extending 2 miles easterly down the east bank of the Innoko River to its confluence with Paimiut Slough, then south along the east bank of Paimiut Slough to its mouth, and then to the old village of Paimiut, is closed during moose hunting seasons to the use of aircraft for hunting moose, including transportation of any moose hunter or part of moose; however, this does not apply to transportation of a moose hunter or part of moose by aircraft between publicly owned airports in the Controlled Use Area or between a publicly owned airport within the area and points outside the area.
(iii) In Unit 21D, you may hunt brown bear by State registration permit in lieu of a resident tag if you have obtained a State registration permit prior to hunting. Aircraft may not be used in any manner for brown bear hunting under the authority of a brown bear State registration permit, including transportation of hunters, bears, or parts of bears; however, this does not apply to transportation of bear hunters or bear parts by regularly scheduled flights to and between communities by carriers that normally provide scheduled service to this area, nor does it apply to transportation of aircraft to or between publicly owned airports.
(iv) Unit-specific regulations:
(A) You may use bait to hunt black bear between April 15 and June 30; and in the Koyukuk Controlled Use Area, you may also use bait to hunt black bear between September 1 and September 25.
(B) If you have a trapping license, you may use a firearm to take beaver in Unit 21(E) from Nov. 1-June 10.
(C) The residents of Units 20 and 21 may take up to three moose per regulatory year for the celebration known as the Nuchalawoyya Potlatch, under the terms of a Federal registration permit. Permits will be issued to individuals only at the request of the Native Village of Tanana. This three-moose limit is not cumulative with that permitted by the State.
(D) The residents of Unit 21 may take up to three moose per regulatory year for the celebration known as the Kaltag/Nulato Stickdance, under the terms of a Federal registration permit. Permits will be issued to individuals only at the request of the Native Village of Kaltag or Nulato. This three-moose limit is not cumulative with that permitted by the State.
(22)
(A) Unit 22A consists of Norton Sound drainages from, but excluding, the Pastolik River drainage to, and including, the Ungalik River drainage, and Stuart and Besboro Islands.
(B) Unit 22B consists of Norton Sound drainages from, but excluding, the Ungalik River drainage to, and including, the Topkok Creek drainage.
(C) Unit 22C consists of Norton Sound and Bering Sea drainages from, but excluding, the Topkok Creek drainage to, and including, the Tisuk River drainage, and King and Sledge Islands.
(D) Unit 22D consists of that portion of Unit 22 draining into the Bering Sea north of, but not including, the Tisuk River to and including Cape York and St. Lawrence Island.
(E) Unit 22E consists of Bering Sea, Bering Strait, Chukchi Sea, and Kotzebue Sound drainages from Cape York to, but excluding, the Goodhope River drainage, and including Little Diomede Island and Fairway Rock.
(ii) You may hunt brown bear by State registration permit in lieu of a resident tag if you have obtained a State registration permit prior to hunting. Aircraft may not be used in any manner for brown bear hunting under the authority of a brown bear State registration permit, including transportation of hunters, bears, or parts of bears; however, this does not apply to transportation of bear hunters or bear parts by regularly scheduled flights to and between communities by carriers that normally provide scheduled service to this area, nor does it apply to transportation of aircraft to or between publicly owned airports.
(iii) Unit-specific regulations:
(A) If you have a trapping license, you may use a firearm to take beaver in Unit 22 during the established seasons.
(B) Coyote, incidentally taken with a trap or snare, may be used for subsistence purposes.
(C) A snowmachine may be used to position a hunter to select individual caribou for harvest provided that the animals are not shot from a moving snowmachine.
(D) The taking of one bull moose and up to three musk oxen by the community of Wales is allowed for the celebration of the Kingikmuit Dance Festival under the terms of a Federal registration permit. Permits will be issued to individuals only at the request of the Native Village of Wales. The harvest may occur only within regularly established seasons in Unit 22E. The harvest will count against any established quota for the area.
(E) A federally qualified subsistence user (recipient) may designate another federally qualified subsistence user to take musk oxen on his or her behalf unless the recipient is a member of a community operating under a community harvest system. The designated hunter must get a designated hunter permit and must return a completed harvest report. The designated hunter may hunt for any number of recipients in the course of a season, but have no more than two harvest limits in his/her possession at any one time, except in Unit 22E where a resident of Wales or Shishmaref acting as a designated hunter may hunt for any number of recipients, but have no more than four harvest limits in his/her possession at any one time.
