Page Range | 7593-7948 | |
FR Document |
Page and Subject | |
---|---|
83 FR 7777 - Sunshine Act Meeting | |
83 FR 7702 - Office of Postsecondary Education; Solicitation of Third-Party Comments Concerning the Performance of Accrediting Agencies | |
83 FR 7710 - Response to June 1, 2016 Clean Air Act Section 126(b) Petition From Connecticut | |
83 FR 7846 - Hino Motors, Ltd., Receipt of Petition for Decision of Inconsequential Noncompliance | |
83 FR 7847 - General Motors, LLC, Grant of Petition for Decision of Inconsequential Noncompliance | |
83 FR 7719 - Proposed Information Collection Request; Comment Request; National Fish Program (Formerly Referred to as the National Listing of Fish Advisories) (Renewal) | |
83 FR 7776 - Request for Public Comment on Proposed Revision of NIJ Standard 0101.06, Ballistic Resistance of Body Armor | |
83 FR 7776 - Request for Public Comment on Proposed Specification Threat Levels and Associated Ammunition To Test Equipment Intended To Protect U.S. Law Enforcement Against Handguns and Rifles | |
83 FR 7616 - Methyl-alpha-D-mannopyranoside (Alpha Methyl Mannoside); Exemption From the Requirement of a Tolerance | |
83 FR 7655 - Polyethylene Terephthalate Resin From Brazil, Indonesia, the Republic of Korea, Pakistan, and Taiwan: Postponement of Preliminary Determinations of Antidumping Duty Investigations | |
83 FR 7750 - National Institute of Mental Health; Notice of Closed Meetings | |
83 FR 7749 - National Institute of Mental Health; Notice of Closed Meetings | |
83 FR 7750 - National Institute of General Medical Sciences; Notice of Closed Meeting | |
83 FR 7749 - Center for Scientific Review; Notice of Closed Meeting | |
83 FR 7593 - Energy Labeling Rule | |
83 FR 7776 - Notice of Lodging of Proposed Consent Decree Under the Clean Water Act | |
83 FR 7644 - Safety Zone; Pensacola Bay, Pensacola, FL | |
83 FR 7762 - 30-Day Notice of Proposed Information Collection: Public Housing Agencies Service Areas Solicitation of Comments: Withdrawal | |
83 FR 7835 - Public Notice for Waiver of Aeronautical Land Use Assurance; Great Falls International Airport, Great Falls, MT | |
83 FR 7832 - Public Notice for Waiver of Aeronautical Land Use Assurance; Great Falls International Airport, Great Falls, MT | |
83 FR 7833 - Notice of Intent of Waiver With Respect to Land; Akron-Canton Airport, North Canton, OH | |
83 FR 7721 - Privacy Act of 1974; System of Records. | |
83 FR 7725 - Next Meeting of the North American Numbering Council | |
83 FR 7636 - Coastal Migratory Pelagic Resources of the Gulf of Mexico and Atlantic Region; 2017-2018 Commercial Hook-and-Line Closure for King Mackerel in the Gulf of Mexico Southern Zone | |
83 FR 7828 - Public Availability of Social Security Administration Fiscal Year (FY) 2016 Service Contract Inventory | |
83 FR 7703 - Notice of Technical Conference | |
83 FR 7707 - Zeeland Farm Services, Inc.; Notice of Amended Petition for Declaratory Order | |
83 FR 7709 - Northern Natural Gas Company; Notice of Request Under Blanket Authorization | |
83 FR 7708 - Combined Notice of Filings #1 | |
83 FR 7829 - Academy Bus, LLC and Franmar Leasing LLC-Purchase of Certain Assets of Daniel's Charters & Tours LLC | |
83 FR 7720 - Agency Information Collection Activities: Notice of Submission for OMB Review; Comment Request | |
83 FR 7762 - Notice of Public Meeting for the Southeast Oregon Resource Advisory Council | |
83 FR 7764 - Notice of Intent To Repatriate Cultural Items: Field Museum of Natural History, Chicago, IL | |
83 FR 7768 - Notice of Intent To Repatriate Cultural Items: New York State Museum, Albany, NY | |
83 FR 7771 - Notice of Intent To Repatriate Cultural Items: U.S. Department of the Interior, National Park Service, Kaloko-Honokōhau National Historical Park, HI | |
83 FR 7767 - Notice of Inventory Completion: U.S. Fish and Wildlife Service, Alaska Region, Anchorage, AK | |
83 FR 7766 - Notice of Intent To Repatriate Cultural Items: United States Army Corps of Engineers, Tulsa District, Tulsa, OK | |
83 FR 7765 - Notice of Inventory Completion: U.S. Fish and Wildlife Service, Alaska Region, Anchorage, AK | |
83 FR 7763 - Notice of Intent To Repatriate Cultural Items: New Jersey State Museum, Trenton, NJ | |
83 FR 7764 - Notice of Inventory Completion: History Colorado, Formerly Colorado Historical Society, Denver, CO | |
83 FR 7773 - Notice of Inventory Completion: University of North Carolina at Chapel Hill, Research Laboratories of Archaeology, Chapel Hill, NC | |
83 FR 7769 - Notice of Intent To Repatriate Cultural Items: Mount Holyoke College Art Museum, South Hadley, MA | |
83 FR 7770 - Notice of Inventory Completion: U.S. Department of the Interior, Bureau of Land Management, Alaska State Office, Anchorage, AK | |
83 FR 7772 - Notice of Inventory Completion: U.S. Department of the Interior, Bureau of Land Management, Alaska State Office, Anchorage, AK | |
83 FR 7647 - Safety Zones; Recurring Events in Captain of the Port Duluth Zone | |
83 FR 7781 - The Vinyl Chloride Standard; Extension of the Office of Management and Budget's (OMB) Approval of Information Collection (Paperwork) Requirements | |
83 FR 7849 - Notice of Open Public Hearing | |
83 FR 7833 - Petition for Exemption; Summary of Petition Received; Donaldson Aerospace & Defense | |
83 FR 7832 - Petition for Exemption; Summary of Petition Received; Corvus Airlines, Inc. | |
83 FR 7835 - Transportation Asset Management Plan Development Processes Certification and Recertification Guidance; Transportation Asset Management Plan Consistency Determination Interim Guidance | |
83 FR 7839 - Fixing America's Surface Transportation (FAST) Act; Equal Access for Over-the-Road Buses Guidance | |
83 FR 7700 - Publication of Fiscal Year 2016 Service Contract Inventory | |
83 FR 7680 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Astoria Waterfront Bridge Replacement Project | |
83 FR 7744 - Joint Meeting of the Blood Products Advisory Committee and the Microbiology Devices Panel of the Medical Devices Advisory Committee; Notice of Meeting | |
83 FR 7745 - Agency Information Collection Activities; Proposed Collection; Comment Request; Guidance for Industry and Food and Drug Administration Staff-Class II Special Controls Guidance Document: Automated Blood Cell Separator Device Operating by Centrifugal or Filtration Principle | |
83 FR 7732 - Determination of Regulatory Review Period for Purposes of Patent Extension; ESBRIET | |
83 FR 7655 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental To Site Characterization Surveys Off of New York | |
83 FR 7734 - Determination of Regulatory Review Period for Purposes of Patent Extension; LYMPHOSEEK | |
83 FR 7735 - Agency Information Collection Activities; Proposed Collection; Comment Request; New Animal Drugs for Investigational Use | |
83 FR 7728 - Agency Information Collection Activities; Proposed Collection; Comment Request; Medical Device Labeling Regulations | |
83 FR 7738 - Parke-Davis, Subsidiary of Pfizer, Inc. et al.; Withdraw of Approval of 38 New Drug Applications and 43 Abbreviated New Drug Applications | |
83 FR 7747 - Determination of Regulatory Review Period for Purposes of Patent Extension; OFEV | |
83 FR 7740 - Agency Information Collection Activities; Proposed Collection; Comment Request; Medical Device Recall Authority | |
83 FR 7742 - Agency Information Collection Activities; Proposed Collection; Comment Request; Administrative Practices and Procedures; Formal Evidentiary Public Hearing | |
83 FR 7727 - Peripheral and Central Nervous System Drugs Advisory Committee; Notice of Meeting; Establishment of a Public Docket; Request for Comments | |
83 FR 7752 - Accreditation and Approval of Saybolt LP (Clarksville, IN) as a Commercial Gauger | |
83 FR 7751 - Accreditation and Approval of Saybolt LP (LaPlace, LA) as a Commercial Laboratory | |
83 FR 7841 - Environmental Impact Statement; Henry County, Virginia | |
83 FR 7650 - Fisheries Off West Coast States; West Coast Salmon Fisheries; Management Measures To Limit Fishery Impacts on Sacramento River Winter Chinook Salmon | |
83 FR 7829 - Notice of Public Meeting of the International Telecommunication Advisory Committee and Preparations for Upcoming International Telecommunications Meetings | |
83 FR 7829 - Meeting of the United States-Bahrain Joint Forum on Environmental Cooperation and Request for Comments on the Meeting Agenda and the 2017-2021 Work Program | |
83 FR 7789 - International Product Change-Global Expedited Package Services-Non-Published Rates | |
83 FR 7774 - Ripe Olives From Spain; Scheduling of the Final Phase of Countervailing Duty and Antidumping Duty Investigations | |
83 FR 7793 - Self-Regulatory Organizations; Chicago Stock Exchange, Inc.; Order Setting Aside Action by Delegated Authority and Disapproving a Proposed Rule Change, as Modified by Amendments No. 1 and No. 2, Regarding the Acquisition of CHX Holdings, Inc. by North America Casin Holdings, Inc. | |
83 FR 7789 - Advisory Committee on Reactor Safeguards (Acrs) Meeting of the Acrs Subcommittee on Planning and Procedures; Notice of Meeting | |
83 FR 7638 - Special Conditions: SWS Certification Services, Ltd., Boeing Model 747-8 Airplanes; Installation of an Overhead Passenger-Sleeping Compartment in the Main Deck | |
83 FR 7849 - Agency Information Collection Activity: Application for Reimbursement of Licensing or Certification Test Fees | |
83 FR 7849 - Agency Information Collection Under OMB Review: Application for Service-Disabled Veterans Insurance | |
83 FR 7726 - Announcement of Intent To Issue One OPDIV-Initiated Supplement to BCFS Health and Human Services Under the Standing Announcement for Residential (Shelter) Services for Unaccompanied Children, HHS-2017-ACF-ORR-ZU-1132 | |
83 FR 7608 - Technical Amendment to List of User Fee Airports: Name Changes of Several Airports and the Addition of Five Airports | |
83 FR 7761 - Agency Information Collection Activities; Revision of a Currently Approved Collection: Notice of Appeal of Decision Under Section 210 or 245A | |
83 FR 7842 - Notice of Funding Opportunity for Law Enforcement Strategies for Reducing Trespassing Pilot Grant Program | |
83 FR 7699 - Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Gull and Climate Monitoring/Research in Glacier Bay National Park, Alaska | |
83 FR 7752 - Agency Information Collection Activities: Proposed Collection; Comment Request; Transcript Request Form | |
83 FR 7756 - National Advisory Council | |
83 FR 7760 - Final Flood Hazard Determinations | |
83 FR 7753 - Proposed Flood Hazard Determinations | |
83 FR 7757 - Changes in Flood Hazard Determinations | |
83 FR 7782 - Standard on Confined Spaces in Construction; Extension of the Office of Management and Budget's (OMB) Approval of Information Collection (Paperwork) Requirements | |
83 FR 7827 - Investment Company Act Release No. 33005A; File No. 812-14808 Morningstar Funds Trust, et al.; Notice of Application | |
83 FR 7643 - Guides for the Nursery Industry | |
83 FR 7812 - Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Rule 7039 To Modify Pricing for the Nasdaq Last Sale Data Product and To Make Other Related Changes to Nasdaq Rules | |
83 FR 7824 - Self-Regulatory Organizations; MIAX PEARL LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rule 517A, Aggregate Risk Manager for EEMs (“ARM-E”), and Rule 517B, Aggregate Risk Manager for Market Makers (“ARM-M”) | |
83 FR 7820 - Self-Regulatory Organizations; MIAX PEARL, LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Expand the Short Term Option Series Program | |
83 FR 7790 - Self-Regulatory Organizations: Notice of Filing and Immediate Effectiveness of a Proposed Rule Change by Miami International Securities Exchange, LLC To Expand the Short Term Option Series Program | |
83 FR 7701 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Program for International Student Assessment (PISA 2018) Main Study | |
83 FR 7789 - Product Change-Priority Mail and First-Class Package Service Negotiated Service Agreement | |
83 FR 7831 - 2018 Special 301 Review: Identification of Countries Under Section 182 of the Trade Act of 194; Request for Public Comment and Notice of a Public Hearing; Correction | |
83 FR 7701 - Agency Information Collection Activities; Comment Request; Migrant Student Information Exchange User Application Form | |
83 FR 7788 - Advisory Committee on Reactor Safeguards (ACRS); Meeting of the ACRS Subcommittee on Metallurgy and Reactor Fuels; Notice of Meeting | |
83 FR 7750 - Predictive Models for Acute Oral Systemic Toxicity; Notice of Meeting; Registration Information | |
83 FR 7749 - National Institute on Aging; Notice of Meeting | |
83 FR 7709 - The City of Alexandria, Louisiana v. EnLink LIG, LLC; Notice of Complaint | |
83 FR 7707 - Goose River Hydro, Inc.; Notice of Application Tendered for Filing With the Commission and Soliciting Additional Study Requests | |
83 FR 7779 - Petition for Modification of Application of Existing Mandatory Safety Standard | |
83 FR 7778 - Agency Information Collection Activities; Submission for OMB Review; Comment Request, Homeless Veterans Reintegration Program (HVRP) Impact Evaluation, New Collection | |
83 FR 7654 - Availability of a Final Environmental Assessment and Finding of No Significant Impact for Release of Aceria drabae for Biological Control of Hoary Cress | |
83 FR 7777 - Advisory Committee on Veterans' Employment, Training and Employer Outreach (ACVETEO): Meeting | |
83 FR 7654 - Agenda and Notice of Public Meeting of the Rhode Island Advisory Committee | |
83 FR 7725 - Proposed Agency Information Collection Activities; Comment Request | |
83 FR 7619 - Cable Television Technical and Operational Standards | |
83 FR 7723 - Information Collection Being Submitted to the Office of Management and Budget | |
83 FR 7614 - Approval of Arizona Air Plan Revisions, Arizona Department of Environmental Quality | |
83 FR 7610 - Approval and Promulgation of Air Quality Implementation Plans; Virginia; Revisions To Implement the Revocation of the 1997 Ozone NAAQS | |
83 FR 7852 - Restoring Internet Freedom | |
83 FR 7631 - General Services Administration Acquisition Regulation; Unenforceable Commercial Supplier Agreement Terms | |
83 FR 7924 - Waste Prevention, Production Subject to Royalties, and Resource Conservation; Rescission or Revision of Certain Requirements |
Animal and Plant Health Inspection Service
International Trade Administration
National Oceanic and Atmospheric Administration
Federal Energy Regulatory Commission
Children and Families Administration
Food and Drug Administration
National Institutes of Health
Coast Guard
Federal Emergency Management Agency
U.S. Citizenship and Immigration Services
U.S. Customs and Border Protection
Land Management Bureau
National Park Service
Justice Programs Office
Parole Commission
Mine Safety and Health Administration
Occupational Safety and Health Administration
Federal Aviation Administration
Federal Highway Administration
Federal Railroad Administration
National Highway Traffic Safety Administration
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
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Federal Trade Commission (“FTC” or “Commission”).
Final rule.
The Commission amends the Energy Labeling Rule (“Rule”) by updating ranges of comparability and unit energy cost figures on EnergyGuide labels for dishwashers, furnaces, room air conditioners, and pool heaters. The Commission also sets a compliance date of October 1, 2019 for EnergyGuide labels on room air conditioner boxes and makes several minor clarifications and corrections to the Rule.
The amendments are effective May 23, 2018.
Relevant portions of the record of this proceeding, including this document, are available at
Hampton Newsome, (202) 326-2889, Attorney, Division of Enforcement, Bureau of Consumer Protection, Federal Trade Commission, Room CC-9528, 600 Pennsylvania Avenue NW, Washington, DC 20580.
The Commission issued the Energy Labeling Rule (“Rule”) in 1979,
The Rule requires manufacturers to attach yellow EnergyGuide labels to many covered products and prohibits retailers from removing these labels or rendering them illegible. In addition, it directs sellers, including retailers, to post label information on websites and in paper catalogs from which consumers can order products. EnergyGuide labels for most covered products contain three key disclosures: Estimated annual energy cost, a product's energy consumption or energy efficiency rating as determined by DOE test procedures, and a comparability range displaying the highest and lowest energy costs or efficiency ratings for all similar models. For cost calculations, the Rule specifies national average costs for applicable energy sources (
In a November 9, 2017 Notice of Proposed Rulemaking (NPRM), the Commission sought comment on proposed updates to the Rule's comparability ranges and amendments to set a compliance date for EnergyGuide labels on room air conditioner boxes. The Commission received 10 comments in response.
The Commission did not propose amending the range and cost information for EnergyGuide labels for refrigerators, freezers, clothes washers, water heaters, central air conditioners, and televisions because the Commission has recently updated label information for these products.
In addition, several energy efficiency and consumer organizations (the “Joint Commenters”) recommended new ranges for clothes washers. They explained that new DOE standards, which become effective in January 2018, will significantly change the lower end of the ranges for these products (for both standard and compact capacity categories) by removing many existing lower efficiency models from the market. In the Joint Commenters' view, delay in updating the ranges will result in ranges that include products no longer manufactured, thus misleading consumers about the efficiency and operating costs of models in production. The commenters also argued that such inaccurate ranges would violate EPCA's directive (see 42 U.S.C. 6294(c)(1)(B)) to provide range information for “covered products to which the rule applies.”
The Commission does not agree with the Joint Commenters that the current ranges violate EPCA's directive to provide range information for “covered products to which the rule applies.” The Commission interprets this statutory instruction, together with the directive in 42 U.S.C. 6294(c)(2)(B), as applying to general product types (
AHAM also urged the Commission to clarify the label language required for describing refrigerator-freezers that do not have through-the-door ice service. AHAM noted that the Rule's sample label uses the phrase “no through-the-door ice,” whereas the comparability range tables in appendix A state “Without Through-the-door-ice.” Although AHAM did not express a preference for the applicable language, it requested sufficient time for their members to change labels to avoid waste and unnecessary cost should the Commission issue a clarification.
The Commission, however, declines to amend the Rule's descriptions for refrigerator-freezers. The current Rule sets only general requirements for the content of these product descriptions at the labels top left and does not prescribe exact language that manufacturers must use.
A few commenters offered broad suggestions to improve aspects of the Energy Labeling Rule not discussed in NPRM, thus falling outside of the scope of the proposed amendments.
Gear also provided several suggestions to improve the labels. First, Gear recommended state-by-state energy cost disclosures on the label to provide consumers with energy information reflecting the utility rates where they live. If such disclosures prove impracticable for individual labels, the commenter suggested the Commission consider providing this information online. Second, Gear recommended the label contain a “yearly cost compared to average” disclosure, as well as other design changes to address reported concerns with consumer comprehension. Finally, Gear recommended the Commission consider requiring labels for clothes dryers.
At this time, the Commission does not propose additional changes to the Rule, though it may consider such broader issues in the future. Without an opportunity for public comment and further consideration, the Commission cannot make such changes at this time. In recent years, the Commission has implemented many broad changes related to label design, reporting, and other aspects of the labeling program to improve information for consumers and industry members.
The current Rule contains recordkeeping, disclosure, testing, and reporting requirements that constitute information collection requirements as defined by 5 CFR 1320.3(c), the definitional provision within the Office of Management and Budget (OMB) regulations that implement the Paperwork Reduction Act. OMB has approved the Rule's existing information collection requirements through November 30, 2019 (OMB Control No. 3084 0069). The amendments do not change the substance or frequency of the recordkeeping, disclosure, or reporting requirements and, therefore, do not require further OMB clearance.
The provisions of the Regulatory Flexibility Act relating to a Regulatory Flexibility Act analysis (5 U.S.C. 603-604) are not applicable to this proceeding because the amendments do not impose any new obligations on entities regulated by the Energy Labeling Rule. As explained elsewhere in this document, the amendments do not change the substance or frequency of the recordkeeping, disclosure, or reporting requirements. Thus, the amendments will not have a “significant economic impact on a substantial number of small entities.” 5 U.S.C. 605. The Commission has concluded, therefore, that a regulatory flexibility analysis is not necessary, and certifies, under Section 605 of the Regulatory Flexibility Act (5 U.S.C. 605(b)), that the amendments will not have a significant economic impact on a substantial number of small entities.
Advertising, Energy conservation, Household appliances, Labeling, Reporting and recordkeeping requirements.
For the reasons set out above, the Commission amends 16 CFR part 305 as follows:
42 U.S.C. 6294.
(a) Unless otherwise stated in paragraphs (b) and (c) of this section, the content of any disclosures required by this part must be determined in accordance with the testing and sampling provisions required by the Department of Energy as set forth in subpart B to 10 CFR part 430, 10 CFR part 431, and 10 CFR 429.11.
(c) All information required by paragraphs (a)(1) through (3) of this section must be submitted for new models prior to any distribution of such model. Models subject to design or retrofit alterations which change the data contained in any annual report shall be reported in the manner required for new models. Models which are discontinued shall be reported in the next annual report.
(a)
(b)
(c) * * *
(2) Add one of the two sentences below, as appropriate, in the space just below the scale on the label, as follows:
The estimated yearly energy cost of this model was not available at the time the range was published.
The energy efficiency rating of this model was not available at the time the range was published.
(3) For refrigerator and refrigerator-freezer labels:
(i) If the model's energy cost falls outside of either or both ranges on the label, include the language in paragraph (c)(2) of this section.
(ii) If the model's energy cost only falls outside of the range for models with similar features, but is within the range for all models, include the product on the scale and place a triangle below the dollar value.
(iii) If the model's energy cost falls outside of both ranges of comparability, omit the triangle beneath the yearly operating cost value.
(d)
(3)
(f) * * *
(9) * * *
(x) For clothes washers covered by appendices F1 and F2 of this part, the statement will read as follows (fill in the blanks with the appropriate capacity and energy cost figures):
Your costs will depend on your utility rates and use.
Cost range based only on [compact/standard] capacity models.
Estimated energy cost is based on six wash loads a week and a national average electricity cost of __ cents per kWh and natural gas cost of $ __ per therm.
(10) The following statement shall appear on each label as illustrated in the prototype and sample labels in appendix L of this part:
Federal law prohibits removal of this label before consumer purchase.
(11) No marks or information other than that specified in this part shall appear on or directly adjoining this label except that:
(i) A part or publication number identification may be included on this label, as desired by the manufacturer. If a manufacturer elects to use a part or publication number, it must appear in the lower right-hand corner of the label and be set in 6-point type or smaller.
(ii) The energy use disclosure labels required by the governments of Canada or Mexico may appear directly adjoining this label, as desired by the manufacturer.
(iii) The manufacturer or private labeler may include the ENERGY STAR logo on the bottom right corner of the label for certified products. The logo must be 1 inch by 1 inch in size. Only manufacturers that have signed a Memorandum of Understanding with the Department of Energy or the Environmental Protection Agency may add the ENERGY STAR logo to labels on certified covered products; such manufacturers may add the ENERGY STAR logo to labels only on those covered products that are contemplated by the Memorandum of Understanding.
(g) * * *
(12) * * *
(ii) A map appropriate for the model and accompanying text as illustrated in
(13) * * *
(ii) A map appropriate for the model and accompanying text as illustrated in the sample label 7 in appendix L of this part.
(14) For any single-package air conditioner with a minimum EER below 11.0, the label must contain the following regional standards information:
(ii) A map appropriate for the model and accompanying text as illustrated in the sample label 7 in appendix L of this part.
“Compact” includes countertop dishwasher models with a capacity of fewer than eight (8) place settings. Place settings shall be in accordance with appendix C to 10 CFR part 430, subpart B. Load patterns shall conform to the operating normal for the model being tested.
“Standard” includes dishwasher models with a capacity of eight (8) or more place settings. Place settings shall be in accordance with appendix C to 10 CFR part 430, subpart B. Load patterns shall conform to the operating normal for the model being tested.
This Table contains the representative unit energy costs that must be utilized to calculate estimated annual energy cost disclosures required under §§ 305.11 and 305.20 for refrigerators, refrigerator-freezers, freezers, clothes washers, and water heaters. This Table is based on information published by the U.S. Department of Energy in 2013.
This Table contains the representative unit energy costs that must be utilized to calculate estimated annual energy cost disclosures required under §§ 305.11 and 305.20 for dishwashers and room air conditioners. This Table is based on information published by the U.S. Department of Energy in 2017.
By direction of the Commission.
U.S. Customs and Border Protection; DHS.
Final rule; technical amendment.
This document amends U.S. Customs and Border Protection (CBP) regulations by revising the list of user fee airports to reflect the name changes of several airports and the designation of user fee status for five additional airports: South Texas International Airport at Edinburg in Edinburg, Texas; Florida Keys Marathon Airport in Marathon, Florida; Appleton International Airport in Appleton, Wisconsin; South Bend International Airport in South Bend, Indiana; and Conroe-North Houston Regional Airport in Conroe, Texas. User fee airports are those airports which, while not qualifying for designation as international or landing rights airports, have been approved by the Commissioner of CBP to receive, for a fee, the services of CBP officers for the processing of aircraft entering the United States, and the passengers and cargo of those aircraft.
Chris Sullivan, Director, Alternative Funding Program, Office of Field Operations, U.S. Customs and Border Protection at
Title 19, part 122 of the Code of Federal Regulations (19 CFR part 122) sets forth regulations relating to the entry and clearance of aircraft in international commerce and the transportation of persons and cargo by aircraft in international commerce. Generally, a civil aircraft arriving from a place outside of the United States is required to land at an airport designated as an international airport. Alternatively, the pilot of a civil aircraft may request permission to land at a specific airport and, if landing rights are granted, the civil aircraft may land at that landing rights airport.
Section 236 of the Trade and Tariff Act of 1984 (Pub. L. 98-573, 98 stat. 2948, 2994 (1984)), codified at 19 U.S.C. 58b, created an option for civil aircraft desiring to land at an airport other than an international airport or a landing rights airport. A civil aircraft arriving from a place outside of the United States may ask for permission to land at an airport designated by the Secretary of Homeland Security
Pursuant to 19 U.S.C. 58b, an airport may be designated as a user fee airport if the Commissioner of CBP, as delegated by the Secretary of Homeland Security, determines that the volume or value of business at the airport is insufficient to justify the availability of customs services at the airport and the governor of the state in which the airport is located approves the designation. As the volume or value of business anticipated at this type of airport is insufficient to justify its designation as an international or landing rights airport, the availability of customs services is not paid for out of appropriations from the general treasury of the United States. Instead, customs services are provided on a fully reimbursable basis to be paid for by the user fee airport. The fees charged must be paid by the user fee airport and must be in the amount equal to the expenses incurred by the Commissioner of CBP in providing customs services at such airport, including the salary and expenses of those employed by the Commissioner of CBP to provide the customs services.
The Commissioner of CBP designates airports as user fee airports in accordance with 19 U.S.C. 58b and pursuant to 19 CFR 122.15. If the Commissioner decides that the conditions for designation as a user fee airport are satisfied, a Memorandum of Agreement (MOA) is executed between the Commissioner of CBP and the user fee airport sponsor. In this manner, user fee airports are designated on a case-by-case basis.
The list of designated user fee airports is set forth in 19 CFR 122.15(b). Periodically, CBP updates the list to reflect designated airports that have not yet been added to the list and to reflect any changes in the names of the designated user fee airports.
This document updates the list of user fee airports in 19 CFR 122.15(b) by adding the following five airports: South Texas International Airport at Edinburg in Edinburg, Texas; Florida Keys Marathon Airport in Marathon, Florida; Appleton International Airport in Appleton, Wisconsin; South Bend International Airport in South Bend, Indiana; and Conroe-North Houston Regional Airport in Conroe, Texas. During the last several years, the Commissioner of CBP signed MOAs designating each of these five airports as a user fee airport.
Additionally, this document updates the list of user fee airports to reflect name changes of airports that were previously designated as user fee airports. The name changes are shown in the following chart. The left column contains the former name of each airport as it is currently listed in 19 CFR 122.15(b). The right column contains the updated name of each airport.
Under the Administrative Procedure Act (5 U.S.C. 553(b)), an agency is exempted from the prior public notice and comment procedures if it finds, for good cause, that they are impracticable, unnecessary, or contrary to the public interest. This final rule makes conforming changes by updating the list of user fee airports to add five airports that have already been designated by the Commissioner of CBP in accordance with 19 U.S.C. 58b as user fee airports and to update the name of several user fee airports. Because this conforming rule has no substantive impact, is technical in nature, and does not impose additional burdens on or take away any existing rights or privileges from the public, CBP finds for good cause that the prior public notice and comments procedures are impracticable, unnecessary, and contrary to the public interest. For the same reasons, pursuant to 5 U.S.C. 553(d)(3), a delayed effective date is not required.
Because no notice of proposed rulemaking is required, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601
There is no new collection of information required in this document; therefore, the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3507) are inapplicable.
This document is limited to a technical correction of CBP regulations. Accordingly, it is being signed under the authority of 19 CFR 0.1(b).
Air carriers, Aircraft, Airports, Customs duties and inspection, Freight.
Part 122, of title 19 of the Code of Federal Regulations (19 CFR part 122) is amended as set forth below:
5 U.S.C. 301; 19 U.S.C. 58b, 66, 1431, 1433, 1436, 1448, 1459, 1590, 1594, 1623, 1624, 1644, 1644a, 2071 note.
The additions and revisions read as follows:
(b) * * *
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is taking final action to approve revisions to the Commonwealth of Virginia (Virginia) state implementation plan (SIP). The revisions are related to the implementation of the 2008 ozone national ambient air quality standards (NAAQS or standards) and the revocation of the 1997 ozone NAAQS. EPA is approving these revisions updating the Virginia SIP to reflect the revocation of the 1997 ozone NAAQS in accordance with the requirements of the Clean Air Act (CAA).
This final rule is effective on March 26, 2018.
EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2017-0382. All documents in the docket are listed on the
Sara Calcinore, (215) 814-2043, or by email at
Under the CAA, EPA establishes NAAQS for criteria pollutants
On March 6, 2015, EPA issued a final rule addressing a range of nonattainment area SIP requirements for the 2008 ozone NAAQS. 80 FR 12264. This final rule also revoked the 1997 ozone NAAQS and established anti-backsliding requirements for areas not attaining the 1997 ozone NAAQS in 40 CFR 51.1105 that became effective once the 1997 ozone NAAQS was revoked. The anti-backsliding provisions require states to retain all applicable control requirements for the 1997 ozone NAAQS, while enabling states, where possible, to focus planning efforts on meeting the more protective 2008 ozone NAAQS. According to EPA's final rule, the revocation of the 1997 ozone NAAQS was effective as of April 6, 2015.
On September 9, 2016, Virginia amended the Virginia Administrative Code to be consistent with EPA's March 6, 2015 final rule. On February 10, 2017, Virginia, through the Virginia Department of Environmental Quality (VADEQ), formally submitted a SIP revision (Revision G16) reflecting these amendments.
On August 17, 2017 (82 FR 39097 and 82 FR 39031), EPA simultaneously published a notice of proposed rulemaking (NPR) and a direct final rule (DFR) for Virginia approving the SIP revision. EPA received two adverse comments on the rulemaking and attempted to withdraw the DFR prior to
Virginia's February 10, 2017 SIP submittal included amended versions of 9VAC5-20-204, 9VAC5-30-55, 9VAC5-151-20, and 9VAC5-160-30. Virginia requested that EPA approve the SIP revision so that these amended regulations would become part of the Virginia SIP. The amendment to 9VAC5-20-204 added text stating that the list of Northern Virginia moderate nonattainment areas under the 1997 ozone NAAQS is no longer effective after April 6, 2015, the effective date of the revocation of the 1997 ozone NAAQS. The amendment to 9VAC5-30-55 added text stating that the primary and secondary ambient air quality standard of 0.08 ppm shall no longer apply after April 6, 2015. Virginia also amended the Regulation for Transportation Conformity and the Regulation for General Conformity by adding clarifying text to 9VAC5-151-20 and 9VAC5-160-30 stating that “The provisions of this chapter shall not apply in nonattainment and maintenance areas that were designated nonattainment or maintenance under a federal standard that has been revoked.” These revisions to the Virginia Administrative Code reflect EPA's revocation of the 1997 ozone NAAQS.
EPA's review of this material indicates the February 10, 2017 submittal is approvable as it revises regulations to be consistent with EPA's final rule implementing the 2008 ozone NAAQS.
EPA received two anonymous public comments on our action to approve the February 10, 2017 SIP submittal.
EPA acknowledges that there is presently a legal challenge in the D.C. Circuit to the rulemaking which revoked the 1997 ozone NAAQS.
In response to the commenter's concern that EPA's approval will “loosen standards,” EPA notes that the 2008 ozone NAAQS of 0.075 ppm, which EPA is presently implementing in collaboration with states such as Virginia, is more protective of human health and the environment than the 1997 ozone NAAQS of 0.08 ppm. In addition, the ozone nonattainment areas in Virginia are the same for the 1997 ozone NAAQS as for the 2008 ozone NAAQS. Thus, removing the revoked 1997 ozone NAAQS from the Virginia SIP is not expected to have any emissions impact nor interfere with reasonable further progress or any applicable CAA requirement.
EPA is approving the Virginia SIP revision submitted on February 10, 2017, which includes amendments made to several sections of the Virginia Administrative Code, including 9VAC5-20-204, 9VAC5-30-55, 9VAC5-151-20, and 9VAC5-160-30, as a revision to the Virginia SIP because the revisions meet the requirements of CAA section 110. EPA is reapproving the revisions to Virginia's SIP because the revisions were added to the SIP prematurely on October 16, 2017 when EPA failed to withdraw its DFR after receiving two adverse comments on our direct final approval of the revisions to the Virginia SIP to reflect the revocation of the 1997 ozone NAAQS. This rule, which responds to the adverse comments received, finalizes our approval.
In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations
On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce federally authorized environmental programs in a manner that is no less stringent than their federal counterparts. . . .” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by federal law to maintain program delegation, authorization or approval.”
Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with federal law, which is one of the criteria for immunity.”
Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law.
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
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).
The SIP is not approved to apply on any Indian reservation land as defined in 18 U.S.C. 1151 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
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 23, 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 to approve revised provisions of the Virginia Administrative Code including 9VAC5-20-204, 9VAC5-30-55, 9VAC5-151-20, and 9VAC5-160-30 for inclusion in the Virginia SIP may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(c) * * *
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is taking final action to approve a revision to the Arizona Department of Environmental Quality (ADEQ) portion of the Arizona State Implementation Plan (SIP). This revision concerns emissions of lead-bearing fugitive dust from roads, storage piles and other activities associated with the primary copper smelter located in Hayden, Arizona. We are approving a state rule and associated appendix to regulate these emissions under the Clean Air Act (CAA or the Act).
This rule is effective on March 26, 2018.
The EPA has established a docket for this action under Docket ID No. EPA-R09-OAR-2017-0468. All documents in the docket are listed on the
Christine Vineyard, EPA Region IX, (415) 947-4125,
Throughout this document, “we,” “us” and “our” refer to the EPA.
On November 27, 2017 (82 FR 55966), the EPA proposed to approve the following rule and appendix into the Arizona SIP.
We proposed to approve the rule and associated appendix because we determined that they comply with the relevant CAA requirements. Our proposed action contains more information on the rule and associated appendix and our evaluation.
The EPA's proposed action provided a 30-day public comment period. During this period, we received three comments. Two commenters raised issues that are outside of the scope of this rulemaking, including forest management, wildfire suppression, and greenhouse-gas and other emissions from wildfires. A third commenter requested that the EPA “regulate the amount of poisonous dust that is kicked up into the air.” As explained in our proposed action, Rule R18-2-B1301.01 establishes requirements to control lead-bearing fugitive dust emissions surrounding the Hayden copper smelter. Our approval of this rule into the Arizona SIP will make these requirements federally enforceable. Commenters did not raise any specific issues germane to the approvability of the rule and appendix.
No comments were submitted that change our assessment of the rule and associated appendix as described in our proposed action. Therefore, as authorized in section 110(k)(3) of the Act, the EPA is fully approving this rule and associated appendix into the Arizona SIP.
In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the
Therefore, these materials have been approved by the EPA for inclusion in the SIP, have been incorporated by reference by the EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of the EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the 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 CAA; and
• Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or pre-empt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 23, 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, Lead, Particulate matter, Reporting and recordkeeping requirements.
Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
(c) * * *
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes an exemption from the requirement of a tolerance for residues of the biochemical methyl-alpha-D-mannopyranoside (alpha methyl mannoside) in or on all raw agricultural commodities when applied/used as a plant growth regulator. BRANDT iHammer submitted a petition to EPA under the Federal Food, Drug, and Cosmetic Act (FFDCA), requesting an exemption from the requirement of a tolerance. This regulation eliminates the need to establish a maximum permissible level for residues of alpha methyl mannoside.
This regulation is effective February 22, 2018. Objections and requests for hearings must be received on or before April 23, 2018, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2017-0314, is available at
Robert McNally, Biopesticides and Pollution Prevention Division (7511P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2017-0314 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before April 23, 2018. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2017-0314, by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In the
Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Pursuant to FFDCA section 408(c)(2)(B), in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in FFDCA section 408(b)(2)(C), which require EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . . ” Additionally, FFDCA section 408(b)(2)(D) requires that the Agency consider “available information concerning the cumulative effects of a particular pesticide's residues” and “other substances that have a common mechanism of toxicity.”
EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. First, EPA determines the toxicity of pesticides. Second, EPA examines exposure to the pesticide through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings.
Consistent with FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness and reliability, and the relationship of this information to human risk. Given that no toxic endpoints were identified for alpha methyl mannoside, consideration of the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children is not necessary for this biochemical pesticide.
Methyl-alpha-D-mannopyranoside (alpha methyl mannoside) is a naturally occurring monosaccharide (simple sugar), that is ubiquitous in plant tissue in the form of mannose polymers. Alpha methyl mannoside exposure occurs naturally via diet from the breakdown of mannose polymers present in a variety of plant-based foods, with the highest concentrations found in guar gum, a common food additive of thickening and texture in baked goods, dairy items, meats and condiments, and in coffee. Alpha methyl mannoside appears to have a low toxicity profile and is not mutagenic. Alpha methyl mannoside has been recently found to regulate plant growth by modulating glycoconjugation to lectins in plants. As a pesticide, alpha methyl mannoside appears to stimulates the growth and development of a range of crops including vegetables (leafy,
All applicable toxicology data requirements supporting the petition to establish an exemption from the requirement of a tolerance for the use of alpha methyl mannoside as an active ingredient in or on food commodities, when used in accordance with label direction and good agricultural practices, have been fulfilled. Based on the submitted data and the results of the Agency-developed dietary exposure modeling database DEEM-FCID (version 3.16), dietary exposure to alpha methyl mannoside is not anticipated and there are no human health risks of concern associated with alpha methyl mannoside. Acute studies on alpha methyl mannoside show that this naturally occurring monosaccharide falls within Toxicology Category IV for: Acute oral toxicity, Acute dermal toxicity, Primary eye irritation, and Primary dermal irritation. Alpha methyl mannoside is not a dermal sensitizer. Waivers were granted for subchronic toxicology studies including the 90-day Dermal study, 90-day Inhalation study and Developmental toxicity study. For a more detailed summary of the data upon which EPA relied, please refer to the document entitled, “Federal Food, Drug, and Cosmetic Act (FFDCA) Considerations for Methyl-alpha-D-mannopyranoside (Alpha Methyl Mannoside)” December 5, 2017, available in the docket for this action (EPA-HQ-OPP-2017-0314).
In examining aggregate exposure, FFDCA section 408 directs EPA to consider available information concerning exposures from the pesticide residue in food and all other non-occupational exposures, including drinking water from ground water or surface water and exposure through pesticide use in gardens, lawns, or buildings (residential and other indoor uses).
An aggregate risk assessment for alpha methyl mannoside for dietary (food and drinking water) exposures was not
Other non-occupational exposure to alpha methyl mannoside from pesticidal use is not expected to occur as alpha methyl mannoside biodegrades rapidly once applied which would preclude significant post-application exposure. Exposure is further minimized by the relatively low application rates proposed for this biochemical. There are no residential uses for Methyl-alpha-D-mannopyranoside. This biochemical is intended for agricultural, ornamental and turf crop use only. Therefore, the Agency does not anticipate residential exposure.
Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a pesticide's residues and “other substances that have a common mechanism of toxicity.”
EPA has not found alpha methyl mannoside to share a common mechanism of toxicity with any other substances, and alpha methyl mannoside does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that alpha methyl mannoside does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at
FFDCA section 408(b)(2)(C) provides that, in considering the establishment of a tolerance or tolerance exemption for a pesticide chemical residue, EPA shall assess the available information about consumption patterns among infants and children, special susceptibility of infants and children to pesticide chemical residues, and the cumulative effects on infants and children of the residues and other substances with a common mechanism of toxicity. In addition, FFDCA section 408(b)(2)(C) provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure, unless EPA determines that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the Food Quality Protection Act Safety Factor. In applying this provision, EPA either retains the default value of 10X, or uses a different additional or no safety factor when reliable data are available to support a different additional or no safety factor.
As part of its qualitative assessment, EPA evaluated the available toxicity and exposure data on alpha methyl mannoside and considered its validity, completeness, and reliability, as well as the relationship of this information to human risk. EPA considers the toxicity database to be complete and has identified no residual uncertainty with regard to prenatal and postnatal toxicity or exposure. No hazard was identified in the available studies; therefore, EPA concludes that there are no threshold effects of concern to infants, children, or adults from alpha methyl mannoside. As a result, EPA concludes that no additional margin of exposure (safety) is necessary.
An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.
The Codex has not established a MRL for alpha methyl mannoside.
Based on its assessment of Methyl-alpha-D-mannopyranoside (alpha methyl mannoside or alpha methyl mannoside), EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children, from aggregate exposure to alpha methyl mannoside. Therefore, an exemption is established for residues of alpha methyl mannoside on all raw agricultural commodities when used in accordance with label directions and good agricultural practices.
This action establishes a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
Residues of the biochemical pesticide Methyl-alpha-D-mannopyranoside (alpha methyl mannoside) are exempt from the requirement of a tolerance in or on all raw agricultural commodities.
Federal Communications Commission.
Final rule.
In this document, we modernize the Commission's signal leakage and signal quality rules that apply to cable operators and other MVPDs and reflect the cable industry's transition from analog to digital systems. These rules are intended to make sure that cable systems do not leak signals that could interfere with other services and ensure that subscribers receive high-quality picture and sound.
These rules are effective April 23, 2018, except the amendments to §§ 76.105(b) introductory text, 76.601(b)(1), 76.1610(f) and (g), and 76.1804 introductory text, which contain modified information collection requirements that have not been approved by OMB, subject to the Paperwork Reduction Act. The Federal Communications Commission will publish a document in the
For additional information on this proceeding, contact Jeffrey Neumann,
For additional information concerning the information collection requirements contained in this document, send an email to
This is a summary of the Commission's
With this Report and Order (
In 2012, the Commission adopted the Digital Cable Standards NPRM, 77 FR 61351, to seek comment on proposed digital “proof of performance” (
The Commission originally adopted the current proof-of-performance and signal leakage rules before the advent of digital cable service, which is now widespread. According to SNL Kagan, almost 97 percent of cable video customers subscribe to digital service, and all major operators provide digital service. As a technical matter, our existing signal quality and interference rules are inapplicable to the digital technologies that cable operators use today. The Commission has not, to date, provided clear guidance on how to ensure digital signal quality and safeguard against digital systems leaking electromagnetic signals into the aeronautical bands. Therefore, in the Digital Cable Standards NPRM, the Commission proposed to update its technical rules to incorporate standards and procedures that cable operators and local franchising authorities (LFAs)
The Commission's analog proof-of-performance rules currently include testing requirements, technical standards, testing methods, recordkeeping requirements, and procedures to resolve complaints about signal quality to ensure that cable operators provide their subscribers with good quality signals. In the Digital Cable Standards NPRM, the Commission proposed to replicate this framework by adopting similar rules that would apply to digital cable service. Specifically, the Commission proposed to require Quadrature Amplitude Modulation (QAM) based digital cable systems to test signals in accordance with the Society of Cable Telecommunications Engineers (SCTE) Digital Cable Network Interface Standard, SCTE 40 and maintain records that demonstrate the results of such tests. The Commission sought comment on standards or guidance for testing cable systems that do not rely on QAM because non-QAM systems rely on varied technologies, and the Commission was not aware of any industry standards that non-QAM operators could use to test their signal quality. Accordingly, the Commission sought comment on an alternative proposal under which non-QAM providers would file a proof-of-performance plan with the Commission. The Commission also asked whether there were “any entities currently analyzing and developing standards for visual signal quality,” or whether a subjective analysis of visual signal quality could be used to demonstrate proof-of-performance.