(23)
(ii) In the following areas, the taking of wildlife for subsistence uses is prohibited or restricted on public land:
(A) You may not use aircraft in any manner either for hunting of ungulates, bear, wolves, or wolverine, or for transportation of hunters or harvested species in the Noatak Controlled Use Area for the period August 15-September 30. The Area consists of that portion of Unit 23 in a corridor extending 5 miles on either side of the Noatak River beginning at the mouth of the Noatak River, and extending upstream to the mouth of Sapun Creek. This closure does not apply to the transportation of hunters or parts of ungulates, bear, wolves, or wolverine by regularly scheduled flights to communities by carriers that normally provide scheduled air service.
(B) [Reserved]
(iii) You may not use aircraft in any manner for brown bear hunting, including transportation of hunters, bears, or parts of bears; however, this does not apply to transportation of bear hunters or bear parts by regularly scheduled flights to and between communities by carriers that normally provide scheduled service to this area, nor does it apply to transportation of aircraft to or between publicly owned airports.
(iv) Unit-specific regulations:
(A) You may take caribou from a boat moving under power in Unit 23.
(B) In addition to other restrictions on method of take found in this section, you may also take swimming caribou with a firearm using rimfire cartridges.
(C) If you have a trapping license, you may take beaver with a firearm in all of Unit 23 from Nov. 1-June 10.
(D) For the Baird and DeLong Mountain sheep hunts—A federally qualified subsistence user (recipient) may designate another federally qualified subsistence user to take sheep on his or her behalf unless the recipient is a member of a community operating under a community harvest system. The designated hunter must obtain a designated hunter permit and must return a completed harvest report. The designated hunter may hunt for only one recipient in the course of a season and may have both his and the recipients' harvest limits in his/her possession at the same time.
(E) A snowmachine may be used to position a hunter to select individual caribou for harvest provided that the animals are not shot from a moving snowmachine. On BLM-managed lands only, a snowmachine may be used to position a caribou, wolf, or wolverine for harvest provided that the animals are not shot from a moving snowmachine.
(F) A federally qualified subsistence user (recipient) may designate another federally qualified subsistence user to take musk oxen on his or her behalf unless the recipient is a member of a community operating under a community harvest system. The designated hunter must get a designated hunter permit and must return a completed harvest report. The designated hunter may hunt for any number of recipients, but have no more than two harvest limits in his/her possession at any one time.
(24)
(A) Unit 24A consists of the Middle Fork of the Koyukuk River drainage upstream from but not including the Harriet Creek and North Fork Koyukuk River drainages, to the South Fork of the Koyukuk River drainage upstream from Squaw Creek, the Jim River Drainage, the Fish Creek drainage upstream from and including the Bonanza Creek drainage, to the 1,410 ft. peak of the hydrologic divide with the northern fork of the Kanuti Chalatna River at N lat. 66°33.303′ W long. 151°03.637′ and following the unnamed northern fork of the Kanuti Chalatna Creek to the confluence of the southern fork of the Kanuti Chalatna River at N lat. 66°27.090′ W long. 151°23.841′, 4.2 miles SSW (194 degrees true) of Clawanmenka Lake and following the unnamed southern fork of the Kanuti Chalatna Creek to the hydrologic divide with the Kanuti River drainage at N lat. 66°19.789′ W long. 151°10.102′, 3.0 miles ENE (79 degrees true) from the 2,055 ft. peak on that divide, and the Kanuti River drainage upstream from the confluence of an unnamed creek at N lat. 66°13.050′ W long. 151°05.864′, 0.9 miles SSE (155 degrees true) of a 1,980 ft. peak on that divide, and following that unnamed creek to the Unit 24 boundary on the hydrologic divide to the Ray River drainage at N lat. 66°03.827′ W long. 150°49.988′ at the 2,920 ft. peak of that divide.
(B) Unit 24B consists of the Koyukuk River Drainage upstream from Dog Island to the Subunit 24A boundary.
(C) Unit 24C consists of the Hogatza River Drainage, the Koyukuk River Drainage upstream from Batza River on the north side of the Koyukuk River and upstream from and including the Indian River Drainage on the south side of the Koyukuk River to the Subunit 24B boundary.
(D) Unit 24D consists of the remainder of Unit 24.
(ii) In the following areas, the taking of wildlife for subsistence uses is prohibited or restricted on public land:
(A) You may not use firearms, snowmobiles, licensed highway vehicles, or motorized vehicles, except aircraft and boats, in the Dalton Highway Corridor Management Area, which consists of those portions of Units 20, 24, 25, and 26 extending 5 miles from each side of the Dalton Highway from the Yukon River to milepost 300 of the Dalton Highway, except as follows: Residents living within the Dalton Highway Corridor Management Area may use snowmobiles only for the subsistence taking of wildlife. You may use licensed highway vehicles only on designated roads within the Dalton Highway Corridor Management Area. The residents of Alatna, Allakaket, Anaktuvuk Pass, Bettles, Evansville, and Stevens Village, and residents living within the Corridor may use firearms within the Corridor only for subsistence taking of wildlife.