As the Commission explained in the Digital Cable Standards NPRM, cable systems have the potential to interfere with over-the-air users of spectrum if the cable operator does not properly maintain its plant. The Commission's existing rules are designed to minimize interference to aircraft communications, and include yearly testing and reporting requirements. In the Digital Cable Standards NPRM, the Commission proposed to add new interference standards that would apply to digital signals to accompany the existing analog signal interference standards. The proposed digital standards would provide protection to aircraft communication from digital cable plant signal leakage that is equivalent to that provided via our existing analog standards. The Commission also sought comment on whether to make other modifications to the rules to protect other frequencies based on the increased bandwidth of modern cable systems.
The Commission also proposed updates to Part 76 of our rules. In the Digital Cable Standards NPRM, the Commission proposed to make necessary updates to various standards, reorganize certain sections of Part 76 to make them easier to read, make numerous rule corrections, and remove numerous obsolete rules and references from the Code of Federal Regulations. These changes are minor and non-substantive and intended to make it easier to comprehend and comply with the Commission's cable rules.
As the Commission proposed in the Digital Cable Standards NPRM, we will require cable operators to adhere to SCTE 40, the technical standard that ensures that cable operators provide “good quality” signals to their subscribers. We decline, however, to adopt the proof-of-performance testing and recordkeeping rules proposed in the Digital Cable Standards NPRM. The record and the Commission's log of consumer complaints indicate that there is not a continuing pattern of technical problems with digital signals as historically existed with analog signals. We attribute this, in part, to the process of error correction that the QAM standard uses; it generally ensures that digital signals have suitable picture and audio quality even under suboptimal conditions. Therefore, we conclude that a testing regime for digital service is not necessary, and that an operator's adherence to SCTE 40 is sufficient to ensure consumers are receiving good quality signals. We also decline at this time to adopt performance standards for non-QAM cable systems pending further developments and recommendations from industry standards bodies. Below, we discuss (1) why the SCTE 40 standard is the proper standard to ensure quality digital signals for QAM-based cable operators, (2) why we delay adoption of a standard for non-QAM-based cable operators, (3) why a rigid testing regime is unnecessary, and (4) why subjective testing and set-top box requirements are not necessary at this time. We also dismiss as moot pending requests for exemption from our proof-of-performance rules.
Section 624(e) of the Act requires that the Commission “establish minimum technical standards relating to cable systems' technical operation and signal quality” and “update such standards periodically to reflect improvements in technology.” Pursuant to that mandate, we adopt the Commission's proposal to adopt the SCTE 40 standard. QAM-based cable operators that adhere to this standard provide good-quality signals to consumers, and a rule that requires cable operators to adhere to it will not increase their regulatory burden. SCTE 40, the “Digital Cable Network Interface Standard,” was developed by the Society of Cable Telecommunications Engineers to define the characteristics and specifications of interface between a cable system and commercially available digital cable products, such as set-top boxes. The overwhelming majority of cable operators use QAM to modulate their digital services, but as the Commission explained in the Digital Cable Standards NPRM, QAM use can vary across systems: “Unlike analog cable transmission . . . QAM is not uniform and may appear in a variety of configurations such as 64 QAM, 256 QAM, and potentially 1024 QAM, each requiring different performance standards.” The SCTE 40 standard recognizes these differences and incorporates different performance standards for each QAM configuration. Moreover, QAM-based cable operators have followed the SCTE 40 standard for more than a decade because the standard is an essential part of the cable industry's reliance on CableCARD. Therefore, conforming to the standard should not add any additional burdens on cable operators and commenters generally supported its use for this purpose. The standard sets relative channel power limits, carrier-to-noise ratios, and adjacent-channel characteristics that reflect the minimum technical standards necessary to ensure that cable operators deliver quality QAM signals to their subscribers. The standard is for free online at
The City of New York suggests that we set a timeframe for when we will next review these standards. We agree that updating these performance standards in a timely manner is important, but because the SCTE standard is not updated on a set schedule, we do not believe that we need to develop a rigid timeline for review. The SCTE originally adopted the SCTE 40 standard in 2001, and
We will delay adopting a proof-of-performance standard for non-QAM cable providers, such as internet Protocol television (IPTV)-based providers, because the record before us does not include any minimum technical standards that could apply to non-QAM signals. As stated above, in the Digital Cable Standards NPRM, the Commission sought comment on whether any industry standards exist for signal quality in non-QAM digital cable systems. Although the National Telecommunications Cooperative Association and The Organization for the Promotion and Advancement of Small Telecommunications Companies (NTCA/OPASTCO) reference certain standards that “may apply to IPTV systems,” they note that “these best practices and standards are relatively new, and a number of [rural local exchange carrier] IPTV systems utilizing many different types of equipment and software were deployed prior to their development and release” so they may not apply to all IPTV systems. No other comments recommended a standard that could apply to these systems. Accordingly, we believe it would be better to allow industry more time to reach consensus on a non-QAM-specific proof-of-performance standard before adopting a standard for regulatory purposes. When parties can identify and recommend applicable proof-of-performance standards, then we will revisit this issue. We note that in the meantime, under our existing rules non-QAM providers must work with LFAs to address any complaints regarding signal quality.
We will not require non-QAM operators to submit proof-of-performance plans for Commission approval, which is a scheme upon which the Commission sought comment in the Digital Cable Standards NPRM. Cable operators that use technologies other than QAM to deliver video strongly oppose that process as overly burdensome; they argue that non-QAM operators are small and do not have in-house resources to develop signal quality standards and testing regimes in the absence of an industry standard. We find commenters' arguments persuasive; this process would put too large a burden on small cable operators, and likely would result in a variety of metrics rather than a standard as Section 624(e) requires.
We are not persuaded by NATOA's argument that this case-by-case scheme would “provide regulatory clarity, promote competitive neutrality, and ensure that subscribers to such non-QAM systems enjoy technical and signal quality protections comparable to those enjoyed by subscribers to more traditional QAM-based systems.” To the contrary, such a scheme would provide no regulatory clarity because each operator would need to develop a testing plan without any guidance from the Commission. It would impose heavier burdens on non-QAM providers than their QAM-based competitors that will follow SCTE 40 rather than develop performance standards in-house.
We also reject NATOA's proposal that “[e]ach channel tested for proof-of-performance should be observed for at least two minutes and the results of this observation recorded” by the cable operator. A regime that required that proposal would be subjective, non-technical, and would not be standardized. Accordingly, we do not believe that such a proposal is the type of “minimum technical standard” contemplated under Section 624(e).
We conclude that we need not require the testing regime (and attendant certification and recordkeeping requirements) proposed in the Digital Cable Standards NPRM. We come to this conclusion because cable operators have demonstrated that if they design, deploy, and maintain systems that meet or exceed the specifications in SCTE 40, then they are able to deliver good-quality video and audio to their subscribers without testing. As ACA and NCTA point out, the error correction inherent in QAM service helps ensure consistent quality for subscribers. In addition, digital signals are less susceptible to errors introduced by noise and the picture degradation that amplifiers add to analog signals. Nonetheless, some LFA commenters reported problems with pixelation, tiling, and loss of audio. These appear to be isolated incidents, rather than a continuation of a trend of poor signal quality that existed when cable operators delivered analog signals, and the Commission has received few complaints about cable operators' signal quality. Even if there were a trend of poor quality, the record does not reflect that testing would yield any additional information necessary to ensure quality signals.
Moreover, according to the record, the costs associated with testing are high and outweigh the benefits that a federal testing mandate would provide. NCTA states that due to equipment and personnel costs, testing for compliance with SCTE 40 can cost “just under a million dollars to multiple millions of dollars simply to conduct a one-time test” of all of a large cable operator's systems, and that testing can be disruptive to subscribers. NATOA argues that “periodic test reports generate data that assist local authorities with complaint resolution, monitoring performance, and other regulatory responsibilities.” A rigid testing mandate is not necessary to achieve these benefits. Section 76.1713 of our rules requires cable operators to “establish a process for resolving complaints from subscribers about the quality of the television signal delivered,” and maintain aggregate data about those complaints for purposes of Commission and LFA review. This rule section already delivers the benefits that NATOA enumerates without a costly, rigid testing requirement.
Nor does the statute require a testing regime. Rather, the statute directs us to establish “minimum technical standards,” and neither the Act nor the legislative history indicates that Congress wanted the Commission to require tests in the absence of service problems. When a consumer complains about signal quality, the cable operator and the local franchisor are better suited than the Commission to work to resolve the problem using industry-standard methods and recommended practices. We invite LFAs and others to keep us informed about the complaints that they receive from their residents; we will consider adopting more rigorous requirements if systemic signal quality problems are demonstrated.
Finally, with respect to analog testing, we adopt the Commission's proposal to “simplify the formula by which . . . operators determine how many channels must be tested to ensure compliance with the proof-of-performance rules.” Specifically, the Commission proposed to require cable operators to test five channels on systems with a channel capacity of less than 550 MHz, and to require cable operators to test ten channels on systems with a channel capacity of 550 MHz or more. NCTA is the only commenter to address this proposal and “agree[s] with the effort to reduce the number of channels that must be tested to demonstrate compliance with the technical standards.” We adopt this rule for the same reasons the Commission proposed it: The rule change “simplifies compliance for all operators and will continue to ensure that a sufficient representative sample of channels is
We also decline to adopt subjective picture quality and set-top box quality rules. In the Digital Cable Standards NPRM, the Commission noted that cable operators could reduce a channel's visual quality via compression even if the signal itself remains strong and error free. To address this concern, the Commission sought comment on whether to adopt a subjective visual picture quality and auditory sound quality test to ensure that digital cable subscribers receive high quality television images and sound. The Commission also sought comment on whether set-top boxes should play a role in how we assess picture quality of digital cable signals, because set-top boxes can affect the quality of the picture that the viewer sees. We find that the record is insufficient to take any action on these two items, producing neither standards for perceived video quality nor the output of set-top boxes. As some parties point out, subjective tests are, by their nature, difficult to administer. Moreover, the record has not demonstrated that there is a serious problem regarding picture quality that we need to address. Therefore, we decline to extend proof-of-performance beyond the signal quality provided to the consumer's home by the MVPD. We also reject the suggestion that we require proof-of-performance tests for CableCARDs because, as NCTA points out, CableCARDs are responsible solely for decryption of cable programming and do not affect signal quality or display.
Six cable operators have filed requests for exemption from our proof-of-performance rules because those operators cannot apply the analog standards to their digital systems. To the extent these operators utilize QAM-based technologies, as discussed above, we conclude that their adherence to SCTE 40 ensures good signal quality. Accordingly, we dismiss as moot those requests for exemption from the proof-of-performance rules consistent with this order and instruct these cable operators and the rest of the cable industry deploying QAM-based technologies to adhere to SCTE 40 2016, as required by our new proof of performance rule.
For the request pertaining to a non-QAM-based system, and for other operators who use non-QAM and non-analog technologies, such as those based on internet Protocol video over fiber-optics, we will simply retain the duty of those operators to establish and use a process to resolve customer complaints for now and will not require them to adhere to SCTE 40, which does not align technically with the design of their systems. As we explain above, we believe it would be better to allow industry more time to reach consensus on a non-QAM-specific proof-of-performance standard before adopting a standard for regulatory purposes since the record before us does not include any minimum technical standards that could apply to non-QAM signals. If the Commission establishes metrics-based or testing-based rules in the future to cover those non-QAM technologies, those operators will be subject to those rules. As a result, we dismiss as moot the petition for exemption filed by a non-QAM system operator.
In this Section, we adopt the signal leakage rules for MVPDs utilizing digital signals on coaxial cable systems proposed in the Digital Cable Standards NPRM with minor modifications. In the NPRM, the Commission explained the purpose of our cable signal leakage rules: MVPDs that operate coaxial cable plants (“coaxial cable systems”) use frequencies allocated for myriad over-the-air services within their system. Under ideal circumstances, those signals are confined within the cable system and do not cause interference with the over-the-air users of those frequencies. However, under certain circumstances, a coaxial cable plant can “leak” and interfere with over-the-air users of spectrum.
To prevent this interference, the Commission's rules impose four major requirements. First, MVPDs that operate coaxial cable plants (referred to as simply “MVPDs” below) must notify the Commission and provide geographic information about their systems before they use frequencies in the aeronautical radio frequency bands above an average power level equal to or greater than 10-4 watts across a 25 kHz bandwidth in any 160 microsecond time period. The Commission refers to this requirement as the Aeronautical Frequency Notification (“AFN”) requirement. Second, MVPDs must offset their channels to minimize interference from analog coaxial cable systems to aircraft communication and aircraft navigation services, such as the Instrument Landing System and VHF Omnidirectional Range service. Third, MVPDs must ensure that their system design, installation and operation comply with the rules and conduct compliance testing four times per year. Finally, MVPDs must calculate their cumulative signal leakage and report their results to the Commission once per year.
These requirements protect against interference from analog signals, but have not been updated to protect against interference from digital signals. Therefore, in the Digital Cable Standards NPRM, the Commission proposed to update the signal leakage rules to apply to digital operations. First, the Commission proposed a trigger of 10-5 watts average power over a 30 kHz bandwidth in any 2.5 millisecond time period for the AFN requirement with respect to digital signals. The Commission explained that this proposed trigger would impose only limited burdens on cable operators because it would affect a small number of systems and was vital to prevent interference to aeronautical users and international satellite search and rescue services. Second, the Commission proposed not to apply the channel frequency offset requirement to digital signals. The Commission reasoned that the analog channel frequency offset does not make sense to apply to digital signals because the offset is meant to offset the peak power of a signal from interfering with aeronautical frequencies, but digital signals, unlike analog signals, distribute their power evenly throughout the 6 MHz channel. Third, because the Commission proposed not to adopt a digital signal offset, the Commission proposed to correlate the maximum leakage level for digital signals to that of analog signals, and to require digital leakage in excess of this threshold to be noted and repaired within a reasonable time. The Commission reasoned that this change would help prevent harmful interference due to cable signal leakage. As discussed below, we adopt slightly revised versions of each of these proposals.
Finally, the Commission sought comment on miscellaneous issues, each of which is discussed below, including whether to change the signal leakage testing methodology, whether and how to test for leakage in bands above 400 MHz, and a proposal to modify the formula for calculating the cumulative leakage index (“CLI”).
We adopt the digital AFN filing trigger proposed in the Digital Cable Standards NPRM (10-5 watts over a 30 kHz bandwidth in any 2.5 millisecond time period), and clarify that this filing trigger will apply to digital signals only; the analog trigger will not change. The Commission tentatively concluded in the NPRM that the power threshold should remain unchanged when considering interference from digital, rather than analog, coaxial cable systems, but that the measurement window needed to be adapted. The Commission based its proposal on the fact that unlike analog signals, digital
NCTA suggests two revisions to the Commission's proposal. First, NCTA argues that the Commission's proposed rule would require cable systems that “operate aural subcarriers of analog television channels at levels that fall between 10-4 watts and 10-5 watts” to file AFNs. NCTA asserts that requiring operators that carry analog signals at those levels to file AFNs would have no effect on public safety, and would burden cable operators. Instead NCTA suggests that the new power level trigger should apply to digital signals only, and the analog level should remain unchanged. NCTA's recommendation is consistent with the intent of the Commission's proposal in the Digital Cable Standards NPRM, which was to trigger the AFN filing requirement only for systems that had withdrawn their AFNs because they operate at a power level lower than the analog threshold, but operate at a power higher than the digital threshold that we adopt here. Therefore, we adopt NCTA's recommendation.
NCTA also suggests that the Commission align the power threshold for digital signal notifications with the power thresholds discussed in Section III.B.3 below by lowering the AFN threshold by a commensurate amount. We decline to adopt this recommendation. We believe that the threshold for giving the Commission notice of a system's operation, location, and reach should be keyed to the protection of the Marine and Aeronautical Distress and Safety frequency. The burden of filing a one-time notification is low, and the benefit to public health and safety of being able to identify potential sources of interference is significant.
We exempt all-fiber-optic cable systems from the AFN filing trigger and instead allow cable operators with such systems to notify the Commission that the system operates below the relevant power level. Verizon asserts that the signal leakage rules should not apply to operators that, like Verizon, rely primarily on fiber optic systems that are less likely to leak electromagnetic signals. Verizon explains that its cable service is “delivered over a fiber optic network that delivers signals to customer premises over fiber optic cables using optical wavelengths,” and that “[s]uch a network would not represent any threat of interference, because fiber optic cables do not use RF frequencies.” It further explains that its optical network terminal “has been designed and built in a manner that operates at a low power level—below the thresholds that would trigger testing under current signal leakage testing standards.” We agree that all-fiber-optic systems pose less interference risk than other systems and should be subject to less burdensome signal leakage requirements. Specifically, because fiber optic systems with optical network terminals at the customer premises pose minimal risk of signal leakage, such systems need only report in the existing Form 321, Aeronautical Frequency Notification, that their power level is sufficiently low to qualify for a filing exemption. Such cable operators may choose this option instead of complying with the digital AFN filing trigger. Cable operators that do not have optical network terminals at the customer premises or are unable to certify that they operate below a digital threshold of 37.55 dBmV must comply with the digital AFN filing trigger. We find that this approach will appropriately enable cable operators that are unlikely to cause harmful interference to continue their current practice with regard to signal leakage reporting, while still ensuring that the Commission is informed of potential interference risks.
As proposed in the Digital Cable Standards NPRM, we decline to apply the channel frequency offset requirements that apply to analog signals to digital signals. Analog television channel power levels are significantly higher at the center frequencies of the subcarriers contained within the channel. Digital television channel power levels do not share this characteristic because a digital signal does not concentrate all of its power in a narrow carrier. For this reason, the Commission's rules require cable operators to offset their subcarriers from lining up directly with Instrument Landing System (ILS), VHF Omnidirectional Range service (VOR), or communications carriers. With the offset, when a signal leaks it will not align with those important carriers and it will not impact the protected signal as severely as it would without an offset. In the Digital Cable Standards NPRM, the Commission proposed not to apply the channel frequency offset requirement to digital signals because digital signals do not have analog signals' peak power characteristic. Commenters agreed with this reasoning. For the same reasons that the Commission offered in the NPRM, we conclude that the frequency offset requirement would be useless with respect to digital signals.
We adopt rules for general signal leakage limits and for the cumulative leakage index (CLI) that were proposed in the NPRM, with some modifications to provide cable operators with flexibility in the ways they test to demonstrate compliance. Because we cannot use the offset requirement to ensure that the strongest part of the signal does not interfere with ILS, VOR, or communications carriers, the Commission proposed to correlate the signal leakage limits for digital channels to those for analog channels. Specifically, it proposed to adjust the signal leakage threshold for digital signals to 1.2 dB less than the analog threshold. The Commission reasoned that because a digital signal does not concentrate all of its power in a narrow carrier like an analog signal does and because an aircraft receiver's bandwidth should be no wider than 25 kHz, the resulting increase in potential interference is 1.2 dB. The Commission proposed to amend the general signal leakage rule (including the signal leakage monitoring, logging, and repair rule) and the CLI rules accordingly.
We adopt the proposed general signal leakage limit that the Commission proposed for digital signals. NATOA and NCTA were the only commenters that addressed the Commission's proposal to make the general signal leakage threshold for digital signals 1.2 dB lower than the analog threshold, and both supported the proposal. For the reasons the Commission provided in the Digital Cable Standards NPRM, we conclude that the 1.2 dB reduction for digital signals is a technically sound proposal, and therefore we adopt it.
The Commission noted that this change could require cable operators that carry digital signals to obtain more sensitive leakage detection equipment because our rules require regular monitoring of systems that operate in the designated aeronautical communications bands. The Commission sought comment on the burdens that this would impose on cable operators and the extent to which they outweigh the benefits of signal leakage detection and prevention. In response, Arcom Digital, LLC described its low-cost QAM Snare system, which is sensitive enough to detect “QAM channel leakage signals that are as low as 0.13µV/m at 100 MHz and as low as 0.89µV/m at 700 MHz.” NCTA described an alternative test methodology “that would allow cable operators to continue to use existing signal leakage detection equipment with the same sensitivity, measurement procedures, calculations and reporting.” Under NCTA's proposal (the “David Large Methodology”), the cable operator simply carries a test signal that has an
We adopt the level that the Commission proposed to trigger the signal leakage rules, and clarify that proposal as NCTA requests. The Commission proposed to modify the level “at which the [signal leakage] rules become applicable, the threshold at which leaks must be included in the [CLI] calculation, and the maximum leakage and CLI permissible,” for digital signals consistent with the 1.2 dB reduction from the analog signal levels. NCTA states that under the David Large Methodology, “no additional change would be required to [the] CLI calculations since digital power levels would be required to be below the level of the leakage test signal.” We find that NCTA's proposal is consistent with the Commission's reasoning in the Digital Cable Standards NPRM. Therefore, in a scenario where a cable operator maintains digital signals at least 1.2 dB below the analog leakage test signal, the operator may perform an “analog” test on the analog test signal and will be restricted to the maximum CLI for analog signals (64 for I∞). However, we do not require operators to do this, and should they elect to carry digital signals at the same power levels as the analog test signal, or to test the digital signals directly, the reduced “digital” CLI applies.
We decline to adjust our signal leakage rules at this time to reflect recent increases in the bandwidth that cable systems use. As the Commission noted in the Digital Cable Standards NPRM, the last time the Commission updated the signal leakage rules, “400 MHz was near the upper limit of the bandwidth of coaxial cable systems deployed,” but today “coaxial cable systems routinely deploy in excess of 750 MHz, and deployments of up to 1 GHz exist.” Therefore, the Commission sought comment on potential and actual interference from coaxial cable systems to bands above 400 MHz. While such interference may exist (particularly in the 700 MHz band), there is insufficient evidence on the record to take action at this time.
We eliminate the I3000 method of calculating CLI as the Commission proposed because cable operators have abandoned it in favor of the more effective I∞ method. The I∞ method of calculating CLI requires cable operators to treat all leaks equally, rather than discounting leaks the further they are from the geographic center of the cable system. In the Digital Cable Standards NPRM, the Commission reasoned that cable systems now cover much larger geographical areas than they did when the Commission first adopted the rules, which can make the I3000 formula an inadequate way to detect significant leaks. We believe that these changes will make it easier to understand and comply with our cable rules. Accordingly, the Commission proposed to limit the application of I3000 to systems with a total geographic diameter of less than 160 km. We received no comments on this proposal, and careful analysis of filings from operators over the last 10 years shows that the overwhelming majority of operators utilize the I∞ calculation. Therefore, in the interest of simplifying both the submission of information to the Commission, and simplifying the analysis of this data, we instead decide to eliminate the I3000 formula. Operators previously using I3000 will find that less data collection is necessary to submit an I∞ calculation, and so we find no reason to continue accepting and analyzing two separate calculation methods.
In the Digital Cable Standards NPRM, the Commission proposed to “remove references to effective dates that have passed, make editorial corrections, delete obsolete rules, update various technical standards that are incorporated by reference into our rules, and clarify language in Part 76 of our rules.” The proposed changes are non-substantive and were unopposed in the record. Accordingly, we adopt those proposals.
As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice of Proposed Rule Making (NPRM). The Commission sought written public comment on the proposals in the NPRM, including comment on the IRFA. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.
This Report and Order allows the Commission to fulfil its congressional mandate to establish “minimum technical standards relating to cable systems' technical operation and signal quality” and “update such standards periodically to reflect improvements in technology,” as stated in the Communications Act. It will reduce malfunctions by setting proof-of-performance rules that require operators to ensure that their systems are consistent with industry standards designed to deliver high quality signals, which means that consumers will receive good quality pictures and sound. The Report and Order also makes modifications throughout Part 76 of the Commission's rules to remove outdated language, correct citations, and make other minor or non-substantive updates.
Commenters raised concerns that the proposed reporting requirements, which would have required them to develop a signal quality test and file the results of that test with the Commission, would impose an undue burden on small businesses. After analyzing the responses of commenters, the Commission concludes that cable operators who design, deploy, and maintain a system which meets or exceeds the specifications in SCTE 40 will consistently provide a service producing suitable picture and audio quality to subscribers. Rather than imposing testing on cable operators to ensure that they deliver quality service, we instead require that cable operators adhere to the specifications in the widely followed SCTE 40 standard.
As many commenters highlighted, Quadrature Amplitude Modulated (“QAM”) services are designed with error correction ability which helps to ensure consistent quality for subscribers. Additionally, as opposed to analog, digital signals are far less susceptible to errors introduced by noise and the picture degradation amplifiers add.
Pursuant to the Small Business Jobs Act of 2010, the Commission is required to respond to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA), and to provide a detailed statement of any change made to the proposed rules as a result of those comments. The Chief Counsel did not file any comments in response to the proposed rules in this proceeding.
The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).
Under these new rules, cable operators that use QAM to modulate their signals need only comply with the SCTE 40 standard in lieu of testing digital signals. Cable operators will also be required to file Aeronautical Frequency Notifications with the Commission if they operate at a certain power level. These notifications are necessary to ensure that cable operators' signals do not interfere with aeronautical frequencies that are vital to airplane safety and navigation.
The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): “(1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.”
The
ANSI/SCTE 40 2016 sets relative channel power limits, carrier-to-noise ratios, and adjacent-channel characteristics that reflect the minimum technical standards necessary to ensure that cable operators deliver quality QAM signals to their subscribers and is discussed more fully elsewhere in this preamble. The standard is freely available online at
CTA-542-D defines the frequency allocations for channel numbers on cable systems and is reasonably available for retail purchase from various sources and from the Consumer Technology Association directly at
The Commission will send a copy of the Report and Order in MB Docket No. 12-217 in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).
Accordingly,
Administrative practice and procedure, Cable television, Equal employment opportunity, Incorporation by reference, Political candidates, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, the Federal Communications Commission amends part 76 of title 47 of the Code of Federal Regulations as follows:
47 U.S.C. 151, 152, 153, 154, 301, 302, 302a, 303, 303a, 307, 308, 309, 312, 315, 317, 325, 338, 339, 340, 341, 503, 521, 522, 531, 532, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 549, 552, 554, 556, 558, 560, 561, 571, 572, 573.
For the purposes of this section, for over-the-air broadcast, a good quality signal shall mean a signal level of either −45 dBm for analog VHF signals, −49 dBm for analog UHF signals, or −61 dBm for digital signals (at all channels) at the input terminals of the signal processing equipment.
(a) * * *
(1) * * *
(i) Systems with 12 or fewer usable activated channels, as defined in § 76.5(oo), shall be required to carry the signal of one such station;
(b)
(e) At the time a local commercial station elects must-carry status pursuant to § 76.64, such station shall notify the cable system of its choice of channel position as specified in paragraphs (a), (b), and (d) of this section. A qualified NCE station shall notify the cable system of its choice of channel position when it requests carriage.
(a) No multichannel video programming distributor shall retransmit the signal of any commercial broadcasting station without the express authority of the originating station, except as provided in paragraph (b) of this section.
(b): Broadcasters entering into contracts which contain syndicated exclusivity protection shall notify affected cable systems within sixty calendar days of the signing of such a contract. A broadcaster shall be entitled to exclusivity protection beginning on the later of:
(c) Cable operators are subject to the following customer service standards:
(b) The operator of each cable television system that operates NTSC or similar channels shall conduct performance tests of the analog channels on that system at least twice each calendar year (at intervals not to exceed seven months), unless otherwise noted below. The performance tests shall be directed at determining the extent to which the system complies with all the technical standards set forth in § 76.605 and shall be as follows:
(1) For cable television systems with 1,000 or more subscribers but with 12,500 or fewer subscribers, proof-of-performance tests conducted pursuant to this section shall include measurements taken at six (6) widely separated points. However, within each cable system, one additional test point shall be added for every additional 12,500 subscribers or fraction thereof (
(2) Proof-of-performance tests to determine the extent to which a cable television system complies with the standards set forth in § 76.605(b)(3), (4), and (5) shall be made on each of the NTSC or similar video channels of that system. Unless otherwise noted, proof-of-performance tests for all other standards in § 76.605(b) shall be made on a minimum of five (5) channels for systems operating a total activated channel capacity of less than 550 MHz, and ten (10) channels for systems operating a total activated channel capacity of 550 MHz or greater. The channels selected for testing must be representative of all the channels within the cable television system.
(i) The operator of each cable television system that operates NTSC or similar channels shall conduct semi-annual proof-of-performance tests of that system, to determine the extent to which the system complies with the technical standards set forth in § 76.605(b)(4) as follows. The visual signal level on each channel shall be measured and recorded, along with the date and time of the measurement, once every six hours (at intervals of not less than five hours or no more than seven hours after the previous measurement), to include the warmest and the coldest times, during a 24-hour period in January or February and in July or August.
(ii) The operator of each cable television system that operates NTSC or similar channels shall conduct triennial proof-of-performance tests of its system to determine the extent to which the system complies with the technical standards set forth in § 76.605(b)(11).
(c) The following materials are available from the Consumer Technology Association (formerly the Consumer Electronics Association), 1919 S Eads St., Arlington, VA 22202; phone: 703-907-7600; web:
(1) CTA-542-D, “Cable Television Channel Identification Plan,” June 2013, IBR approved for § 76.605.
(2) CEA-931-A, “Remote Control Command Pass-through Standard for Home Networking,” 2003, IBR approved for § 76.640. (CEA-931-A is available through the document history of “CTA-931” from the reseller in paragraph (e)(2) of this section.)
(d) * * *
(3) ANSI/SCTE 40 2016, “Digital Cable Network Interface Standard,” copyright 2016, IBR approved for §§ 76.605, 76.640.
(a) The following requirements apply to the performance of a cable television system as measured at the input to any terminal device with a matched impedance at the termination point or at the output of the modulating or processing equipment (generally the headend) of the cable television system or otherwise noted here or in ANSI/SCTE 40 2016. The requirements of paragraph (b) of this section are applicable to each NTSC or similar video downstream cable television channel in the system. Each cable system that uses QAM modulation to transport video programming shall adhere to ANSI/SCTE 40 2016 (incorporated by reference, see § 76.602). Cable television systems utilizing other technologies to distribute programming must respond to consumer complaints under paragraph (d) of this section.
(b) For each NTSC or similar video downstream cable television channel in the system:
(1) The cable television channels delivered to the subscriber's terminal shall be capable of being received and displayed by TV broadcast receivers used for off-the-air reception of TV broadcast signals, as authorized under
(2) The aural center frequency of the aural carrier must be 4.5 MHz ±5 kHz above the frequency of the visual carrier at the output of the modulating or processing equipment of a cable television system, and at the subscriber terminal.
(3) The visual signal level, across a terminating impedance which correctly matches the internal impedance of the cable system as viewed from the subscriber terminal, shall not be less than 1 millivolt across an internal impedance of 75 ohms (0 dBmV). Additionally, as measured at the end of a 30 meter (100 foot) cable drop that is connected to the subscriber tap, it shall not be less than 1.41 millivolts across an internal impedance of 75 ohms (+3 dBmV). (At other impedance values, the minimum visual signal level, as viewed from the subscriber terminal, shall be the square root of 0.0133 (Z) millivolts and, as measured at the end of a 30 meter (100 foot) cable drop that is connected to the subscriber tap, shall be 2 times the square root of 0.00662(Z) millivolts, where Z is the appropriate impedance value.)
(4) The visual signal level on each channel, as measured at the end of a 30 meter cable drop that is connected to the subscriber tap, shall not vary more than 8 decibels within any six-month interval, which must include four tests performed in six-hour increments during a 24-hour period in July or August and during a 24-hour period in January or February, and shall be maintained within:
(i) 3 decibels (dB) of the visual signal level of any visual carrier within a 6 MHz nominal frequency separation;
(ii) 10 dB of the visual signal level on any other channel on a cable television system of up to 300 MHz of cable distribution system upper frequency limit, with a 1 dB increase for each additional 100 MHz of cable distribution system upper frequency limit (
(iii) A maximum level such that signal degradation due to overload in the subscriber's receiver or terminal does not occur.
(5) The rms voltage of the aural signal shall be maintained between 10 and 17 decibels below the associated visual signal level. This requirement must be met both at the subscriber terminal and at the output of the modulating and processing equipment (generally the headend). For subscriber terminals that use equipment which modulate and remodulate the signal (
(6) The amplitude characteristic shall be within a range of ±2 decibels from 0.75 MHz to 5.0 MHz above the lower boundary frequency of the cable television channel, referenced to the average of the highest and lowest amplitudes within these frequency boundaries. The amplitude characteristic shall be measured at the subscriber terminal.
(7) The ratio of RF visual signal level to system noise shall not be less than 43 decibels. For class I cable television channels, the requirements of this section are applicable only to:
(i) Each signal which is delivered by a cable television system to subscribers within the predicted Grade B or noise-limited service contour, as appropriate, for that signal;
(ii) Each signal which is first picked up within its predicted Grade B or noise-limited service contour, as appropriate;
(iii) Each signal that is first received by the cable television system by direct video feed from a TV broadcast station, a low power TV station, or a TV translator station.
(8) The ratio of visual signal level to the rms amplitude of any coherent disturbances such as intermodulation products, second and third order distortions or discrete-frequency interfering signals not operating on proper offset assignments shall be as follows:
(i) The ratio of visual signal level to coherent disturbances shall not be less than 51 decibels for noncoherent channel cable television systems, when measured with modulated carriers and time averaged; and
(ii) The ratio of visual signal level to coherent disturbances which are frequency-coincident with the visual carrier shall not be less than 47 decibels for coherent channel cable systems, when measured with modulated carriers and time averaged.
(9) The terminal isolation provided to each subscriber terminal:
(i) Shall not be less than 18 decibels. In lieu of periodic testing, the cable operator may use specifications provided by the manufacturer for the terminal isolation equipment to meet this standard; and
(ii) Shall be sufficient to prevent reflections caused by open-circuited or short-circuited subscriber terminals from producing visible picture impairments at any other subscriber terminal.
(10) The peak-to-peak variation in visual signal level caused by undesired low frequency disturbances (hum or repetitive transients) generated within the system, or by inadequate low frequency response, shall not exceed 3 percent of the visual signal level. Measurements made on a single channel using a single unmodulated carrier may be used to demonstrate compliance with this parameter at each test location.
(11) The following requirements apply to the performance of the cable television system as measured at the output of the modulating or processing equipment (generally the headend) of the system:
(i) The chrominance-luminance delay inequality (or chroma delay), which is the change in delay time of the chrominance component of the signal relative to the luminance component, shall be within 170 nanoseconds.
(ii) The differential gain for the color subcarrier of the television signal, which is measured as the difference in amplitude between the largest and smallest segments of the chrominance signal (divided by the largest and expressed in percent), shall not exceed ±20%.
(iii) The differential phase for the color subcarrier of the television signal which is measured as the largest phase difference in degrees between each segment of the chrominance signal and reference segment (the segment at the blanking level of 0 IRE), shall not exceed ±10 degrees.
(c) As an exception to the general provision requiring measurements to be made at subscriber terminals, and without regard to the type of signals carried by the cable television system, signal leakage from a cable television system shall be measured in accordance with the procedures outlined in § 76.609(h) and shall be limited as shown in table 1 to paragraph (c):
(d) Cable television systems distributing signals by methods other than 6 MHz NTSC or similar analog channels or 6 MHz QAM or similar channels on conventional coaxial or hybrid fiber-coaxial cable systems and which, because of their basic design, cannot comply with one or more of the technical standards set forth in paragraphs (a) and (b) of this section, are permitted to operate without Commission approval, provided that the operators of those systems adhere to all other applicable Commission rules and respond to consumer and local franchising authorities regarding industry-standard technical operation as set forth in their local franchise agreements and consistent with § 76.1713.
Local franchising authorities of systems serving fewer than 1,000 subscribers may adopt standards less stringent than those in § 76.605(a) and (b). Any such agreement shall be reduced to writing and be associated with the system's proof-of-performance records.
For systems serving rural areas as defined in § 76.5, the system may negotiate with its local franchising authority for standards less stringent than those in § 76.605(b)(3), (7), (8), (10) and (11). Any such agreement shall be reduced to writing and be associated with the system's proof-of-performance records.
The requirements of this section shall not apply to devices subject to the TV interface device rules under part 15 of this chapter.
Should subscriber complaints arise from a system failing to meet § 76.605(b)(10), the cable operator will be required to remedy the complaint and perform test measurements on § 76.605(b)(10) containing the full number of channels as indicated in § 76.601(b)(2) at the complaining subscriber's terminal. Further, should the problem be found to be system-wide, the Commission may order that the full number of channels as indicated in § 76.601(b)(2) be tested at all required locations for future proof-of-performance tests.
No State or franchising authority may prohibit, condition, or restrict a cable system's use of any type of subscriber equipment or any transmission technology.
(a) The operator of each cable television system shall not take any action to remove or alter closed captioning data contained on line 21 of the vertical blanking interval.
(b) The operator of each cable television system shall deliver intact closed captioning data contained on line 21 of the vertical blanking interval, as it arrives at the headend or from another origination source, to subscriber terminals and (when so delivered to the cable system) in a format that can be recovered and displayed by decoders meeting § 79.101 of this chapter.
The provisions of §§ 76.605(d), 76.611, 76.612, 76.613, 76.614, 76.616, 76.617, 76.1803 and 76.1804 are applicable to all MVPDs (cable and non-cable) transmitting analog carriers or other signal components carried at an average power level equal to or greater than 100 microwatts across a 25 kHz bandwidth in any 160 microsecond period or transmitting digital carriers or other signal components at an average power level of 75.85 microwatts across a 25 kHz bandwidth in any 160 microsecond period at any point in the cable distribution system in the frequency bands 108-137 and 225-400 MHz for any purpose. Exception: Non-cable MVPDs serving less than 1000 subscribers and less than 1,000 units do not have to comply with § 76.1803.
(a) No cable television system shall commence or provide service in the frequency bands 108-137 and 225-400 MHz unless such systems is in compliance with one of the following cable television basic signal leakage performance criteria:
(1) Prior to carriage of signals in the aeronautical radio bands and at least once each calendar year, with no more than 12 months between successive tests thereafter, based on a sampling of at least 75% of the cable strand, and including any portion of the cable system which are known to have or can reasonably be expected to have less leakage integrity than the average of the system, the cable operator demonstrates compliance with a cumulative signal leakage index by showing that 10 log I
θ is the fraction of the system cable length actually examined for leakage sources and is equal to the strand kilometers (strand miles) of plant tested divided by the total strand kilometers (strand miles) in the plant;
E
n is the number of leaks found of field strength equal to or greater than 50 µV/m measured pursuant to § 76.609(h).
The sum is carried over all leaks i detected in the cable examined; or
(2) Prior to carriage of signals in the aeronautical radio bands and at least once each calendar year, with no more than 12 months between successive tests thereafter, the cable operator demonstrates by measurement in the airspace that at no point does the field strength generated by the cable system exceed 10 microvolts per meter (µV/m) RMS at an altitude of 450 meters above the average terrain of the cable system. The measurement system (including the receiving antenna) shall be calibrated against a known field of 10 µV/m RMS produced by a well characterized antenna consisting of orthogonal resonant dipoles, both parallel to and one quarter wavelength above the ground plane of a diameter of two meters or more at ground level. The dipoles shall have centers collocated and be excited 90 degrees apart. The half-power bandwidth of the detector shall be 25 kHz. If an aeronautical receiver is used for this purpose it shall meet the standards of the Radio Technical Commission for Aeronautics (RCTA) for aeronautical communications receivers. The aircraft antenna shall be horizontally polarized.
(b) In paragraphs (a)(1) and (2) of this section the unmodulated test signal used for analog leakage measurements on the cable plant shall—
(1) Be within the VHF aeronautical band 108-137 MHz or any other frequency for which the results can be correlated to the VHF aeronautical band; and
(2) Have an average power level equal to the greater of:
(i) The peak envelope power level of the strongest NTSC or similar analog cable television signal on the system, or
(ii) 1.2 dB greater than the average power level of the strongest QAM or similar digital cable television signal on the system.
(c) In paragraphs (a)(1) and (2) of this section, if a modulated test signal is used for analog leakage measurements, the test signal and detector technique must, when considered together, yield the same result as though an unmodulated test signal were used in conjunction with a detection technique which would yield the RMS value of said unmodulated carrier.
(d) If a sampling of at least 75% of the cable strand (and including any portions of the cable system which are known to have or can reasonably be expected to have less leakage integrity than the average of the system) as described in paragraph (a)(1) of this section cannot be obtained by the cable operator or is otherwise not reasonably feasible, the cable operator shall perform the airspace measurements described in paragraph (a)(2) of this section.
(e) Prior to providing service to any subscriber on a new section of cable plant, the operator shall show compliance with either:
(1) The basic signal leakage criteria in accordance with paragraphs (a)(1) or (2) of this section for the entire plant in operation or
(2) a showing shall be made indicating that no individual leak in the new section of the plant exceeds 20 µV/m at 3 meters in accordance with § 76.609 for analog signals or 17.4 µV/m at 3 meters for digital signals.
(f) Notwithstanding paragraph (a) of this section, a cable operator shall be permitted to operate on any frequency which is offset pursuant to § 76.612 in the frequency band 108-137 MHz for the purpose of demonstrating compliance with the cable television basic signal leakage performance criteria.
All cable television systems which operate analog NTSC or similar channels in the frequency bands 108-137 MHZ and 225-400 MHz shall comply with the following frequency separation standards for each NTSC or similar channel:
(b) * * *
(1) * * *
(i) ANSI/SCTE 40 2016 (incorporated by reference, see § 76.602), provided however that the “transit delay for most distant customer” requirement in Table 4.3 is not mandatory.
(a) Sections 76.92 through 76.95 shall apply to open video systems in accordance with the provisions contained in this section.
(a) Sections 76.101 through 76.110 shall apply to open video systems in accordance with the provisions contained in this section.
(b) Any provision of § 76.101 that refers to a “cable community unit” shall apply to an open video system.
(c) Any provision of § 76.105 that refers to a “cable system operator” or “cable television system operator” shall apply to an open video system operator. Any provision of § 76.105 that refers to a “cable system” or “cable television system” shall apply to an open video system except § 76.105(c) which shall apply to an open video system operator. Open video system operators shall make all notifications and information regarding exercise of syndicated program exclusivity rights immediately available to all appropriate video programming provider on the system. An open video system operator shall not be subject to sanctions for any violation of the rules in §§ 76.101 through 76.110 by an unaffiliated program supplier if the operator provided proper notices to the program supplier and subsequently took prompt steps to stop the distribution of the infringing program once it was notified of a violation.
(d) Any provision of § 76.106 that refers to a “cable community” shall apply to an open video system community. Any provision of § 76.106 that refers to a “cable community unit” or “community unit” shall apply to an open video system or that portion of an open video system that operates or will operate within a separate and distinct community or municipal entity (including unincorporated communities within unincorporated areas and including single, discrete unincorporated areas). Any provision of §§ 76.106 through 76.108 that refers to a “cable system” shall apply to an open video system.
(e) Any provision of § 76.109 that refers to “cable television” or a “cable system” shall apply to an open video system.
(f) Any provision of § 76.110 that refers to a “community unit” shall apply to an open video system or that portion of an open video system that is affected by this rule.
The following sections within part 76 shall also apply to open video systems: §§ 76.71, 76.73, 76.75, 76.77, 76.79, 76.1702, and 76.1802 (Equal Employment Opportunity Requirements); §§ 76.503 and 76.504 (ownership restrictions); § 76.981 (negative option billing); and §§ 76.1300, 76.1301 and 76.1302 (regulation of carriage agreements); § 76.610 (operation in the frequency bands 108-137 and 225-400 MHz—scope of application provided, however, that these sections shall apply to open video systems only to the extent that they do not conflict with this subpart S. Section 631 of the Communications Act (subscriber privacy) shall also apply to open video systems.
A cable operator shall provide written notice to any broadcast television
(b) The cable operator shall provide written information on each of the following areas at the time of installation of service, at least annually to all subscribers, and at any time upon request:
(d) Where origination cablecasting material is a political matter or matter involving the discussion of a controversial issue of public importance and a corporation, committee, association or other unincorporated group, or other entity is paying for or furnishing the matter, the system operator shall, in addition to making the announcement required by § 76.1615, require that a list of the chief executive officers or members of the executive committee or of the board of directors of the corporation, committee, association or other unincorporated group, or other entity shall be made available for public inspection at the local office of the system. Such lists shall be kept and made available for two years.
An MVPD shall notify the Commission before transmitting any digital signal with average power exceeding 10
Office of Acquisition Policy, General Services Administration (GSA).
Final rule.
GSA is amending the General Services Administration Acquisition Regulation (GSAR) to address common commercial supplier agreement terms that are inconsistent with or create ambiguity with Federal Law.
Ms. Janet Fry, Senior Policy Advisor, GSA Acquisition Policy Division, at 703-605-3167 or
GSA published a proposed rule in the
Standard commercial supplier agreements contain terms and conditions that make sense when the purchaser is a private party but are inappropriate when the purchaser is the Federal Government. Discrepancies between commercial supplier agreements and Federal law or the Government's needs create recurrent points of inconsistency. As a result, industry and Government representatives must spend significant time and resources negotiating and tailoring commercial supplier agreements to comply with Federal law and to ensure both parties have agreement on the contract terms. Explicitly addressing common unenforceable terms eliminates the need for negotiation on these identified terms.
This approach will: (1) Decrease proposal costs associated with negotiating the identified unenforceable commercial supplier agreement terms; (2) facilitate faster procurement and contract lead times, therefore decreasing the time it takes for contractors to make a return on their investment; (3) reduce administrative costs for companies that maintain alternate Federally compliant commercial supplier agreements; and (4) for small business concerns, level the playing field with larger competitors since negotiations will only be required if the commercial supplier agreements contain objectionable clauses outside of those already identified in the GSAR clause. Lastly, this approach ensures consistent application and understanding of these unenforceable terms, potentially reducing unnecessary legal costs.
Two respondents submitted comments on the proposed rule. The General Services Administration has reviewed the comments in the development of the final rule. A discussion of the comments and the changes made to the rule as a result of those comments are provided as follows:
This final rule makes the following significant changes from the proposed rule:
• GSAR 552.212-4(s)—Reverts the order of precedence to move “Addenda to the solicitation or contract, including any license agreements for computer software” back to number 4, and “Solicitation provisions of the solicitation” and “Other paragraphs of the clause” back to number 5 and 6, respectively. Additionally, language was added to clarify the Commercial Supplier Agreements—Unenforceable Clauses provision takes precedence over the commercial supplier agreement terms and conditions.
• GSAR 552.212-4(w)(1)(vi)—Deletes the requirement for providing full text terms with the offer, adds a definition of a material change, and adds clarification on when a commercial supplier agreement must be bilaterally modified in the contract.
Public comments are grouped into categories in order to provide clarification and to better respond to the issues raised.
Instead, GSA addressed intent (1) by adding language to 552.212-4(s)(4)to clarify that the Commercial Supplier Agreement—Unenforceable Clauses provisions take precedence over any commercial supplier agreement.
GSA addressed intent (2) by adding a new subparagraph to 552.212-4(w)(1)(vi) to clearly state that material changes to a commercial supplier agreement after award must be bilaterally modified into the contract to be enforceable against the Government. Additionally, subparagraph (C) was updated to more clearly state that unilateral revisions that are found to be inconsistent with a material term of the contract are not enforceable against the Government (
As stated in the public comments, referenced terms on a website can be changed at any time, which is problematic during contract formation for the Government. The time between an offer and award of a contract could be several weeks. There is no assurance that the referenced terms reviewed early in contract formation have not changed. When awarding contracts, contracting officers must be fully aware of the terms that will bind the Government, which is why static full text terms were proposed.
After consideration of the public comments, GSA decided that maintaining the commercial practice of providing the commercial supplier agreement with referenced terms and by improving internal controls for intake and management of commercial supplier agreements could reduce Government risk and accomplish the intended outcome.
For this reason, GSA has deleted the language in 552.212-4(w)(1)(vi)(A) which required full text for
This final rule makes the following additional changes from the proposed rule:
• GSAR 512.301, Solicitation provisions and contract clauses for the acquisition of commercial items, a conforming change is made to subparagraph (e) to clarify the applicability of the deviated language to FAR 52.212-4 Alternate I.
• GSAR 552.212-4(w)(1)(ix), Audits, a typographical error in the disputes clause reference was fixed.
• GSAR 552.232-78, Commercial Supplier Agreements—Unenforceable Clauses, is renumbered and amended to make conforming changes.
• GSAR 552.232-78(a)(4), previously (a)(1)(iv), Continued performance, is revised to correct the reference of the
• GSAR 552.232-78(a)(6), Updating terms, previously (a)(1)(vi), Additional terms, is updated to reflect equivalent text changes previously described for subparagraph (w)(1)(vi) of 552.212-4.
Information was gathered from GSA's Information Technology Category (ITC) business line and GSA's Office of General Counsel (OGC) to estimate total annualized cost savings associated with reviewing and negotiating the 15 incompatible CSA terms for both industry and Government. A 7 percent discount rate was used for all calculations.
Based on the ITC CSA data for Fiscal Year 2016 (FY16), GSA estimates approximately 600 CSAs will be reviewed each year. CSAs must be reviewed for each procurement because terms of CSAs are updated often. Therefore, the review of a CSA for a new procurement is not eliminated by a previous review of a CSA for the same item purchased previously.
GSA ITC subject matter experts and GSA OGC were consulted to identify the activities associated with the review of CSAs and the hourly estimates for the activities in relation to the 15 CSA terms. It is estimated that on average OGC review takes 0.9 hours and contracting officer review and negotiation takes 2.7 hours for each CSA. Using the 2017 General Schedule, average pay rates were identified for attorneys and contracting officers and fringe benefits were included. The estimated annualized cost savings for the Government is $119,103.
Apparent successful offerors have at least a negotiator and an attorney participate in the review and negotiation of a CSA prior to award. It is assumed, at a minimum, the time required by an offeror's attorney and negotiator to review the 15 CSA terms are equivalent to the Government legal and contracting officer hours; 0.9 and 2.7 hours respectively. Fully burdened labor rates equivalent to the Government were used to estimate industry cost savings. Therefore for industry the estimated annualized cost savings is $119,103.
The total annualized cost savings of this rule is estimated at $238,206.
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
This final rule is considered an E.O. 13771 deregulatory action. Details on the estimated cost savings can be found in Section III-Expected Cost Savings of this Final Rule.
This final rule was identified by GSA's Regulatory Reform Task Force as a rule that improves efficiency by eliminating procedures with costs that exceed the benefits as described in Section IV.
GSA does not expect this rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
GSA has prepared a Final Regulatory Flexibility Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5 U.S.C. 601,
This effort is expected to reduce the overall burden on small entities by reducing the amount of time and resources required to negotiate commercial supplier agreements in GSA contracts. GSA believes that such an approach will disproportionately benefit small business concerns since they are less likely to retain in-house counsel and the GSAR revision will reduce or eliminate the costs associated with the negotiation of the identified unenforceable elements. Furthermore, this approach will allow small businesses that do not have commercial supplier agreements tailored to Federal Government procurements to potentially utilize their otherwise compliant, standard commercial supplier agreements when conducting business with the Government. No comments were received on the Initial Regulatory Flexibility Analysis (IRFA) from the Chief Counsel for Advocacy of the Small Business Administration.
Interested parties may obtain a copy of the FRFA from the Regulatory Secretariat. The Regulatory Secretariat has submitted a copy of the FRFA to the Chief Counsel for Advocacy of the Small Business Administration.
The final rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
Government procurement.
Therefore, GSA is amending 48 CFR parts 502, 512, 513, 532, and 552 as set forth below:
40 U.S.C. 121(c).
(a) Regardless of the format or style of the document. For example, a commercial supplier agreement may be styled as standard terms of sale or lease, Terms of Service (TOS), End User License Agreement (EULA), or another similar legal instrument or agreement, and may be presented as part of a proposal or quotation responding to a solicitation for a contract or order;
(b) Regardless of the media or delivery mechanism used. For example, a commercial supplier agreement may be presented as one or more paper documents or may appear on a computer or other electronic device screen during a purchase, software installation, other product delivery,
40 U.S.C. 121(c).
GSA has a deviation to FAR 12.216 for this section. For commercial contracts, supplier license agreements are referred to as commercial supplier agreements (defined in 502.101). Paragraph (u) of clause 552.212-4 prevents violations of the Anti-Deficiency Act (31 U.S.C. 1341) for supplies or services acquired subject to a commercial supplier agreement.
(e) GSA has a deviation to revise certain paragraphs of FAR clause 52.212-4. Use clause 552.212-4 Contract Terms and Conditions-Commercial Items (FAR DEVIATION), for acquisitions of commercial items in lieu of FAR 52.212-4 or 52.212-4 Alternate I. The contracting officer may tailor this clause in accordance with FAR 12.302 and GSAM 512.302.
40 U.S.C. 121(c).
Clause 552.232-39, Unenforceability of Unauthorized Obligations (FAR DEVIATION), will automatically apply to any micro-purchase in lieu of FAR 52.232-39 for supplies and services acquired subject to a commercial supplier agreement (as defined in 502.101).
Where the supplies or services are offered under a commercial supplier agreement (as defined in 502.101), the purchase order or modification shall incorporate clause 552.232-39, Unenforceability of Unauthorized Obligations (FAR DEVIATION), in lieu of FAR 52.232-39, and clause 552.232-78, Commercial Supplier Agreements-Unenforceable Clauses.
40 U.S.C. 121(c).
Supplier license agreements defined in FAR 32.705 are equivalent to commercial supplier agreements defined in 502.101.
(a) The contracting officer shall utilize the clause at 552.232-39, Unenforceability of Unauthorized Obligations (FAR DEVIATION) in all solicitations and contracts in lieu of FAR 52.232-39.
(b) The contracting officer shall utilize the clause at 552.232-78, Commercial Supplier Agreements—Unenforceable Clauses, in all solicitations and contracts (including orders) when not using FAR part 12.
40 U.S.C. 121(c).
The revisions and additions read as follows:
As prescribed in 512.301(e), replace subparagraph (g)(2), paragraph (s), and paragraph (u) of FAR clause 52.212-4. Also, add paragraph (w) to FAR clause 52.212-4.
(s)
(1) The schedule of supplies/services.
(2) The Assignments, Disputes, Payments, Invoice, Other Compliances, Compliance with Laws Unique to Government Contracts, Unauthorized Obligations, and Commercial Supplier Agreements-Unenforceable Clauses paragraphs of this clause.
(3) The clause at 52.212-5.
(4) Addenda to this solicitation or contract, including any commercial supplier agreements as amended by the Commercial Supplier Agreements—Unenforceable Clauses provision.
(5) Solicitation provisions if this is a solicitation.
(6) Other paragraphs of this clause.
(7) The Standard Form 1449.
(8) Other documents, exhibits, and attachments.
(9) The specification.
(u)
(i) Any such language, provision, or clause is unenforceable against the Government.
(ii) Neither the Government nor any Government authorized end user shall be deemed to have agreed to such clause by virtue of it appearing in the commercial supplier agreement. If the commercial supplier agreement is invoked through an “I agree” click box or other comparable mechanism (
(iii) Any such language, provision, or clause is deemed to be stricken from the commercial supplier agreement.
(2) Paragraph (u)(1) of this clause does not apply to indemnification or any other payment by the Government that is expressly authorized by statute and specifically authorized under applicable agency regulations and procedures.
(w)
(1) Notwithstanding any other provision of this agreement, when the end user is an agency or instrumentality of the U.S. Government, the following shall apply:
(i)
(ii)
(iii)
(A) Any language purporting to subject the U.S. Government to the laws of a U.S. state, U.S. territory, district, or municipality, or a foreign nation, except where Federal law expressly provides for the application of such laws, is hereby deleted.
(B) Any language requiring dispute resolution in a specific forum or venue that is different from that prescribed by applicable Federal law is hereby deleted.
(C) Any language prescribing a different time period for bringing an action than that prescribed by applicable Federal law in relation to a dispute is hereby deleted.
(iv)
(v)
(vi)
(
(
(
(
(B) For revisions that will materially change the terms of the contract, the revised commercial supplier agreement must be incorporated into the contract using a bilateral modification.
(C) Any agreement terms or conditions unilaterally revised subsequent to award that are inconsistent with any material term or provision of this contract shall not be enforceable against the Government, and the Government shall not be deemed to have consented to them.
(vii)
(viii)
(ix)
(A) Discrepancies found in an audit may result in a charge by the commercial supplier or licensor to the ordering activity. Any resulting invoice must comply with the proper invoicing requirements specified in the underlying Government contract or order.
(B) This charge, if disputed by the ordering activity, will be resolved in accordance with subparagraph (d) (Disputes); no payment obligation shall arise on the part of the ordering activity until the conclusion of the dispute process.
(C) Any audit requested by the contractor will be performed at the contractor's expense, without reimbursement by the Government.
(x)
(xi)
(xii)
(2) If any language, provision, or clause of this agreement conflicts or is inconsistent with the preceding paragraph (w)(1), the language, provisions, or clause of paragraph (w)(1) shall prevail to the extent of such inconsistency.
As prescribed in 513.302-5 and 532.706-3, insert the following clause:
(a) Except as stated in paragraph (b) of this clause, when any supply or service acquired under this contract is subject to any commercial supplier agreement (as defined in 502.101) that includes any language, provision, or clause requiring the Government to pay any future fees, penalties, interest, legal costs or to indemnify the Contractor or any person or entity for damages, costs, fees, or any other loss or liability that would create an Anti-Deficiency Act violation (31 U.S.C. 1341), the following shall govern:
(1) Any such language, provision, or clause is unenforceable against the Government.
(2) Neither the Government nor any Government authorized end user shall be deemed to have agreed to such language, provision, or clause by virtue of it appearing in the commercial supplier agreement. If the commercial supplier agreement is invoked through an “I agree” click box or other comparable mechanism (
(3) Any such language, provision, or clause is deemed to be stricken from the commercial supplier agreement.
(b) Paragraph (a) of this clause does not apply to indemnification or any other payment by the Government that is expressly authorized by statute and specifically authorized under applicable agency regulations and procedures.
As prescribed in 513.302-5 and 532.706-3 insert the following clause:
When any supply or service acquired under this contract is subject to a commercial supplier agreement (as defined in 502.101), the following language shall be deemed incorporated into the commercial supplier agreement. As used herein, “this agreement” means the commercial supplier agreement:
(a) Notwithstanding any other provision of this agreement, when the end user is an agency or instrumentality of the U.S. Government, the following shall apply:
(1)
(2)
(3)
(i) Any language purporting to subject the U.S. Government to the laws of a U.S. state, U.S. territory, district, or municipality, or foreign nation, except where Federal law expressly provides for the application of such laws, is hereby deleted.
(ii) Any language requiring dispute resolution in a specific forum or venue that is different from that prescribed by applicable Federal law is hereby deleted.
(iii) Any language prescribing a different time period for bringing an action than that prescribed by applicable Federal law in relation to a dispute is hereby deleted.
(4)
(5)
(6)
(A) Terms that significantly change Government rights or obligations; and
(B) Terms that increase Government prices;
(C) Terms that decrease overall level of service; or
(D) Terms that limit any other Government right addressed elsewhere in this contract.
(ii) For revisions that will materially change the terms of the contract, the revised commercial supplier agreement must be incorporated into the contract using a bilateral modification.
(iii) Any agreement terms or conditions unilaterally revised subsequent to award that are inconsistent with any material term or provision of this contract shall not be enforceable against the Government, and the Government shall not be deemed to have consented to them.
(7)
(8)
(9)
(i) Discrepancies found in an audit may result in a charge by the commercial supplier or licensor to the ordering activity. Any resulting invoice must comply with the proper invoicing requirements specified in the underlying Government contract or order.
(ii) This charge, if disputed by the ordering activity, will be resolved through the Disputes clause at FAR 52.233-1; no payment obligation shall arise on the part of the ordering activity until the conclusion of the dispute process.
(iii) Any audit requested by the contractor will be performed at the contractor's expense, without reimbursement by the Government.
(10)
(11)
(12)
(b) If any language, provision or clause of this agreement conflicts or is inconsistent with the preceding paragraph (a), the language, provisions, or clause of paragraph (a) shall prevail to the extent of such inconsistency.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS implements an accountability measure (AM) to close the hook-and-line component of the commercial sector for king mackerel in the Gulf of Mexico (Gulf) southern zone. This closure is necessary to protect the Gulf king mackerel resource.
This temporary rule is effective from 12:01 a.m., local time, February 20, 2018, through June 30, 2018.
Kelli O'Donnell, NMFS Southeast Regional Office, telephone: 727-824-5305, email:
The fishery for coastal migratory pelagic fish includes king mackerel, Spanish mackerel, and cobia, and is managed under the Fishery Management Plan for the Coastal Migratory Pelagic Resources of the Gulf of Mexico and Atlantic Region (FMP). The FMP was prepared by the Gulf of Mexico and South Atlantic Fishery Management Councils and is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622. All weights for Gulf migratory group king mackerel (Gulf king mackerel) below apply as either round or gutted weight.
On April 11, 2017, NMFS published a final rule to implement Amendment 26 to the FMP in the
The southern zone for Gulf king mackerel encompasses an area of the exclusive economic zone (EEZ) south of a line extending due west from the boundary of Lee and Collier Counties on the Florida west coast, and south of a line extending due east from the boundary of Monroe and Miami-Dade Counties on the Florida east coast, which includes the EEZ off Collier and Monroe Counties in south Florida (50 CFR 622.369(a)(1)(iii)).
The commercial quota for the hook-and-line component of the commercial sector in the southern zone is 596,400 lb (270,522 kg) for the current fishing year, July 1, 2017, through June 30, 2018 (50 CFR 622.384(b)(1)(iii)(A)).
Under 50 CFR 622.8(b) and 622.388(a)(1), NMFS is required to close any component of the king mackerel commercial sector when its quota has been reached, or is projected to be reached, by filing a notification at the Office of the Federal Register. NMFS has determined the commercial quota for the hook-and-line component of the commercial sector for Gulf king mackerel in the southern zone will be reached by February 20, 2018. Accordingly, the hook-and-line component of the commercial sector for Gulf migratory group king mackerel in the southern zone is closed effective at 12:01 a.m., local time, February 20, 2018, through the end of the fishing year on June 30, 2018.
During the commercial hook-and-line closure in the southern zone, no person aboard a vessel for which a valid commercial permit for king mackerel has been issued may harvest or possess Gulf migratory group king mackerel in or from Federal waters of the closed zone, as specified in 50 CFR 622.384(e), unless a valid Federal commercial gillnet permit for king mackerel has been issued to the vessel and the gillnet fishery is open. There is one other exception. A person aboard a vessel that has a valid Federal charter vessel/headboat permit and also has a commercial king mackerel permit for coastal migratory pelagic fish may continue to retain king mackerel in or from the closed zone under the 3-fish daily recreational bag limit, provided the vessel is operating as a charter vessel or headboat, and as long as the recreational sector for Gulf king mackerel is open. Charter vessels or headboats that have a valid commercial king mackerel permit are considered to be operating as a charter vessel or headboat when they carry a passenger who pays a fee or when more than three persons are aboard, including operator and crew.
Also during the closure, king mackerel caught with hook-and-line gear from the closed zone, including those harvested under the bag and possession limits, may not be purchased or sold. This prohibition does not apply to king mackerel caught with hook-and-line gear from the closed zone that were harvested, landed ashore, and sold prior to the closure and were held in cold storage by a dealer or processor (50 CFR 622.384(e)(2)).
The Regional Administrator for the NMFS Southeast Region has determined this temporary rule is necessary for the conservation and management of Gulf king mackerel and is consistent with the Magnuson-Stevens Act and other applicable laws.
This action is taken under 50 CFR 622.8(b) and 622.388(a)(1), and is exempt from review under Executive Order 12866.
These measures are exempt from the procedures of the Regulatory Flexibility Act because the temporary rule is issued without opportunity for prior notice and comment.
This action responds to the best scientific information available. The Assistant Administrator for NOAA Fisheries (AA) finds good cause to waive the requirements to provide prior notice and opportunity for public comment on this temporary rule pursuant to the authority set forth in 5 U.S.C. 553(b)(B), as such procedures are unnecessary and contrary to the public interest. Such procedures are unnecessary because the rule implementing the commercial quota and the associated AM has already been subject to notice and public comment, and all that remains is to notify the public of the closure. Additionally, allowing prior notice and opportunity for public comment is contrary to the public interest because of the need to implement immediately this action to protect the king mackerel stock, because the capacity of the fishing fleet allows for rapid harvest of the commercial quota. Prior notice and opportunity for public comment would require time and could potentially result in a harvest well in excess of the established commercial quota.
For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in effectiveness of the action under 5 U.S.C. 553(d)(3).
16 U.S.C. 1801
Federal Aviation Administration (FAA), DOT.
Notice of proposed special conditions.
This action proposes special conditions for the Boeing Model 747-8 airplane. This airplane, as modified by SWS Certification Services, Ltd. (SWS), will have a novel or unusual design feature when compared to the state of technology envisioned in the airworthiness standards for transport-category airplanes. This design feature is the installation of an overhead passenger-sleeping compartment in the main deck. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
Send your comments on or before March 14, 2018.
Send comments identified by docket number FAA-2018-0011 using any of the following methods:
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•
•
•
Alan Sinclair, FAA, Airframe and Cabin Safety Section, AIR-675, Transport Standards Branch, Policy and Innovation Division, Aircraft Certification Service, 1601 Lind Avenue SW, Renton, Washington 98057-3356; telephone 425-227-2195; facsimile 425-227-1320.
We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.
We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.
On February 10, 2016, SWS applied for a supplemental type certificate for the installation of overhead passenger-sleeping compartments in the main deck of Boeing Model 747-8 airplanes. The Model 747-8 airplane is a wide-body airplane equipped with four turbofan engines. This airplane has a maximum seating capacity of 605 passengers and 12 cabin crewmembers, and has a maximum takeoff weight of 987,000 lbs.
Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, SWS must show that the Boeing Model 747-8 airplane, as changed, continues to meet the applicable provisions of the regulations listed in Type Certificate No. A20WE, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA. The regulations listed in the type certificate are commonly referred to as the “type certification basis.” The certification basis for the Model 747-8 is part 25, as amended by amendment 25-1 through amendment 25-120, with exceptions permitted by § 21.101.
In addition, the certification basis includes certain special conditions, exemptions, or later amended sections of the applicable part that are not relevant to these proposed special conditions.
If the Administrator finds that the applicable airworthiness regulations (
Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.
In addition to the applicable airworthiness regulations and special conditions, the Model 747-8 airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.
The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.
The Boeing Model 747-8 airplane, as modified by SWS, will incorporate the following novel or unusual design feature: Overhead passenger-sleeping compartments in the main deck.
SWS, located in the United Kingdom, proposes to install an Aeroloft
These special conditions establish seating, communication, lighting, personal safety, and evacuation requirements for the OPSC compartment. In addition, passenger information signs and placards, supplemental oxygen, and a seat or berth for each occupant of the OPSC compartment are required. These items are necessary because of turbulence and/or decompression. When applicable, the requirements parallel the existing requirements for an overhead service compartment, and provide an equivalent level of safety to that provided for main-deck occupants.
These proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
As discussed above, these special conditions are applicable to the Boeing Model 747-8 airplane as modified by SWS. Should SWS apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. A20WE, to incorporate the same novel or unusual design feature, these special conditions would apply to that model as well.
This action affects only certain novel or unusual design features on one model series of airplane. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
Accordingly, the Federal Aviation Administration (FAA) proposes the following special conditions as part of the type certification basis for Boeing Model 747-8 airplanes, operated for private use only, not for hire, not for common carriage, as modified by SWS Certification Services, Ltd.
(1) During flight, occupancy of the Overhead Passenger Sleeping/Rest Compartment is limited to the total number of installed bunks in the compartment that are approved to the maximum flight-loading conditions. Therefore, the OPSC is limited to a maximum of eight occupants for in-flight use only.
(a) Occupancy of the OPSC is for passengers only when a dedicated flight attendant is present in the OPSC.
(b) The OPSC design must include appropriate placards located inside and outside each entrance to the OPSC to indicate:
(i) The maximum number of eight occupants allowed during flight.
(ii) Occupancy is prohibited during taxi, take-off, and landing.
(iii) Smoking is prohibited in the OPSC.
(iv) Stowage in the OPSC area is limited to personal luggage. The stowage of cargo is not allowed.
(c) The airplane must contain at least one ashtray on both the inside and the outside of any entrance to the OPSC.
(2) The following requirements are applicable to OPSC door(s):
(a) For any door installed between the OPSC and the passenger cabin, a means must be provided to allow the door to be quickly opened from inside the OPSC, even when crowding from an emergency evacuation occurs at each side of the door.
(b) Doors installed across emergency egress routes must have a means to latch them in the open position. The latching means must be able to withstand the loads imposed upon it when the door is subjected to the ultimate inertia forces, relative to the surrounding structure, listed in § 25.561(b).
(c) The OPSC design must include a placard displayed in a conspicuous location on the outside of the entrance door of the OPSC, and on any other door(s) installed across emergency egress routes of the OPSC, requiring those doors to be latched closed during taxi, takeoff, and landing (TT&L).
(i) This requirement does not apply to emergency-escape hatches installed in the OPSC.
(ii) The OPSC design must include a placard displayed in a conspicuous place on the outside of the entrance door to the OPSC that requires the door to be closed and locked when it is not occupied.
(iii) The design-approval holder must transmit procedures for meeting these requirements to the operator for incorporation into training programs and appropriate operational manuals.
(d) For all outlet doors installed in the OPSC, a means must be in place to preclude anyone from being trapped inside the OPSC. If the design installs a locking mechanism, the locking mechanism must be capable of being unlocked from the outside without the aid of special tools. The lock must not prevent opening from the inside of the OPSC at any time.
(3) At least two emergency-evacuation routes must be available, and which could be used by each occupant of the OPSC to rapidly evacuate to the main cabin. A person must be able to close these evacuation routes from the main passenger cabin after evacuation. In addition;
(a) The design must include routes with sufficient separation within the OPSC to minimize the possibility of an event either inside or outside of the OPSC, rendering both routes inoperative. The design-approval holder may show compliance by inspection or by analysis. Regardless of which method is used, the maximum acceptable distance between OPSC exits is 60 feet.
(b) The design-approval holder must design routes to minimize the possibility of blockage, which might result from fire, mechanical or structural
(c) The design-approval holder must establish emergency-evacuation procedures, including procedures for emergency evacuation of an incapacitated occupant from the OPSC. The design-approval holder must transmit all of these procedures to the operator for incorporation into training programs and appropriate operational manuals.
(d) The design-approval holder must include a limitation in the airplane flight manual (AFM), or other suitable means, to require that crewmembers are trained in the use of the OPSC evacuation routes. This training must instruct crewmembers to ensure that the OPSC (including seats, doors, etc.) is in the proper TT&L configuration during TT&L.
(e) In the event no flight attendant is present in the area around the OPSC outlet door, and also during an emergency, including an emergency evacuation, a means must be available to prevent passengers from entering the OPSC.
(f) Doors or hatches separating the OPSC from the main deck must not adversely affect evacuation of occupants on the main deck (slowing evacuation by encroaching into aisles, for example), or cause injury to those occupants during opening or while opened.
(g) The means of opening outlet doors and hatches to the OPSC compartment must be simple and obvious. The OPSC compartment outlet doors and hatches must be able to be closed from the main passenger cabin.
(4) A means must be available for evacuating an incapacitated person (representative of a 95th percentile male) from the OPSC compartment to the passenger cabin floor. The design-approval holder must demonstrate such an evacuation for all evacuation routes.
(5) The design-approval holder must provide the following signs and placards in the OPSC, and the signs and placards must meet the following criteria:
(a) At least one exit sign, located near each OPSC evacuation-route outlet, meeting the emergency-lighting requirements of § 25.812(b)(1)(i). One allowable exception would be a sign with reduced background area of no less than 5.3 square inches (excluding the letters), provided that it is installed so that the material surrounding the exit sign is light in color (white, cream, light beige, for example). If the material surrounding the exit sign is not light in color, a sign with a minimum of a one-inch-wide background border around the letters would be acceptable. Another allowable exception is a sign with a symbol that the FAA has determined to be equivalent for use as an exit sign in an OPSC.
(b) The OPSC design must conspicuously locate an appropriate placard on or near each OPSC outlet door or hatch that defines the location and the operating instructions for access to, and operation of, the outlet door or hatch.
(c) Placards must be readable from a distance of 30 inches under emergency lighting conditions.
(d) The design must illuminate the door or hatch handles and operating-instruction placards, required by Special Condition 5b of these special conditions, to at least 160 microlamberts under emergency-lighting conditions.
(6) An automatic means of emergency illumination must be available in the OPSC in the event of failure of the airplane main power system, or failure of the normal OPSC lighting system.
(a) The design must power this emergency illumination independently of the main lighting system.
(b) The sources of general cabin illumination may be common to both the emergency and the main lighting systems if the power supply to the emergency lighting system is independent of the power supply to the main lighting system.
(c) The illumination level must be sufficient to allow occupants of the OPSC to locate and move to the main passenger cabin floor by means of each evacuation route.
(d) The illumination level must be sufficient, with the privacy curtains in the closed position, for each occupant of the OPSC compartment to locate a deployed oxygen mask.
(7) A means must be available for two-way voice communications between crewmembers on the flight deck and occupants of the OPSC. Two-way communications must also be available, between occupants of the OPSC and each flight-attendant station in the passenger cabin, per § 25.1423(g) for areas required to have a public-address-system microphone. In addition, the public-address system must include provisions to provide only the relevant information to the crewmembers in the OPSC (
(8) A means must be available for manual activation of an aural emergency-alarm system, audible during normal and emergency conditions, to enable crewmembers on the flight deck and at each pair of required floor-level emergency exits to alert occupants of the OPSC of an emergency situation. Use of a public-address or crew-interphone system will be acceptable, provided an adequate means of differentiating between normal and emergency communications is incorporated. The design must power the system in flight, after the shutdown or failure of all engines and auxiliary power units, for a period of at least ten minutes.
(9) A means must be in place, readily detectable by seated or standing occupants of the OPSC, to indicate when seat belts should be fastened. The design must provide seatbelt-type restraints for berths and must be compatible with the sleeping position during cruise conditions. A placard on each berth must require that these restraints be fastened when occupied. If compliance with any of the other requirements of these special conditions is predicated on specific head position, a placard must identify that head position.
(10) In lieu of the requirements specified in § 25.1439(a) pertaining to isolated compartments, and to provide a level of safety equivalent to that provided to occupants of an isolated galley, the design must provide the following equipment in the OPSC:
(a) At least one approved, hand-held fire extinguisher appropriate for the kinds of fires likely to occur.
(b) Two protective breathing equipment (PBE) devices, suitable for firefighting, or one PBE for each hand-held fire extinguisher, whichever is greater. All PBE devices must be
(c) One flashlight.
The design may require additional PBE devices and fire extinguishers in specific locations, beyond the minimum numbers prescribed in Special Condition 10 as a result of the egress analysis accomplished to satisfy Special Condition 4.
(11) The design must provide a smoke- or fire-detection system (or systems) to monitor each occupiable space within the OPSC, including those areas partitioned with curtains or doors. The design-approval holder must conduct flight tests to show compliance with this requirement. If a fire occurs, each system must provide:
(a) A visual indication to the flight deck within one minute after the start of a fire.
(b) An aural warning in the OPSC compartment.
(c) A warning in the main passenger cabin. A flight attendant must readily detect this warning, taking into consideration the locations of flight attendants throughout the main passenger compartment during various phases of flight.
(12) The design must provide a means to fight a fire. This ability can be either a built-in extinguishing system or a manual, hand-held extinguishing system.
(a) For a built-in extinguishing system:
(i) The system must have adequate capacity to suppress a fire considering the fire threat, volume of the compartment, and the ventilation rate. The system must have sufficient extinguishing agent to provide an initial knockdown and suppression environment per the minimum performance standards that have been established for the agent being used. In addition, certification flight testing will verify the acceptable duration that the suppression environment can be maintained.
(ii) If the capacity of the extinguishing system does not provide effective fire suppression that will last for the duration of flight from the farthest point in route to the nearest suitable landing site expected in service, the design-approval holder must establish an additional manual firefighting procedure. For the built-in extinguishing system, the design must establish and document the time duration for effective fire suppression in the firefighting procedures in the AFM. If the duration of time for demonstrated effective fire suppression provided by the built-in extinguishing agent will be exceeded, the firefighting procedures must instruct the crew to:
(1) Enter the OPSC at the time that demonstrated fire-suppression effectiveness will be exceeded.
(2) Check for and extinguish all residual fire.
(3) Confirm that the fire is out.
(b) For a manual, hand-held extinguishing system (designed as the sole means to fight a fire or to supplement a built-in extinguishing system of limited suppression duration) for the OPSC:
(i) The design-approval holder must include a limitation in the AFM or other suitable means requiring that crewmembers be trained in firefighting procedures.
(ii) The OPSC design must allow crewmembers equipped for firefighting to have unrestricted access to all parts of the OPSC.
(iii) The time for a crewmember on the main deck to react to the fire alarm, don the firefighting equipment, and gain access to the OPSC must not exceed the time it would take for the compartment to become filled with smoke, thus making it difficult to locate the fire source.
(iv) The design-approval holder must establish approved procedures describing methods for searching the OPSC for fire source(s). The design-approval holder must transmit these procedures to the operator for incorporation into its training programs and appropriate operational manuals.
(13) Design must provide a means to prevent hazardous quantities of smoke or extinguishing agent, originating in the OPSC, from entering any other occupiable compartment.
(a) Small quantities of smoke may penetrate from the OPSC into other occupied areas during the one-minute smoke detection time.
(b) A provision in the firefighting procedures must ensure that all doors and hatches at the OPSC outlets are closed after evacuation of the compartment and during firefighting to minimize smoke and extinguishing agent entering other occupiable compartments.
(c) All smoke entering any occupiable compartment, when access to the OPSC is open for evacuation, must dissipate within five minutes after the access to the OPSC is closed.
(d) Hazardous quantities of smoke may not enter any occupied compartment during access to manually fight a fire in the OPSC. The amount of smoke entrained by a firefighter exiting the OPSC is not considered hazardous.
(e) The design-approval holder must conduct flight tests to show compliance with this requirement.
(14) A supplemental oxygen system within the OPSC must provide the following:
(a) At least one oxygen mask for each berth in the OPSC.
(b) If the OPSC provides a destination area (such as a changing area), an oxygen mask must be readily available for each occupant who can reasonably be expected to be in the destination area, with the maximum number of required masks within the destination area being limited to the placarded maximum occupancy of the OPSC.
(c) An oxygen mask must be readily accessible to each occupant who can reasonably be expected to be moving from the main cabin into the OPSC, moving around within the OPSC, or moving from the OPSC to the main cabin.
(d) The system must provide an aural and visual alert to warn occupants of the OPSC to don oxygen masks in the event of decompression. The aural and visual alerts must activate concurrently with deployment of the oxygen masks in the passenger cabin. To compensate for sleeping occupants, the aural alert must be heard in each section of the OPSC and must sound continuously for a minimum of five minutes or until a reset switch within the OPSC is activated. A visual alert that informs occupants that they must don an oxygen mask must be visible in each section.
(e) The design must provide a means by which oxygen masks can be manually deployed from the flight deck.
(f) The design-approval holder must establish approved procedures for the OPSC in the event of decompression. The design-approval holder must transmit these procedures to the operator for incorporation into its training programs and appropriate operational manuals.
(g) The supplemental oxygen system for the OPSC must meet the same part 25 regulations as the supplemental oxygen system for the passenger cabin occupants, except for the 10 percent additional-masks requirement of § 25.1447(c)(1).
(15) The following additional requirements apply to an OPSC that are divided into several sections by the installation of curtains or partitions:
(a) The OPSC design requires a placard adjacent to each curtain that visually divides or separates, for example, for privacy purposes, the OPSC into multiple sections. The placard must require that the curtain(s) remains open when the section it creates is unoccupied. The vestibule section adjacent to the stairway is not considered a private section and, therefore, does not require a placard.
(b) For each section of the OPSC created by the installation of a curtain, the following requirements of these special conditions must be met with the curtain open or closed:
(i) No-smoking placard requirement (Special Condition 1).
(ii) Emergency illumination requirement (Special Condition 6).
(iii) Emergency alarm-system requirement (Special Condition 8).
(iv) Seatbelt-fasten signal or return-to-seat signal as applicable requirement (Special Condition 9).
(v) Smoke- or fire-detection system requirement (Special Condition 11).
(vi) Oxygen-system requirement (Special Condition 14).
(c) OPSC that are visually divided to the extent that evacuation could be adversely affected must have exit signs directing occupants to the primary stairway outlet. The design must provide exit signs in each separate section of the OPSC, except for curtained bunks, and must meet requirements of § 25.812(b)(1)(i). The design-approval holder may use an exit sign with reduced background area or a symbolic exit sign, as described in special condition 5a, to meet this requirement.
(d) For sections within an OPSC created by the installation of a rigid partition with a door separating the sections, the design must meet the following special conditions with the door open or closed:
(i) A secondary evacuation route from each section to the main deck, or the applicant must show that any door between the sections precludes anyone from being trapped inside a section of the compartment. The design must consider the removal of an incapacitated occupant from within this area. The design does not require a secondary evacuation route from a small room designed for only one occupant for a short time duration, such as a changing area or lavatory, but the design must consider the removal of an incapacitated occupant from within such a small room.
(ii) The design-approval holder must show any door between the sections to be openable when crowded against, even when crowding occurs at each side of the door.
(iii) The design may locate no more than one door between any seat or berth and the primary stairway door.
(iv) In each section, exit signs meeting the requirements of § 25.812(b)(1)(i), or shown to have an equivalent level of safety, must direct occupants to the primary stairway outlet. The design may use an exit sign with reduced background area, or a symbolic exit sign, as described in special condition 5a, to meet this requirement.
(v) The design must meet special conditions 1 (no-smoking placards), 6 (emergency illumination), 8 (emergency alarm system), 9 (fasten-seatbelt signal or return-to-seat signal as applicable), 11 (smoke- or fire-detection system), and 14 (oxygen system) with the OPSC door open or closed.
(vi) The design must meet special conditions 7 (two-way voice communication) and 10 (emergency firefighting and protective equipment) independently for each separate section, except for lavatories or other small areas that are not intended to be occupied for extended periods of time.
(16) If a waste-disposal receptacle is fitted in the OPSC, it must be equipped with an automatic fire extinguisher that meets the performance requirements of § 25.854(b).
(17) Materials (including finishes or decorative surfaces applied to the materials) must comply with the flammability requirements of § 25.853 as amended by amendment 25-116 or later. Seat cushions and mattresses must comply with the flammability requirements of § 25.853(c) as amended by amendment 25-116 or later, and the test requirements of part 25, appendix F, part II, or other equivalent methods.
(18) The addition of a lavatory within the OPSC would require the lavatory to meet the same requirements as those for a lavatory installed on the main deck, except with regard to special condition 11 for smoke detection.
(19) The design must completely enclose each stowage compartment in the OPSC, except for underseat compartments for occupant convenience. All enclosed stowage compartments within the OPSC that are not limited to stowage of emergency equipment or airplane-supplied equipment (
(20) The AFM must state that this airplane is to be operated for private use only, not for hire, not for common carriage.
Federal Trade Commission.
Regulatory review; request for public comment.
The Federal Trade Commission (“FTC” or “Commission”) requests public comments on its Guides for the Nursery Industry (“Nursery Guides” or “Guides”). The Commission is soliciting the comments as part of the Commission's systematic review of all current Commission regulations and guides.
Comments must be received by April 20, 2018.
Interested parties may file a comment online or on paper by following the instructions in the Request for Comment part of the
Megan Gray, (202) 326-3408,
The Commission issued the Guides for the Nursery Industry in 1979.
The Commission periodically reviews all Commission rules and guides. These reviews seek information about the costs and benefits of the Commission's rules and guides and their economic impact. The information obtained assists the Commission in identifying rules and guides that warrant modification or rescission. Therefore, the Commission solicits comment on, among other things, the economic impact of and the continuing need for its Nursery Guides; possible conflict between the Guides and state, local, federal, or international laws; and the effect of any technological, economic, environmental, or other industry changes on the Guides.
The Commission is particularly interested in comments and supporting data on the following questions. These questions are designed to assist the public and should not be construed as a limitation on the issues on which public comment may be submitted. In their replies to each of these questions, commenters should provide any available evidence and data, such as empirical data, consumer perception studies, or consumer complaints, that support the commenter's asserted position.
(1) Is there a continuing need for the Nursery Guides as currently promulgated?
(2) Are any specific provisions of the Guides no longer necessary?
(3) Are the deceptive or unfair practices addressed by the Guides prevalent in the marketplace? Are the Guides effective in addressing those practices? Are there deceptive or unfair practices in the selling of plants that are not covered by the Guides, such as vegetable plants marketed to consumers? Should the Guides be extended to cover other types of plants that consumers purchase? Are there alternatives, such as individual enforcement actions under the FTC Act, that would be more effective or equally effective in addressing those practices?
(4) Have covered businesses adopted the Nursery Guides as part of their routine business practice? What is the degree of compliance with the Guides? How, and what effect, if any, does this have on the continuing need for the Guides? Do covered businesses self-regulate or have voluntary standards or guidance, such as through trade associations, that overlap with the Guides?
(5) What benefits, if any, have the Nursery Guides provided to consumers of the products affected by the Guides? Do the Guides impose any significant costs on consumers?
(6) What impact, if any, have the Guides had on the flow of truthful or deceptive information to consumers?
(7) What changes, if any, should be made to the Nursery Guides to increase their benefits to consumers or reduce their costs to businesses? How would these changes affect consumer benefits or business costs?
(8) What burdens or costs, including costs of compliance, have the Guides imposed on covered businesses? What burdens or costs have the Guides imposed on small businesses in particular? Have the Guides provided benefits to businesses? If so, what benefits?
(9) What changes, if any, should be made to the Guides to reduce the burdens or costs imposed on businesses? In particular, should the Commission eliminate Section 18.7 (Misrepresentation as to character of business)? Does this section imply that
(10) Is it necessary to include reference works in the Note to Section 18.2? Are the reference works in the Note to Section 18.2 authoritative and readily and freely available to the public? If not, are there updated editions that are more authoritative and readily and freely available? Are there other works in the public domain that the Commission should consider in determining whether claims made for a covered plant's quality, size, grade, kind, species, age, maturity, condition, etc. are truthful and non-misleading? For example, do federal or state agricultural authorities provide guidance sufficient for the Commission, consumers, and covered businesses to determine whether claims made for covered products are truthful and non-misleading?
(11) Is it necessary to include the mention in the Note to Section 18.2 of “plant name lists periodically published by the plant societies and the horticultural organizations selected as international and national cultivar registration authorities as enumerated in Appendix of Naming and Registering New Cultivars?” Is the plant name list sufficiently specific to be useful to consumers or businesses? Can more specificity be provided as to which international and national cultivar registration authorities are relevant, and how to locate the Appendix of Naming and Registering New Cultivars?
(12) Should the Commission remove mentions of “industry recommendation” and “industry consensus” from the Notes to Sections 18.2 and 18.4? Should the Commission include in the Guides only its own views, consistent with the Guide's purpose of furthering the public interest in preventing deception?
(13) Do the Guides overlap or conflict with federal, state, or local laws or regulations? Do the Guides overlap or conflict with any international laws or regulations?
(14) Have consumer perceptions changed since the Guides were issued and, if so, do these changes warrant revising the Guides?