(B) You may not use aircraft for hunting moose, including transportation of any moose hunter or moose part in the Kanuti Controlled Use Area, which consists of that portion of Unit 24 bounded by a line from the Bettles Field VOR to the east side of Fish Creek Lake, to Old Dummy Lake, to the south end of Lake Todatonten (including all waters of these lakes), to the northernmost headwaters of Siruk Creek, to the highest peak of Double Point Mountain, then back to the Bettles Field VOR; however, this does not apply to transportation of a moose hunter or moose part by aircraft between publicly owned airports in the controlled use area or between a publicly owned airport within the area and points outside the area.
(C) You may not use aircraft for hunting moose, including transportation of any moose hunter or moose part in the Koyukuk Controlled Use Area, which consists of those portions of Units 21 and 24 bounded by a line from the north bank of the Yukon River at Koyukuk at 64°52.58′ N lat., 157°43.10′ W long., then northerly to the confluences of the Honhosa and Kateel Rivers at 65°28.42′ N lat., 157°44.89′ W long., then northeasterly to the confluences of Billy Hawk Creek and the Huslia River (65°57 N lat., 156°41 W long.) at 65°56.66′ N lat., 156°40.81′ W long., then easterly to the confluence of the forks of the Dakli River at 66°02.56′ N lat., 156°12.71′ W long., then easterly to the confluence of McLanes Creek and the Hogatza River at 66°00.31′ N lat., 155°18.57′ W long., then southwesterly to the crest of Hochandochtla Mountain at 65°31.87′ N lat., 154°52.18′ W long., then southwest to the mouth of Cottonwood Creek at 65°13.00′ N lat., 156° 06.43′ W long., then southwest to Bishop Rock (Yistletaw) at 64° 49.35′ N. lat., 157°21.73′ W long., then westerly along the north bank of the Yukon River (including Koyukuk Island) to the point of beginning. However, this does not apply to transportation of a moose hunter or moose part by aircraft between publicly owned airports in the controlled use area or between a publicly owned airport within the area and points outside the area. All hunters on the Koyukuk River passing the ADF&G-operated check station at Ella's Cabin (15 miles upstream from the Yukon on the Koyukuk River) are required to stop and report to ADF&G personnel at the check station.
(iii) You may hunt brown bear by State registration permit in lieu of a resident tag if you have obtained a State registration permit prior to hunting. You may not use aircraft in any manner for brown bear hunting under the authority of a brown bear State registration permit, including transportation of hunters, bears, or parts of bears. However, this prohibition does not apply to transportation of bear hunters or bear parts by regularly scheduled flights to and between communities by carriers that normally provide scheduled service to this area, nor does it apply to transportation of aircraft to or between publicly owned airports.
(iv) Unit-specific regulations:
(A) You may use bait to hunt black bear between April 15 and June 30; and
(B) Arctic fox, incidentally taken with a trap or snare intended for red fox, may be used for subsistence purposes.
(C) If you are a resident of Unit 24A, 24B, or 24C, during the dates of Oct. 15-Apr. 30, you may use an artificial light when taking a black bear, including a sow accompanied by cub(s), at a den site within the portions of Gates of the Arctic National Park and Preserve that are within Unit 24A, 24B, or 24C.
(25)
(A) Unit 25A consists of the Hodzana River drainage upstream from the Narrows, the Chandalar River drainage upstream from and including the East Fork drainage, the Christian River drainage upstream from Christian, the Sheenjek River drainage upstream from and including the Thluichohnjik Creek, the Coleen River drainage, and the Old Crow River drainage.
(B) Unit 25B consists of the Little Black River drainage upstream from but not including the Big Creek drainage, the Black River drainage upstream from and including the Salmon Fork drainage, the Porcupine River drainage upstream from the confluence of the Coleen and Porcupine Rivers, and drainages into the north bank of the Yukon River upstream from Circle, including the islands in the Yukon River.
(C) Unit 25C consists of drainages into the south bank of the Yukon River upstream from Circle to the Subunit 20E boundary, the Birch Creek drainage upstream from the Steese Highway bridge (milepost 147), the Preacher Creek drainage upstream from and including the Rock Creek drainage, and the Beaver Creek drainage upstream from and including the Moose Creek drainage.
(D) Unit 25D consists of the remainder of Unit 25.
(ii) In the following areas, the taking of wildlife for subsistence uses is prohibited or restricted on public land:
(A) You may not use firearms, snowmobiles, licensed highway vehicles or motorized vehicles, except aircraft and boats in the Dalton Highway Corridor Management Area, which consists of those portions of Units 20, 24, 25, and 26 extending 5 miles from each side of the Dalton Highway from the Yukon River to milepost 300 of the Dalton Highway, except as follows: Residents living within the Dalton Highway Corridor Management Area may use snowmobiles only for the subsistence taking of wildlife. You may use licensed highway vehicles only on designated roads within the Dalton Highway Corridor Management Area. The residents of Alatna, Allakaket, Anaktuvuk Pass, Bettles, Evansville, Stevens Village, and residents living within the Corridor may use firearms within the Corridor only for subsistence taking of wildlife.