(15) Since the Guides were issued, what effects, if any, have changes in relevant technological, economic, or environmental conditions had on the need for or usefulness of the Guides?
You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before April 20, 2018. Write “Nursery Guides, P994248” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the public Commission website, at
Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comments online. To ensure the Commission considers your online comment, you must file it at
If you file your comment on paper, write “Nursery Guides, P994248” on your comment and on the envelope, and mail it to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610 (Annex A), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW, 5th Floor, Suite 5610, Washington, DC 20024. If possible, please submit your paper comment to the Commission by courier or overnight service.
Because your comment will be placed on the publicly accessible FTC website at
Comments containing material for which confidential treatment is requested must be filed in paper form, must be clearly labeled “Confidential,” and must comply with FTC Rule 4.9(c). In particular, the written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request, and must identify the specific portions of the comment to be withheld from the public record.
Visit the FTC website to read this Notice and the news release describing it. The FTC Act and other laws that the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments that it receives on or before April 20, 2018. For information on the Commission's privacy policy, including routine uses permitted by the Privacy Act, see
By direction of the Commission.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish a temporary safety zone for all navigable waters on Pensacola Bay within 100 yards of each vessel participating in the Tall Ships Pensacola marine event and parade in Pensacola, FL and within 100 yards of the Port of Pensacola for the duration of the marine event and parade. The proposed rulemaking is necessary to provide for the safety of life and property on these
Comments and related material must be received by the Coast Guard on or before March 9, 2018.
You may submit comments identified by docket number USCG-2018-0086 using the Federal eRulemaking Portal at
If you have questions about this proposed rulemaking, call or email LT Kyle D. Berry, Sector Mobile, Waterways Management Division, U.S. Coast Guard; telephone 251-441-5940, email
The sponsor for the Tall Ships Pensacola marine event submitted an application for a marine event permit for the event that will take place from 8 a.m. on April 12, 2018 through 8 p.m. on April 15, 2018. The event will consist of a boat parade of the tall ships in Pensacola Bay on April 12, 2018. The event will also consist of several days of public tours and sailings of the tall ships at the Port of Pensacola, Pensacola, FL, which is expected to attract several thousand spectators. The Captain of the Port Sector Mobile (COTP) has determined a safety zone is necessary to protect the public from the potential hazards associated with the tall ships during the organized parade, and public tours and sailings of these tall ships.
The purpose of this proposed rulemaking is to ensure the safety of vessels and persons during the tall ships' visit on the navigable waters of the Pensacola Bay in Pensacola, FL. The Coast Guard proposes this rulemaking under authority in 33 U.S.C. 1231.
The Coast Guard is issuing this Notice of Proposed Rulemaking (NPRM) with 15-day prior notice and opportunity to comment pursuant to authority under section (d)(3) of the Administrative Procedure Act (APA) (5 U.S.C. 553(d)). This provision authorizes an agency to publish a rule in less than 30 days before its effective date for “good cause found and published with the rule.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for publishing this NPRM with a 15-day comment period because it is impractical to provide a 30-day comment period. This proposed safety zone is necessary to ensure the safety of vessels and persons during the tall ships' visit to Pensacola. It is impracticable to publish an NPRM with a 30-day comment period because we must establish this safety zone by April 12, 2018.
The Coast Guard proposes to establish a temporary safety zone on Pensacola Bay within 100 yards of each vessel participating in the Tall Ships Pensacola marine event from 8 a.m. on April 12, 2018 through 8 p.m. on April 15, 2018, covering each vessel from when the vessel arrives at Pensacola, FL, when moored at the Port of Pensacola, 30°24′07.2″ N, 87°12′44.7″ W, when underway in parade from position 30°24′07.2″ N, 87°12′44.7″ W to 30°19′52.6″ N, 87°18′31.5″ W, and when the vessel departs Pensacola, FL. The Coast Guard also proposes to establish a temporary safety zone on Pensacola Bay within 100 yards of the Port of Pensacola for the duration of the Tall Ships Pensacola marine event from 8 a.m. on April 12, 2018 through 8 p.m. on April 15, 2018. The proposed rulemaking is needed to provide for the safety of life and property on these navigable waters during the Tall Ship Pensacola marine event. This proposed rulemaking restricts transit into, through, and within the zone unless specifically authorized by the COTP or a designated representative. No vessel or person would be permitted to enter the zone without obtaining permission from the COTP or a designated representative. A designated representative may be a Patrol Commander (PATCOM). The PATCOM would be aboard either a Coast Guard or Coast Guard Auxiliary vessel. The PATCOM may be contacted on Channel 16 VHF-FM (156.8 MHz) by the call sign “PATCOM”. All persons and vessels not registered with the sponsor as participants or official patrol vessels are considered spectators. The “official patrol vessels” consist of any Coast Guard, state, or local law enforcement and sponsor provided vessels assigned or approved by the COTP or a designated representative to patrol the zone.
Spectator vessels desiring to transit the zone may do so only with prior approval of the COTP or a designated representative and when so directed by that officer would be operated at a minimum safe navigation speed in a manner which will not endanger any other vessels. No spectator vessel shall anchor, block, loiter, or impede the through transit of official patrol vessels in the zone during the effective dates and times, unless cleared for entry by or through the COTP or a designated representative. Any spectator vessel may anchor outside the zone, but may not anchor in, block, or loiter in a navigable channel. Spectator vessels may be moored to a waterfront facility within the zone in such a way that they shall not interfere with the progress of the event. Such mooring must be complete at least 30 minutes prior to the establishment of the zone and remain moored through the duration of the event.
The COTP or a designated representative may forbid and control the movement of all vessels in the zone. When hailed or signaled by an official patrol vessel, a vessel shall come to an immediate stop and comply with the directions given. Failure to do so may result in expulsion from the zone, citation for failure to comply, or both.
The COTP or a designated representative may terminate the operation of any vessel at any time it is deemed necessary for the protection of life or property. The COTP or a designated representative would terminate enforcement of the safety zone at the conclusion of the event.
The regulatory text we are proposing appears at the end of this document.
We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies
This regulatory action determination is based on size, location, and duration of the proposed rulemaking. The proposed safety zone would take place on a small area of Pensacola Bay, lasting for only four days from April 12, 2018 through April 15, 2018. Additionally, the Coast Guard would issue Broadcast Notices to Mariners via VHF-FM marine channel 16 about the safety zone so that waterway users may plan accordingly for transits during this restriction, and the proposed rule would also allow vessels to seek permission from the COTP or a designated representative to enter the zone.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section IV.A above, this proposed rule would not have a significant economic impact on any vessel owner or operator.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023-01, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone on Pensacola Bay within 100 yards of the Port of Pensacola and within 100 yards of any vessel participating in the Tall Ships Pensacola marine event and parade from April 12, 2018 through April 15, 2018. It is categorically excluded from further review under paragraph L60 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration (REC) supporting this determination is available in the docket where indicated under
We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.
We encourage you to submit comments through the Federal 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
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 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)
(1) In accordance with the general regulations in § 165.23 of this part, entry into, transiting through, or exiting from this area is prohibited unless authorized by the Captain of the Port Sector Mobile (COTP) or a designated representative. A designated representative may be a Patrol Commander (PATCOM). The PATCOM will be aboard either a Coast Guard or Coast Guard Auxiliary vessel. The PATCOM may be contacted on Channel 16 VHF-FM (156.8 MHz) by the call sign “PATCOM”.
(3) Persons or vessels seeking to enter into or transit through the zone must request permission from the COTP or a designated representative. They may be contacted on VHF-FM channels 16 or by telephone at 251-441-5976.
(4) If permission is granted, all persons and vessels must comply with the instructions of the COTP or designated representative.
(5) All persons and vessels not registered with the event sponsor as participants or official patrol vessels are considered spectators. The “official patrol vessels” consist of any Coast Guard, state, or local law enforcement and sponsor provided vessels assigned or approved by the COTP or a designated representative to patrol the regulated area.
(6) Spectator vessels desiring to transit the regulated area may do so only with prior approval of the COTP or a designated representative and when so directed by that officer will be operated at a minimum safe navigation speed in a manner that will not endanger participants in the zone or any other vessels.
(7) No spectator vessel shall anchor, block, loiter, or impede the through transit of participants or official patrol vessels in the regulated area during the effective dates and times, unless cleared for entry by the COTP or a designated representative.
(8) Any spectator vessel may anchor outside the regulated area, but may not anchor in, block, or loiter in a navigable channel. Spectator vessels may be moored to a waterfront facility within the regulated area in such a way that they shall not interfere with the progress of the event. Such mooring must be complete at least 30 minutes prior to the establishment of the regulated area and remain moored through the duration of the event.
(9) The COTP or designated representative may forbid and control the movement of all vessels in the regulated area. When hailed or signaled by an official patrol vessel, a vessel shall come to an immediate stop and comply with the directions given. Failure to do so may result in expulsion from the area, citation for failure to comply, or both.
(10) The COTP or a designated representative may terminate the event or the operation of any vessel at any time it is deemed necessary for the protection of life or property.
(11) The COTP or a designated representative will terminate enforcement of the safety zone prior to or at the conclusion of the event.
(d)
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to amend its safety zones regulations for annual events in the Captain of the Port Duluth Zone. This rule would update the locations for seven safety zones, add three new safety zones, increase the safety zone radius of six existing fireworks events, and modify the format of the regulation to list the annual events and corresponding safety zones in table form. These proposed amendments would protect spectators, participants, and vessels from the hazards associated with annual marine events and improve the clarity and readability of the regulation.
Comments and related material must be received by the Coast Guard on or before March 26, 2018.
You may submit comments identified by docket number USCG-2018-0102 using the Federal eRulemaking Portal at
If you have questions on this rule, call or email Lieutenant John Mack, Chief of Waterways Management, Marine Safety Unit Duluth, U.S. Coast Guard; telephone 218-725-3818, email
On May 31, 2013 the Coast Guard published an NPRM in the
On August 12, 2013 the Coast Guard published the Final Rule in the
The Coast Guard is proposing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Duluth (COTP) has determined that an amendment to the recurring events list as published in 33 CFR 165.943 will be necessary to: Update the location of seven existing safety zones (Bridgefest Regatta Fireworks Display, Cornucopia 4th of July Fireworks Display, Duluth 4th Fest Fireworks Display, LaPointe 4th of July Fireworks Display, Point to LaPointe Swim, Lake Superior Dragon Boat Festival, and Superior Man Triathlon), add three new safety zones for additional annual events (City of Bayfield 4th of July Fireworks Display, Two Harbors 4th of July Fireworks Display, and Superior 4th of July Fireworks Display), increase the safety zone radius of six fireworks events (Bridgefest Regatta Fireworks Display, Ashland 4th of July Fireworks Display, Cornucopia 4th of July Fireworks Display, LaPointe 4th of July Fireworks Display, and Lake Superior Dragon Boat Festival), and format the existing regulations into a table format. The purpose of this rule is to ensure safety of vessels and the navigable waters in the safety zone before, during, and after the scheduled events and to improve the overall clarity and readability of the rule. The regulatory text we are proposing appears at the end of this document.
The amendments to this proposed rule are necessary to ensure the safety of vessels and people during annual events taking place on or near federally maintained waterways in the Captain of the Port Duluth Zone. Although this proposed rule would be in effect year-round, the specific safety zones listed in Table 165.943 would only be enforced during a specified period of time coinciding with the happening of the annual events listed.
When a Notice of Enforcement for a particular safety zone is published, entry into, transiting through, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Duluth, or his or her designated representative. The Captain of the Port Duluth or his or her designated representative may be contacted via VHF Channel 16 or telephone at (906) 635-3233. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.
We developed this proposed rule after considering numerous statutes and Executive Orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
This regulatory action determination is based on the size, location, duration, and time-of-day for each safety zone. Vessel traffic would be able to safely transit around all safety zones which would impact small designated areas within Lake Superior for short durations of time. Moreover, the Coast Guard will issue Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone and the rule allows vessels to seek permission to enter the zone.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard 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 zones may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
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 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 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 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
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01, 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 does not individually or cumulatively have a significant effect on the human environment. This proposed rule involves: The update of seven safety zone locations, the addition of three new safety zones, an increase of size for six safety zone radiuses for fireworks related events, and the reformatting of regulations into an easier to read table format. Normally such actions are categorically excluded from further review under paragraph L60a of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A preliminary Record of Environmental Consideration supporting this determination is available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments received will be posted without change to
Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at
Harbors, Marine safety, Navigation (water), Reporting and record keeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a) Regulations. The following regulations apply to the safety zones listed in Table 165.943 of this section:
(1) The Coast Guard will provide advance notice of the enforcement date and time of the safety zone being enforced in Table 165.943, by issuing a Notice of Enforcement, as well as, a Broadcast Notice to Mariners.
(2) In accordance with the general regulations in § 165.23 of this part, entry into, transiting, or anchoring in this safety zone is prohibited unless authorized by the Captain of the Port Duluth, or the designated on-scene representative.
(b)
(c)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS proposes to approve new fishery management measures to limit incidental catch of endangered Sacramento River winter Chinook salmon (SRWC) in fisheries managed under the Pacific Fishery Management Council's (Council) Pacific Salmon Fishery Management Plan (FMP). These new management measures replace existing measures, which have been in place since 2012, with updated salmon abundance modeling methods that utilize the best available science and address concerns that the existing measures were overly conservative.
Comments on this proposed rule must be received on or before March 9, 2018.
You may submit comments, identified by NOAA-NMFS-2017-0139, by any one of the following methods:
•
•
Peggy Mundy at 206-526-4323.
Ocean salmon fisheries off the coasts of Washington, Oregon, and California are managed by the Council according to the FMP. The FMP includes harvest controls that are used to manage salmon stocks sustainably. The FMP also requires that the Council manage fisheries consistent with “consultation standards” for stocks listed as
SRWC has been listed as endangered under the ESA since 1990 (55 FR 46515, November 5, 1990). These fish are impacted by ocean salmon fisheries south of Point Arena, California; thus NMFS has consulted on these impacts under section 7 of the ESA. Since the original consultation, NMFS has periodically reinitiated consultation on the impacts of ocean salmon fisheries on SRWC, most recently in 2010. In its 2010 biological opinion, NMFS determined that ocean salmon fisheries were likely to jeopardize the continued existence of SRWC, but not modify or destroy critical habitat. To address this jeopardy conclusion, NMFS issued and implemented an interim reasonable and prudent alternative (RPA) for fisheries in 2010 and 2011, and required development of an abundance-based framework for limiting impacts on SRWC during this interim period. In 2012, NMFS issued and implemented the current RPA to limit impacts of fisheries on SRWC. The RPA consists of two parts: Part one includes fishing season and size limit restrictions (see Table 1, below); part two specifies an abundance-based harvest control rule. The harvest control rule uses a forecast abundance that is based on the 3-year geometric mean of prior spawning escapement. At 3-year geometric mean abundance greater than 5,000, no impact rate cap is imposed. At 3-year geometric mean abundance between 5,000 and 4,000, the impact rate cap is 20 percent. At 3-year geometric mean abundance between 4,000 and 500, the impact rate cap declines linearly from 20 percent at 4,000 abundance to 10 percent at 500 abundance. At 3-year geometric mean abundance below 500, the impact rate cap is zero percent.
Since implementation of the RPA, two issues with the control rule have arisen from Council discussion. First, the control rule does not allow for any fishery impacts when the most recent 3-year geometric mean of spawning escapement for SRWC falls below 500. This would result in closure of all salmon fisheries south of Point Arena, CA, which the Council felt was unnecessarily restrictive. Second, because the control rule is based on spawning escapement, it is not responsive to more forward looking indicators of stock productivity,
In 2015, the Council created an ad hoc SRWC Workgroup to develop a new harvest control rule that would address the two issues mentioned above; the SRWC workgroup comprised staff from NMFS, California Department of Fish and Wildlife, and the U.S. Fish and Wildlife Service. The SRWC Workgroup's meetings to develop and analyze alternative harvest control rules were open to the public. Additionally, the SRWC Workgroup presented their reports to the Council at regularly scheduled Council meetings in 2016 and 2017. These workgroup and Council meetings were noticed in the
The new harvest control rule recommended by the Council uses juvenile survival (
The new harvest control rule sets the maximum allowable age-three impact rate based on the forecast age-three escapement in the absence of fisheries (E
The SRWC Workgroup compared the alternative harvest control rules with respect to extinction risk to SRWC and how the alternatives would affect fishing opportunity. With respect to extinction risk, the workgroup found little contrast among the alternatives in their simulation analyses. With respect to fishing opportunity, the workgroup did find differences among the alternatives, and concluded that the Council's recommended alternative was intermediate in constraining the fishery compared to the other alternatives under consideration. Fisheries south of Point Arena, where SRWC are contacted, impact several salmon stocks. In the six years that the current harvest control rule has been in place, these fisheries have been constrained by impacts to SRWC as well as California Coastal Chinook (ESA-listed as threatened), Sacramento River fall Chinook (not ESA-listed), and Klamath River fall Chinook (not ESA-listed). However, in recent years, the only closures of the fishery south of Point Arena were due to Sacramento River fall Chinook (2008, 2009). Under the new control rule for SRWC, fishing impacts would be allowed at all non-zero forecast abundance of SRWC; therefore, the new control rule would not, in itself, result in a fishery closure.
The harvest control rule recommended by the Council would address the issues raised by the current harvest control rule. The new harvest control rule would allow for fishing opportunity in the affected area at all levels of abundance of SRWC, and uses juvenile productivity and survival to develop a responsive, forward-looking abundance forecast. The new harvest control rule is expected to accomplish these goals without appreciably increasing the extinction risk to SRWC over the current harvest control rule. The new harvest control rule was developed in a public process with opportunity for the States, Tribes, and the public to provide input. The Council recommended and NMFS proposes to implement this new harvest control rule, together with the size and fishing season limits described above, beginning with the 2018 ocean salmon fishing season that will begin May 1, 2018.
Pursuant to section 304(b)(1)(A) of the MSA, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the Pacific Salmon Fishery Management Plan, the MSA, and other applicable law, subject to further consideration after public comment.
The West Coast Regional Administrator has determined that the actions of this proposed rule will be analyzed in an environmental assessment under the National Environmental Policy Act.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
As required by section 603 of the Regulatory Flexibility Act (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was prepared. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A summary of the analysis follows. A copy of this analysis is available from NMFS.
Provision is made under SBA's regulations for an agency to develop its own industry-specific size standards after consultation with Advocacy and an opportunity for public comment (see 13 CFR 121.903(c)). NMFS has established
NMFS' small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing is $11 million in annual gross receipts. This standard applies to all businesses classified under North American Industry Classification System (NAICS) code 11411 for commercial fishing, including all businesses classified as commercial finfish fishing (NAICS 114111), commercial shellfish fishing (NAICS 114112), and other commercial marine fishing (NAICS 114119) businesses. (50 CFR 200.2; 13 CFR 121.201).
The proposed rule would specify the annual amount of fishery impact that will be allowed on ESA-listed SRWC and, thereby, affect the fishing opportunity available in the area south of Point Arena, CA. This would affect commercial and recreational fisheries. Using the high from the last 3 years, 153 commercial trollers are likely to be impacted by this rule, all of whom would be considered small businesses. The 16-25 commercial vessels who have greater than 75 percent of their annual revenue from Chinook salmon south of Point Arena would be most impacted by this rule. Charter license holders operating south of Point Arena will be directly regulated under the updated harvest control rule. The number of license holders has fluctuated with harvest levels, varying from 70 in 2010 to 93 in 2014. Of these, 20-50 vessels could be considered “active”, landing more than 100 salmon in the year. The proposed rule would impact about 90 charter boat entities, about 50 of whom were “active” in peak years (2013-2014). In summary, this rule will directly impact about 250 entities made up of commercial and charter vessels, with about 75 of these highly active in the fishery and likely to experience the largest impacts, in proportion to their total participation.
The proposed action includes a de minimis provision and would allow impacts at all non-zero forecast abundance. Because of this feature, this proposed action is unlikely to result in fishery closure in the analysis area. The alternative would also provide increased certainty to operators over the status quo, in which the Council has elected lower impact rates than specified by the current control rule. Therefore, this action would be expected to have a positive impact of low magnitude on economic benefits to fishery-dependent communities that would vary year-to-year, but not likely to be significant.
Commercial trollers and charter operators face a variety of constraining stocks. In no year has SWRC been the only constraining stock. Entities are constrained by both ESA-listed and non-listed species; the years that had the most constrained fisheries in the last decade were 2008 and 2009, when fisheries in the analysis area were closed to limit impacts to Sacramento River fall Chinook, not an ESA-listed species, rather than the ESA-listed species SRWC. Thus, while entities will likely continue to face constraints relative to fishing opportunities, because the proposed action is expected to provide low-positive benefits to both commercial and charter operators, NMFS does not expect the rule to impose significant negative economic effects.
This proposed rule would not establish any new reporting or recordkeeping requirements. This proposed rule does not include a collection of information. No Federal rules have been identified that duplicate, overlap, or conflict with this action.
This action is the subject of a consultation under section 7 of the ESA. NMFS is currently preparing a biological opinion on the effects of this action on SRWC, which will be completed prior to publishing a final rule. This action is not expected to have adverse effects on any other species listed under the Endangered Species Act (ESA) or designated critical habitat. This action implements a new harvest control rule to limit impacts on SRWC from the ocean salmon fishery and would be used in the setting of annual management measures for West Coast salmon fisheries. NMFS has current ESA biological opinions that cover fishing under annual regulations adopted under the FMP on all listed salmon species. NMFS reiterates what is required for consistency with these opinions for all ESA-listed salmon and steelhead species in their annual guidance letter to the Council. Some of NMFS past biological opinions have found no jeopardy, and others have found jeopardy, but provided reasonable and prudent alternatives to avoid jeopardy. The annual management measures are designed to be consistent with the biological opinions that found no jeopardy, and with the reasonable and prudent alternatives in the jeopardy biological opinions.
This proposed rule was developed after meaningful collaboration with West Coast tribes, through the Council process. Under the MSA at 16 U.S.C. 1852(b)(5), one of the voting members of the Council must be a representative of an Indian Tribe with Federally recognized fishing rights from the area of the Council's jurisdiction. No tribes with Federally recognized fishing rights are expected to be affected by this rule.
16 U.S.C. 1801
Animal and Plant Health Inspection Service, USDA.
Notice.
We are advising the public that an environmental assessment and finding of no significant impact have been prepared by the Animal and Plant Health Inspection Service relative to the release of the gall mite,
Dr. Colin D. Stewart, Assistant Director, Pests, Pathogens, and Biocontrol Permits, Permitting and Compliance Coordination, PPQ, APHIS, 4700 River Road, Unit 133, Riverdale, MD 20737-1231; (301) 851-2327, email:
The Animal and Plant Health Inspection Service (APHIS) is proposing to issue permits for the release of a mite,
On December 5, 2017, we published in the
We solicited comments on the EA for 30 days ending January 4, 2018. We received one comment by the close of the comment period. The commenter was generally opposed to the release of insects for biological control but did not raise any specific or substantive issues.
In this document, we are advising the public of our finding of no significant impact (FONSI) regarding the release of
The EA and FONSI may be viewed on the
The EA and FONSI have been prepared in accordance with: (1) The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321
Commission on Civil Rights.
Announcement of monthly planning meetings.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA), that a planning meeting of the Rhode Island State Advisory Committee to the Commission will convene by conference call, on Tuesday, March 6, 2018 at 11:00 a.m. (EST). The purpose of the meeting is project planning so that members can begin discussing potential topics for its civil rights project.
Tuesday, March 6, 2018, at 11:00 a.m. (EST).
Barbara de La Viez, at
Interested members of the public may listen to the discussion by calling the following toll-free conference call number: 1-800-310-7032 and conference call ID: 2757439. Please be advised that before placing them into the conference call, the conference call operator may ask callers to provide their names, their organizational affiliations (if any), and email addresses (so that callers may be notified of future meetings). Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number herein.
Persons with hearing impairments may also follow the discussion by first
Members of the public are invited to submit written comments; the comments must be received in the regional office approximately 30 days after each scheduled meeting. Written comments may be mailed to the Eastern Regional Office, U.S. Commission on Civil Rights, 1331 Pennsylvania Avenue, Suite 1150, Washington, DC 20425, or emailed to Evelyn Bohor at
Records and documents discussed during the meeting will be available for public viewing as they become available at
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Applicable February 22, 2018.
Kathryn Wallace (Brazil) at (202) 482-6251, Caitlin Monks (Indonesia) at (202) 482-2670, Sean Carey (Republic of Korea) at (202) 482-3964, Lauren Caserta (Pakistan) at (202) 482-4737, Alex Cipolla at (202) 482-4956 (Taiwan), AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230.
On October 23, 2017, the Department of Commerce (Commerce) initiated antidumping duty (AD) investigations on polyethylene terephthalate resin from Brazil, Indonesia, the Republic of Korea, Pakistan, and Taiwan.
Section 733(b)(1)(A) of the Tariff Act of 1930, as amended (the Act), requires Commerce to issue the preliminary determination in an AD investigation within 140 days after the date on which Commerce initiated the investigation. However, section 733(c)(1)(A) of the Act and 19 CFR 351.205(e) allow Commerce to postpone the preliminary determination at the request of the petitioner.
On January 29, 2018, the petitioners
This notice is issued and published pursuant to section 733(c)(2) of the Act and 19 CFR 351.205(f)(1).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; proposed incidental harassment authorization; request for comments.
NMFS has received a request from Statoil Wind U.S. LLC (Statoil) for authorization to take marine mammals incidental to marine site characterization surveys off the coast of New York as part of the Empire Wind Project in the area of the Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (OCS-A 0512) (Lease Area) and coastal waters where one or more cable route corridors will be established. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an incidental harassment authorization (IHA) to incidentally take marine mammals during the specified activities. NMFS will consider public comments prior to making any final decision on the issuance of the requested MMPA authorizations and agency responses will be summarized in the final notice of our decision.
Comments and information must be received no later than March 26, 2018.
Comments should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service. Physical comments should be sent to 1315 East-West Highway, Silver Spring, MD 20910 and electronic comments should be sent to
Jordan Carduner, Office of Protected Resources, NMFS, (301) 427-8401. Electronic copies of the applications and supporting documents, as well as a list of the references cited in this document, may be obtained by visiting the internet at:
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth.
NMFS has defined “negligible impact” in 50 CFR 216.103 as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.
The MMPA states that the term “take” means to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal.
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
Accordingly, NMFS is preparing an Environmental Assessment (EA) to consider the environmental impacts associated with the issuance of the proposed IHA. We will review all comments submitted in response to this notice prior to concluding our NEPA process or making a final decision on the IHA request.
On November 9, 2017, NMFS received a request from Statoil for an IHA to take marine mammals incidental to marine site characterization surveys off the coast of New York as part of the Empire Wind Project in the area of the Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (OCS-A 0512) and coastal waters where one or more cable route corridors will be established. A revised application was received on January 8, 2018. NMFS deemed that request to be adequate and complete. Statoil's request is for take of 11 marine mammal species by Level B harassment. Neither Statoil nor NMFS expects serious injury or mortality to result from this activity and the activity is expected to last no more than one year, therefore, an IHA is appropriate.
Statoil proposes to conduct marine site characterization surveys including high-resolution geophysical (HRG) and geotechnical surveys in the marine environment of the approximately 79,350-acre Lease Area located approximately 11.5 nautical miles (nm) from Jones Beach, New York (see Figure 1 in the IHA application). Additionally, one or more cable route corridors will be established between the Lease Area and New York, identified as the Cable Route Area (see Figure 1 in the IHA application). See the IHA application for further information. Cable route corridors are anticipated to be 152 meters (m, 500 feet (ft)) wide and may have an overall length of as much as 135 nm. For the purpose of this IHA, the survey area is designated as the Lease Area and cable route corridors that will be established in advance of conducting the HRG survey activity. Water depths across the Lease Area range from approximately 22 to 41 m (72 to 135 ft) while the cable route corridors will extend to shallow water areas near landfall locations. Surveys would occur from approximately March 2018 through July 2018.
The purpose of the marine site characterization surveys are to support the siting, design, and deployment of up to three meteorological data buoy deployment areas and to obtain a baseline assessment of seabed/sub-surface soil conditions in the Lease Area and cable route corridors to support the siting of the proposed wind farm. Underwater sound resulting from Statoil's proposed site characterization surveys have the potential to result in incidental take of marine mammals in the form of behavioral harassment.
Surveys will last for approximately 20 weeks and are anticipated to commence upon issuance of the requested IHA, if appropriate. This schedule is based on 24-hour operations and includes potential down time due to inclement weather. Based on 24-hour operations, the estimated duration of the HRG survey activities would be approximately 142 days (including estimated weather down time).
Statoil's survey activities will occur in the approximately 79,350-acre Lease Area located approximately 11.5 nm from Jones Beach, New York (see Figure 1 in the IHA application). Additionally, one or more cable route corridors would be surveyed between the Lease Area and New York. Cable route corridors are anticipated to be 152 meters (m, 500 ft) wide and may have an overall length of as much as 135 nm.
Statoil's proposed marine site characterization surveys include HRG and geotechnical survey activities. These activities are described below.
The HRG survey activities proposed by Statoil would include the following:
• Depth sounding (multibeam echosounder) to determine site bathymetry and elevations;
• Magnetic intensity measurements for detecting local variations in regional magnetic field from geological strata and potential ferrous objects on and below the bottom;
• Seafloor imaging (sidescan sonar survey) for seabed sediment classification purposes, to identify natural and man-made acoustic targets resting on the bottom as well as any anomalous features;
• Shallow penetration sub-bottom profiler (pinger/chirp) to map the near surface stratigraphy (top 0 to 5 m (0 to 16 ft) of soils below seabed);
• Medium penetration sub-bottom profiler (sparker) to map deeper subsurface stratigraphy as needed (soils down to 75 to 100 m (246 to 328 ft) below seabed); and
• Ultra short baseline positioning system (USBL) for position referencing for the dynamic positioning (DP) vessel.
Table 1 identifies the representative survey equipment that may be used in support of planned HRG survey activities. The make and model of the listed HRG equipment will vary depending on availability but will be finalized as part of the survey preparations and contract negotiations with the survey contractor. The final selection of the survey equipment will be confirmed prior to the start of the HRG survey program. Any survey equipment selected would have characteristics similar to the systems described below, if different.
The HRG survey activities would be supported by a vessel approximately 30 to 55 m (98 to 180 ft) in length and capable of maintaining course and a survey speed of approximately 4 nm per hour (7.4 kilometers per hour (km/hr)) while transiting survey lines. Surveys would be conducted along tracklines spaced 30 m (98 ft) apart, with tie-lines spaced every 500 m (1640 ft). The multichannel array sub-bottom profiler would be operated on 150-m (492-ft) spaced primary lines, while the single channel array sub-bottom profiler would be operated on 30-m (98-ft) line spacing to meet Bureau of Ocean Energy Management (BOEM) requirements as set out in BOEM's
To minimize cost, the duration of survey activities, and the period of potential impact on marine species while surveying, Statoil has proposed that HRG survey operations would be conducted continuously 24 hours per day. Based on 24-hour operations, the estimated duration of the HRG survey activities would be approximately 142 days (including estimated weather down time) including 123 survey days in the Lease Area and 19 survey days in the cable route corridors.
The deployment of HRG survey equipment, including the equipment planned for use during Statoil's planned activity, produces sound in the marine environment that has the potential to result in harassment of marine mammals. Based on the frequency ranges of the potential equipment planned to be used in support of HRG survey activities (Table 1) the ultra-short baseline (USBL) positioning system and the sub-bottom profilers (shallow and medium penetration) operate within functional marine mammal hearing ranges and have the potential to result in harassment of marine mammals.
Statoil's proposed geotechnical survey activities would include the following:
• Vibracores would be taken to determine the geological and geotechnical characteristics of the sediments; and
• Cone Penetration Testing (CPT) would be performed to determine stratigraphy and in-situ conditions of the sediments.
Statoil's proposed geotechnical survey activities would begin no earlier than March 2018 and would last up to 30 days. It is anticipated that geotechnical surveys would entail sampling of vibracores and CPT. A sample would be taken approximately every one kilometer (km) along the selected cable route, alternating between CPTs and vibracores, such that intervals for each vibracore and CPT location would be
In considering whether marine mammal harassment is an expected outcome of exposure to a particular activity or sound source, NMFS considers both the nature of the exposure itself (
Geotechnical survey activities would be conducted from a drill ship equipped with DP thrusters. DP thrusters would be used to position the sampling vessel on station and maintain position at each sampling location during the sampling activity. A ship has not yet been assigned to conduct the survey, but Statoil anticipates that survey activities would likely be conducted from a typical offshore sampling vessel, ranging from 250ft to 350ft (76 m to 107 m). Sound produced through use of DP thrusters is similar to that produced by transiting vessels and DP thrusters are typically operated in a similarly predictable manner. NMFS does not believe acoustic impacts from DP thrusters are likely to result in take of marine mammals in the absence of activity- or location-specific circumstances that may otherwise represent specific concerns for marine mammals (
Vibracoring entails driving a hydraulic or electric pulsating head through a hollow tube into the seafloor to recover a stratified representation of the sediment. The vibracoring process is short in duration and is performed from a dynamic positioning vessel. The vessel would use DP thrusters to maintain the vessel's position while the vibracore sample is taken, as described above. The vibracoring process would always be performed in concert with DP thrusters, and DP thrusters would begin operating prior to the activation of the vibracore to maintain the vessel's position; thus, we expect that any marine mammals in the project area would detect the presence and noise associated with the vessel and the DP thrusters prior to commencement of vibracoring. Any reaction by marine mammals would be expected to be similar to reactions to the concurrent vessel noise, which are expected to be minor and short term. In this case, vibracoring is not planned in any areas of particular biological significance for any marine mammals. Thus while a marine mammal may perceive noise from vibracoring and may respond briefly, we believe the potential for this response to rise to the level of take to be so low as to be discountable, based on the short duration of the activity and the fact that marine mammals would be expected to react to the vessel and DP thrusters before vibracoring commences, potentially through brief avoidance. In addition, the fact that the geographic area is not biologically important for any marine mammal species means that such reactions are not likely to carry any meaningful significance for the animals.
Field studies conducted off the coast of Virginia to determine the underwater noise produced by CPTs found that these activities did not result in underwater noise levels that exceeded current thresholds for Level B harassment of marine mammals (Kalapinski, 2015). Given the small size and energy footprint of CPTs, NMFS believes the likelihood that noise from these activities would exceed the Level B harassment threshold at any appreciable distance is so low as to be discountable. Therefore, geotechnical survey activities, including CPT and vibracores, are not expected to result in harassment of marine mammals and are not analyzed further in this document.
Proposed mitigation, monitoring, and reporting measures are described in detail later in this document (please see “Proposed Mitigation” and “Proposed Monitoring and Reporting”).
Sections 3 and 4 of Statoil's IHA application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history, of the potentially affected species. Additional information regarding population trends and threats may be found in NMFS's Stock Assessment Reports (SAR;
Table 2 lists all species with expected potential for occurrence in the survey area and summarizes information related to the population or stock, including regulatory status under the MMPA and ESA and potential biological removal (PBR), where known. For taxonomy, we follow Committee on Taxonomy (2017). PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS's SARs). While no mortality is anticipated or authorized here, PBR is included here as gross indicators of the status of the species and other threats.
Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS's stock abundance estimates for most species represent the total estimate of
All species that could potentially occur in the proposed survey areas are included in Table 2. However, the temporal and/or spatial occurrence of 26 of the 37 species listed in Table 2 is such that take of these species is not expected to occur, and they are not discussed further beyond the explanation provided here. Take of these species is not anticipated either because they have very low densities in the project area, are known to occur further offshore than the project area, or are considered very unlikely to occur in the project area during the proposed survey due to the species' seasonal occurrence in the area.
Three marine mammal species are listed under the Endangered Species Act (ESA) and are known to be present, at least seasonally, in the survey area and are included in the take request: North Atlantic right whale, fin whale, and sperm whale.
Below is a description of the species that are both common in the survey area southeast of New York and that have the highest likelihood of occurring, at least seasonally, in the survey area and are thus are expected to be potentially be taken by the proposed activities. For the majority of species potentially present in the specific geographic region, NMFS has designated only a single generic stock (
The North Atlantic right whale ranges from the calving grounds in the southeastern United States to feeding grounds in New England waters and into Canadian waters (Waring
The western North Atlantic population demonstrated overall growth of 2.8 percent per year between 1990 to 2010, despite a decline in 1993 and no growth between 1997 and 2000 (Pace
The current abundance estimate for this stock is 458 individuals (Hayes
Humpback whales are found worldwide in all oceans. The humpback whale population within the North Atlantic has been estimated to include approximately 11,570 individuals (Waring
Since January 2016, elevated humpback whale mortalities have occurred along the Atlantic coast from Maine through North Carolina. Partial or full necropsy examinations have been conducted on approximately half of the 62 known cases. A portion of the whales have shown evidence of pre-mortem vessel strike; however, this finding is not consistent across all of the whales examined so more research is needed. NOAA is consulting with researchers that are conducting studies on the
Fin whales are common in waters of the U.S. Atlantic Exclusive Economic Zone (EEZ), principally from Cape Hatteras northward (Waring
Minke whales can be found in temperate, tropical, and high-latitude waters. The Canadian East Coast stock can be found in the area from the western half of the Davis Strait (45° W) to the Gulf of Mexico (Waring
The distribution of the sperm whale in the U.S. EEZ occurs on the continental shelf edge, over the continental slope, and into mid-ocean regions (Waring
White-sided dolphins are found in temperate and sub-polar waters of the North Atlantic, primarily in continental shelf waters to the 100-m depth contour from central West Greenland to North Carolina (Waring
The short-beaked common dolphin is found worldwide in temperate to subtropical seas. In the North Atlantic, short-beaked common dolphins are commonly found over the continental shelf between the 100-m and 2,000-m isobaths and over prominent underwater topography and east to the mid-Atlantic Ridge (Waring
There are two distinct bottlenose dolphin morphotypes: The coastal and offshore forms in the western North Atlantic (Waring
In the Lease Area, only the Gulf of Maine/Bay of Fundy stock may be present. This stock is found in U.S. and Canadian Atlantic waters and is concentrated in the northern Gulf of Maine and southern Bay of Fundy region, generally in waters less than 150 m deep (Waring
The harbor seal is found in all nearshore waters of the North Atlantic and North Pacific Oceans and adjoining seas above about 30° N (Burns, 2009). In the western North Atlantic, they are distributed from the eastern Canadian Arctic and Greenland south to southern New England and New York, and occasionally to the Carolinas (Waring
There are three major populations of gray seals found in the world; eastern Canada (western North Atlantic stock), northwestern Europe and the Baltic Sea. The gray seals that occur in the Project Area belong to the western North Atlantic stock, which ranges from New Jersey to Labrador. Current population trends show that gray seal abundance is likely increasing in the U.S. Atlantic EEZ (Waring
Hearing is the most important sensory modality for marine mammals underwater, and exposure to anthropogenic sound can have deleterious effects. To appropriately assess the potential effects of exposure to sound, it is necessary to understand the frequency ranges marine mammals are able to hear. Current data indicate that not all marine mammal species have equal hearing capabilities (
• Low-frequency cetaceans (mysticetes): generalized hearing is estimated to occur between approximately 7 Hertz (Hz) and 35 kilohertz (kHz);
• Mid-frequency cetaceans (larger toothed whales, beaked whales, and most delphinids): generalized hearing is estimated to occur between approximately 150 Hz and 160 kHz;
• High-frequency cetaceans (porpoises, river dolphins, and members of the genera Kogia and Cephalorhynchus; including two members of the genus Lagenorhynchus, on the basis of recent echolocation data and genetic data): generalized hearing is estimated to occur between approximately 275 Hz and 160 kHz.
• Pinnipeds in water; Phocidae (true seals): generalized hearing is estimated to occur between approximately 50 Hz to 86 kH;
The pinniped functional hearing group was modified from Southall
For more detail concerning these groups and associated frequency ranges, please see NMFS (2016) for a review of available information. Eleven marine mammal species (nine cetacean and two pinniped (both phocid) species) have the reasonable potential to co-occur with the proposed survey activities. Please refer to Table 2. Of the cetacean species that may be present, five are classified as low-frequency cetaceans (
This section includes a summary and discussion of the ways that components of the specified activity may impact marine mammals and their habitat. The “Estimated Take” section later in this document includes a quantitative analysis of the number of individuals that are expected to be taken by this activity. The “Negligible Impact Analysis and Determination” section considers the content of this section, the “Estimated Take” section, and the “Proposed Mitigation” section, to draw conclusions regarding the likely impacts of these activities on the reproductive success or survivorship of individuals and how those impacts on individuals are likely to impact marine mammal species or stocks.
Sound is a physical phenomenon consisting of minute vibrations that travel through a medium, such as air or water, and is generally characterized by several variables. Frequency describes the sound's pitch and is measured in Hz or kHz, while sound level describes the sound's intensity and is measured in decibels (dB). Sound level increases or decreases exponentially with each dB of change. The logarithmic nature of the scale means that each 10-dB increase is a 10-fold increase in acoustic power (and a 20-dB increase is then a 100-fold increase in power). A 10-fold increase in acoustic power does not mean that the sound is perceived as being 10 times louder, however. Sound levels are compared to a reference sound pressure (micro-Pascal) to identify the medium. For air and water, these reference pressures are “re: 20 micro Pascals (µPa)” and “re: 1 µPa,” respectively. Root mean square (RMS) is the quadratic mean sound pressure over the duration of an impulse. RMS is calculated by squaring all of the sound amplitudes, averaging the squares, and then taking the square root of the average (Urick 1975). RMS accounts for both positive and negative values; squaring the pressures makes all values positive so that they may be accounted for in the summation of pressure levels. This measurement is often used in the context of discussing behavioral effects, in part because behavioral effects, which often result from auditory cues, may be better expressed through averaged units rather than by peak pressures.
When sound travels (propagates) from its source, its loudness decreases as the distance traveled by the sound increases. Thus, the loudness of a sound at its source is higher than the loudness of that same sound one km away. Acousticians often refer to the loudness of a sound at its source (typically referenced to one meter from the source) as the source level and the loudness of sound elsewhere as the received level (
As sound travels from a source, its propagation in water is influenced by various physical characteristics, including water temperature, depth, salinity, and surface and bottom properties that cause refraction, reflection, absorption, and scattering of sound waves. Oceans are not homogeneous and the contribution of each of these individual factors is extremely complex and interrelated. The physical characteristics that determine the sound's speed through the water will change with depth, season, geographic location, and with time of day (as a result, in actual active sonar operations, crews will measure oceanic conditions, such as sea water temperature and depth, to calibrate models that determine the path the sonar signal will take as it travels through the ocean and how strong the sound signal will be at a given range along a particular transmission path). As sound travels through the ocean, the intensity associated with the wavefront diminishes, or attenuates. This decrease in intensity is referred to as propagation loss, also commonly called transmission loss.
Geophysical surveys may temporarily impact marine mammals in the area due to elevated in-water sound levels. Marine mammals are continually exposed to many sources of sound. Naturally occurring sounds such as lightning, rain, sub-sea earthquakes, and biological sounds (
When considering the influence of various kinds of sound on the marine environment, it is necessary to understand that different kinds of marine life are sensitive to different frequencies of sound. Current data indicate that not all marine mammal species have equal hearing capabilities (Richardson
Animals are less sensitive to sounds at the outer edges of their functional hearing range and are more sensitive to a range of frequencies within the middle of their functional hearing range. For mid-frequency cetaceans, functional hearing estimates occur between approximately 150 Hz and 160 kHz with best hearing estimated to occur between approximately 10 to less than 100 kHz (Finneran
Marine mammals may experience temporary or permanent hearing impairment when exposed to loud sounds. Hearing impairment is classified by temporary threshold shift (TTS) and permanent threshold shift (PTS). PTS is considered auditory injury (Southall
TTS is the mildest form of hearing impairment that can occur during exposure to a loud sound (Kryter 1985). While experiencing TTS, the hearing threshold rises and a sound must be stronger in order to be heard. At least in terrestrial mammals, TTS can last from minutes or hours to (in cases of strong TTS) days, can be limited to a particular frequency range, and can occur to varying degrees (
Marine mammal hearing plays a critical role in communication with conspecifics and in interpretation of environmental cues for purposes such as predator avoidance and prey capture. Depending on the degree (elevation of threshold in dB), duration (
Currently, TTS data only exist for four species of cetaceans (bottlenose dolphin, beluga whale (
Scientific literature highlights the inherent complexity of predicting TTS onset in marine mammals, as well as the importance of considering exposure duration when assessing potential impacts (Mooney
Animals in the Lease Area during the HRG survey are unlikely to incur TTS hearing impairment due to the characteristics of the sound sources, which include low source levels (208 to 221 dB re 1 µPa-m) and generally very short pulses and duration of the sound. Even for high-frequency cetacean species (
Masking is the obscuring of sounds of interest to an animal by other sounds, typically at similar frequencies. Marine mammals are highly dependent on sound, and their ability to recognize sound signals amid other sound is important in communication and detection of both predators and prey (Tyack 2000). Background ambient sound may interfere with or mask the ability of an animal to detect a sound signal even when that signal is above its absolute hearing threshold. Even in the absence of anthropogenic sound, the marine environment is often loud. Natural ambient sound includes contributions from wind, waves, precipitation, other animals, and (at frequencies above 30 kHz) thermal sound resulting from molecular agitation (Richardson
Background sound may also include anthropogenic sound, and masking of natural sounds can result when human activities produce high levels of background sound. Conversely, if the background level of underwater sound is high (
Although masking is a phenomenon which may occur naturally, the introduction of loud anthropogenic sounds into the marine environment at frequencies important to marine mammals increases the severity and frequency of occurrence of masking. For example, if a baleen whale is exposed to continuous low-frequency sound from an industrial source, this would reduce the size of the area around that whale within which it can hear the calls of another whale. The components of background noise that are similar in frequency to the signal in question primarily determine the degree of masking of that signal. In general, little is known about the degree to which marine mammals rely upon detection of sounds from conspecifics, predators, prey, or other natural sources. In the absence of specific information about the importance of detecting these natural sounds, it is not possible to predict the impact of masking on marine mammals (Richardson
Marine mammal communications would not likely be masked appreciably by the sub-bottom profiler signals given the directionality of the signal and the brief period when an individual mammal is likely to be within its beam.
Classic stress responses begin when an animal's central nervous system perceives a potential threat to its homeostasis. That perception triggers stress responses regardless of whether a stimulus actually threatens the animal; the mere perception of a threat is sufficient to trigger a stress response (Moberg 2000; Seyle 1950). Once an animal's central nervous system perceives a threat, it mounts a biological response or defense that consists of a combination of the four general biological defense responses: behavioral responses, autonomic nervous system responses, neuroendocrine responses, or immune responses.
In the case of many stressors, an animal's first and sometimes most economical (in terms of biotic costs) response is behavioral avoidance of the potential stressor or avoidance of continued exposure to a stressor. An
An animal's third line of defense to stressors involves its neuroendocrine systems; the system that has received the most study has been the hypothalamus-pituitary-adrenal system (also known as the HPA axis in mammals). Unlike stress responses associated with the autonomic nervous system, virtually all neuro-endocrine functions that are affected by stress—including immune competence, reproduction, metabolism, and behavior—are regulated by pituitary hormones. Stress-induced changes in the secretion of pituitary hormones have been implicated in failed reproduction (Moberg 1987; Rivier 1995), altered metabolism (Elasser
The primary distinction between stress (which is adaptive and does not normally place an animal at risk) and distress is the biotic cost of the response. During a stress response, an animal uses glycogen stores that can be quickly replenished once the stress is alleviated. In such circumstances, the cost of the stress response would not pose a risk to the animal's welfare. However, when an animal does not have sufficient energy reserves to satisfy the energetic costs of a stress response, energy resources must be diverted from other biotic function, which impairs those functions that experience the diversion. For example, when mounting a stress response diverts energy away from growth in young animals, those animals may experience stunted growth. When mounting a stress response diverts energy from a fetus, an animal's reproductive success and its fitness will suffer. In these cases, the animals will have entered a pre-pathological or pathological state which is called “distress” (Seyle 1950) or “allostatic loading” (McEwen and Wingfield 2003). This pathological state will last until the animal replenishes its biotic reserves sufficient to restore normal function. Note that these examples involved a long-term (days or weeks) stress response exposure to stimuli.
Relationships between these physiological mechanisms, animal behavior, and the costs of stress responses have also been documented fairly well through controlled experiments; because this physiology exists in every vertebrate that has been studied, it is not surprising that stress responses and their costs have been documented in both laboratory and free-living animals (for examples see, Holberton
Studies of other marine animals and terrestrial animals would also lead us to expect some marine mammals to experience physiological stress responses and, perhaps, physiological responses that would be classified as “distress” upon exposure to high frequency, mid-frequency and low-frequency sounds. For example, Jansen (1998) reported on the relationship between acoustic exposures and physiological responses that are indicative of stress responses in humans (for example, elevated respiration and increased heart rates). Jones (1998) reported on reductions in human performance when faced with acute, repetitive exposures to acoustic disturbance. Trimper
Hearing is one of the primary senses marine mammals use to gather information about their environment and to communicate with conspecifics. Although empirical information on the relationship between sensory impairment (TTS, PTS, and acoustic masking) on marine mammals remains limited, it seems reasonable to assume that reducing an animal's ability to gather information about its environment and to communicate with other members of its species would be stressful for animals that use hearing as their primary sensory mechanism. Therefore, we assume that acoustic exposures sufficient to trigger onset PTS or TTS would be accompanied by physiological stress responses because terrestrial animals exhibit those responses under similar conditions (NRC 2003). More importantly, marine mammals might experience stress responses at received levels lower than those necessary to trigger onset TTS. Based on empirical studies of the time required to recover from stress responses (Moberg 2000), we also assume that stress responses are likely to persist beyond the time interval required for animals to recover from TTS and might result in pathological and pre-pathological states that would be as significant as behavioral responses to TTS.
In general, there are few data on the potential for strong, anthropogenic underwater sounds to cause non-auditory physical effects in marine mammals. The available data do not allow identification of a specific exposure level above which non-auditory effects can be expected (Southall
Behavioral disturbance may include a variety of effects, including subtle changes in behavior (
Habituation can occur when an animal's response to a stimulus wanes with repeated exposure, usually in the absence of unpleasant associated events (Wartzok
Available studies show wide variation in response to underwater sound; therefore, it is difficult to predict specifically how any given sound in a particular instance might affect marine mammals perceiving the signal. If a marine mammal does react briefly to an underwater sound by changing its behavior or moving a small distance, the impacts of the change are unlikely to be significant to the individual, let alone the stock or population. However, if a sound source displaces marine mammals from an important feeding or breeding area for a prolonged period, impacts on individuals and populations could be significant (
Changes in dive behavior can vary widely and may consist of increased or decreased dive times and surface intervals as well as changes in the rates of ascent and descent during a dive (
Disruption of feeding behavior can be difficult to correlate with anthropogenic sound exposure, so it is usually inferred by observed displacement from known foraging areas, the appearance of secondary indicators (
Variations in respiration naturally vary with different behaviors and alterations to breathing rate as a function of acoustic exposure can be expected to co-occur with other behavioral reactions, such as a flight response or an alteration in diving. However, respiration rates in and of themselves may be representative of annoyance or an acute stress response. Various studies have shown that respiration rates may either be unaffected or could increase, depending on the species and signal characteristics, again highlighting the importance in understanding species differences in the tolerance of underwater noise when determining the potential for impacts resulting from anthropogenic sound exposure (
Marine mammals vocalize for different purposes and across multiple modes, such as whistling, echolocation click production, calling, and singing. Changes in vocalization behavior in response to anthropogenic noise can occur for any of these modes and may result from a need to compete with an increase in background noise or may reflect increased vigilance or a startle response. For example, in the presence of potentially masking signals, humpback whales and killer whales have been observed to increase the length of their songs (Miller
Avoidance is the displacement of an individual from an area or migration path as a result of the presence of a sound or other stressors, and is one of the most obvious manifestations of disturbance in marine mammals (Richardson
A flight response is a dramatic change in normal movement to a directed and rapid movement away from the perceived location of a sound source. The flight response differs from other avoidance responses in the intensity of
Behavioral disturbance can also impact marine mammals in more subtle ways. Increased vigilance may result in costs related to diversion of focus and attention (
Many animals perform vital functions, such as feeding, resting, traveling, and socializing, on a diel cycle (24-hour cycle). Disruption of such functions resulting from reactions to stressors such as sound exposure are more likely to be significant if they last more than one diel cycle or recur on subsequent days (Southall
Marine mammals are likely to avoid the HRG survey activity, especially the naturally shy harbor porpoise, while the harbor seals might be attracted to them out of curiosity. However, because the sub-bottom profilers and other HRG survey equipment operate from a moving vessel, and the maximum radius to the Level B harassment threshold is relatively small, the area and time that this equipment would be affecting a given location is very small. Further, once an area has been surveyed, it is not likely that it will be surveyed again, thereby reducing the likelihood of repeated HRG-related impacts within the survey area.
We have also considered the potential for severe behavioral responses such as stranding and associated indirect injury or mortality from Statoil's use of HRG survey equipment, on the basis of a 2008 mass stranding of approximately 100 melon-headed whales in a Madagascar lagoon system. An investigation of the event indicated that use of a high-frequency mapping system (12-kHz multibeam echosounder) was the most plausible and likely initial behavioral trigger of the event, while providing the caveat that there is no unequivocal and easily identifiable single cause (Southall
Numerous studies have shown that underwater sounds from industrial activities are often readily detectable by marine mammals in the water at distances of many km. However, other studies have shown that marine mammals at distances more than a few km away often show no apparent response to industrial activities of various types (Miller
Ship strikes of marine mammals can cause major wounds, which may lead to the death of the animal. An animal at the surface could be struck directly by a vessel, a surfacing animal could hit the bottom of a vessel, or a vessel's propeller could injure an animal just below the surface. The severity of injuries typically depends on the size and speed of the vessel (Knowlton and Kraus 2001; Laist
The most vulnerable marine mammals are those that spend extended periods of time at the surface in order to restore oxygen levels within their tissues after deep dives (
An examination of all known ship strikes from all shipping sources (civilian and military) indicates vessel speed is a principal factor in whether a vessel strike results in death (Knowlton and Kraus 2001; Laist
There are no feeding areas, rookeries or mating grounds known to be biologically important to marine mammals within the proposed project area. The area is part of an important migratory area for North Atlantic right whales; this important migratory area is comprised of the waters of the continental shelf offshore the East Coast of the U.S. and extends from Florida through Massachusetts. Given the limited spatial extent of the proposed survey and the large spatial extent of the migratory area, we do not expect North Atlantic right whale migration to be negatively impacted by the proposed survey. There is no designated critical habitat for any ESA-listed marine mammals in the proposed survey area. NMFS' regulations at 50 CFR part 224.105 designated the nearshore waters of the Mid-Atlantic Bight as the Mid-Atlantic U.S. Seasonal Management Area (SMA) for right whales in 2008. Mandatory vessel speed restrictions (less than 10 kn) are in place in that SMA from November 1 through April 30 to reduce the threat of collisions between ships and right whales around their migratory route and calving grounds.
Bottom disturbance associated with the HRG survey activities may include grab sampling to validate the seabed classification obtained from the multibeam echosounder/sidescan sonar data. This will typically be accomplished using a Mini-Harmon Grab with 0.1 m
Because of the temporary nature of the disturbance, the availability of similar habitat and resources (
This section provides an estimate of the number of incidental takes proposed for authorization through this IHA, which will inform both NMFS' consideration of “small numbers” and the negligible impact determination.
Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
Authorized takes would be by Level B harassment, as use of the HRG equipment has the potential to result in disruption of behavioral patterns for individual marine mammals. NMFS has determined take by Level A harassment is not an expected outcome of the proposed activity and thus we do not propose to authorize the take of any marine mammals by Level A harassment. This is discussed in greater detail below. As described previously, no mortality or serious injury is anticipated or proposed to be authorized for this activity. Below we describe how the take is estimated for this project.
Described in the most basic way, we estimate take by considering: (1) Acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within
NMFS uses acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur PTS of some degree (equated to Level A harassment).
These thresholds were developed by compiling and synthesizing the best available science and soliciting input multiple times from both the public and peer reviewers to inform the final product, and are provided in Table 3 below. The references, analysis, and methodology used in the development of the thresholds are described in NMFS 2016 Technical Guidance, which may be accessed at:
Here, we describe operational and environmental parameters of the activity that will feed into estimating the area ensonified above the acoustic thresholds.
The proposed survey would entail the use of HRG survey equipment. The distance to the isopleth corresponding to the threshold for Level B harassment was calculated for all HRG survey equipment with the potential to result in harassment of marine mammals (
Predicted distances to Level A harassment isopleths, which vary based on marine mammal functional hearing groups (Table 5), were also calculated by Statoil. The updated acoustic thresholds for impulsive sounds (such as HRG survey equipment) contained in the Technical Guidance (NMFS, 2016) were presented as dual metric acoustic thresholds using both SEL
In this case, due to the very small estimated distances to Level A harassment thresholds for all marine mammal functional hearing groups, based on both SEL
We note that because of some of the assumptions included in the methods used, isopleths produced may be overestimates to some degree. The acoustic sources proposed for use in Statoil's survey do not radiate sound equally in all directions but were designed instead to focus acoustic energy directly toward the sea floor. Therefore, the acoustic energy produced by these sources is not received equally in all directions around the source but is instead concentrated along some narrower plane depending on the beamwidth of the source. However, the calculated distances to isopleths do not account for this directionality of the sound source and are therefore conservative. For mobile sources, such as the proposed survey, the User Spreadsheet predicts the closest distance at which a stationary animal would not incur PTS if the sound source traveled by the animal in a straight line at a constant speed.
In this section we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculations.
The best available scientific information was considered in conducting marine mammal exposure estimates (the basis for estimating take). For cetacean species, densities calculated by Roberts
For the purposes of the take calculations, density data from Roberts
Systematic, offshore, at-sea survey data for pinnipeds are more limited than those for cetaceans. The best available information concerning pinniped densities in the proposed survey area is the U.S. Navy's Navy Operating Area (OPAREA) Density Estimates (NODEs) (DoN, 2007). These density models utilized vessel-based and aerial survey data collected by NMFS from 1998-2005 during broad-scale abundance studies. Modeling methodology is detailed in DoN (2007). The NODEs density estimates do not include density data for gray seals. For the purposes of this IHA, gray seal density in the project area was assumed to be the same as harbor seal density. Mid-Atlantic OPAREA Density Estimates (DoN, 2007) as reported for the spring and summer season were used to estimate pinniped densities for the purposes of the take calculations.
Here we describe how the information provided above is brought together to produce a quantitative take estimate.
In order to estimate the number of marine mammals predicted to be exposed to sound levels that would result in harassment, radial distances to predicted isopleths corresponding to harassment thresholds are calculated, as described above. Those distances are then used to calculate the area(s) around the HRG survey equipment predicted to be ensonified to sound levels that exceed harassment thresholds. The area estimated to be ensonified to relevant thresholds in a single day of the survey is then calculated, based on areas predicted to be ensonified around the HRG survey equipment and estimated trackline distance traveled per day by the survey vessel. The estimated daily vessel track line distance was determined using the estimated average speed of the vessel (4 kn) multiplied by 24 (to account for the 24 hour operational period of the survey). Using the maximum distance to the Level B harassment threshold of 1,166 m (Table 4) and estimated daily track line distance of approximately 177.8 km (110.5 mi), it was estimated that an area of 418.9 km
The number of marine mammals expected to be incidentally taken per day is then calculated by estimating the number of each species predicted to occur within the daily ensonified area, using estimated marine mammal densities as described above. In this case, estimated marine mammal density values varied between the Lease Area and cable route corridor survey areas, therefore the estimated number of each species taken per survey day was calculated separately for the Lease Area survey area and cable route corridor survey area. Estimated numbers of each species taken per day are then multiplied by the number of survey days to generate an estimate of the total number of each species expected to be taken over the duration of the survey. In this case, as the estimated number of each species taken per day varied depending on survey area (Lease Area and cable route corridor), the number of each species taken per day in each respective survey area was multiplied by the number of survey days anticipated in each survey area (
As described above, due to the very small estimated distances to Level A harassment thresholds (based on both SEL
In order to issue an IHA under Section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (latter not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully consider two primary factors:
(1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned) the likelihood of effective implementation (probability implemented as planned), and;
(2) The practicability of the measures for applicant implementation, which may consider such things as relative cost and impact on operations.
With NMFS' input during the application process, and as per the BOEM Lease, Statoil is proposing the following mitigation measures during the proposed marine site characterization surveys.
As required in the BOEM lease, marine mammal exclusion zones (EZ) will be established around the HRG survey equipment and monitored by protected species observers (PSO) during HRG surveys as follows:
• 50 m EZ for pinnipeds and delphinids (except harbor porpoises);
• 100 m EZ for large whales including sperm whales and mysticetes (except North Atlantic right whales) and harbor porpoises;
• 500 m EZ for North Atlantic right whales.
In addition, PSOs will visually monitor to the extent of the Level B zone (1,166 m), or as far as possible if the extent of the Level B zone is not fully visible.
Statoil intends to submit a sound source verification report showing sound levels associated with HRG survey equipment. If results of the sound source verification report indicate that actual distances to isopleths corresponding to harassment thresholds are larger than the EZs and/or Level B monitoring zones, NMFS may modify the zone(s) accordingly. If results of source verification indicate that actual distances to isopleths corresponding to harassment thresholds are less than the EZs and/or Level B monitoring zones, Statoil has indicated an intention to request modification of the zone(s), as appropriate. NMFS would review any such request and may modify the zone(s) depending on review of the report on source verification. Any such modification may be superseded by EZs required by BOEM.
As per the BOEM lease, visual and acoustic monitoring of the established exclusion and monitoring zones will be performed by qualified and NMFS-approved PSOs. It will be the responsibility of the Lead PSO on duty to communicate the presence of marine mammals as well as to communicate and enforce the action(s) that are necessary to ensure mitigation and monitoring requirements are implemented as appropriate. PSOs will be equipped with binoculars and have the ability to estimate distances to marine mammals located in proximity to the vessel and/or exclusion zone using range finders. Reticulated binoculars will also be available to PSOs for use as appropriate based on conditions and visibility to support the siting and monitoring of marine species. Digital single-lens reflex camera equipment will be used to record sightings and verify species identification. During surveys conducted at night, night-vision equipment and infrared technology will be available for PSO use, and passive acoustic monitoring (PAM; described below) will be used.
For all HRG survey activities, Statoil would implement a 30-minute pre-clearance period of the relevant EZs prior to the initiation of HRG survey equipment (as required by BOEM). During this period the EZs would be monitored by PSOs, using the appropriate visual technology for a 30-minute period. HRG survey equipment would not be initiated if marine mammals are observed within or approaching the relevant EZs during this pre-clearance period. If a marine mammal were observed within or approaching the relevant EZ during the pre-clearance period, ramp-up would not begin until the animal(s) has been observed exiting the EZ or until an additional time period has elapsed with no further sighting of the animal (15 minutes for small delphinoid cetaceans and pinnipeds and 30 minutes for all other species). This pre-clearance requirement would include small delphinoids that approach the vessel (
As required in the BOEM lease, PAM would be required during HRG surveys conducted at night. In addition, PAM systems would be employed during daylight hours as needed to support system calibration and PSO and PAM team coordination, as well as in support of efforts to evaluate the effectiveness of the various mitigation techniques (
As required in the BOEM lease, where technically feasible, a ramp-up procedure would be used for HRG survey equipment capable of adjusting energy levels at the start or re-start of HRG survey activities. The ramp-up procedure would be used at the beginning of HRG survey activities in order to provide additional protection to marine mammals near the survey area by allowing them to vacate the area prior to the commencement of survey equipment use at full energy. A ramp-up would begin with the power of the smallest acoustic equipment at its lowest practical power output appropriate for the survey. When technically feasible the power would then be gradually turned up and other acoustic sources added in way such that the source level would increase gradually.
As required in the BOEM lease, if a marine mammal is observed within or approaching the relevant EZ (as described above) an immediate shutdown of the survey equipment is required. Subsequent restart of the survey equipment may only occur after the animal(s) has either been observed exiting the relevant EZ or until an additional time period has elapsed with no further sighting of the animal (15 minutes for delphinoid cetaceans and pinnipeds and 30 minutes for all other species). HRG survey equipment may be allowed to continue operating if small delphinids voluntarily approach the vessel (
As required in the BOEM lease, if the HRG equipment shuts down for reasons other than mitigation (
Statoil will ensure that vessel operators and crew maintain a vigilant watch for cetaceans and pinnipeds by slowing down or stopping the vessel to avoid striking marine mammals. Survey vessel crew members responsible for navigation duties will receive site-specific training on marine mammal sighting/reporting and vessel strike avoidance measures. Vessel strike avoidance measures will include, but are not limited to, the following, as required in the BOEM lease, except under circumstances when complying with these requirements would put the safety of the vessel or crew at risk:
• All vessel operators and crew will maintain vigilant watch for cetaceans and pinnipeds, and slow down or stop their vessel to avoid striking these protected species;
• All vessel operators will comply with 10 knot (18.5 km/hr) or less speed restrictions in any SMA per NOAA guidance. This applies to all vessels operating at any time of year;
• All vessel operators will reduce vessel speed to 10 knots (18.5 km/hr) or less when any large whale, any mother/calf pairs, pods, or large assemblages of non-delphinoid cetaceans are observed near (within 100 m [330 ft]) an underway vessel;
• All survey vessels will maintain a separation distance of 500 m (1640 ft) or greater from any sighted North Atlantic right whale;
• If underway, vessels must steer a course away from any sighted North Atlantic right whale at 10 knots (18.5 km/hr) or less until the 500 m (1640 ft) minimum separation distance has been established. If a North Atlantic right whale is sighted in a vessel's path, or within 100 m (330 ft) to an underway vessel, the underway vessel must reduce speed and shift the engine to neutral. Engines will not be engaged until the North Atlantic right whale has moved outside of the vessel's path and beyond 100 m. If stationary, the vessel must not engage engines until the North Atlantic right whale has moved beyond 100 m;
• All vessels will maintain a separation distance of 100 m (330 ft) or greater from any sighted non-delphinoid cetacean. If sighted, the vessel underway must reduce speed and shift the engine to neutral, and must not engage the engines until the non-delphinoid cetacean has moved outside of the vessel's path and beyond 100 m. If a survey vessel is stationary, the vessel will not engage engines until the non-delphinoid cetacean has moved out of the vessel's path and beyond 100 m;
• All vessels will maintain a separation distance of 50 m (164 ft) or greater from any sighted delphinoid cetacean. Any vessel underway remain parallel to a sighted delphinoid cetacean's course whenever possible, and avoid excessive speed or abrupt changes in direction. Any vessel underway reduces vessel speed to 10 knots (18.5 km/hr) or less when pods (including mother/calf pairs) or large assemblages of delphinoid cetaceans are observed. Vessels may not adjust course and speed until the delphinoid cetaceans have moved beyond 50 m and/or the abeam of the underway vessel;
• All vessels underway will not divert or alter course in order to approach any whale, delphinoid cetacean, or pinniped. Any vessel underway will avoid excessive speed or abrupt changes in direction to avoid injury to the sighted cetacean or pinniped; and
• All vessels will maintain a separation distance of 50 m (164 ft) or greater from any sighted pinniped.
The training program would be provided to NMFS for review and approval prior to the start of surveys. Confirmation of the training and understanding of the requirements will be documented on a training course log sheet. Signing the log sheet will certify that the crew members understand and will comply with the necessary requirements throughout the survey event.
Between watch shifts, members of the monitoring team will consult NMFS' North Atlantic right whale reporting systems for the presence of North Atlantic right whales throughout survey operations. However, the proposed survey activities will occur outside of the SMA located off the coasts of New Jersey and New York. Members of the monitoring team will monitor the NMFS North Atlantic right whale reporting systems for the establishment of a Dynamic Management Area (DMA). If NMFS should establish a DMA in the survey area, within 24 hours of the establishment of the DMA Statoil will work with NMFS to shut down and/or alter the survey activities to avoid the DMA.
The proposed mitigation measures are designed to avoid the already low potential for injury in addition to some Level B harassment, and to minimize the potential for vessel strikes. There are no known marine mammal feeding areas, rookeries, or mating grounds in the survey area that would otherwise potentially warrant increased mitigation measures for marine mammals or their habitat (or both). The proposed survey would occur in an area that has been identified as a biologically important area for migration for North Atlantic right whales. However, given the small spatial extent of the survey area relative to the substantially larger spatial extent of the right whale migratory area, the survey is not expected to appreciably reduce migratory habitat nor to negatively impact the migration of North Atlantic right whales, thus mitigation to address the proposed survey's occurrence in North Atlantic right whale migratory habitat is not warranted. Further, we believe the proposed mitigation measures are practicable for the applicant to implement.
Based on our evaluation of the applicant's proposed measures, NMFS has preliminarily determined that the proposed mitigation measures provide the means of effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an IHA for an activity, Section 101(a)(5)(D) of the MMPA states that NMFS must set forth, requirements pertaining to the monitoring and reporting of such taking. The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring.
Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following:
• Occurrence of marine mammal species or stocks in the area in which take is anticipated (
• Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (
• Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors;
• How anticipated responses to stressors impact either: (1) Long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks;
• Effects on marine mammal habitat (
• Mitigation and monitoring effectiveness.
As described above, visual monitoring of the EZs and monitoring zone will be performed by qualified and NMFS-approved PSOs. Observer qualifications will include direct field experience on a marine mammal observation vessel and/or aerial surveys and completion of a PSO and/or PAM training program, as appropriate. As proposed by the applicant and required by BOEM, an observer team comprising a minimum of four NMFS-approved PSOs and a minimum of two certified PAM operator(s), operating in shifts, will be employed by Statoil during the proposed surveys. PSOs and PAM operators will work in shifts such that no one monitor will work more than 4 consecutive hours without a 2 hour break or longer than 12 hours during any 24-hour period. During daylight hours the PSOs will rotate in shifts of one on and three off, while during nighttime operations PSOs will work in pairs (per BOEM's requirements?). The PAM operators will also be on call as necessary during daytime operations should visual observations become impaired. Each PSO will monitor 360 degrees of the field of vision. Statoil will provide resumes of all proposed PSOs and PAM operators (including alternates) to NMFS for review and approval at least 45 days prior to the start of survey operations.
Also as described above, PSOs will be equipped with binoculars and have the ability to estimate distances to marine mammals located in proximity to the vessel and/or exclusion zone using range finders. Reticulated binoculars will also be available to PSOs for use as appropriate based on conditions and visibility to support the siting and monitoring of marine species. Digital single-lens reflex camera equipment will be used to record sightings and verify species identification. During night operations, PAM, night-vision equipment, and infrared technology will be used to increase the ability to detect marine mammals. Position data will be recorded using hand-held or vessel global positioning system (GPS) units for each sighting. Observations will take place from the highest available vantage point on the survey vessel. General 360-degree scanning will occur during the monitoring periods, and target scanning by the PSO will occur when alerted of a marine mammal presence.
Data on all PAM/PSO observations will be recorded based on standard PSO collection requirements. This will include dates and locations of survey operations; time of observation, location and weather; details of the sightings (
Statoil will provide the following reports as necessary during survey activities:
• The Applicant will contact NMFS within 24 hours of the commencement of survey activities and again within 24 hours of the completion of the activity.
•
• Time, date, and location (latitude/longitude) of the incident;
• Name and type of vessel involved;
• Vessel's speed during and leading up to the incident;
• Description of the incident;
• Status of all sound source use in the 24 hours preceding the incident;
• Water depth;
• Environmental conditions (
• Description of all marine mammal observations in the 24 hours preceding the incident;
• Species identification or description of the animal(s) involved;
• Fate of the animal(s); and
• Photographs or video footage of the animal(s) (if equipment is available).
Activities would not resume until NMFS is able to review the circumstances of the event. NMFS would work with Statoil to minimize reoccurrence of such an event in the future. Statoil would not resume activities until notified by NMFS.
In the event that Statoil discovers an injured or dead marine mammal and determines that the cause of the injury or death is unknown and the death is relatively recent (
In the event that Statoil discovers an injured or dead marine mammal and determines that the injury or death is not associated with or related to the activities authorized in the IHA (
• Within 90 days after completion of survey activities, a final technical report will be provided to NMFS that fully documents the methods and monitoring protocols, summarizes the data recorded during monitoring, estimates the number of marine mammals estimated to have been taken during survey activities, and provides an interpretation of the results and effectiveness of all mitigation and monitoring. Any recommendations made by NMFS must be addressed in the final report prior to acceptance by NMFS.
NMFS has defined negligible impact as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival. A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
To avoid repetition, our analysis applies to all the species listed in Table 9, given that NMFS expects the anticipated effects of the proposed survey to be similar in nature.
NMFS does not anticipate that serious injury or mortality would occur as a result of Statoil's proposed survey, even in the absence of proposed mitigation. Thus the proposed authorization does not authorize any serious injury or mortality. As discussed in the
We expect that all potential takes would be in the form of short-term Level B behavioral harassment in the form of temporary avoidance of the area or decreased foraging (if such activity were occurring), reactions that are considered to be of low severity and with no lasting biological consequences (
Potential impacts to marine mammal habitat were discussed previously in this document (see
The proposed mitigation measures are expected to reduce the number and/or severity of takes by (1) giving animals the opportunity to move away from the sound source before HRG survey equipment reaches full energy; (2) preventing animals from being exposed to sound levels that may otherwise result in injury. Additional vessel strike avoidance requirements will further mitigate potential impacts to marine mammals during vessel transit to and within the survey area.
NMFS concludes that exposures to marine mammal species and stocks due to Statoil's proposed survey would result in only short-term (temporary and short in duration) effects to individuals exposed. Marine mammals may temporarily avoid the immediate area, but are not expected to permanently abandon the area. Major shifts in habitat use, distribution, or foraging success are not expected. NMFS does not anticipate the proposed take estimates to impact annual rates of recruitment or survival.
In summary and as described above, the following factors primarily support our preliminary determination that the impacts resulting from this activity are not expected to adversely affect the species or stock through effects on annual rates of recruitment or survival:
• No mortality, serious injury, or Level A harassment is anticipated or authorized;
• The anticipated impacts of the proposed activity on marine mammals would be temporary behavioral changes due to avoidance of the area around the survey vessel;
• The availability of alternate areas of similar habitat value for marine mammals to temporarily vacate the survey area during the proposed survey to avoid exposure to sounds from the activity;
• The proposed project area does not contain areas of significance for feeding, mating or calving;
• Effects on species that serve as prey species for marine mammals from the proposed survey are not expected;
• The proposed mitigation measures, including visual and acoustic monitoring and shutdowns, are expected to minimize potential impacts to marine mammals.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS preliminarily finds that the total marine mammal take from the proposed activity will have a negligible impact on all affected marine mammal species or stocks.
As noted above, only small numbers of incidental take may be authorized under Section 101(a)(5)(D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities.
The numbers of marine mammals that we propose for authorization to be taken, for all species and stocks, would be considered small relative to the relevant stocks or populations (less than 6 percent of each species and stock). See Table 9. Based on the analysis contained herein of the proposed activity (including the proposed mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS preliminarily finds that small numbers of marine mammals will be taken relative to the population size of the affected species or stocks.
There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
Section 7(a)(2) of the Endangered Species Act of 1973 (16 U.S.C. 1531
The NMFS Office of Protected Resources is proposing to authorize the incidental take of three species of marine mammals which are listed under the ESA: The North Atlantic right, fin, and sperm whale. BOEM consulted with NMFS GARFO under section 7 of the ESA on commercial wind lease issuance and site assessment activities on the Atlantic Outer Continental Shelf in Massachusetts, Rhode Island, New York and New Jersey Wind Energy Areas. NMFS GARFO issued a Biological Opinion concluding that these activities may adversely affect but are not likely to jeopardize the continued existence of the North Atlantic right, fin, and sperm whale. The Biological Opinion can be found online at:
As a result of these preliminary determinations, NMFS proposes to issue an IHA to Statoil for conducting marine site assessment surveys offshore New York and along potential submarine cable routes from the date of issuance for a period of one year, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. This section contains a draft of the IHA itself. The wording contained in this section is proposed for inclusion in the IHA (if issued).
1. This IHA is valid for a period of one year from the date of issuance.
2. This IHA is valid only for marine site characterization survey activity, as specified in the IHA application, in the Atlantic Ocean.
3. General Conditions.
(a) A copy of this IHA must be in the possession of Statoil Wind U.S. LLC (Statoil), the vessel operator and other relevant personnel, the lead PSO, and any other relevant designees of Statoil operating under the authority of this IHA.
(b) The species authorized for taking are listed in Table 9. The taking, by Level B harassment only, is limited to the species and numbers listed in Table 9. Any taking of species not listed in Table 9, or exceeding the authorized amounts listed in Table 9, is prohibited and may result in the modification, suspension, or revocation of this IHA.
(c) The taking by injury, serious injury or death of any species of marine mammal is prohibited and may result in the modification, suspension, or revocation of this IHA.
(d) Statoil shall ensure that the vessel operator and other relevant vessel personnel are briefed on all responsibilities, communication procedures, marine mammal monitoring protocols, operational procedures, and IHA requirements prior to the start of survey activity, and when relevant new personnel join the survey operations.
4. Mitigation Requirements—the holder of this Authorization is required to implement the following mitigation measures:
(a) Statoil shall use at least four (4) NMFS-approved protected species observers (PSOs) during HRG surveys. The PSOs must have no tasks other than to conduct observational effort, record observational data, and communicate with and instruct relevant vessel crew with regard to the presence of marine mammals and mitigation requirements. PSO resumes shall be provided to NMFS for approval prior to commencement of the survey.
(b) Visual monitoring must begin no less than 30 minutes prior to initiation of survey equipment and must continue until 30 minutes after use of survey equipment ceases.
(c) Exclusion Zones and Watch Zone—PSOs shall establish and monitor marine mammal Exclusion Zones and Watch Zones. The Watch Zone shall represent the extent of the Level B harassment zone (1,166 m) or, as far as possible if the extent of the Level B zone is not fully visible. The Exclusion Zones are as follows:
(i) a 50 m Exclusion Zone for pinnipeds and delphinids (except harbor porpoises);
(ii) a 100 m Exclusion Zone for large whales including sperm whales and
(iii) a 500 m Exclusion Zone for North Atlantic right whales.
(d) Shutdown requirements—If a marine mammal is observed within, entering, or approaching the relevant Exclusion Zones as described under 4(c) while geophysical survey equipment is operational, the geophysical survey equipment must be immediately shut down.
(i) Any PSO on duty has the authority to call for shutdown of survey equipment. When there is certainty regarding the need for mitigation action on the basis of visual detection, the relevant PSO(s) must call for such action immediately.
(ii) When a shutdown is called for by a PSO, the shutdown must occur and any dispute resolved only following shutdown.
(iii) The shutdown requirement is waived for small delphinoids that approach the vessel (
(iv) Upon implementation of a shutdown, survey equipment may be reactivated when all marine mammals have been confirmed by visual observation to have exited the relevant Exclusion Zone or an additional time period has elapsed with no further sighting of the animal that triggered the shutdown (15 minutes for small delphinoid cetaceans and pinnipeds and 30 minutes for all other species).
(v) If geophysical equipment shuts down for reasons other than mitigation (
(e) Pre-clearance observation—30 minutes of pre-clearance observation shall be conducted prior to initiation of geophysical survey equipment. geophysical survey equipment shall not be initiated if marine mammals are observed within or approaching the relevant Exclusion Zones as described under 4(d) during the pre-clearance period. If a marine mammal is observed within or approaching the relevant Exclusion Zone during the pre-clearance period, geophysical survey equipment shall not be initiated until the animal(s) is confirmed by visual observation to have exited the relevant Exclusion Zone or until an additional time period has elapsed with no further sighting of the animal (15 minutes for small delphinoid cetaceans and pinnipeds and 30 minutes for all other species).
(f) Ramp-up—when technically feasible, survey equipment shall be ramped up at the start or re-start of survey activities. Ramp-up will begin with the power of the smallest acoustic equipment at its lowest practical power output appropriate for the survey. When technically feasible the power will then be gradually turned up and other acoustic sources added in way such that the source level would increase gradually.
(g) Vessel Strike Avoidance—Vessel operator and crew must maintain a vigilant watch for all marine mammals and slow down or stop the vessel or alter course, as appropriate, to avoid striking any marine mammal, unless such action represents a human safety concern. Survey vessel crew members responsible for navigation duties shall receive site-specific training on marine mammal sighting/reporting and vessel strike avoidance measures. Vessel strike avoidance measures shall include the following, except under circumstances when complying with these requirements would put the safety of the vessel or crew at risk:
(i) The vessel operator and crew shall maintain vigilant watch for cetaceans and pinnipeds, and slow down or stop the vessel to avoid striking marine mammals;
(ii) The vessel operator will reduce vessel speed to 10 knots (18.5 km/hr) or less when any large whale, any mother/calf pairs, whale or dolphin pods, or larger assemblages of non-delphinoid cetaceans are observed near (within 100 m (330 ft)) an underway vessel;
(iii) The survey vessel will maintain a separation distance of 500 m (1640 ft) or greater from any sighted North Atlantic right whale;
(iv) If underway, the vessel must steer a course away from any sighted North Atlantic right whale at 10 knots (18.5 km/hr) or less until the 500 m (1640 ft) minimum separation distance has been established. If a North Atlantic right whale is sighted in a vessel's path, or within 100 m (330 ft) to an underway vessel, the underway vessel must reduce speed and shift the engine to neutral. Engines will not be engaged until the North Atlantic right whale has moved outside of the vessel's path and beyond 100 m. If stationary, the vessel must not engage engines until the North Atlantic right whale has moved beyond 100 m;
(v) The vessel will maintain a separation distance of 100 m (330 ft) or greater from any sighted non-delphinoid cetacean. If sighted, the vessel underway must reduce speed and shift the engine to neutral, and must not engage the engines until the non-delphinoid cetacean has moved outside of the vessel's path and beyond 100 m. If a survey vessel is stationary, the vessel will not engage engines until the non-delphinoid cetacean has moved out of the vessel's path and beyond 100 m;
(vi) The vessel will maintain a separation distance of 50 m (164 ft) or greater from any sighted delphinoid cetacean. Any vessel underway remain parallel to a sighted delphinoid cetacean's course whenever possible, and avoid excessive speed or abrupt changes in direction. Any vessel underway reduces vessel speed to 10 knots (18.5 km/hr) or less when pods (including mother/calf pairs) or large assemblages of delphinoid cetaceans are observed. Vessels may not adjust course and speed until the delphinoid cetaceans have moved beyond 50 m and/or the abeam of the underway vessel;
(vii) All vessels underway will not divert or alter course in order to approach any whale, delphinoid cetacean, or pinniped. Any vessel underway will avoid excessive speed or abrupt changes in direction to avoid injury to the sighted cetacean or pinniped; and
(viii) All vessels will maintain a separation distance of 50 m (164 ft) or greater from any sighted pinniped.
(ix) The vessel operator will comply with 10 knot (18.5 km/hr) or less speed restrictions in any Seasonal Management Area per NMFS guidance.
(x) If NMFS should establish a Dynamic Management Area (DMA) in the area of the survey, within 24 hours of the establishment of the DMA Statoil shall work with NMFS to shut down and/or alter survey activities to avoid the DMA as appropriate.
5. Monitoring Requirements—The Holder of this Authorization is required to conduct marine mammal visual monitoring and passive acoustic monitoring (PAM) during geophysical survey activity. Monitoring shall be conducted in accordance with the following requirements:
(a) A minimum of four NMFS-approved PSOs and a minimum of two certified (PAM) operator(s), operating in shifts, shall be employed by Statoil during geophysical surveys.
(b) Observations shall take place from the highest available vantage point on the survey vessel. General 360-degree scanning shall occur during the monitoring periods, and target scanning by PSOs will occur when alerted of a marine mammal presence.
(c) PSOs shall be equipped with binoculars and have the ability to estimate distances to marine mammals located in proximity to the vessel and/or Exclusion Zones using range finders. Reticulated binoculars will also be available to PSOs for use as appropriate based on conditions and visibility to support the sighting and monitoring of marine species. Digital single-lens reflex camera equipment will be used to record sightings and verify species identification.
(d) PAM shall be used during nighttime geophysical survey operations. The PAM system shall consist of an array of hydrophones with both broadband (sampling mid-range frequencies of 2 kHz to 200 kHz) and at least one low-frequency hydrophone (sampling range frequencies of 75 Hz to 30 kHz). PAM operators shall communicate detections or vocalizations to the Lead PSO on duty who shall ensure the implementation of the appropriate mitigation measure.
(e) During night surveys, night-vision equipment and infrared technology shall be used in addition to PAM. Specifications for night-vision and infrared equipment shall be provided to NMFS for review and acceptance prior to start of surveys.
(f) PSOs and PAM operators shall work in shifts such that no one monitor will work more than 4 consecutive hours without a 2 hour break or longer than 12 hours during any 24-hour period. During daylight hours the PSOs shall rotate in shifts of 1 on and 3 off, and while during nighttime operations PSOs shall work in pairs.
(g) PAM operators shall also be on call as necessary during daytime operations should visual observations become impaired.
(h) Position data shall be recorded using hand-held or vessel global positioning system (GPS) units for each sighting.
(i) A briefing shall be conducted between survey supervisors and crews, PSOs, and Statoil to establish responsibilities of each party, define chains of command, discuss communication procedures, provide an overview of monitoring purposes, and review operational procedures.
(j) Statoil shall provide resumes of all proposed PSOs and PAM operators (including alternates) to NMFS for review and approval at least 45 days prior to the start of survey operations.
(k) PSO Qualifications shall include direct field experience on a marine mammal observation vessel and/or aerial surveys.
(a) Data on all PAM/PSO observations shall be recorded based on standard PSO collection requirements. PSOs must use standardized data forms, whether hard copy or electronic. The following information shall be reported:
(i) PSO names and affiliations.
(ii) Dates of departures and returns to port with port name.
(iii) Dates and times (Greenwich Mean Time) of survey effort and times corresponding with PSO effort.
(iv) Vessel location (latitude/longitude) when survey effort begins and ends; vessel location at beginning and end of visual PSO duty shifts.
(v) Vessel heading and speed at beginning and end of visual PSO duty shifts and upon any line change.
(vi) Environmental conditions while on visual survey (at beginning and end of PSO shift and whenever conditions change significantly), including wind speed and direction, Beaufort sea state, Beaufort wind force, swell height, weather conditions, cloud cover, sun glare, and overall visibility to the horizon.
(vii) Factors that may be contributing to impaired observations during each PSO shift change or as needed as environmental conditions change (
(viii) Survey activity information, such as acoustic source power output while in operation, number and volume of airguns operating in the array, tow depth of the array, and any other notes of significance (
(ix) If a marine mammal is sighted, the following information should be recorded:
(A) Watch status (sighting made by PSO on/off effort, opportunistic, crew, alternate vessel/platform);
(B) PSO who sighted the animal;
(C) Time of sighting;
(D) Vessel location at time of sighting;
(E) Water depth;
(F) Direction of vessel's travel (compass direction);
(G) Direction of animal's travel relative to the vessel;
(H) Pace of the animal;
(I) Estimated distance to the animal and its heading relative to vessel at initial sighting;
(J) Identification of the animal (
(K) Estimated number of animals (high/low/best);
(L) Estimated number of animals by cohort (adults, yearlings, juveniles, calves, group composition, etc.);
(M) Description (as many distinguishing features as possible of each individual seen, including length, shape, color, pattern, scars or markings, shape and size of dorsal fin, shape of head, and blow characteristics);
(N) Detailed behavior observations (
(O) Animal's closest point of approach and/or closest distance from the center point of the acoustic source;
(P) Platform activity at time of sighting (
(Q) Description of any actions implemented in response to the sighting (
6. Reporting—a technical report shall be provided to NMFS within 90 days after completion of survey activities that fully documents the methods and monitoring protocols, summarizes the data recorded during monitoring, estimates the number of marine mammals that may have been taken during survey activities, describes the effectiveness of the various mitigation techniques (
(a) Reporting injured or dead marine mammals:
(i) In the event that the specified activity clearly causes the take of a marine mammal in a manner not prohibited by this IHA (if issued), such as serious injury or mortality, Statoil shall immediately cease the specified activities and immediately report the incident to NMFS. The report must include the following information:
(A) Time, date, and location (latitude/longitude) of the incident;
(B) Vessel's speed during and leading up to the incident;
(C) Description of the incident;
(D) Status of all sound source use in the 24 hours preceding the incident;
(E) Water depth;
(F) Environmental conditions (
(G) Description of all marine mammal observations in the 24 hours preceding the incident;
(H) Species identification or description of the animal(s) involved;
(I) Fate of the animal(s); and
(J) Photographs or video footage of the animal(s).
Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS will work with Statoil to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. Statoil may not resume their activities until notified by NMFS.
(ii) In the event that Statoil discovers an injured or dead marine mammal, and the lead PSO determines that the cause of the injury or death is unknown and the death is relatively recent (
(iii) In the event that Statoil discovers an injured or dead marine mammal, and the lead PSO determines that the injury or death is not associated with or related to the specified activities (
7. This Authorization may be modified, suspended or withdrawn if the holder fails to abide by the conditions prescribed herein, or if NMFS determines the authorized taking is having more than a negligible impact on the species or stock of affected marine mammals.
We request comment on our analyses, the draft authorization, and any other aspect of this Notice of Proposed IHA for the proposed marine site characterization surveys. Please include with your comments any supporting data or literature citations to help inform our final decision on the request for MMPA authorization.
On a case-by-case basis, NMFS may issue a one-year renewal IHA without additional notice when (1) another year of identical or nearly identical activities as described in the Specified Activities section is planned, or (2) the activities would not be completed by the time the IHA expires and renewal would allow completion of the activities beyond that described in the Dates and Duration section, provided all of the following conditions are met:
• A request for renewal is received no later than 60 days prior to expiration of the current IHA.
• The request for renewal must include the following:
(1) An explanation that the activities to be conducted beyond the initial dates either are identical to the previously analyzed activities or include changes so minor (
(2) A preliminary monitoring report showing the results of the required monitoring to date and an explanation showing that the monitoring results do not indicate impacts of a scale or nature not previously analyzed or authorized.
• Upon review of the request for renewal, the status of the affected species or stocks, and any other pertinent information, NMFS determines that there are no more than minor changes in the activities, the mitigation and monitoring measures remain the same and appropriate, and the original findings remain valid.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; proposed incidental harassment authorization; request for comments.
NMFS has received a request from the City of Astoria for authorization to take marine mammals incidental to pile driving and construction work during the Waterfront Bridge Replacement Project in Astoria, Oregon. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an incidental harassment authorization (IHA) to incidentally take marine mammals during the specified activities.
Comments and information must be received no later than March 26, 2018.
Comments should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service. Physical comments should be sent to 1315 East-West Highway, Silver Spring, MD 20910 and electronic comments should be sent to
Amy Fowler, Office of Protected Resources, NMFS, (301) 427-8401. Electronic copies of the application and supporting documents, as well as a list of the references cited in this document, may be obtained online at:
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth.
NMFS has defined “negligible impact” in 50 CFR 216.103 as “. . . an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
The MMPA states that the term “take” means to harass, hunt, capture, kill or attempt to harass, hunt, capture, or kill any marine mammal. Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
This action is consistent with categories of activities identified in CE B4 of the Companion Manual for NOAA Administrative Order 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS has preliminarily determined that the issuance of the proposed IHA qualifies to be categorically excluded from further NEPA review.
We will review all comments submitted in response to this notice prior to concluding our NEPA process or making a final decision on the IHA request.
On October 17, 2017, NMFS received a request from the City of Astoria (City) for an IHA to take marine mammals incidental to replacement of bridges in downtown Astoria along the Columbia River. The application was considered adequate and complete on January 17, 2018. The City's request is for take of California sea lions (
The City is seeking an IHA for the first year of a two-year project to remove and replace piles supporting six waterfront bridges in Astoria, Oregon. Phase I of the project, which would occur under this IHA, involves the removal and replacement of three bridges connecting 7th, 9th, and 11th Streets to waterfront piers. The bridges are currently supported by decayed timber piles and concrete footings that will be removed and replaced with steel piles. Roadway construction, timber pile removal, and steel pile driving are expected to result in Level B auditory harassment of California sea lions, harbor seals, and Steller sea lions.
The proposed project would occur along the Lower Columbia River. The action area is not expected to exceed 1,600 meters (m) beyond each bridge site. Construction for Phase I of the project, removing and replacing the 7th, 9th, and 11th Street bridge crossings, is expected to occur between October 2018 and April 2019.
Project work is expected to begin in October 2018 with roadway and rail superstructure removal. Timber pile removal and steel pile installation will occur within the Oregon Department of Fish and Wildlife (ODFW) prescribed in-water work period (IWWP) for the Lower Columbia River (November 1 through February 28). Timber pile and concrete foundation removal will be initiated at the onset of the IWWP. These activities will likely occur over the entire IWWP, or 80 work days. Vibratory timber pile removal is expected to take approximately 26 days and impact hammer pile installation will take approximately 42 days. The remaining 12 days in the IWWP will be used to remove all concrete footings and a concrete retaining wall. The contractor will likely remove existing structures concurrent with construction of new foundations. Pile removal and installation will occur over an eight hour period each day.
Additional above-water construction may be completed between March 2019 and August 2019. Rail superstructure construction is expected to occur over 13 work days between March 1 and April 11. Construction of approach superstructure and roadway improvements will be conducted between April and August 2019. An offsite storm water facility will be constructed during the summer of 2019.
The project site is located in the Baker Bay-Columbia River subwatershed. This section of the Columbia River represents the most saline portion of the river's estuarine environment. Tidal influence extends 146 miles upriver to the Bonneville Dam. The Columbia River is over nine miles wide in the area around Astoria and contains multiple islands, buoys, and sandbars that marine mammals utilize to haul out. The upland portions of the region of activity have been highly altered by human activities, with substantial shoreline development and remnants of historical development. This includes thousands of timber piles, overwater buildings, a railroad trestle, and vehicular bridges. The downtown Astoria waterfront is a busy area for pedestrians, vehicles, and boats. In addition to onshore development, the Lower Columbia River is utilized by various types of vessels, including cargo ships, dredging vessels, fishing vessels, trawlers, pollution control vessels, and search and rescue vessels, among others.
The remainder of the region of activity is located within the river channel within the intertidal and subtidal zones. The substrate in this area is primarily made up of historical rip rap and other rocks/cobbles. All in-water construction will occur in the intertidal and subtidal zones. Some piles may be removed and installed completely in the dry while others may remain inundated in water over 75 percent of the time. Section 1 of the application describes the tidal conditions of each crossing in detail.
Phase I of the project involves the removal and replacement of three bridges connecting 7th, 9th, and 11th Streets to waterfront piers. Each bridge has pedestrian and vehicle access. A railroad trestle runs parallel to the shoreline between the bridges along the waterfront. Demolition of the existing bridge crossings will require the removal of bridge decks and other aboveground components for the rail trestle and roadway approaches. Demolition of the superstructures will likely be accomplished using standard roadway and bridge construction equipment. The existing bridge crossings are primarily founded on a timber substructure. All timber elements supporting the roadway approach and trestle crossing will be removed. Most of the structures are below the Mean High Water (MHW) elevation; the remaining timber elements are below the Mean Higher-High Water (MHHW) or the Highest Measured Tide (HMT) elevation, with only a few piles being removed landward of the HMT elevation. Each bridge contains 85 timber structures to be removed. Most timber piles are 12 inches (in) diameter but some may be up to 14 in. The contractor will use a vibratory hammer or direct pull to remove the timber piles. In addition to timber structures, each bridge is supported by concrete footings ranging in size from 16 in by 16 in to 12 feet (ft) by 3 ft. Seven concrete structures will be removed from the 7th Street crossing, four from the 9th Street crossing, and eight from the 11th Street crossing (Table 1). A concrete retaining wall at the 9th Street crossing will also be removed to facilitate construction of the new roadway approach. The wall is located below the HMT elevation and is frequently exposed to surface flows. The contractor will use a concrete saw to cut the retaining wall into manageable pieces.
Abutment wingwalls will be constructed at the 9th Street crossing to help contain the roadway approach fill. The wingwalls will be cast-in-place concrete retaining walls. The eastern retaining wall will be located above the HMT and the western wall will be above the MHHW. As a result, the work will be completed in the dry; however, the contractor will install measures when necessary to isolate the work area.
Most of the piles to be installed are within 40 ft of the existing abutments, so the piles will be installed from a crane staged on the south side of the bridges. However, piling at the 9th Street crossing is up to 60 ft from the south abutment. The size and length of the piling as well as the weight of the pile hammer and leads places additional demand on the supporting crane. As a result, the contractor will construct temporary shoring consisting of two bents comprised of five 16-in piles each for a total of ten piles. Both bents will be located within two ft of the MLW elevation. Therefore, all piles are likely to be inundated by water levels greater than 2 ft deep at least 75 percent of the time during installation and extraction. Construction of the work platform will be initiated following removal of the superstructures, retaining wall, and approach fill at the 9th Street crossing. Due to the soft soils, it is anticipated that each pile installed will advance predominately under its own weight with a limited number of impact hammer strikes prior to reaching the bedrock surface. To finish pile installation, the contractor will be required to use an impact hammer to secure the piles into the bedrock and verify the required bearing resistances. All temporary pilings will be installed and removed during the ODFW prescribed IWWP and will remain in place for only one construction season.
A total of 74 24-in diameter permanent steel piles are expected to be driven for Phase I of this project (21 at the 7th Street crossing, 25 at the 9th Street crossing, and 28 at the 11th Street crossing, Table 1). As with the temporary shoring, it is expected that the permanent piles will advance under their own weight with a limited number of hammer strikes before reaching the bedrock surface.
The IWWP prescribed by ODFW includes 80 work days. Construction work is assumed to occur over an eight hour period each day. It is assumed that the contractor will drive the first 40 ft of piling for each pile location (each pile location consists of two 40-foot pile sections) over the first few days of pile driving, then splice on the additional 40 ft of piling at each location over the next few days. After the first 40-ft pile section is driven, a backer bar is tack welded on to the first pile section, then the second pile section is aligned with a crane, and welded on. Once all of the piles are spliced, the contractor will resume pile driving activities to set each pile to the desired depth. It is estimated that the contractor can install four 40-foot piles a day at an estimated 250 strikes per pile. With a total of 84 piles to be driven (74 permanent and 10 temporary), given the rate of four 40-ft piles per day, impact pile driving will take 42 days with a total of 1000 strikes per day (Table 2). This would leave 38 work days for the removal of existing timber piling and concrete substructures. The contractor will attempt to extract the existing piles via direct pull or vibratory hammer. Vibratory removal of timber piles will take approximately 30 minutes per pile. A total of 255 timber piles are anticipated to be extracted. At an average of 10 piles removed per day, existing timber pile removal is expected to take 26 days (Table 2) which leaves 12 days remaining in the work period to cover the removal of all concrete footings and the 9th Street retaining wall. It is anticipated that the contractor will be removing existing substructure elements concurrent with the construction of the new foundations.
The construction activities that could potentially result in acoustic and visual disturbance to pinnipeds within the action area include rail and roadway superstructure and concrete foundation removal activities, temporary work platform construction, piling installation, wingwall construction, and construction of the new rail and roadway superstructures. Most of these activities will require work in water during the IWWP (November 1 through February 28). Sound from pile removal and installation will likely extend out into the river channel where California sea lions, Steller sea lions, and harbor seals may be transiting. Work occurring in-air includes the removal of bridge decks and other aboveground components for the rail trestle crossings and roadway approaches as well as construction of the new rail superstructures and roadway improvements, which occurs directly above the river banks where hauled out California sea lions may be located. California sea lions may be harassed by the presence of construction equipment during above-water construction.
Proposed mitigation, monitoring, and reporting measures are described in detail later in this document (please see “Proposed Mitigation” and “Proposed Monitoring and Reporting”).
Sections 3 and 4 of the application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history, of the potentially affected species. Additional information regarding population trends and threats may be found in NMFS's Stock Assessment Reports (SAR;
Table 3 lists all species with expected potential for occurrence in Astoria and summarizes information related to the population or stock, including regulatory status under the MMPA and ESA and potential biological removal (PBR), where known. For taxonomy, we follow Committee on Taxonomy (2016). PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS's SARs). While no mortality is anticipated or authorized here, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species and other threats.
Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS's stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS's U.S. 2016 SARs (
All species that could potentially occur in the proposed survey areas are included in Table 3. As described below, all three species temporally and spatially co-occur with the activity to the degree that take is reasonably likely to occur, and we have proposed authorizing it.
California sea lions (
Almost all California sea lions in the Pacific Northwest are sub-adult or adult males (NOAA 2008). California sea lions feed in both the Columbia River and adjacent nearshore marine areas. Their population is lowest in Oregon in the summer months, from May to September, as they migrate south to the Channel Islands in California to breed. California sea lions have been observed near several crossings within the Project site; however, this is not their main haul out. Their main haul out is the East Mooring Basin, which is located over one mile upstream, outside of the Region of Activity. Construction activities are proposed between October and April, which includes the tail end of peak usage of the lower river by California sea lions. Counts of California sea lions are highest in September but taper off until March when the sea lions travel south past Oregon toward their breeding sites (Brown
The Pacific harbor seal (
The Oregon/Washington Coast stock abundance was estimated in 1999 to be 24,732. However, the data used to establish that abundance was eight years old at the time and no more recent stock abundance estimates exist (Caretta
Harbor seals utilize specific shoreline locations on a regular basis as haulouts including beaches, rocks, floats, and buoys. They must rest at haulout locations to regulate body temperature, interact with one another, and sleep (NOAA 2016). Harbor seals are present throughout the year at the mouth of the Columbia River and adjacent nearshore marine areas. Harbor seals are an infrequent visitor at the Astoria Mooring Basin, but they are known to transit through the Region of Activity. Their closest haulout and pupping area is Desdemona Sands which is downstream of the Astoria-Megler Bridge and outside the Region of Activity. Pupping occurs from Mid-April to July, outside of the proposed project work period (Susan Riemer, pers. comm., 2016). Due to their year-round occurrence in the Columbia River, harbor seals are likely to be found transiting the area during in-water construction.
The Steller sea lion (
Steller sea lions are present year-round at the mouth of the Columbia River, with the primary haulout point on the top South Jetty (approximately 10 miles downstream of the action area) and they are at their peak in the lower river from September through March. The South Jetty haulout is the only artificial structure Steller sea lions regularly use along the Oregon coast. Steller sea lions feed in both the Columbia River and adjacent nearshore marine areas. Due to their year-round presence and peak of presence during the winter months, Steller sea lions are likely to be transiting the area during in-water construction activities.
This section includes a summary and discussion of the ways that components of the specified activity may impact marine mammals and their habitat. The
Sound travels in waves, the basic components of which are frequency, wavelength, velocity, and amplitude. Frequency is the number of pressure waves that pass by a reference point per unit of time and is measured in hertz (Hz) or cycles per second. Wavelength is the distance between two peaks of a sound wave; lower frequency sounds have longer wavelengths than higher frequency sounds. Amplitude is the height of the sound pressure wave or the `loudness' of a sound and is typically measured using the decibel (dB) scale. A dB is the ratio between a measured pressure (with sound) and a reference pressure (sound at a constant pressure, established by scientific standards). It is a logarithmic unit that accounts for large variations in amplitude; therefore, relatively small changes in dB ratings correspond to large changes in sound pressure. When referring to sound pressure levels (SPLs; the sound force per unit area), sound is referenced in the context of underwater sound pressure to 1 microPascal (µPa). One Pascal is the pressure resulting from a force of one Newton exerted over an area of one square meter. The source level (SL) represents the sound level at a distance of 1 m from the source (referenced to 1 µPa). The received level is the sound level at the listener's position. Note that all underwater sound levels in the document are referenced to a pressure of 1 µPa and all airborne sound levels in this document are referenced to a pressure of 20 µPa.
Root mean square (rms) is the quadratic mean sound pressure over the duration of an impulse. Rms is calculated by squaring all of the sound amplitudes, averaging the squares, and then taking the square root of the average (Urick 1983). Rms accounts for both positive and negative values; squaring the pressures makes all values positive so that they may be accounted for in the summation of pressure levels (Hastings and Popper, 2005). This measurement is often used in the context of discussing behavioral effects, in part because behavioral effects, which often result from auditory cues, may be better expressed through averaged units than by peak pressures.
When underwater objects vibrate or activity occurs, sound-pressure waves are created. These waves alternately compress and decompress the water as the sound wave travels. Underwater sound waves radiate in all directions away from the source (similar to ripples on the surface of a pond), except in cases where the source is directional. The compressions and decompressions associated with sound waves are detected as changes in pressure by aquatic life and man-made sound receptors such as hydrophones.
Even in the absence of sound from the specified activity, the underwater environment is typically loud due to ambient sound. Ambient sound is defined as environmental background sound levels lacking a single source or point (Richardson
• Wind and waves: The complex interactions between wind and water surface, including processes such as breaking waves and wave-induced bubble oscillations and cavitation, are a main source of naturally occurring ambient noise for frequencies between 200 Hz and 50 kilohertz (kHz) (Mitson, 1995). In general, ambient sound levels tend to increase with increasing wind speed and wave height. Surf noise becomes important near shore, with measurements collected at a distance of 8.5 km from shore showing an increase of 10 dB in the 100 to 700 Hz band during heavy surf conditions.
• Precipitation: Sound from rain and hail impacting the water surface can become an important component of total noise frequencies above 500 Hz, and possibly down to 100 Hz during quiet times.
• Biological: Marine mammals can contribute significantly to ambient noise levels, as can some fish and shrimp. The frequency band for biological contributions is from approximately 12 Hz to over 100 kHz.
• Anthropogenic: Sources of ambient noise related to human activity include transportation (surface vessels and aircraft), dredging and construction, oil and gas drilling and production, seismic surveys, sonar, explosions, and ocean acoustic studies. Shipping noise typically dominates the total ambient noise for frequencies between 20 and 300 Hz. In general, the frequencies of anthropogenic sounds are below 1 kHz and, if higher frequency sound levels are created, they attenuate rapidly (Richardson
The sum of the various natural and anthropogenic sound sources at any given location and time—which comprise “ambient” or “background” sound—depends not only on the source levels (as determined by current weather conditions and levels of biological and shipping activity) but also on the ability of sound to propagate
In-water construction activities associated with the Project include impact pile driving and vibratory pile removal. The sounds produced by these activities fall into one of two general sound types: pulsed and non-pulsed (defined in the following). The distinction between these two sound types is important because they have differing potential to cause physical effects, particularly with regard to hearing (
Pulsed sound sources (
Non-pulsed sounds can be tonal, narrowband or broadband, brief or prolonged, and may be wither continuous or non-continuous (ANSI 1995; NIOSH 1998). Some of these non-pulsed sounds can be transient signals of short duration without the essential properties of pulses (
Impact hammers operate by repeatedly dropping a heavy piston onto a pile to drive the pile into the substrate. Sound generated by impact hammers is characterized by rapid rise times and high peak levels, a potentially injurious combination (Hastings and Popper 2005). Vibratory hammers install piles by vibrating them and allowing the weight of the hammer to push them into the sediment. Vibratory hammers produce significantly less sound than impact hammers. Peak SPLs may be 180 dB or greater, but are generally 10 to 20 dB lower than SPLs generated during impact pile driving of the same-sized pile (Oestman
Hearing is the most important sensory modality for marine mammals underwater, and exposure to anthropogenic sound can have deleterious effects. To appropriately assess the potential effects of exposure to sound, it is necessary to understand the frequency ranges marine mammals are able to hear. Current data indicate that not all marine mammal species have equal hearing capabilities (
The pinniped functional hearing group was modified from Southall
For more detail concerning these groups and associated frequency ranges, please see NMFS (2016) for a review of available information. As mentioned previously in this document, three marine mammal species (zero cetacean and three pinniped (two otariid and one phocid) species) have the reasonable potential to co-occur with the proposed activities (Table 3). Harbor seals are classified as members of the phocid pinnipeds in water functional hearing group, while Steller and California sea lions are grouped under the otariid
Please refer to the information given previously (
In the absence of mitigation, impacts to marine species would be expected to result from physiological and behavioral responses to both the type and strength of the acoustic signature (Viada
Relationships between TTS and PTS thresholds have not been studied in marine mammals—PTS data exists only for a single harbor seal (Kastak
Disturbance includes a variety of effects, including subtle changes in behavior, more conspicuous changes in activities, and displacement. Behavioral responses to sound are highly variable and context-specific and reactions, if any, depend on species, state of maturity, experience, current activity, reproductive state, auditory sensitivity, time of day, and many other factors (Richardson
Habituation can occur when an animal's response to a stimulus wanes with repeated exposure, usually in the absence of unpleasant associated events (Wartzok
Controlled experiments with captive marine mammals showed pronounced behavioral reactions, including avoidance of loud sound sources (Ridgeway
With vibratory pile driving (and removal, as in this project), it is likely that the onset of pile driving could result in temporary, short term changes in an animal's typical behavior and/or avoidance of the affected area. These behavioral changes may include (Richardson
The biological significance of many of these behavioral disturbances is difficult to predict, especially if the detected disturbances appear minor. However, the consequences of behavioral modification could be expected to be biologically significant if the change affects growth, survival, or reproduction. Significant behavioral modifications that could potentially lead to effects on growth, survival, or reproduction include:
• Drastic changes in diving/surfacing patterns;
• Habitat abandonment due to loss of desirable acoustic environment; and
• Cessation of feeding or social interaction.
The onset of behavioral disturbances from anthropogenic sound depends on both external factors (characteristics of sound sources and their paths) and the specific characteristics of the receiving animals (hearing, motivation, experience, demography) and is difficult to predict (Southall
Natural and artificial sounds can disrupt behavior by masking, or interfering with, a marine mammal's ability to hear other sounds. Masking occurs when the receipt of a sound is interfered with by another coincident sound at similar frequencies and at similar or higher levels. Chronic exposure to excessive, though not high-intensity, sound could cause masking at particular frequencies for marine mammals which utilize sound for vital biological functions. Masking can interfere with detection of acoustic signals such as communication calls, echolocation sounds, and environmental sounds important to marine mammals. Therefore, under certain circumstances, marine mammals whose acoustical sensors or environment are being severely masked could also be impaired from maximizing their performance fitness in survival and reproduction. If the coincident (masking) sound were man-made, it could potentially be harassing if it disrupted hearing-related behavior. It is important to distinguish TTS and PTS, which persist after the sound exposure, from masking, which occurs only during the sound exposure. Because masking (without resulting in TS) is not associated with abnormal physiological function, it is not considered a physiological effect, but rather a potential behavioral effect.
The frequency range of the potentially masking sound is important in determining any potential behavioral impacts. Because sound generated from in-water vibratory pile driving is mostly concentrated at low frequency ranges, it may have less effect on high frequency echolocation sounds by odontocetes, which may hunt harbor seals. However, lower frequency man-made sounds are more likely to affect detection of communication calls and other potentially important natural sounds such as surf and prey sound. It may also affect communication signals when they occur near the sound band and thus reduce the communication space of animals (
Masking affects both senders and receivers of acoustic signals and can potentially have long-term chronic effects on marine mammals at the population level as well as the individual level. Low-frequency ambient sound levels have increased by as much as 20 dB (more than three times in terms of SPL) in the world's ocean from pre-industrial periods, with most of the increase from distant commercial shipping (Hildebrand 2009). All anthropogenic sound sources, but especially chronic and lower-frequency signals (
Vibratory pile removal is relatively short-term, with rapid oscillations occurring for approximately 30 minutes per pile. It is possible that the vibratory pile removal resulting from this proposed action may mask acoustic signals important to the behavior and survival of marine mammal species, but the short-term duration and limited affected area would result in insignificant impacts from masking. Any masking event that could possibly rise to Level B harassment under the MMPA would occur concurrently within the zones of behavioral harassment already estimated for vibratory pile driving, and which have already been taken into account in the exposure analysis.
The primary potential effects to marine mammal habitat are associated with elevated sound levels produced by construction activities (
In summary, given the short daily duration of sound associated with individual pile driving and removal events and the relatively small areas being affected, the proposed activities are not likely to have a permanent adverse effect on any fish habitat, or populations of fish species. Thus, any impacts to marine mammal habitat are not expected to cause significant or long-term consequences for individual marine mammals or their populations.
This section provides an estimate of the number of incidental takes proposed for authorization through this IHA, which will inform both NMFS' consideration of whether the number of takes is “small” and the negligible impact determination.
Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
Authorized takes would be by Level B harassment only, for individual marine mammals resulting from exposure to pile driving and construction activities. Based on the nature of the activity and the anticipated effectiveness of the mitigation measures (
As described previously, no mortality is anticipated or proposed to be authorized for this activity. Below we describe how the take is estimated.
Described in the most basic way, we estimate take by considering: (1) Acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and, (4) and the number of days of activities. Below, we describe these components in more detail and present the proposed take estimate.
Using the best available science, NMFS has developed acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur PTS of some degree (equated to Level A harassment). Thresholds have also been developed identifying the received level of in-air sound above which exposed pinnipeds would likely be behaviorally harassed.
The City's proposed activities include the use of continuous (vibratory pile driving) and impulsive (impact pile driving) sources, and therefore the 120 and 160 dB re 1 μPa (rms) are applicable.
These thresholds were developed by compiling and synthesizing the best available science and soliciting input multiple times from both the public and peer reviewers to inform the final product, and are provided in Table 6 below. The references, analysis, and methodology used in the development of the thresholds are described in NMFS 2016 Technical Guidance, which may be accessed at:
Here, we describe operational and environmental parameters of the activity that will feed into identifying the area ensonified above the acoustic thresholds.
Although some piles may potentially be driven or removed in the dry due to tidal conditions, the City is assuming all pile driving and removal will occur in water. The Level B zone of influence for in-water pile driving and removal is greater than the airborne zone of influence so no airborne harassment is requested from pile driving or removal. All harassment due to pile driving and removal is assumed to be in-water.
Washington State Department of Transportation (WSDOT) monitored underwater noise during the removal of three 12-in timber dolphin piles at Port Townsend (Laughlin, 2011a). Most of the timber piles to be removed in this project are 12-in but some may be up to 14-in. Average noise levels during vibratory removal of the wood piles were measured at 150 dB RMS at 16 m from the source. The Practical Spreading Loss Model (15logR) was used to calculate the in-water Level B Zone of Influence (ZOI) during vibratory pile removal. Using a measurement of 150dB at 16 m, a 1,600 m Level B ZOI (120 dB RMS threshold) is expected for vibratory pile removal activities. Based on the contours of the shoreline and 1,600 m ZOI, a total of 4.5 square kilometers (km
Based on the most recent WSDOT data, the unmitigated sound pressure level associated with impact pile driving 24-in steel piles is 194 dB RMS at 10 m (WSDOT, 2016). The contractor will be required to use a bubble curtain device during impact pile driving in compliance with the Federal Aid Highway Program (FAHP) Programmatic Biological Opinion which will be utilized for ESA coverage for listed salmonids. Use of a bubble curtain device was assumed to decrease initial sound levels by 10 dB (Reyff 2007), resulting in an initial SPL of 184 dB RMS at 10 m from the source. Using the values from WSDOT in the Practical Spreading Loss Model (15logR), the distance to the 160 dB behavioral disturbance threshold is calculated to be 398 m from the pile when a noise attenuation device is used (Table 7) as opposed to 1,848 m when a device is not used. The use of a noise attenuation device would shrink the distance at which noise exceeds the thresholds by approximately 80 percent, resulting in a significantly smaller area of potential impact. With a 398 m ZOI, a total of 0.40 km
When NMFS Technical Guidance (2016) was published, in recognition of the fact that ensonified area/volume could be more technically challenging to predict because of the duration component in the new thresholds, we developed a User Spreadsheet that includes tools to help predict a simple isopleth that can be used in conjunction with marine mammal density or occurrence to help predict takes. We note that because of some of the assumptions included in the methods used for these tools, we anticipate that isopleths produced are typically going to be overestimates of some degree, which will result in some degree of overestimate of Level A take. However, these tools offer the best way to predict appropriate isopleths when more sophisticated 3D modeling methods are not available, and NMFS continues to develop ways to quantitatively refine these tools, and will qualitatively address the output where appropriate. For stationary sources (such as impact and vibratory pile driving), NMFS User Spreadsheet predicts the closest distance at which, if a marine mammal remained at that distance the whole duration of the activity, it would not incur PTS. Inputs used in the User Spreadsheet, and the resulting isopleths are reported below.
The resulting small PTS isopleths assume an animal would remain stationary at that distance for the duration of the activity. Given the extended durations and due to the relatively small distances to PTS onset from each activity, and the mitigation measures (See “Proposed Mitigation”) proposed by the City, Level A take is neither expected nor authorized.
In this section we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculations.
The City used species counts from 2000-2014 taken by WDFW from the South Jetty at the mouth of the Columbia River to determine the number of pinnipeds that may be in the vicinity of the project. Although the South Jetty is over 10 miles away from the project site, WDFW monthly counts are the best available data for potential marine mammal occurrence near the project site. Numbers of California sea lions hauled out at the South Jetty ranged from 1 to 1,214, with a general trend of lower numbers in the summer and winter, and peak counts in the fall and spring. Monthly counts of Steller sea lions ranged from 177 to 1,663, with the highest numbers occurring in late fall and winter. Counts of harbor seals were not conducted every month, but the numbers of harbor seals at the South Jetty ranged from one to 57 seals.
Here we describe how the information provided above is brought together to produce a quantitative take estimate.
Although three species of pinniped occur in the vicinity of the project, they do not occur in equal numbers. Harbor seals and Steller sea lions are only known to occur out in the river channel and would only be harassed if they are transiting through the Zone of Influence (1,600 m for vibratory pile removal, 398 m for impact pile driving). Harbor seals and Steller sea lions would only be harassed during the in-water work period (November through February). California sea lions are the most commonly seen in the area, and are known to haul out on the riverbanks and structures near the bridges. California sea lions may be harassed by underwater sound resulting from vibratory pile removal and impact pile driving (at the distances listed above) as well as airborne sound resulting from roadway and railway demolition and construction. Using the highest sound source (concrete saw, 93 dB
While harbor seals and Steller sea lions would only be harassed during the in-water work period (November through February), California sea lions may be harassed over the entire duration of the project (October through April). To determine the estimated pinniped exposure and take, average monthly counts for each species from the South Jetty haulout (Table 12) were multiplied by the duration (months) of their expected exposure (Table 13).
For example, California sea lion take was estimated by multiplying the average monthly count at the South Jetty haulout from October through April (372) by the number of months of project activity (7) for a total of 2,604.
In order to issue an IHA under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, “and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking” for certain subsistence uses (latter not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully consider two primary factors:
(1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned) the likelihood of effective implementation (probability implemented as planned); and
(2) The practicability of the measures for applicant implementation, which may consider such things as cost, impact on operations, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
• All work below the HMT will be completed during the ODFW prescribed IWWP of November 1 through February 28.
• All work shall be performed according to the requirements and conditions of the regulatory permits issued by federal, state, and local governments. Seasonal restrictions,
• The City will have an inspector onsite during construction. The role of the inspector is to ensure compliance with the construction contract and other permits and regulations. The onsite inspector will also perform marine mammal monitoring duties when protected species observers (PSOs) are not onsite (See Proposed Monitoring section).
• To ensure no contaminants enter the water, mobile heavy equipment will be stored in a staging area at least 150 ft from the river or in an isolated hard zone. Equipment will be inspected daily for fluid leaks before leaving the staging area. Stationary equipment operated within 150 ft of the river will be maintained and protected to prevent leaks and spills. Erosion and sediment control BMPs will be installed prior to initiating and construction activities.
• The contractor will be responsible for the preparation of a Pollution Control Plan (PCP). The PCP will designate a professional on-call spill response teams, and identify all contractor activities, hazardous substances used, and wastes generated. The PCP will describe how hazardous substances and wastes will be stored, used, contained, monitored, disposed of, and documented.
• An air bubble system shall be employed during impact installation unless the piles are driven on dry areas.
• The contractor will implement a soft-start procedure for impact pile driving activities. The objective of a soft-start is to provide a warning and/or give animals in close proximity to pile driving a chance to leave the area prior to an impact driver operating at full capacity, thereby exposing fewer animals to loud underwater and airborne sounds. A soft-start procedure will be used at the beginning of each day that pile installation activities are conducted (
• Monitoring of marine mammals shall take place starting 30 minutes before construction begins until 30 minutes after construction ends (See
• Before commencement of vibratory pile removal activities, the City will establish a 15 m Level A Exclusion Zone.
• Before commencement of impact pile driving activities, the City will establish a 53.4 m Level A Exclusion Zone.
• Before commencement of above water construction activities, the City will establish a 10 m Level A Exclusion Zone to prevent injury from physical interaction with construction equipment.
• The City shall shut down operations if a marine mammal is sighted within or approaching the Level A Exclusion Zone until the marine mammal is sighted moving away from the exclusion zone, or if not sighted for 15 minutes after the shutdown. The City will also shut down to prevent Level B takes when the take of a pinniped species is approaching the authorized take limits.
• If the exclusion zone is obscured by poor lighting conditions, pile driving will not be initiated until the entire zone is visible.
• In-water work will only commence once observers have declared the Exclusion Zone clear of marine mammals.
Based on our evaluation of the applicant's proposed measures, NMFS has preliminarily determined that the proposed mitigation measures provide the means effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an IHA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth, “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring
Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following:
• Occurrence of marine mammal species or stocks in the area in which take is anticipated (
• Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (
• Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors.
• How anticipated responses to stressors impact either: (1) Long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks.
• Effects on marine mammal habitat (
• Mitigation and monitoring effectiveness.
(1) Protected Species Observers: The City will employ qualified PSOs to monitor the extent of the Region of Activity for marine mammals. Qualifications for marine mammal observers include:
a. Visual acuity in both eyes (correction is permissible) sufficient for discerning moving targets at the water's surface with ability to estimate target size and distance. Use of binoculars is necessary to correctly identify the target.
b. Advanced education (at least some college level course work) in biological science, wildlife management, mammalogy, or related fields (bachelor's degree or higher is preferred but not required).
c. Experience or training in the field identification of marine mammals (cetaceans and pinnipeds).
d. Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations.
e. Ability to communicate orally, by radio or in person, with project personnel to provide real time information on marine mammals observed in the area as necessary.
f. Experience and ability to conduct field observations and collect data according to assigned protocols (this may include academic experience).
g. Writing skills sufficient to prepare a report of observations that would include such information as the number and type of marine mammals observed; the behavior of marine mammals in the project area; dates and times when observations were conducted; dates and times when in-water construction activities were conducted; and dates and times when marine mammals were present at or within the defined Region of Activity.
(2) Monitoring Schedule: PSOs shall be present onsite during IWW construction activities as follows:
a. During vibratory pile removal activities:
i. Two NMFS qualified observers will be onsite the first day of removal at each bridge, one NMFS qualified observer will be onsite every third day thereafter.
ii. One NMFS qualified observer will be stationed at the best practicable land-based vantage point to observe the downstream portion of the disturbance zone, and the other positioned at the best practicable land-based vantage point to monitor the upstream portion of the disturbance zone.
iii. When PSOs are not onsite, the contractor's onsite inspector will be trained in species identification and monitoring protocol, and will be onsite during all pile removal activities to ensure that no species enter the 15 m Exclusion Zone.
b. During pile driving activities:
i. Two NMFS qualified observers will be onsite the first two days of pile driving at each bridge, and every third day thereafter.
ii. One NMFS observer will be stationed at the best practicable land-based vantage point to observe the downstream portion of the disturbance and exclusion zones, and the other positioned at the best practicable land-based vantage point to monitor the upstream portion of the disturbance and exclusion zones.
iii. When PSOs are not onsite, the contractor's onsite inspector will be trained in species identification and monitoring protocol, and will be onsite during all pile driving activities to ensure that no species enter the Exclusion Zone.
c. During substructure demolition activities (not including pile driving/removal) and superstructure demolition and construction activities:
i. One NMFS qualified observer will be onsite once a week to monitor the Exclusion Zone within 10 m of the construction site.
ii. When PSO is not on-site, the contractor's inspector will be trained in species identification and monitoring protocol, and will be onsite during all construction activities to ensure that no species enter the 10 m Exclusion Zone during superstructure demolition and construction activities.
(3) Monitoring Protocols: PSOs shall monitor marine mammal presence within the Level A Exclusion Zone and Level B ZOIs per the following protocols:
a. A range finder or hand-held global positioning system device will be used by PSOs to ensure that the defined Exclusion Zones are fully monitored and the Level B ZOIs monitored to the best extent practicable.
b. A 30-minute pre-construction marine mammal monitoring period will be required before the first pile driving or pile removal of the day. A 30-minute post-construction marine mammal monitoring period will be required after the last pile driving or pile removal of the day. If the contractor's personnel take a break between subsequent pile driving or pile removal for more than 30 minutes, then additional pre-construction marine mammal monitoring will be required before the next start-up of pile driving or pile removal.
c. If marine mammals are observed, the following information will be documented:
i. Species of observed marine mammals;
ii. Number of observed marine mammal individuals;
iii. Life stages of marine mammals observed;
iv. Behavioral habits, including feeding, of observed marine mammals, in both presence and absence of activities;
v. Location within the Region of Activity; and
vi. Animals' reaction (if any) to pile driving activities or other construction-related stressors including:
1. Impacts to the long-term fitness of the individual animal, if any
2. Long-term impacts to the population, species, or stock (
vii. Overall effectiveness of mitigation measures
d. During vibratory pule removal and impact driving, qualified PSOs will monitor the Level B ZOIs from the best practicable land-based vantage point to observe the downstream and upstream portions of the disturbance zone according to the above schedule.
e. PSOs shall use binoculars to monitor the Region of Activity.
(1) The City shall provide NMFS with a draft monitoring report within 90 days of the conclusion of the construction work. This report shall detail the monitoring protocol, summarize the data recorded during monitoring, and estimate the number of marine mammals that may have been harassed.
(2) If comments are received from the NMFS West Coast Regional Administrator or NMFS Office of Protected Resources on the draft report, a final report shall be submitted to NMFS within 30 days thereafter. If no comments are received from NMFS, the draft report will be considered to be the final report.
(3) In the unanticipated event that the construction activities clearly cause the take of a marine mammal in a manner prohibited by the NMFS authorization, such as an injury, serious injury, or mortality (
a. Time, date, and location (latitude/longitude) of the incident;
b. Description of the incident;
c. Status of all sound source use in the 24 hours preceding the incident;
d. Environmental conditions (
e. Description of marine mammal observations in the 24 hours preceding the incident;
f. Species identification or description of the animal(s) involved, including life stage and the fate of the animal(s); and
g. Photographs or video footage of the animal(s) (if equipment is available).
Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS shall work with the City to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. Activities may not be resumed until notified by NMFS via letter, email, or telephone.
(4) In the event that the City discovers an injured or dead marine mammal, and the lead PSO determines that the cause of injury or death is unknown and the death is relatively recent (
(5) In the event that the City discovers an injured or dead marine mammal, and the lead PSO determines that the injury or death is not associated with or related to the activities authorized in the IHA (
NMFS has defined negligible impact as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival” (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
To avoid repetition, the discussion of our analyses applies to all three species proposed to be taken by this project (California sea lion, Steller sea lion, and harbor seal), given that the anticipated effects of this activity on these different marine mammal stocks are expected to be similar. There is little information about the nature or severity of the impacts, or the size, status, or structure of any of these species or stocks that would lead to a different analysis for this activity.
Authorized takes are expected to be limited to short-term Level B harassment. Marine mammals present in the vicinity of the action area and taken by Level B harassment would most likely show overt brief disturbance (startle reaction, flushing) and avoidance of the area from elevated noise levels during pile removal and installation and railway superstructure construction. The project is not expected to have a significant adverse effect on affected marine mammal habitat, as discussed in detail in the “Anticipated Effects on Marine Mammal Habitat” section. There is no critical habitat in the vicinity of the project and the project activities would not permanently modify existing marine mammal habitat. The impacts to marine mammal habitat from the proposed construction actions are expected to be temporary and include increased human activity and noise levels, minimal impacts to water quality, and negligible changes in prey availability near the individual bridge sites. Pinnipeds in the vicinity are likely habituated to high levels of human activity as the Astoria waterfront is a highly developed area. The project may benefit marine mammal habitat by removing several hundred treated timber piles from the Columbia River.
Impacts to exposed pinnipeds are expected to be minor and temporary. The area likely impacted by the construction is relatively small compared to the available habitat in the river. For California and Steller sea
In summary and as described above, the following factors primarily support our preliminary determination that the impacts resulting from this activity are not expected to adversely affect the species or stock through effects on annual rates of recruitment or survival:
• No mortality is anticipated or authorized;
• No injury or serious injury is anticipated or authorized;
• In-water work is limited to a four-month period, and likely only 80 days within that time;
• No permanent effects to marine mammal habitat or prey is expected;
• Marine mammals are currently exposed to high human use area and are likely habituated to disturbance;
• Any impacts from the project are expected to result in short-term, mild behavioral reactions such as avoidance or flushing;
• There are no known important feeding, pupping, or other areas of biological significance in the project area; and
• The project affects only a small percentage of each stock of marine mammal affected, and only in a limited portion of their overall range.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS preliminarily finds that the total marine mammal take from the proposed activity will have a negligible impact on all affected marine mammal species or stocks.
As noted above, only small numbers of incidental take may be authorized under section 101(a)(5)(D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities.
The number of each species proposed to be taken as a result of this project is less than 10 percent of the total stock. In fact, the numbers of California sea lions and harbor seals is less than one percent of their respective stock abundance estimates. Additionally, the number of takes requested is based on the number of estimated exposures, not necessarily the number of individuals exposed. Pinnipeds may remain in the general area of the project sites and the same individuals may be harassed multiple times over multiple days, rather than numerous individuals harassed once.
Based on the analysis contained herein of the proposed activity (including the proposed mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS preliminarily finds that small numbers of marine mammals will be taken relative to the population size of the affected species or stocks.
There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has preliminarily determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 U.S.C. 1531
No incidental take of ESA-listed species is proposed for authorization or expected to result from this activity. Therefore, NMFS has determined that formal consultation under section 7 of the ESA is not required for this action.
As a result of these preliminary determinations, NMFS proposes to issue an IHA to the City of Astoria for conducting waterfront bridge removal and replacement in Astoria, OR from October 1, 2018 to September 30, 2019, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. This section contains a draft of the IHA itself. The wording contained in this section is proposed for inclusion in the IHA (if issued).
The City of Astoria (City) is hereby authorized under section 101(a)(5)(D) of the Marine Mammal Protection Act (MMPA; 16 U.S.C. 1371(a)(5)(D)) to harass marine mammals incidental to the Waterfront Bridges Replacement Project in Astoria, Oregon, when adhering to the following terms and conditions.
1. This Incidental Harassment Authorization (IHA) is valid from October 1, 2018 to September 30, 2019.
2. This IHA is valid only for construction activities associated with the Waterfront Bridges Replacement Project in Astoria, Oregon.
3.
(a) A copy of this IHA must be in the possession of the City, its designees, and work crew personnel operating under the authority of this IHA.
(b) The species authorized for taking are the California sea lion (
(c) The taking, by Level B harassment only, is limited to the species listed in condition 3(b). The authorized take numbers are shown below and in Table 1:
(d) The taking by injury (Level A harassment), serious injury, or death of any of the species listed in condition 3(b) of the Authorization or any taking of any other species of marine mammal is prohibited and may result in the modification, suspension, or revocation of this IHA.
(e) The City shall conduct briefings between construction supervisors and crews, marine mammal monitoring team, acoustical monitoring team, and City staff prior to the start of all construction work, and when new personnel join the work, in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures.