(B) The Arctic Village Sheep Management Area consists of that portion of Unit 25A north and west of Arctic Village, which is bounded on the east by the East Fork Chandalar River beginning at the confluence of Red Sheep Creek and proceeding southwesterly downstream past Arctic Village to the confluence with Crow Nest Creek, continuing up Crow Nest Creek, through Portage Lake, to its confluence with the Junjik River; then down the Junjik River past Timber Lake and a larger tributary, to a major, unnamed tributary, northwesterly, for approximately 6 miles where the stream forks into two roughly equal drainages; the boundary follows the easternmost fork, proceeding almost due north to the headwaters and intersects the Continental Divide; the boundary then follows the Continental Divide easterly, through Carter Pass, then easterly and northeasterly approximately 62 miles along the divide to the headwaters of the most northerly tributary of Red Sheep Creek then follows southerly along the divide designating the eastern extreme of the Red Sheep Creek drainage then to the confluence of Red Sheep Creek and the East Fork Chandalar River.
(iii) Unit-specific regulations:
(A) You may use bait to hunt black bear between April 15 and June 30 and between August 1 and September 25; in Unit 25D you may use bait to hunt brown bear between April 15 and June 30 and between August 1 and September 25; you may use bait to hunt wolves on FWS and BLM lands.
(B) You may take caribou and moose from a boat moving under power in Unit 25.
(C) The taking of bull moose outside the seasons provided in this part for food in memorial potlatches and traditional cultural events is authorized in Unit 25D west provided that:
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(26)
(A) Unit 26A consists of that portion of Unit 26 lying west of the Itkillik River drainage and west of the east bank of the Colville River between the mouth of the Itkillik River and the Arctic Ocean;
(B) Unit 26B consists of that portion of Unit 26 east of Unit 26A, west of the west bank of the Canning River and west of the west bank of the Marsh Fork of the Canning River; and
(C) Unit 26C consists of the remainder of Unit 26.
(ii) In the following areas, the taking of wildlife for subsistence uses is prohibited or restricted on public land:
(A) You may not use aircraft in any manner for moose hunting, including transportation of moose hunters or parts of moose during the periods July. 1-Sep. 14 and Jan. 1-Mar. 31 in Unit 26A; however, this does not apply to transportation of moose hunters, their gear, or moose parts by aircraft between publicly owned airports.
(B) You may not use firearms, snowmobiles, licensed highway vehicles or motorized vehicles, except aircraft and boats, in the Dalton Highway Corridor Management Area, which consists of those portions of Units 20, 24, 25, and 26 extending 5 miles from each side of the Dalton Highway from the Yukon River to milepost 300 of the Dalton Highway, except as follows: Residents living within the Dalton Highway Corridor Management Area may use snowmobiles only for the subsistence taking of wildlife. You may use licensed highway vehicles only on designated roads within the Dalton Highway Corridor Management Area. The residents of Alatna, Allakaket, Anaktuvuk Pass, Bettles, Evansville, Stevens Village, and residents living within the Corridor may use firearms within the Corridor only for subsistence taking of wildlife.
(iii) You may not use aircraft in any manner for brown bear hunting, including transportation of hunters, bears or parts of bears. However, this does not apply to transportation of bear hunters or bear parts by regularly scheduled flights to and between communities by carriers that normally provide scheduled service to this area, nor does it apply to transportation of aircraft to or between publicly owned airports.
(iv) Unit-specific regulations:
(A) You may take caribou from a boat moving under power in Unit 26.
(B) In addition to other restrictions on method of take found in this section, you may also take swimming caribou with a firearm using rimfire cartridges.
(C) In Kaktovik, a federally qualified subsistence user (recipient) may designate another federally qualified subsistence user to take sheep or musk ox on his or her behalf unless the recipient is a member of a community operating under a community harvest system. The designated hunter must obtain a designated hunter permit and must return a completed harvest report. The designated hunter may hunt for any number of recipients but may have no more than two harvest limits in his/her possession at any one time.
(D) For the DeLong Mountain sheep hunts—A federally qualified subsistence user (recipient) may designate another federally qualified subsistence user to take sheep on his or her behalf unless the recipient is a member of a community operating under a community harvest system. The designated hunter must obtain a designated hunter permit and must return a completed harvest report. The designated hunter may hunt for only one recipient in the course of a season and may have both his and the recipient's harvest limits in his/her possession at the same time.
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