The holder of this Authorization is required to implement the following mitigation measures:
i. All construction activities shall be performed in accordance with the current ODOT Standard Specifications for Construction, the Contract Plans, and the Project Special Provisions. In addition, the following general construction measures will be adhered to:
a. All work shall be performed according to the requirements and conditions of the regulatory permits issued by federal, state, and local governments. Seasonal restrictions,
b. The City shall have an inspector onsite during construction. The role of the inspector is to ensure compliance with the construction contract and other permits and regulations. The onsite inspector shall also perform marine mammal monitoring duties when protected species observers (PSOs) are not onsite (See Proposed Monitoring section).
c. To ensure no contaminants enter the water, mobile heavy equipment shall be stored in a staging area at least 150 ft from the river or in an isolated hard zone. Equipment shall be inspected daily for fluid leaks before leaving the staging area. Stationary equipment operated within 150 ft of the river shall be maintained and protected to prevent leaks and spills. Erosion and sediment control BMPs shall be installed prior to initiating and construction activities.
d. All work below the Highest Mean Tide (HMT) shall be completed during the ODFW prescribed IWWP of November 1 through February 28.
e. The contractor shall be responsible for the preparation of a Pollution Control Plan (PCP). The PCP shall designate a professional on-call spill response team, and identify all contractor activities, hazardous substances used, and wastes generated. The PCP shall describe how hazardous substances and wastes will be stored, used, contained, monitored, disposed of, and documented.
i. The following mitigation measures shall be implemented to minimize disturbance during pile removal and installation activities:
a. An air bubble system shall be employed during impact installation unless the piles are driven on dry areas.
b. The contractor shall implement a soft-start procedure for impact pile driving activities. The objective of a soft-start is to provide a warning and/or give animals in close proximity to pile driving a chance to leave the area prior to an impact driver operation at full capacity, thereby exposing fewer animals to loud underwater and airborne sounds. A soft-start procedure will be used at the beginning of each day that pile installation activities are conducted. For impact driving, an initial set of three strikes would be made by the hammer at 40 percent energy, followed by a one minute wait period, the two subsequent three-strike sets at 40 percent energy, with one minute waiting periods, before initiating continuous driving.
c. Monitoring of marine mammals shall take place starting 30 minutes before construction begins until 30 minutes after construction ends.
d. Before commencement of non-pulse (vibratory) pile removal activities, the contractor shall establish a 15 m Level A Exclusion Zone (Table 2).
e. Before commencement of impact pile driving activities, the contractor shall establish a 53.4 m Level A Exclusion Zone (Table 2).
f. Before commencement of above-water construction activities, the contractor shall establish a 10 m Level A Exclusion Zone (Table 2).
g. Prior to initiating in-water pile driving, pile removal, and concrete removal activities, the contractor will establish Level B ZOIs (Table 2):
1. The Level B ZOI for all pile removal activities shall be established out to a distance of 1,600 m from the pile.
2. The Level B ZOI for all pile driving activities shall be established out to a distance of 398 m from the pile.
3. The Level B ZOI during rail superstructure demolition and construction shall be established out to a distance of 28 m from the construction area.
4. If a marine mammal enters the Level B ZOI, but does not enter the Level A Exclusion Zone, a “take” shall be recorded and the work shall be allowed to proceed without cessation. Marine mammal behavior will be monitored and documented.
5. The City shall shut down operations if a marine mammal is sighted within or approaching the Level A Exclusion Zone until the marine mammal is sighted moving away from the exclusion zone, or if not sighted for 15 minutes after the shutdown. The City shall also shut down to prevent Level B takes when the take of a pinnipeds species is approaching the authorized take limits.
h. If the exclusion zone is obscured by poor lighting conditions, pile driving shall not be initiated until the entire zone is visible.
i. In-water work shall only commence once observers have declared the Exclusion Zone clear of marine mammals.
j. A monitoring plan shall be implemented as described below. This plan includes Exclusion Zones and specific procedures in the event a marine mammal is encountered.
The holder of this Authorization is required to conduct marine mammal monitoring during construction activities.
(a) Protected Species Observers: The contractor shall employ qualified Protected Species Observers (PSOs) to monitor the extent of the Region of Activity for marine mammals. Qualifications for marine mammal observers include:
i. Visual acuity in both eyes (correction is permissible) sufficient for discerning moving targets at the water's surface with ability to estimate target size and distance. Use of binoculars is necessary to correctly identify the target.
ii. Advanced education (at least some college level coursework) in biological science, wildlife management, mammalogy, or related fields (bachelor's degree or higher is preferred but not required).
iii. Experience or training in the field of identification of marine mammals (cetaceans and pinnipeds).
iv. Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations.
v. Ability to communicate orally, by radio or in person, with project personnel to provide real time information on marine mammals observed in the area as necessary.
vi. Experience and ability to conduct field observations and collect data according to assigned protocols (this may include academic experience).
vii. Writing skills sufficient to prepare a report of observations that would include such information as the number and type of marine mammals observed; the behavior of marine mammals in the project area; dates and times when
ii. Monitoring Schedule: PSOs shall be present onsite during in-water construction activities as follows:
i. During vibratory pile removal activities:
a. Two NMFS qualified observers shall be onsite the first day of removal at each bridge, one NMFS qualified observer shall be onsite every third day thereafter.
b. One PSO observer shall be stationed at the best practicable land-based vantage point to observe the downstream portion of the disturbance zone, and the other positioned at the best practicable land-based vantage point to monitor the upstream portion of the disturbance zone.
c. When PSOs are not onsite, the contractor's onsite inspector shall be trained in species identification and monitoring protocol, and shall be onsite during all pile removal activities to ensure than no species enter the 15 m Exclusion Zone.
ii. During pile driving activities:
a. Two NMFS qualified observers shall be onsite the first two days of pile driving at each bridge, and every third day thereafter.
b. One PSO shall be stationed at the best practicable land-based vantage point to observe the downstream portion of the disturbance and exclusion zones, and the other positioned at the best practicable land-based vantage point to monitor the upstream portion of the disturbance and exclusion zones.
c. When PSOs are not onsite, contractor's onsite inspector shall be trained in species identification and monitoring protocol, and shall be onsite during all pile driving activities to ensure that no species enter the 53.4 m exclusion zone.
iii. During substructure demolition activities (not including pile removal) and superstructure demolition and construction activities:
a. One PSO shall be onsite once a week to monitor the Exclusion Zone within 10 m of the construction site.
b. When the PSO is not onsite, contractor's inspector shall be trained in species identification and monitoring protocol, and shall be onsite during all construction activities to ensure that no species enter the 10 m Exclusion Zone during superstructure demolition and construction activities.
iii. Monitoring Protocols: PSOs shall monitor marine mammal presence within the Level A Exclusion Zone and Level B ZOIs per the following protocols:
i. A range finder or hand-held global positioning system device shall be used by PSOs to ensure that the defined Exclusion Zones are fully monitored and the Level B ZOIs monitored to the best extent practicable.
ii. A 30-minute pre-construction marine mammal monitoring period shall be required before the first pile driving or pile removal of the day. A 30-minute post-construction marine mammal monitoring period shall be required after the last pile driving or pile removal of the day. If the contractor's personnel take a break between subsequent pile driving or pile removal for more than 30 minutes, then additional pre-construction marine mammal monitoring shall be required before the next start-up of pile driving or pile removal.
iii. If marine mammals are observed, the following information shall be documented:
a. Species of observed marine mammals;
b. Number of observed marine mammal individuals;
c. Life stages of marine mammals observed;
d. Behavioral habits, including feeding, of observed marine mammals, in both presence and absence of activities;
e. Location within the Region of Activity; and
f. Animals' reaction (if any) to pile driving activities or other construction-related stressors including:
1. Impacts to the long-term fitness of the individual animal, if any
2. Long-term impacts to the population, species, or stock (
g. Overall effectiveness of mitigation measures.
iv. During vibratory rule removal and impact driving, qualified PSOs shall monitor the Level B ZOIs from the best practicable land-based vantage point to observe the downstream and upstream portions of the disturbance zone according to the above schedule.
v. PSOs shall use binoculars to monitor the Region of Activity.
The holder of this Authorization is required to:
(a) Submit a draft report on all monitoring conducted under the IHA within 90 calendar days of the completion of construction work. This report must contain the informational elements described in the Monitoring Plan, at minimum, and shall also include:
i. Detailed information about any implementation of shutdowns, including the distance of animals to the pile and description of specific actions that ensued and resulting behavior of the animal, if any.
(b) If comments are received from the NMFS West Coast Regional Administrator or NMFS Office of Protected Resources on the draft report, a final report shall be submitted to NMFS within 30 days thereafter. If no comments are received from NMFS, the draft report will be considered to be the final report.
(c) Reporting injured or dead marine mammals:
i. In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by this IHA, such as an injury (Level A harassment), serious injury, or mortality, the City shall immediately cease the specified activities and report the incident to the Office of Protected Resources (301-427-8401), NMFS, and the West Coast Regional Stranding Coordinator (206-526-4747), NMFS. The report must include the following information:
i. Time and date of the incident;
ii. Description of the incident;
iii. Environmental conditions (
iv. Description of all marine mammal observations and active sound source use in the 24 hours preceding the incident;
v. Species identification or description of the animal(s) involved;
vi. Fate of the animal(s); and
vii. Photographs or video footage of the animal(s).
Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS will work with the City to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The City may not resume their activities until notified by NMFS.
ii. In the event that the City discovers an injured or dead marine mammal, and the lead observer determines that the cause of the injury or death is unknown and the death is relatively recent (
The report must include the same information identified in 6(b)(i) of this IHA. Activities may continue while NMFS reviews the circumstances of the incident. NMFS will work with the City
iii. In the event that the City discovers an injured or dead marine mammal, and the lead observer determines that the injury or death is not associated with or related to the activities authorized in the IHA (
This Authorization may be modified, suspended or withdrawn if the holder fails to abide by the conditions prescribed herein, or if NMFS determines the authorized taking is having more than a negligible impact on the species or stock of affected marine mammals.
We request comment on our analyses, the proposed authorization, and any other aspect of this Notice of Proposed IHA for the proposed bridge replacement project. We also request comment on the potential for renewal of this proposed IHA as described in the paragraph below. Please include with your comments any supporting data or literature citations to help inform our final decision on the request for MMPA authorization.
On a case-by-case basis, NMFS may issue a second one-year IHA without additional notice when (1) another year of identical or nearly identical activities as described in the Specified Activities section is planned or (2) the activities would not be completed by the time the IHA expires and a second IHA would allow for completion of the activities beyond that described in the Dates and Duration section, provided all of the following conditions are met:
• A request for renewal is received no later than 60 days prior to expiration of the current IHA.
• The request for renewal must include the following:
(1) An explanation that the activities to be conducted beyond the initial dates either are identical to the previously analyzed activities or include changes so minor (
(2) A preliminary monitoring report showing the results of the required monitoring to date and an explanation showing that the monitoring results do not indicate impacts of a scale or nature not previously analyzed or authorized.
• Upon review of the request for renewal, the status of the affected species or stocks, and any other pertinent information, NMFS determines that there are no more than minor changes in the activities, the mitigation and monitoring measures remain the same and appropriate, and the original findings remain valid.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of application for Letter of Authorization; request for comments and information.
NMFS has received a request from the National Park Service (NPS) for authorization to take small numbers of marine mammals incidental to glaucous-winged gull and climate monitoring/research in Glacier Bay National Park (GLBA NP), Alaska over the course of five years from the date of issuance. Pursuant to regulations implementing the Marine Mammal Protection Act (MMPA), NMFS is announcing receipt of the NPS' request for the development and implementation of regulations governing the incidental taking of marine mammals. NMFS invites the public to provide information, suggestions, and comments on the NPS' application and request.
Comments and information must be received no later than March 26, 2018.
Comments on the applications should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service. Physical comments should be sent to 1315 East-West Highway, Silver Spring, MD 20910 and electronic comments should be sent to
Jonathan Molineaux, Office of Protected Resources, NMFS, (301) 427-8401. An electronic copy of the NPS's application may be obtained online at:
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
An incidental take authorization shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth.
NMFS has defined “negligible impact” in 50 CFR 216.103 as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.
The MMPA states that the term “take” means to harass, hunt, capture, kill or attempt to harass, hunt, capture, or kill any marine mammal.
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as any act of pursuit, torment, or annoyance, which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
On February 6, 2018, NMFS received an adequate and complete application from the NPS requesting authorization for take of marine mammals incidental to glaucous-winged gull and climate monitoring research activities in GLBA NP, Alaska. The requested regulations would be valid for five years, from March 2019 through December 2023. The NPS plans to conduct necessary work, including gull and climate monitoring to assist in informing future native egg harvests and fill crucial climate data gaps. The proposed action may incidentally expose marine mammals occurring in the vicinity to either acoustic disturbance from motorboat sounds or visual disturbance from the presence of observers, thereby resulting in incidental take, by Level B harassment only. Therefore, the NPS requests authorization to incidentally take eastern pacific harbor seals.
The purpose for the monitoring activities are as follows. Gull monitoring studies are mandated by a Record of Decision of a Legislative Environmental Impact Statement (LEIS) (NPS 2010) which states that NPS must initiate a monitoring program for glaucous-winged gulls (
Interested persons may submit information, suggestions, and comments concerning the NPS' request (see
Court Services and Offender Supervision Agency for the District of Columbia (CSOSA).
Notice of public availability of FY 2016 Service Contract Inventory.
In accordance with Section 743 of Division C of the FY2010 Consolidated Appropriations Act, the Court Services and Offender Supervision Agency hereby advises the public of the availability of the FY 2016 Service Contract Inventory. This inventory provides information on service contract actions over $25,000 that were made in FY 2016. The information is organized by function to show how contracted resources are distributed throughout the agency. This inventory has been developed in accordance with guidance issued on November 5, 2010 and December 19, 2011 by the Office of Management and Budget's Office of Federal Procurement Policy (OFPP). CSOSA's FY 2016 Service Contract Inventory is available on its website at:
Office of Elementary and Secondary Education (OESE), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995, ED is proposing an extension of an existing information collection.
Interested persons are invited to submit comments on or before April 23, 2018.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Maria Hishikawa, 202-260-1473.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
National Center for Education Statistics (NCES), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995, ED is proposing a revision of an existing information collection.
Interested persons are invited to submit comments on or before March 26, 2018.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Kashka Kubzdela, 202-502-7411.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of
Office of Postsecondary Education, Department of Education.
Call for written third-party comments; extension of comment period.
On January 24, 2018, we published in the
The comment period for the notice published January 24, 2018 (83 FR 3335), is extended. We must receive your comments on or before March 1, 2018.
Written comments about the initial application for recognition of ACICS or the ABA compliance report must be received by March 1, 2018, in the
Herman Bounds, Director, Accreditation Group, Office of Postsecondary Education, U.S. Department of Education, 400 Maryland Avenue SW, Room 270-01, Washington, DC 20202, telephone: (202) 453-7615, or email:
If you use a telecommunications device for the deaf or a text telephone, call the Federal Relay Service, toll free, at 1-800-877-8339.
You may also access documents of the Department published in the
Take notice that Federal Energy Regulatory Commission (Commission) staff will hold a technical conference to discuss the participation of distributed energy resource (DER) aggregations in Regional Transmission Organization (RTO) and Independent System Operator (ISO) markets, and to more broadly discuss the potential effects of distributed energy resources on the bulk power system. The technical conference will take place on April 10 and 11, 2018 at the Commission's offices at 888 First Street NE, Washington DC beginning at 9:30 a.m. and ending at 4:30 p.m. (Eastern Time). Commissioners will lead the second panel of the technical conference. Commission staff will lead the other six panels, and Commissioners may attend.
The technical conference will address two broad set of issues related to DERs. First, the technical conference will gather additional information to help the Commission determine what action to take on the distributed energy resource aggregation reforms proposed in its Notice of Proposed Rulemaking on Electric Storage Participation in Markets Operated by Regional Transmission Organizations and Independent System Operators (NOPR).
Attached to this Notice is a description of the seven panels that will be conducted at the technical conference.
Further details of this conference will be provided in a supplemental notice.
Those wishing to participate in this conference should submit a nomination form online by 5:00 p.m. on March 15, 2018 at:
All interested persons may attend the conference, and registration is not required. However, in-person attendees are encouraged to register on-line by April 3, 2018 at:
The Commission will transcribe and webcast this conference. Transcripts will be available immediately for a fee from Ace Reporting (202-347-3700). A link to the webcast of this event will be available in the Commission Calendar of Events at
Commission conferences are accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations please send an email to
For more information about this technical conference, please contact David Kathan at (202) 502-6404,
The purpose of this technical conference is to gather additional information to help the Commission determine what action to take on the distributed energy resource (DER) aggregation reforms proposed in the Commission's Notice of Proposed Rulemaking on Electric Storage Participation in Markets Operated by Regional Transmission Organizations and Independent System Operators (NOPR), and to explore issues related to the potential effects of DERs on the bulk power system. Panels 1 and 3 on the first day focus on specific NOPR proposals that relate to DER participation and compensation. Panel 2 will provide a forum for Commissioners to discuss DER aggregation with a panel of state and local regulators. During the second day of the technical conference, operational issues associated with DER data, modeling, and coordination will be examined.
The objective of this panel is to discuss the integration of DER aggregations into the modeling, clearing, dispatch, and settlement mechanisms of RTOs and ISOs as considered in the NOPR. The NOPR proposed to require each RTO/ISO to revise its tariff to
• Acknowledging that some RTOs/ISOs already allow aggregations across multiple pricing nodes, what approaches are available to ensure that the dispatch of a multi-node DER aggregation does not exacerbate a transmission constraint?
• Because transmission constraints change over time, would the ability of a multi-node DER aggregation to participate in an RTO/ISO market need to be revisited as system topology changes?
• Do multi-node DER aggregations present any special considerations for the reliability of the transmission system that do not arise from other market participants? How could these concerns be resolved?
• What types of modifications would need to be made to the modeling and dispatch software, communications platforms, and automation tools necessary to enable reliable and efficient system dispatch for multi-node DER aggregations? How long would it take for these changes to be implemented?
• If the Commission requires the RTOs/ISOs to allow multi-node DER aggregations to participate in their markets, how should a DER aggregation located across multiple pricing nodes be settled for the services that it provides? One approach to settling a multi-node DER aggregation could be to pay it the weighted average locational marginal price (LMP) across the nodes at which it is located. What are the advantages and disadvantages of this approach? Are there other approaches that should be considered?
• The NOPR considered the use of “distribution factors” to account for the expected response of DER aggregations from multiple nodes. Are there other characteristics of DER aggregations that may not be accommodated by existing bidding parameters in the RTOs/ISOs? If so, what are they? Would new bidding parameters be necessary? If so, what are they?
This panel will provide a forum for Commissioners to discuss the NOPR's DER aggregation proposals with state and local regulators. The discussion will provide an opportunity for state and local regulators to provide their perspectives and concerns about the operational effects that DER participation in the wholesale market could have on facilities they regulate. In particular, Commissioners expect to explore the following questions:
• What are the potential positive or negative operational impacts (
• Do state and local authorities have operational concerns with a DER aggregation participating in both wholesale and retail markets? If so, what, if any, coordination protocols between states or local regulators and regional markets would be required to facilitate DER aggregations' participation in both retail and wholesale markets? Could the use of appropriate metering and telemetry address the ability to distinguish between markets and services, and prevent double compensation for the same services? What is the role of state and local regulators in monitoring and regulating the potential for such double compensation? How should regional flexibility be accommodated?
• What entities should be included in the coordination processes used to facilitate the participation of DER aggregations in Regional Transmission Organization (RTO) and Independent System Operator (ISO) markets? Should state and local regulatory authorities play an active role in these coordination processes? Is there a need to modify existing RTO/ISO protocols or develop new protocols to accommodate state participation in this coordination? What should be the role of state and local regulators in the NOPR's proposed distribution utility review of DER aggregation registrations?
• Does the proposed use of market participation agreements address state and local regulator concerns about the role of distribution utilities in the coordination and registration of DERs in aggregations? Are the proposed provisions in the market participation agreements that require that DER aggregators attest that they are compliant with the tariffs and operation procedures of distribution utilities and state and local regulators sufficient to address such concerns?
• What are the proper protections and policies to ensure that DER aggregations participating in wholesale markets will not negatively affect efficient outcomes in the distribution system?
DERs can both sell services into the RTO/ISO markets and participate in retail compensation programs. To ensure that that there is no duplication of compensation for the same service, in the NOPR the Commission proposed that individual DERs participating in one or more retail compensation programs, such as net metering or another RTO/ISO market participation program, will not be eligible to participate in the RTO/ISO markets as part of a DER aggregation.
• Given the variety of wholesale and retail services, is it possible to
• In Order No. 719, the Commission stated that “[a]n RTO or ISO may place appropriate restrictions on any customer's participation in an [aggregation of retail customers]-aggregated demand response bid to avoid counting the same demand response resource more than once.”
• What other options besides the NOPR's proposed limits on dual participation exist to address issues associated with the participation of DERs or DER aggregations in one or more retail compensation programs or another wholesale market participation program at the same time as it participates in a wholesale DER aggregation? Is there a way to coordinate DER participation in multiple markets or compensation programs? Is a possible solution having a targeted prohibition, such as the limitation placed on net-metered resources in CAISO?
To plan and operate the bulk power system, it is important for transmission planners, transmission operators, and distribution utilities to collect and share validated data across the transmission-distribution interface. In September 2017, the North American Electric Reliability Corporation (NERC) published a Reliability Guideline on DER modeling (Guideline) that specified the minimum DER information needed by transmission planners and planning coordinators to assist in modeling and assessments.
• What type of information do bulk power system planners and operators need regarding DER installations within their footprint to plan and operate the bulk power system? Would it be sufficient for distribution utilities to provide aggregate information about the penetration of DERs below certain points on the transmission-distribution interface? If greater granularity is needed, what level of detail would be sufficient? Is validation of the submitted data possible using data available?
• What, if any, data on DER installations is currently collected, and by whom is it collected? Do procedures and appropriate agreements exist to share this data with affected bulk power system entities (
• At various DER penetration levels, what planning and operations impacts do you observe? Do balancing authorities with significant growth in DERs experience the need to address bulk power system reliability and operational considerations at certain DER penetration levels? What are they? Is the MW level of DER penetration the most important factor in whether DERs cause planning and operational impacts, or do certain characteristics of installed DERs affect the system operator's analysis? Is the point at which DER penetration causes bulk power system reliability and operational impacts the point at which it becomes necessary for distribution utilities to provide information on DERs to the bulk power system operator, or is there some other threshold that could trigger a need for sharing this information? How much might the answer to these questions vary on a regional basis, and what factors may contribute to this variance?
• How are long-term projections for DER penetrations developed? Are these projections currently included in related forecasting efforts? Do system operators study the potential effects of future DER growth to assess changing infrastructure and planning needs at different penetration levels?
• What are the effects on the bulk power system if long-term forecasts of DER growth are inaccurate? Are these effects within current planning horizons? Are changes in the expected growth of DERs incorporated into ongoing planning efforts?
• How are DERs incorporated into production cost modeling studies? Do current tools allow for assessment of forecasting variations and their effects?
• Noting that participation in the RTO/ISO markets by DER aggregators may provide more information to the RTOs/ISOs about DERs than would otherwise be available, should any specific information about DER aggregations or the individual DERs in them be required from aggregators to ensure proper planning and operation of the bulk power system?
• Do the RTOs/ISOs need any directly metered data about the operations of DER aggregations to ensure proper planning and operation of the bulk power system?
Bulk power system planners and operators must select methods to feasibly model DERs at the bulk power system level with sufficient granularity to ensure accurate results. The chosen methodology for grouping DERs at the bulk power system level could affect planners' ability to predict system behavior following events, or to identify a need for different operating procedures under changing system conditions. Further, the operation of DERs can affect both bulk power systems and distribution facilities in unintended ways, suggesting that new tools to model the transmission and distribution interface may be needed. Staff is also aware of ongoing work in this area, for example efforts at NERC, national labs and other groups, to evaluate options for studies in these areas, which could also inform future work. This panel will focus on the incorporation of DERs into different types of planning and operational studies, including options for modeling
• What are current and best practices for modeling DERs in different types of planning, operations, and production cost studies? Are options available for modeling the interactions between the transmission and distribution systems?
• To what extent are capabilities and performance of DERs currently modeled? Do current modeling tools provide features needed to model these capabilities?
• What methods, such as net load, composite load models, detailed models or others, are currently used in power flow and dynamic models to represent groups of DERs at the bulk power system level? Would more detailed models of DERs at the bulk power system level provide better visibility and enable more accurate assessment of their impacts on system conditions? Does the appropriate method for grouping DERs vary by penetration level?
• Do current contingency studies include the outage of DER facilities, and if they are considered, how is the contingency size chosen? At what penetration levels or under what system conditions could including DER outages be beneficial? Are DERs accounted for in calculations for Under Frequency Load Shedding and related studies?
• What methods are used to calculate capacity needed for balancing supply and demand with large amount of solar DER (ramping and frequency control) and determining which resources can provide an appropriate response?
In the NOPR, the Commission proposed to require each RTO/ISO to revise its tariff to provide for coordination among itself, a DER aggregator, and the relevant distribution utility or utilities when a DER aggregator registers a new DER aggregation or modifies an existing DER aggregation.
• If the Commission adopts its proposal to require the RTO/ISO to allow a distribution utility to review the list of individual resources that are located on their distribution system that enroll in a DER aggregation before those resources may participate in RTO/ISO electric markets, is it appropriate for distribution utilities to have a role in determining when the individual DERs may begin participation? Should the RTO/ISO tariff provide the distribution utility with the ability to provide either binding or non-binding input to the RTO/ISO? Should the RTO/ISO provide the distribution utility with a specific period of time in which to consult before DERs may begin participation? Should the Commission require the RTO/ISO to receive explicit consent from the distribution utility before a DER is included in a DER aggregation? Are there other approaches to coordinate with the distribution utility? What are the advantages and disadvantages of these approaches?
• Are new processes and protocols needed to ensure coordination among DER aggregators, distribution utilities, and RTOs/ISOs during registration of a new DER aggregations? How can the Commission ensure that any new processes and protocols occur in a way that provides adequate transparency to the interested parties and also occurs on a timely basis?
• Should there be a coordination agreement in place prior to the participation of DER aggregation in RTO/ISO markets? Who should be parties to this coordination agreement? How would the coordination agreement be enforced?
• What is the best approach for involving retail regulatory authorities in the registration of DER aggregations in the RTO/ISO markets?
• What types of grid architecture could support the integration of DER aggregations into the RTO/ISO markets? Knowing that a variety of grid architectures are being explored in various regions, does it make sense for the Commission to consider specific architectural requirements for RTOs/ISOs for the effective integration and coordination of DER aggregations?
This panel will focus primarily on the operational considerations associated with both individual DERs and DER aggregations and with the interactions and communications between DERs, DER aggregators, distribution utilities, and transmission operators. In the NOPR, the Commission acknowledged that ongoing coordination between the RTO/ISO, a DER aggregator, and the relevant distribution utility or utilities may be necessary to ensure that the DER aggregator is dispatching individual resources in a DER aggregation consistent with the limitations of the distribution system.
• What real-time data acquisition and communication technologies are currently in use to provide bulk power system operators with visibility into the distribution system? Are they adequate to convey the information necessary for
• What processes/protocols do distribution utilities, transmission operators, and DERs or DER aggregators use to coordinate with each other? Are these processes/protocols capable of providing needed real-time communications and coordination? What new processes, resources, and efforts will be required to achieve effective real-time coordination?
• What are the minimum set of specific RTO/ISO operational protocols, performance standards, and market rules that should be adopted now to ensure operational coordination for DER aggregation participating in the RTO/ISO markets? What additional protocols may be important for the future? Should the Commission adopt more prescriptive requirements with respect to coordination than those proposed in the NOPR? If so, what should the Commission require?
• Should distribution utilities be able to override RTO/ISO decisions regarding day-ahead and real-time dispatch of DER aggregations to resolve local distribution reliability issues? If so, should DER aggregations nonetheless be subject to non-deliverability penalties under such circumstances?
• Is it possible for DERs or DER aggregations participating in the RTO/ISO markets to also be used to improve distribution system operations and reliability? If so, please provide examples of how this could be accomplished.
• Can real-time dispatch of aggregated DERs address distribution constraints? If not, can tools be developed to accomplish this?
• Should individual DERs be required to have communications capabilities to comply with control center obligations? What level of communications security should be employed for these communications?
• How might recent and expected technical advancements be used to enhance the coordination of DER aggregations, for example, integrating Energy Management Systems (EMS) and Distribution Management Systems (DMS) for efficient operational coordination?
Take notice that on February 14, 2018, pursuant to Rule 215 of the Rules of Practice and Procedure of the Federal Energy Regulatory Commission (Commission),
Any person desiring to intervene or to protest in this proceeding must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Petitioner.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426.
The filings in the above proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the website that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
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k. Pursuant to section 4.32(b)(7) of 18 CFR of the Commission's regulations, if any resource agency, Indian Tribe, or person believes that an additional scientific study should be conducted in order to form an adequate factual basis for a complete analysis of the application on its merit, the resource agency, Indian Tribe, or person must file a request for a study with the Commission not later than 60 days from the date of filing of the application, and serve a copy of the request on the applicant.
l. Deadline for filing additional study requests and requests for cooperating agency status: April 3, 2018.
The Commission strongly encourages electronic filing. Please file additional study requests and requests for cooperating agency status using the Commission's eFiling system at
m. The application is not ready for environmental analysis at this time.
n. The project consists of the following existing facilities:
(1) A 14-foot-high, 250-foot-long rock masonry gravity dam impounding Swan Lake with a surface area of approximately 1,364 acres at an elevation of 201 feet above sea level; (2) a concrete inlet structure; (3) three manually operated butterfly gates that regulate flow through the inlet structure; (4) two culverts the convey flow under Route 141; and (5) appurtenant facilities.
(1) A 15-foot-high, 86-foot-long rock masonry dam impounding a reservoir with a storage capacity of approximately 1,621 acre-feet at an elevation of 188 feet above sea level; (2) a concrete inlet structure; (3) a manually operated gate regulating flow from the inlet structure to the penstock; (4) a 350-foot-long steel penstock; (5) a 266-square-foot concrete powerhouse containing two Kaplan turbines and generating units with a licensed capacity of 75 kW; (6) a 300-foot-long, 12-kilovolt (kV) transmission line and (7) appurtenant facilities.
(1) A 15-foot-high, 135-foot-long masonry gravity dam impounding a reservoir with a storage capacity of approximately 200 acre-feet at an elevation of approximately 159 feet above sea level; and (2) three manually operated gates.
(1) A 6-foot-tall, 70-foot-wide masonry dam impounding a reservoir with a storage capacity of approximately 7 acre-feet at an elevation of approximately 128 feet above sea level; (2) a concrete inlet structure; (3) a trash sluice with wooden stop logs; (4) a 3-foot-diameter, 110-foot-long plastic penstock; (5) a powerhouse containing a Francis-type turbine and generator unit with a licensed capacity of 94 kW; and (6) an approximately 100-foot-long, 12-kV transmission line.
(1) A 21-foot-high, 231-foot-long buttress dam impounding a reservoir with a storage capacity of approximately 72 acre-feet at an elevation of approximately 109 feet above sea level; (2) a 5-foot-diameter, 1,200-foot-long steel penstock; (3) a 300-square-foot concrete and timber powerhouse with a Kaplan-type turbine and generator unit with a licensed capacity of 200 kW; and (4) an approximately 500-foot-long, 12-kV transmission line.
o. 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
You may also register online at
p. Procedural schedule: The application will be processed according to the following preliminary schedule. Revisions to the schedule will be made as appropriate.
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following qualifying facility filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that on February 13, 2018, pursuant to Rules 206 and 212 of the Federal Energy Regulatory Commission's (FERC or Commission) Rules of Practice and Procedure, 18 CFR 385.206, and .212 (2017), and the Commission's regulations governing transportation service provided under section 311 of the Natural Gas Policy Act of 1978, 18 CFR part 284, the City of Alexandria, Louisiana (Complainant) filed a formal complaint against EnLink LIG, LLC (EnLink or Respondent) requesting relief from EnLink's alleged violations of its FERC filed Statement of Operating Conditions, all as more fully explained in the complaint.
Complainant certifies that copies of complaint were served on the contact of EnLink as listed on the Commission's list of Corporate Officials, the Office of the General Counsel for the Louisiana Public Service Commission, and the Louisiana Department of Natural Resources.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. The Respondent's answer and all interventions, or protests must be filed on or before the comment date. The Respondent's answer, motions to intervene, and protests must be served on the Complainant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on February 5, 2018, Northern Natural Gas Company (Northern), 111 South 103rd Street, Omaha, Nebraska 68124-1000, filed in Docket No. CP18-81-000 a prior notice request pursuant to sections 157.205, 157.208 and 157.216 of the Commission's regulations under the Natural Gas Act (NGA), and Northern's blanket certificate issued in Docket No. CP82-401-000, to construct its Marquette Branch Line Expansion Project (Project). The Project consists of: (i) Construction of the new East Wakefield compressor station consisting of two 1,590-horsepower natural gas-fired turbine compressor units in Gogebic County, Michigan; (ii) construction of a new regulator station near West Ishpeming in Marquette County, Michigan; (iii) uprating the maximum allowable operating pressure (MAOP) of a 12.2-mile segment of Northern's existing 12- and 16-inch-diameter Marquette branch line in Marquette County, Michigan; and (iv) abandonment of short segments of pipeline to accommodate station tie-ins in Gogebic and Marquette Counties, Michigan. The Project will allow Northern to deliver 24,610 dekatherms per day of incremental service to Upper Michigan Energy Resources Corporation. Northern estimates the cost of the Project to be approximately $22,124,718, all as more fully set forth in the application which is on file with the Commission and open to public inspection. The filing may also be viewed on the web at
Any questions concerning this application may be directed to Michael T. Loeffler, Senior Director, Certificates and External Affairs, Northern Natural Gas Company, PO Box 3330, Omaha, Nebraska 68103-0330, by telephone at (402) 398-7103, by facsimile at (402) 398-7190, or by email at
Any person or the Commission's staff may, within 60 days after issuance of
Pursuant to section 157.9 of the Commission's rules (18 CFR 157.9), within 90 days of this Notice, the Commission staff will either: complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's EA.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenters will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commenters will not be required to serve copies of filed documents on all other parties. However, the non-party commenters, will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the eFiling link at
Environmental Protection Agency (EPA).
Notice of proposed action on petition.
The Environmental Protection Agency (EPA) is proposing to deny a section 126(b) petition submitted by the state of Connecticut pursuant to the Clean Air Act (CAA or Act) on June 1, 2016. The petition requested that EPA make a finding that emissions from Brunner Island Steam Electric Station (Brunner Island), located in York County, Pennsylvania, are significantly contributing to nonattainment and interfering with maintenance of the 2008 ozone national ambient air quality standards (NAAQS) in Connecticut in violation of the good neighbor provision under the CAA. The EPA proposes to deny the petition because Connecticut has not met its burden to demonstrate that the source emits or would emit in violation of the good neighbor provision such that it will significantly contribute to nonattainment or interfere with maintenance of the 2008 ozone NAAQS in Connecticut. The EPA is further proposing to deny the petition based on the conclusion that the Brunner Island facility does not currently emit nor is it expected to emit pollution in violation of the good neighbor provision for the 2008 ozone NAAQS.
Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2016-0347, at
Questions concerning this proposed notice should be directed to Mr. Lev Gabrilovich, U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Air Quality Policy Division, Mail Code C539-01, Research Triangle Park, NC 27711, telephone (919) 541-1496; email at
The information in this document is organized as follows:
Throughout this document wherever “we,” “us,” or “our” is used, we mean the U.S. EPA. Where can I get a copy of this document and other related information?
The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2016-0347 (available at
Ground-level ozone is not emitted directly into the air, but is a secondary air pollutant created by chemical reactions between oxides of nitrogen (NO
The statutory authority for this action is provided by the CAA sections 126 and 110(a)(2)(D)(i). Section 126(b) of the CAA provides, among other things, that any state or political subdivision may petition the Administrator of the EPA to find that any major source or group of stationary sources in an upwind state emits or would emit any air pollutant in violation of the prohibition of CAA section 110(a)(2)(D)(i),
CAA section 126(c) explains the impact of a CAA section 126(b) finding and establishes the conditions under which continued operation of a source subject to such a finding may be permitted. Specifically, CAA section 126(c) provides that it would be a violation of section 126 of the Act and of the applicable state implementation plan (SIP): (1) For any major proposed new or modified source subject to a CAA section 126(b) finding to be constructed or operate in violation of the prohibition of CAA section 110(a)(2)(D)(i); or (2) for any major existing source for which such a finding has been made to operate more than three months after the date of the finding. The statute, however, also gives the Administrator discretion to permit the continued operation of a source beyond 3 months if the source complies with emission limitations and compliance schedules provided by the EPA to bring about compliance with the requirements contained in CAA sections 110(a)(2)(D)(i) and 126 as expeditiously as practicable but no later than 3 years from the date of the finding.
Section 126(b) of the CAA provides a mechanism for states and other political subdivisions to seek abatement of pollution in other states that may be affecting their air quality; however, it does not identify specific criteria or a specific methodology for the Administrator to apply when deciding whether to make a section 126(b) finding or deny a petition. Therefore, the EPA has discretion to identify relevant criteria and develop a reasonable methodology for determining whether a section 126(b) finding should be made.
Nonetheless, the EPA may decide to conduct independent analyses when helpful in evaluating the basis for a potential section 126(b) finding or developing a remedy if a finding is made. As explained later, given the EPA's concerns with the technical information submitted as part of Connecticut's CAA section 126(b) petition, and the fact that the EPA has previously issued a rulemaking defining and at least partially addressing the same environmental concern that the petition seeks to address, the EPA determined that it was appropriate to conduct independent analysis to determine whether it should grant or deny the petition. Such analysis, however, is not required by the statute and may not be necessary or appropriate in other circumstances.
Section 110(a)(2)(D)(i) of the CAA, often referred to as the “good neighbor” or “interstate transport” provision of the Act, requires states to prohibit certain emissions from in-state sources if such emissions impact the air quality in downwind states. Specifically, CAA sections 110(a)(1) and 110(a)(2)(D)(i)(I) requires all states, within 3 years of promulgation of a new or revised NAAQS, to submit SIPs that contain adequate provisions prohibiting any source or other type of emissions activity within the state from emitting any air pollutant in amounts which will contribute significantly to nonattainment in, or interfere with maintenance by, any other state with respect to any such national primary or secondary ambient air quality standard. As described further in section II.C, the EPA has developed a number of regional rulemakings to address CAA section 110(a)(2)(D)(i)(I) for the ozone NAAQS. The EPA's most recent rulemaking, the Cross-State Air Pollution Rule Update (CSAPR Update), was promulgated to address interstate transport under section 110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS. 81 FR 74504 (October 26, 2016).
Considering both section 110(a)(2)(D)(i) and section 126, the EPA has consistently acknowledged that Congress created these provisions as two independent statutory tools to address the problem of interstate pollution transport.
Thus, it follows that if a state already has a SIP that the EPA approved as adequate to meet the requirements of CAA section 110(a)(2)(D)(i)(I), the EPA would not find that a source in that state was emitting in violation of the prohibition of CAA section 110(a)(2)(D)(i)(I) absent new information demonstrating that the SIP is now insufficient to address the prohibition. Similarly, if a state had failed to adopt an approvable SIP meeting the requirements of CAA section 110(a)(2)(D)(i)(I) and the EPA consequently promulgated a federal implementation plan (FIP) that fully addressed the deficiency, the FIP would eliminate emissions that significantly contribute to nonattainment or interfere with maintenance in a downwind state, and, hence, absent new information to the contrary, sources in the upwind state would not emit in violation of the section 110(a)(2)(D)(i)(I) prohibition.
Given that ozone formation, atmospheric residence, and transport occur on a regional scale (
The EPA has promulgated four regional interstate transport rulemakings that have addressed the good neighbor provision with respect to various ozone NAAQS. The EPA's first such rulemaking, the NO
In coordination with the NO
The EPA next promulgated the Clean Air Interstate Rule (CAIR) to address interstate transport under the good neighbor provision with respect to the 1997 ozone NAAQS, as well as the 1997 PM
In conjunction with the second CAIR regulation promulgating FIPs, the EPA acted on a CAA section 126(b) petition received from the state of North Carolina on March 19, 2004, seeking a finding that large EGUs located in 13 states were significantly contributing to nonattainment and/or interfering with maintenance of the 1997 ozone and 1997 PM
CAIR was remanded to the EPA by the D.C. Circuit in July 2008 with the instruction that the EPA replace the rule “from the ground up.”
On August 8, 2011, the EPA promulgated the Cross-State Air Pollution Rule (CSAPR) to replace CAIR. 76 FR 48208 (August 8, 2011). CSAPR addressed the same ozone and PM
Most recently, the EPA promulgated the CSAPR Update to address the good neighbor provision requirements for the 2008 ozone NAAQS. 81 FR 74504 (October 26, 2016). The final CSAPR Update built upon previous efforts to address the collective contributions of ozone pollution from states in the eastern U.S. to downwind air quality problems, including the NO
The CSAPR Update finalized enforceable measures necessary to achieve the emission reductions in each state by requiring power plants in covered states to participate in the CSAPR NO
While some aspects of these rulemakings have been challenged in court—and some aspects of these challenges have been upheld—each of these rulemakings essentially followed the same four-step framework to quantify and implement emission reductions necessary to address the interstate transport requirements of the good neighbor provision. These steps are:
(1) Identifying downwind air quality problems relative to the ozone NAAQS. The EPA has identified downwind areas with air quality problems considering monitored ozone data where appropriate and air quality modeling projections to a future compliance year. In CSAPR and the CSAPR Update, the agency identified not only those areas expected to be in nonattainment with the ozone NAAQS, but also those areas that may struggle to maintain the NAAQS, despite clean monitored data or projected attainment;
(2) determining which upwind states are “linked” to these identified downwind air quality problems and warrant further analysis to determine whether their emissions violate the good neighbor provision. In CSAPR and the CSAPR Update, the EPA identified such upwind states as those modeled to contribute at or above a threshold equivalent to one percent of the applicable NAAQS. Upwind states linked to one of these downwind nonattainment or maintenance areas were then evaluated to determine what level of emissions reductions, if any, should be required of each state;
(3) for states linked to downwind air quality problems, identifying upwind emissions on a statewide basis that significantly contribute to nonattainment or interfere with maintenance of a standard. In all four of the EPA's prior rulemakings, the EPA apportioned emission reduction responsibility among multiple upwind states linked to downwind air quality problems using cost-based and air quality-based criteria to quantify the amount of a linked upwind state's emissions that significantly contribute to nonattainment or interfere with maintenance in another state; and
(4) for states that are found to have emissions that significantly contribute to nonattainment or interfere with maintenance of the NAAQS downwind, implementing the necessary emission reductions within the state. The EPA has done this by requiring affected sources in upwind states to participate in allowance trading programs to achieve the necessary emission reductions.
In finalizing the CSAPR Update, the EPA determined the rule may only be a partial resolution of the good neighbor obligation and that the emission reductions required by the rule “may not be all that is needed” to address transported emissions. 81 FR 74521-522 (October 26, 2016). The EPA noted that the information available at that time indicated that downwind air quality problems remained after implementation of the CSAPR Update to which upwind states continued to be linked at or above the one percent threshold. However, the EPA could not determine whether, at step three of the four-step framework, the EPA had quantified all emission reductions that may be considered highly cost effective because the rule did not evaluate non-EGU ozone season NO
Of particular relevance to this proposal, the EPA determined in the CSAPR Update that emissions from Pennsylvania were linked to both nonattainment and maintenance concerns for the 2008 ozone NAAQS in Connecticut based on projections to 2017. 81 FR 74538, 74539. The EPA found there were cost-effective emission reductions that could be achieved within Pennsylvania, quantified an emission budget for the state, and required EGUs located within the state, including the source identified in Connecticut's petition, to comply with EPA's trading program under the CSAPR Update. These emission budgets were imposed in order to achieve necessary emission reductions and mitigate upwind states', including Pennsylvania's, impact on downwind states' air quality.
On March 12, 2008, the EPA promulgated a revision to the ozone NAAQS, lowering both the primary and secondary standards to 75 ppb.
The petition cites several sources of data for its contention that Brunner is impacting air quality in Connecticut. First, the petition notes that 10 out of 12 air quality monitors in Connecticut were violating the 2008 ozone NAAQS based on 2012-2014 data and preliminary 2013-2015 data available at the time the petition was submitted.
To support the conclusion that Brunner Island impacts air quality at some of these monitoring sites, Connecticut provides a technical memorandum from Sonoma Technologies, Inc., outlining the results of modeling that analyzed the impact of NO
Connecticut further alleges that Brunner Island has cost-effective and readily available control technologies that can reduce its NO
The petition further discusses the EPA's then-proposed CSAPR Update. Connecticut suggests that the then-proposed CSAPR Update could not be relied upon to control emissions from Brunner Island because: (1) It was not final at the time the petition was submitted and was therefore uncertain; and (2) the proposed rule would not require Brunner Island to reduce its
Based on the technical support provided in its petition, Connecticut requests that the EPA make a CAA section 126(b) finding and require that Brunner Island comply with emissions limitations and compliance schedules to eliminate its significant contribution to nonattainment and interference with maintenance in Connecticut.
Section 126(b) of the Act requires the EPA to either make a finding or deny a petition within 60 days of receipt of the petition and after holding a public hearing. However, any action taken by the EPA under CAA section 126(b) is also subject to the procedural requirements of CAA section 307(d).
On April 25, 2017, a coalition of public health, conservation, and environmental organizations submitted letters urging the EPA to immediately grant the pending CAA section 126(b) petitions in front of the agency, including Connecticut's, arguing that the petitions' proposed remedies would also provide critical air quality benefits to the communities surrounding the affected power plants in Indiana, Kentucky, Ohio, Pennsylvania, and West Virginia, as well as other downwind states, including New Jersey, New York, Maine, Massachusetts, and Rhode Island.
On May 16, 2017, the state of Connecticut filed suit in the U.S. District Court for the District of Connecticut alleging that the EPA failed to take timely action on Connecticut's CAA section 126(b) petition.
Brunner Island is a 1,411 megawatt facility with three tangentially-fired steam boiler EGUs, each equipped with low NO
As described in section II.B of this notice, as an initial matter in reviewing CAA section 126(b) petitions, the EPA evaluates the technical analysis in the petition to see if that analysis, standing alone, is sufficient to support a CAA section 126(b) finding. In this regard, the agency notes that certain elements of the analysis provided in the petition appear to be deficient and thereby the conclusions that the petition draws are not fully supported by Connecticut's technical assessment. For example, in the context of interstate pollution transport, in existing EPA analyses, the agency focuses its analysis on contributions to high ozone days at the downwind receptor. The analysis and metrics provided by the petitioner provide some information on the
Nonetheless, the EPA's primary approach for reviewing the petition involves EPA's independent technical analyses to help evaluate the basis for a potential CAA section 126(b) finding. As described in sections II.A and II.C of this notice, ozone is a regional pollutant and previous EPA analyses and regulatory actions have evaluated the regional interstate ozone transport problem using a four-step regional analytic framework.
The EPA applied this four-step framework in the promulgation of the CSAPR Update under CAA section 110(a)(2)(D)(i)(I) to at least partially address interstate transport with respect to the 2008 ozone NAAQS. The CSAPR Update was promulgated in 2016 and finalized EGU NO
Given the specific cross-reference in CAA section 126(b) to the substantive prohibition in CAA section 110(a)(2)(D)(i)(I), as discussed in section II.B of this notice in more detail, the EPA believes any prior findings made under the good neighbor provision are informative—if not determinative—for a CAA section 126(b) action, and thus the EPA's four-step approach under CAA section 110(a)(2)(D)(i)(I) is also appropriate for evaluating under CAA section 126(b) whether a source or group of sources will significantly contribute to nonattainment or interfere with maintenance of the 2008 8-hour ozone NAAQS in a petitioning state. Because the EPA interprets significant contribution to nonattainment and interference with maintenance to mean the same thing under both provisions, the EPA's decision whether to grant or deny a CAA section 126(b) petition regarding the 2008 8-hour ozone NAAQS depends on whether there is a downwind air quality problem in the petitioning state (
As described earlier in section II.C of this notice, the EPA has determined that a state may contribute significantly to nonattainment or interfere with maintenance of the 2008 ozone NAAQS where emissions from the state impact a downwind air quality problem (nonattainment or maintenance receptor) at a level exceeding a one percent contribution threshold, and where the sources in the state can implement emission reductions through highly cost-effective control measures.
The EPA has already conducted such an analysis for the 2008 ozone NAAQS with respect to Pennsylvania's impact on receptors in Connecticut. As the petitioners note, the EPA determined that, based on 2017 modeling projections, Pennsylvania was linked to four air quality monitors in Connecticut expected to have nonattainment or maintenance concerns. However, contrary to the assertions made in Connecticut's petition, the one percent threshold used in step two in the CSAPR Update did not alone represent emissions that were considered to “contribute significantly” or “interfere with maintenance” of the NAAQS. The conclusion that a state's emissions met or exceeded this threshold only indicated that further analysis was appropriate to determine whether any of the upwind state's emissions met the statutory criteria of significantly contributing to nonattainment or interfering with maintenance. As discussed in more detail in section II.C, this further analysis in step three considers cost, technical feasibility and air quality factors to determine whether any emissions deemed to contribute to the downwind air quality factor must be controlled pursuant to the good neighbor provision. Thus, while the EPA's modeling conducted for the CSAPR Update did link emissions from Pennsylvania to nonattainment and maintenance receptors in Connecticut in 2017, this does not conclude the determination as to whether Brunner Island is operating in violation of the good neighbor provision with respect to the 2008 ozone NAAQS.
Similarly, and for the same reasons, the impact of a single source on downwind air quality is not necessarily determinative of whether that source emits or would emit in violation of the good neighbor provision. Thus, the modeling summary provided by Connecticut regarding Brunner Island's potential impact on Connecticut monitors does not indicate whether in step three of the EPA's framework there are feasible and highly cost-effective emission reductions available at Brunner Island such that EPA could determine that this facility emits or would emit in violation of the good neighbor provision.
With respect to the question of whether there are feasible and highly cost-effective NO
As described in more detail later in this section, Brunner Island primarily burned natural gas with a low NO
Connecticut's CAA section 126(b) petition first proposes that the operation of natural gas is an available cost-effective emission reduction measure that could be implemented at Brunner Island. As noted previously, Brunner Island completed construction of a natural gas pipeline connection prior to the beginning of the 2017 ozone season (
The EPA also believes that Brunner Island will likely continue to primarily use natural gas as fuel during future ozone seasons for several reasons. First, compliance with the CSAPR Update provides an economic incentive to cost-effectively reduce NO
Second, there are continuing fuel-market based economic incentives suggesting that Brunner Island will primarily burn natural gas during the ozone season. Brunner Island elected to add the capability to primarily utilize natural gas by way of a large capital investment in a new natural gas pipeline capacity connection. Brunner Island's operators would have planned for and constructed this project during the recent period of relatively low natural gas prices. In the years preceding the completion of this natural gas pipeline connection project, average annual natural gas prices ranged from $2.52/mmBtu to $4.37/mmBtu (
The context in which Brunner Island installed natural gas-firing capability and burned natural gas is consistent
Accordingly, based on this information demonstrating that Brunner Island can be expected to continue to primarily operate using natural gas fuel in the future, the EPA cannot conclude that the facility “would emit” in violation of the good neighbor provision with respect to the 2008 ozone NAAQS. The EPA notes that Connecticut's petition relied on emission data from 2011 to attempt to demonstrate that Brunner Island is significantly contributing to nonattainment or interfering with maintenance. In light of recent changes in Brunner Island's operations, the EPA does not believe this information provides a current, reasonable estimate of how much NO
We do not agree with the petition to the extent that it asserts that the ability to buy and bank allowances in the CSAPR Update's ozone season NO
Finally, to the extent that Connecticut identifies other control strategies that could potentially be implemented at Brunner Island in order to reduce NO
Under the EPA's approach to quantifying those amounts of emissions that significantly contribute to nonattainment or interfere with maintenance, the dollar-per-ton cost of reducing emissions is balanced against two air quality factors: The amount of NO
Based on the information discussed in this notice, the EPA proposes to deny the petition because Connecticut has not met its burden to demonstrate that Brunner Island emits or would emit in violation of the good neighbor provision with respect to the 2008 ozone NAAQS.
42 U.S.C. 7410, 7426, 7601.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency is planning to submit an information collection request (ICR), National Fish Program (formerly referred to as the National Listing of Fish Advisories), (EPA ICR Number 1959.06, OMB Control Number 2040-0226) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. Before doing so, EPA is soliciting public comments on specific aspects of the proposed information collection as described below. This is a proposed extension of the ICR, which is currently approved through July 31, 2018. An Agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
Comments must be submitted on or before April 23, 2018.
Submit your comments, referencing Docket ID No. EPA-HQ-OW-2014-0350, online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
CDR Samantha Fontenelle, Office of Science and Technology, Standards and Health Protection Division, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: (202) 566-2083; fax number: (202) 566-0409; email address:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Pursuant to section 3506(c)(2)(A) of the PRA, EPA is soliciting comments and information to enable it to: (i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility; (ii) evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (iii) enhance the quality, utility, and clarity of the information to be collected; and (iv) minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology,
Equal Employment Opportunity Commission.
Notice of information collection—Uniform Guidelines on Employee Selection Procedures—Extension Without Change.
In accordance with the Paperwork Reduction Act of 1995, the Equal Employment Opportunity Commission gives notice of its intent to submit to the Office of Management and Budget (OMB) a request for renewal of the information collection described below.
Written comments on this notice must be submitted on or before April 23, 2018.
Comments should be sent to Bernadette Wilson, Executive Officer, Executive Secretariat, Equal Employment Opportunity Commission, 131 M Street NE, Washington, DC 20507. As a convenience to commenters, the Executive Secretariat will accept comments totaling six or fewer pages by facsimile (“FAX”) machine. This limitation is necessary to assure access to the equipment. The telephone number of the fax receiver is (202) 663-4114. (This is not a toll-free number). Receipt of FAX transmittals will not be acknowledged, except that the sender may request confirmation of receipt by calling the Executive Secretariat staff at (202) 663-4070 (voice) or (202) 663-4074 (TTD). (These are not toll-free telephone numbers.) Instead of sending written comments to EEOC, you may submit comments and attachments electronically at
Kathleen Oram, Acting Assistant Legal Counsel, at (202) 663-4681 (voice) or (202) 663-7026 (TDD).
The Equal Employment Opportunity Commission (EEOC or Commission) gives notice of its intent to submit the recordkeeping requirements contained in the Uniform Guidelines on Employee Selection Procedures (UGESP or Uniform Guidelines)
Pursuant to the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, and OMB regulation 5 CFR 1320.8(d)(1), the EEOC invites public comments that will enable the agency to:
(1) Evaluate 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) Evaluate the accuracy of the agency's estimate of the burden of the 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, to be collected;
The only paperwork burden derives from this recordkeeping. Only employers covered under Title VII and Executive Order 11246 are subject to UGESP. For the purposes of burden calculation, employers with 15 or more employees are counted. The number of such employers is estimated at 961,709 which combines estimates from private employment,
This burden assessment is based on an estimate of the number of job applications submitted to all Title VII-covered employers in one year, including paper-based and electronic applications. The total number of job applications submitted every year to covered employers is estimated to be 1,878,031,768, based on a National Organizations Survey
The employer burden associated with collecting and storing applicant demographic data is based on the following assumptions: Applicants would need to be asked to provide three pieces of information—sex, race/ethnicity, and an identification number (a total of approximately 13 keystrokes); the employer would need to transfer information received to a database either manually or electronically; and the employer would need to store the 13 characters of information for each applicant. Recordkeeping costs and burden are assumed to be the time cost associated with entering 13 keystrokes.
Assuming that the required recordkeeping takes 30 seconds per record, and assuming a total of 1,878,031,768 paper and electronic applications per year (as calculated above), the total UGESP burden hours for all employers would be 7,825,132. Based on a wage rate of $15.21 per hour for the individuals entering the data, the collection and storage of applicant demographic data would come to approximately $119,020,258 per year for all Title VII-covered employers. We expect that the foregoing assumptions are over-inclusive, because many employers have electronic job application processes that should be able to capture applicant flow data automatically.
However, the average burden per employer is relatively small. As stated above, we estimate that UGESP applies to 961,709 employers. Therefore, the cost per covered employer is less than $124 each ($119,020,258 divided by 961,709 is equal to $123.76). Additionally, UGESP allows for simplified recordkeeping for employers with more than 15 but less than 100 employees.
For the Commission.
Federal Communications Commission.
Notice of a modified system of records.
The Federal Communications Commission (FCC or Commission or Agency) has modified an existing system of records, FCC/OGC-3, Adjudication of Internal Complaints against Employees, subject to the
This action will become effective on February 22, 2018. The routine uses in this action will become effective on March 26, 2018 unless comments are received that require a contrary determination.
Send comments to Leslie F. Smith, Privacy Manager, Information Technology (IT), Room 1-C216, Federal Communications Commission, 445 12th Street SW, Washington, DC 20554, or to
Leslie F. Smith, (202) 418-0217, or
This notice serves to update and amend FCC/OGC-3, Adjudication of Internal Complaints against Employees, as a result of an increased use of electronic information technology. The substantive changes and modifications to the previously published version of the FCC/OGC-3 system of records include:
1. Updating the language in the Security Classification to follow with OMB guidance.
2. Minor changes to the Purposes, Categories of Individuals, and Categories of Records to be consistent the language and phrasing now used in the FCC's SORNs.
3. Deletion of two routine uses: (2) Public Access since releases under the FOIA are covered by 5 U.S.C. 552a(b)(2), so a separate routine use for them is not needed; and (6) Employment, Clearances, Licensing, Contract, Grant, or other Benefits Decisions by other than the agency, and its replacement with a new routine use: (5) For Certain Disclosures to Other Agencies to make information available to another Federal agency.
4. Updating language and/or renumbering seven routine uses: (1) Adjudication and Litigation; (2) Law Enforcement and Investigation; (3) Congressional Inquiries; (4) Government-wide Program Management and Oversight; (6) Employment, Clearances, Licensing, Contract, Grant, or other Benefits Decisions by the FCC; and (7) Labor Relations.
5. Adding three other new routine uses: (8) Breach Notification to address the Commission's real or suspected data breach situations; (9) Assistance to Federal Agencies and Entities for assistance with other Federal agencies' data breach situations; and (10) For Non-Federal Personnel to allow contractors performing or working on a contract for the Federal Government
The system of records is also updated to reflect various administrative changes related to the system managers and system addresses; policy and practices for storage, retrieval, and retention and disposal of the records; administrative, technical, and physical safeguards; and updated notification, records access, and contesting records procedures.
FCC/OGC-3, Adjudication of Internal Complaints against Employees.
No information in this system is classified.
Office of General Counsel (OGC), Federal Communications Commission (FCC), 445 12th Street SW, Washington, DC 20554.
Office of General Counsel (OGC), Federal Communications Commission (FCC), 445 12th Street SW, Washington, DC 20554.
5 U.S.C. 301.
Staff attorneys in the Office of General Counsel (OGC) use these records for purposes including, but not limited to settlement negotiations with opposing parties and to prepare for litigation before an administrative body or a court of appropriate jurisdiction.
Any FCC employee who files or is the subject of a complaint investigation involving internal personnel actions or activities, which include but are not limited to discrimination, grievance, political activity, separation, or adverse action.
Information in this system of records involves internal personnel disputes that have reached the litigation stage, and may include but are not limited to correspondence, memoranda, transcripts of hearings, briefs, pleadings, investigative reports, and decisions of hearing examiners and Commissioners.
The sources for the information in this system of records include but are not limited to:
(a) Individuals filing such claims; the individuals who are the subjects of such claims;
(b) Attorneys or representatives of the claimants and the subjects of the claims;
(c) Communication between FCC organizational units; and
(d) Investigative materials and related documentation and decisions involved in but not limited to appeals, amendments, and litigation concerning such claims.
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 to authorized entities, as is determined to be relevant and necessary, outside the FCC as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows. In each of these cases, the FCC will determine whether disclosure of the records is compatible with the purpose(s) for which the records were collected:
1. Adjudication and Litigation—To disclose information to the Department of Justice (DOJ), or other administrative body before which the FCC is authorized to appear, when: (a) The FCC or any component thereof; (b) any employee of the FCC in his or her official capacity; (c) any employee of the FCC in his or her individual capacity where DOJ or the FCC has agreed to represent the employee; or (d) the United States is a party to litigation or has an interest in such litigation, and the use of such records by DOJ or the FCC is deemed by the FCC to be relevant and necessary to the litigation.
2. Law Enforcement and Investigation—To disclose pertinent information to the appropriate Federal, State, or local agency responsible for investigating, prosecuting, enforcing, or implementing a statute, rule, regulation, or order, where the FCC becomes aware of an indication of a violation or potential violation of civil or criminal law or regulation.
3. Congressional Inquiries—To provide information to a congressional office from the record of an individual in response to an inquiry from that congressional office made at the request of that individual.
4. Government-wide Program Management and Oversight—To disclose information to the National Archives and Records Administration (NARA) for use in its records management inspections; to the Government Accountability Office (GAO) for oversight purposes; to the Department of Justice (DOJ) to obtain that department's advice regarding disclosure obligations under the Freedom of Information Act (FOIA); or to the Office of Management and Budget (OMB) to obtain that office's advice regarding obligations under the Privacy Act.
5. For Certain Disclosures to Other Federal Agencies—To disclose information to a Federal agency, in response to its request in connection with the hiring or retention of an employee, the issuance of a security clearance, the conducting of a suitability or security investigation of an individual, the classifying of jobs, the letting of a contract, or the issuance of a license, grant, or other benefit by the requesting agency, to the extent that the information is relevant and necessary to the requesting agency's decision on the matter.
6. Employment, Clearances, Licensing, Contract, Grant, or other Benefits Decisions by the Agency—To disclose information to a Federal, State, local, foreign, tribal, or other public agency or authority maintaining civil, criminal, or other relevant enforcement records, or other pertinent records, or to another public authority or professional organization, if necessary to obtain information relevant to an investigation concerning the hiring or retention of an employee or other personnel action, the issuance or retention of a security clearance, the classifying of jobs, the letting of a contract, or the issuance or retention of a license, grant, or other benefit by the Commission, to the extent that the information is relevant and necessary to the requesting agency's decisions on the matter.
7. Labor Relations—To disclose information to officials of labor organizations recognized under 5 U.S.C. Chapter 71 upon receipt of a formal request and in accord with the conditions of 5 U.S.C. 7114 when relevant and necessary to their duties of exclusive representation concerning personnel policies, practices, and matters affecting working conditions.
8. Breach Notification—To appropriate agencies, entities, and persons when: (a) The Commission suspects or has confirmed that there has been a breach of the system of records; (b) the Commission has determined that as a result of the suspected or confirmed breach there is a risk of harm to individuals, the Commission (including its information systems, programs, and operations), the Federal Government, or national security; and (c) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist
9. Assistance to Federal Agencies and Entities—To another Federal agency or Federal entity, when the Commission determines that information from this system is reasonably necessary to assist the recipient agency or entity in: (a) Responding to a suspected or confirmed breach or (b) preventing, minimizing, or remedying the risk of harm to individuals, the recipient agency or entity (including its information systems, program, and operations), the Federal Government, or national security, resulting from a suspected or confirmed breach.
10. For Non-Federal Personnel—To disclose information to contractors performing or working on a contract for the Federal Government.
In addition to the routine uses cited above, the Commission may share information from this system of records with a consumer reporting agency regarding an individual who has not paid a valid and overdue debt owed to the Commission, following the procedures set out in the
Information in this system includes both paper and electronic records. The paper records, documents, and files are maintained in file cabinets that are located in OGC and in the bureaus and offices (B/Os) of the FCC staff who provide the responses to such claims. The electronic records, files, and data are stored in the FCC's computer network.
Records are retrieved by the name of the subject individual in the investigation.
Records are retained and disposed of in accordance with the agency records control schedules NC1-173-84-05, Item 3 and N1-173-91-001, Item 6, both of which have been approved by the National Archives and Records Administration (NARA).
The file cabinets containing paper records in this system are maintained in file cabinets in “non-public” rooms in the OGC and B/O suites. The OGC and B/O file cabinets are locked at the end of the business day. Access to these office suites is through card-coded main doors. Only authorized OGC and B/O supervisors and staff who are responsible for responding to these claims, have access to these paper records.
The electronic records, files, and data are housed in the FCC's computer network. Access to the electronic files is restricted to OGC and B/O staff who are responsible for responding to such claims, and to the IT staff and contractors who maintain the FCC's computer network. Other FCC employees and contractors may be granted access on a “need-to-know” basis. The FCC's computer network databases are protected by the FCC's IT privacy safeguards, a comprehensive and dynamic set of IT safety and security protocols and features that are designed to meet all Federal IT privacy standards, including those required by the National Institute of Standards and Technology (NIST) and the
Individuals wishing to determine whether this system of records contains information about them may do so by writing to Leslie F. Smith, Privacy Manager, Information Technology, Federal Communications Commission, 445 12th Street SW, Washington, DC 20554, or email
Individuals must furnish reasonable identification by showing any two of the following: Social security card; driver's license; employee identification card; Medicare card; birth certificate; bank credit card; or other positive means of identification, or by signing an identity statement stipulating that knowingly or willfully seeking or obtaining access to records about another person under false pretenses is punishable by a fine of up to $5,000.
Individuals requesting access must also comply with the FCC's Privacy Act regulations regarding verification of identity and access to records (47 CFR part 0, subpart E).
Individuals wishing to request access to and/or amendment of records about them should follow the Notification Procedure above.
Individuals wishing to request an amendment of records about them should follow the Notification Procedure above.
None.
The FCC last gave full notice of this system of records, FCC/OGC-3, Adjudication of Internal Complaints against Employees, by publication in the
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995, the Federal Communications Commission (Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: Whether the collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The Commission may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before March 23, 2018.
Direct all PRA comments to Nicholas A. Fraser, OMB, via email
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the web page
The current title of OMB Control No. 3060-0686 is “International Section 214 Process and Tariff Requirements—47 CFR Sections 63.10, 63.11, 63.13, 63.18, 63.19, 63.21, 63.24, 63.25 and 1.1311”. The Commission would like to change the title to “International Section 214 Process and Tariff Requirements—47 CFR Sections 63.10, 63.11, 63.13, 63.18, 63.19, 63.21, 63.22, 63.24, 63.25 and 1.1311” to reflect the addition of 47 CFR 63.22(h) to the information collection.
The information will be used by the Commission staff in carrying out its duties under the Communications Act. The information collections pertaining to Part 63 are necessary largely to determine the qualifications of applicants to provide common carrier international telecommunications service under section 214 of the Communications Act, 47 U.S.C. 214, including applicants that are, or are affiliated with, foreign carriers, and to determine whether and under what conditions the authorizations are in the public interest, convenience, and necessity. The information collections are also necessary to maintain effective oversight of U.S. international carriers generally.
The frequency of filing applications pursuant to Sections 214 will be determined largely by the applicant seeking to provide U.S international common carrier service under section 214 of the Communications Act, 47 U.S.C. 214. Carriers will also determine largely the frequency of filing under the other rules included in this collection, with the exception of the quarterly reports required of certain carriers under 47 CFR 63.10(c) and the list of routes for which a facilities-based international service provider must make a one-time filing and update as necessary under 47 CFR 63.22(h). If the collections are not conducted or are conducted less frequently, applicants will not obtain the authorizations necessary to provide telecommunications services, and the Commission will be unable to carry out its mandate under the Communications Act of 1934. In addition, without the information collections, the United States would jeopardize its ability to fulfill the U.S. obligations as negotiated under the World Telecommunications Organization (WTO) Basic Telecom Agreement because these collections are imperative to detecting and deterring anticompetitive conduct. They are also necessary to preserve the Executive Branch agencies' and the Commission's ability to review foreign investments for national security, law enforcement, foreign policy, and trade concerns. Regarding 47 CFR 63.11, carriers determine largely when to notify the Commission of planned investments by or in foreign carriers. If the information is not collected by the Commission, we will not be able to prevent carriers that control bottleneck facilities in foreign countries from using those bottlenecks to discriminate against unaffiliated U.S. carriers.
Federal Communications Commission.
Notice.
In this document, the Commission released a public notice announcing the meeting of the North American Numbering Council (NANC). At this meeting, the NANC Working Groups will report on their progress in developing recommendations for the NANC's consideration. In addition, the NANC will continue its discussions on how to modernize and foster more efficient number administration in the United States. The NANC meeting is open to the public. The FCC will accommodate as many attendees as possible; however, admittance will be limited to seating availability. The Commission will also provide audio coverage of the meeting. Other reasonable accommodations for people with disabilities are available upon request. Request for such accommodations should be submitted via email to
Members of the public may submit comments to the NANC in the FCC's Electronic Comment Filing System, ECFS, at
More information about the NANC is available at
Friday, March 16, 2018, 9:30 a.m.
Requests to make an oral statement or provide written comments to the NANC should be sent to Carmell Weathers, Competition Policy Division, Wireline Competition Bureau, Federal Communications Commission, Portals II, 445 12th Street SW, Room 5-C162, Washington, DC 20554.
Carmell Weathers at (202) 418-2325 or
This is a summary of the Commission's document in CC Docket No. 92-237, DA 18-112 released February 6, 2018. The complete text in this document is available for public inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW, Room CY-A257, Washington, DC 20554. The document may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street SW, Room CY-B402, Washington, DC 20554, telephone (800) 378-3160 or (202) 863-2893, facsimile (202) 863-2898, or via the internet at
Board of Governors of the Federal Reserve System.
Notice, request for comment.
The Board of Governors of the Federal Reserve System (Board) invites comment on a proposal to extend for three years, without revision, the Quarterly Report of Assets and Liabilities of Large Foreign Offices of U.S. Banks (FR 2502q; OMB No. 7100-0079).
Comments must be submitted on or before April 23, 2018.
You may submit comments, identified by
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All public comments are available from the Board's website at
Additionally, commenters may send a copy of their comments to the OMB Desk Officer—Shagufta Ahmed—Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235, 725 17th Street NW, Washington, DC 20503 or by fax to (202) 395-6974.
A copy of the PRA OMB submission, including the proposed reporting form and instructions, supporting statement, and other documentation will be placed into OMB's public docket files, once approved. These documents will also be made available on the Federal Reserve Board's public website at:
Federal Reserve Board Clearance Officer—Nuha Elmaghrabi—Office of the Chief Data Officer, Board of Governors of the Federal Reserve System, Washington, DC 20551 (202) 452-3829. Telecommunications Device for the Deaf (TDD) users may contact (202) 263-4869, Board of Governors of the Federal Reserve System, Washington, DC 20551.
On June 15, 1984, the Office of Management and Budget (OMB) delegated to the Board authority under the Paperwork Reduction Act (PRA) to approve of and assign OMB control numbers to collection of information requests and requirements conducted or sponsored by the Board. In exercising this delegated authority, the Board is
The Board invites public comment on the following information collection, which is being reviewed under authority delegated by the OMB under the PRA. Comments are invited on the following:
a. Whether the proposed collection of information is necessary for the proper performance of the Federal Reserve's functions; including whether the information has practical utility;
b. The accuracy of the Federal Reserve's estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;
c. Ways to enhance the quality, utility, and clarity of the information to be collected;
d. Ways to minimize the burden of information collection on respondents, including through the use of automated collection techniques or other forms of information technology; and
e. Estimates of capital or startup costs and costs of operation, maintenance, and purchase of services to provide information.
At the end of the comment period, the comments and recommendations received will be analyzed to determine the extent to which the Federal Reserve should modify the proposal prior to giving final approval.
Proposal to approve under OMB delegated authority the extension for three years, without revision, of the following report:
Unaccompanied Alien Children's (UAC) Program, Office of Refugee Resettlement (ORR), Administration for Children and Families (ACF), U.S. Department of Health and Human Services (HHS).
Notice of intent to issue one OPDIV-Initiated Supplement to BCFS Health and Human Services, San Antonio, TX under the UAC Program.
ACF, ORR, announces the issuance of one OPDIV-Initiated Supplement to BCFS Health and Human Services, San Antonio, TX in the amount of $15,000,000.
ORR has been identifying additional capacity to provide shelter for potential increases in apprehensions of Unaccompanied Children at the U.S. Southern Border. Planning for increased shelter capacity is a prudent step to ensure that ORR is able to meet its responsibility, by law, to provide shelter for Unaccompanied Alien Children referred to its care by the Department of Homeland Security (DHS).
To ensure sufficient capacity to provide shelter to unaccompanied children referred to HHS, BCFS proposed to provide ORR with 450 beds in an expedited manner.
Supplemental award funds will support activities for sixty days after activation.
Jallyn Sualog, Director, Division of Children's Services, Office of Refugee Resettlement, 330 Street SW, Washington, DC 20447. Phone: 202-401-4997. Email:
ORR is continuously monitoring its capacity to shelter the unaccompanied children referred to HHS, as well as the information received from interagency partners, to inform any future decisions or actions.
ORR has specific requirements for the provision of services. Award recipients must have the infrastructure, licensing, experience, and appropriate level of
(A) Section 462 of the Homeland Security Act of 2002, which in March 2003, transferred responsibility for the care and custody of Unaccompanied Alien Children from the Commissioner of the former Immigration and Naturalization Service (INS) to the Director of ORR of the Department of Health and Human Services (HHS).
(B) The Flores Settlement Agreement, Case No. CV85-4544RJK (C. D. Cal. 1996), as well as the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (Pub.L. 110-457), which authorizes post release services under certain conditions to eligible children. All programs must comply with the Flores Settlement Agreement, Case No. CV85-4544-RJK (C.D. Cal. 1996), pertinent regulations and ORR policies and procedures.
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 Peripheral and Central Nervous System Drugs Advisory Committee. The general function of the committee is to provide advice and recommendations to FDA on regulatory issues. The meeting will be open to the public. FDA is establishing a docket for public comment on this document.
The meeting will be held on April 19, 2018, from 8 a.m. to 12:30 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-0140. The docket will close on April 18, 2018. Submit either electronic or written comments on this public meeting by April 18, 2018. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before April 18, 2018. The
Comments received on or before April 5, 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:
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• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• 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.
The Food and Drug Administration (FDA or Agency) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (PRA), Federal Agencies are required to publish notice in the
Submit either electronic or written comments on the collection of information by April 23, 2018.
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before April 23, 2018. The
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.” 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
Amber Sanford, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-8867,
Under the PRA (44 U.S.C. 3501-3520), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, 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 respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
Section 502 of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 352), among other things, establishes requirements for the label or labeling of a medical device so that it is not misbranded and subject to a regulatory action. Certain provisions under section 502 of the FD&C Act require manufacturers, importers, and distributors of medical devices to disclose information about themselves or the devices on the labels or labeling for the devices.
Section 502(b) of the FD&C Act requires that for packaged devices, the label must bear the name and place of business of the manufacturer, packer, or distributor; and an accurate statement of the quantity of the contents. Section 502(f) of the FD&C Act requires that the labeling for a device must contain adequate directions for use. FDA may, however, grant an exemption if the Agency determines that the adequate directions for use labeling requirements are not necessary for the particular case as it relates to protection of the public health.
FDA regulations under parts 800, 801, and 809 (21 CFR parts 800, 801, and 809) require disclosure of specific information by manufacturers, importers, and distributors of medical devices about themselves or the devices, on the label or labeling for the devices, to health professionals and consumers. Most of the regulations under parts 800, 801, and 809 are derived from requirements of section 502 of the FD&C Act. Section 502 provides, in part, that a device shall be misbranded if, among other things, its label or labeling fails to bear certain required information concerning the device, is false or misleading in any particular way, or fails to contain adequate directions for use.
Section 801.150(a)(2) establishes recordkeeping requirements for manufacturers of devices to retain a copy of the agreement containing the specifications for the processing, labeling, or repacking of the device for 2 years after the final shipment or delivery of the device. Section 801.150(a)(2) also requires that the subject respondents make copies of this
Section 801.410(e) requires copies of invoices, shipping documents, and records of sale or distribution of all impact resistant lenses, including finished eyeglasses and sunglasses, be maintained for 3 years by the retailer and made available upon request by any officer or employee of FDA or by any other officer or employee acting on behalf of the Secretary of HHS.
Section 801.410(f) requires that the results of impact tests and description of the test method and apparatus be retained for a period of 3 years.
Section 801.421(d) establishes requirements for hearing aid dispensers to retain copies of all physician statements or any waivers of medical evaluation for 3 years after dispensing the hearing aid.
Section 801.430(f) requires manufacturers of menstrual tampons to devise and follow an ongoing sampling plan for measuring the absorbency of menstrual tampons. In addition, manufacturers must use the method and testing parameters described in § 801.430(f).
Section 801.435(g) requires latex condom manufacturers to document and provide, upon request, an appropriate justification for the application of the testing data from one product on any variation of that product to support expiration dating in the user labeling.
Sections 800.10(a)(3) and 800.12(c) require that the label for contact lens cleaning solutions bear a prominent statement alerting consumers of the tamper-resistant feature. Further, § 800.12 requires that packaged contact lens cleaning solutions contain a tamper-resistant feature to prevent malicious adulteration.
Section 800.10(b)(2) requires that the labeling for liquid ophthalmic preparations packed in multiple-dose containers provide information on the duration of use and the necessary warning information to afford adequate protection from contamination during use.
Section 801.1 requires that the label for a device in package form contain the name and place of business of the manufacturer, packer, or distributor.
Section 801.5 requires that labeling for a device include information on intended use as defined under § 801.4 and provide adequate directions to assure safe use by the lay consumers.
Section 801.61 requires that the principal display panel of an over-the-counter (OTC) device in package form must bear a statement of the identity of the device. The statement of identity of the device must include the common name of the device followed by an accurate statement of the principal intended actions of the device. Section 801.62 requires that the label for an OTC device in package form shall bear a declaration of the net quantity of contents. The label must express the net quantity in terms of weight, measure, numerical count, or a combination of numerical count and weight, measure, or size.
Section 801.109 establishes labeling requirements for prescription devices, in which the label for the device must describe the application or use of the device and contain a cautionary statement restricting the device for sale by, or on the order of, an appropriate professional.
Section 801.110 establishes labeling requirements for a prescription device delivered to the ultimate purchaser or user, by a licensed practitioner. The device must be accompanied by labeling bearing the name and address of the licensed practitioner, directions for use, and cautionary statements, if any, provided by the order.
Section 801.150(e) requires a written agreement between firms involved in the assembling or packaging of a nonsterile device containing labeling that identifies the final finished device as sterile and then shipping such device in interstate commerce prior to sterilization. In addition, § 801.150(e) requires that each pallet, carton, or other designated unit be conspicuously marked to show its nonsterile nature when introduced into interstate commerce and while being held prior to sterilization. When both requirements are met, FDA will take no regulatory action against the device as being misbranded or adulterated.
Section 801.405(b)(1) provides for labeling requirements for articles, including repair kits, re-liners, pads, and cushions, intended for use in temporary repairs and refitting of dentures for lay persons. Section 801.405(b)(1) also requires that the labeling contain the word “emergency” preceding and modifying each indication-for-use statement for denture repair kits, and the word “temporary” preceding and modifying each indication-for-use statement for re-liners, pads, and cushions.
Section 801.405(c) provides for labeling requirements that contain essentially the same information described under § 801.405(b)(1). The information is intended to enable a lay person to understand the limitations of using OTC denture repair kits and denture re-liners, pads, and cushions.
Section 801.420(c)(1) requires that manufacturers or distributors of hearing aids develop a user instructional brochure to be provided by the dispenser of the hearing aid to prospective users. The brochure must contain detailed information on the use and maintenance of the hearing aid.
Section 801.420(c)(4) establishes requirements that the user instructional brochure or separate labeling provide for technical data elements useful for selecting, fitting, and checking the performance of a hearing aid. In addition, § 801.420(c)(4) provides for testing requirements to determine that the required data elements must be conducted in accordance with the American National Standards Institute (ANSI) “Specification of Hearing Aid Characteristics,” ANSI S3.22-2003 (Revision of ANSI S3.22-1996), which is incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.
Section 801.421(b) establishes requirements for the hearing aid dispenser to provide prospective users with a copy of the user instructional brochure along with an opportunity to review content, either orally or by the predominant method of communication used during the sale.
Section 801.421(c) establishes requirements for the hearing aid dispenser to provide a copy of the user instructional brochure to the prospective purchaser of any hearing aid upon request, or, if the brochure is unavailable, provide the name and address of the manufacturer or distributor from which it may be obtained.
Section 801.430(d) establishes labeling requirements for menstrual tampons to provide information on signs, risk factors, and ways to reduce the risk of Toxic Shock Syndrome (TSS).
Section 801.430(e)(2) requires menstrual tampon package labels to provide information on the ranges of absorbency and absorbency term based on testing required under § 801.430(f) and an explanation of selecting absorbencies that reduce the risk of contracting TSS.
Section 801.435(b), (c), and (h) establishes requirements for condom labeling to bear an expiration date that is supported by testing that demonstrates the integrity of three random lots of the product.
Section 809.10(a) and (b) establishes requirements that a label for an in vitro
Section 809.10(d) provides that the labeling requirements for general purpose laboratory reagents may be exempt from the requirements of § 809.10(a) and (b) if the labeling contains information to include, identifying its intended use, instructions for use, lot or control number, and source.
Section 809.10(e) provides that the labeling for “Analyte Specific Reagents” (ASRs) shall provide information to include, identifying the quantity, proportion, or concentration of each reagent ingredient, instructions for use, lot or control number, and source.
Section 809.10(f) provides that the labeling for OTC test sample collection systems for drugs of abuse shall include, among other things, information on the intended use, specimen collection instructions, identification system, and information about use of the test results.
Section 809.30(d) requires that advertising and promotional materials for ASRs include the identity and purity of the ASR and the identity of the analyte.
Section 1040.20(d) (21 CFR 1040.20) provides that manufacturers of sunlamp products and ultraviolet lamps are subject to the labeling regulations under part 801.
The burden estimates are based on FDA's current registration and listing data and shipment information.
FDA estimates the burden of this collection of information as follows:
The number of recordkeepers/respondents and records/disclosures has been adjusted to reflect updated Agency data. These adjustments result in an increase of 1,598,48 hours since the last OMB approval.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or the Agency) has determined the regulatory review period for ESBRIET and is publishing this notice of that determination as required by law. FDA has made the determination because of the submission of applications to the Director of the U.S. Patent and Trademark Office (USPTO), Department of Commerce, for the extension of a patent which claims that human drug product.
Anyone with knowledge that any of the dates as published (in the
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before April 23, 2018. The
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.” 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
Beverly Friedman, Office of Regulatory Policy, Food and Drug Administration, 10903 New Hampshire Ave, Bldg. 51, Rm. 6250, Silver Spring, MD 20993, 301-796-3600.
The Drug Price Competition and Patent Term Restoration Act of 1984 (Pub. L. 98-417) and the Generic Animal Drug and Patent Term Restoration Act (Pub. L. 100-670) generally provide that a patent may be extended for a period of up to 5 years so long as the patented item (human drug product, animal drug product, medical device, food additive, or color additive) was subject to regulatory review by FDA before the item was marketed. Under these acts, a product's regulatory review period forms the basis for determining the amount of extension an applicant may receive.
A regulatory review period consists of two periods of time: A testing phase and an approval phase. For human drug products, the testing phase begins when the exemption to permit the clinical investigations of the drug becomes effective and runs until the approval phase begins. The approval phase starts with the initial submission of an application to market the human drug product and continues until FDA grants permission to market the drug product. Although only a portion of a regulatory review period may count toward the actual amount of extension that the Director of USPTO may award (for example, half the testing phase must be subtracted as well as any time that may have occurred before the patent was issued), FDA's determination of the length of a regulatory review period for a human drug product will include all of the testing phase and approval phase as specified in 35 U.S.C. 156(g)(1)(B).
FDA has approved for marketing the human drug product ESBRIET (pirfenidone). ESBRIET is indicated for the treatment of idiopathic pulmonary fibrosis. Subsequent to this approval, the USPTO received patent term restoration applications for ESBRIET (U.S. Patent Nos. 7,767,225; 7,767,700; 7,988,994; 8,383,150; and 8,420,674) from InterMune Inc., and the USPTO requested FDA's assistance in determining the patents' eligibility for patent term restoration. In a letter dated January 20, 2016, FDA advised the USPTO that this human drug product had undergone a regulatory review period and that the approval of ESBRIET represented the first permitted commercial marketing or use of the product. Thereafter, the USPTO requested that FDA determine the product's regulatory review period.
FDA has determined that the applicable regulatory review period for ESBRIET is 14,993 days. Of this time, 13,186 days occurred during the testing phase of the regulatory review period, while 1,807 days occurred during the approval phase. These periods of time were derived from the following dates:
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2.
3.
This determination of the regulatory review period establishes the maximum potential length of a patent extension. However, the USPTO applies several statutory limitations in its calculations of the actual period for patent extension. In its applications for patent extension, this applicant seeks 596 days or 754 days of patent term extension.
Anyone with knowledge that any of the dates as published are incorrect may submit either electronic or written comments and ask for a redetermination (see
Submit petitions electronically to
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or the Agency) has determined the regulatory review period for LYMPHOSEEK and is publishing this notice of that determination as required by law. FDA has made the determination because of the submission of an application to the Director of the U.S. Patent and Trademark Office (USPTO), Department of Commerce, for the extension of a patent which claims that human drug product.
Anyone with knowledge that any of the dates as published (in the
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before April 23, 2018. The
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.” 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
Beverly Friedman, Office of Regulatory Policy, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 6250, Silver Spring, MD 20993, 301-796-3600.
The Drug Price Competition and Patent Term Restoration Act of 1984 (Pub. L. 98-417) and the Generic Animal Drug and Patent Term Restoration Act (Pub. L. 100-670) generally provide that a patent may be extended for a period of up to 5 years so long as the patented item (human drug product, animal drug product, medical device, food additive, or color additive) was subject to regulatory review by FDA before the item was marketed. Under these acts, a product's regulatory review period forms the basis for determining the amount of extension an applicant may receive.
A regulatory review period consists of two periods of time: A testing phase and an approval phase. For human drug products, the testing phase begins when the exemption to permit the clinical investigations of the drug becomes effective and runs until the approval phase begins. The approval phase starts with the initial submission of an application to market the human drug product and continues until FDA grants permission to market the drug product. Although only a portion of a regulatory review period may count toward the
FDA has approved for marketing the human drug product LYMPHOSEEK (technetium (Tc 99m) tilmanocept). LYMPHOSEEK is indicated for lymphatic mapping with a hand-held gamma counter to assist in the localization of lymph nodes draining a primary tumor site in patients with breast cancer or melanoma. Subsequent to this approval, the USPTO received a patent term restoration application for LYMPHOSEEK (U.S. Patent No. 6,409,990) from Navidea Biopharmaceuticals, Inc., and the USPTO requested FDA's assistance in determining this patent's eligibility for patent term restoration. In a letter dated November 4, 2015, FDA advised the USPTO that this human drug product had undergone a regulatory review period and that the approval of LYMPHOSEEK represented the first permitted commercial marketing or use of the product. Thereafter, the USPTO requested that FDA determine the product's regulatory review period.
FDA has determined that the applicable regulatory review period for LYMPHOSEEK is 4,398 days. Of this time, 3,816 days occurred during the testing phase of the regulatory review period, while 582 days occurred during the approval phase. These periods of time were derived from the following dates:
1.
2.
3.
This determination of the regulatory review period establishes the maximum potential length of a patent extension. However, the USPTO applies several statutory limitations in its calculations of the actual period for patent extension. In its application for patent extension, this applicant seeks 1,826 days of patent term extension.
Anyone with knowledge that any of the dates as published are incorrect may submit either electronic or written comments and under 21 CFR 60.24, ask for a redetermination (see
Submit petitions electronically to
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA, Agency, or we) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (PRA), Federal Agencies are required to publish notice in the
Submit either electronic or written comments on the collection of information by April 23, 2018.
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before April 23, 2018. The
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.” 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
Ila S. Mizrachi, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-7726,
Under the PRA (44 U.S.C. 3501-3520), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, 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 respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
FDA has the authority under the Federal Food, Drug, and Cosmetic Act (FD&C Act) to approve new animal drugs. A new animal drug application (NADA) cannot be approved until, among other things, the new animal drug has been demonstrated to be safe and effective for its intended use(s). In order to properly test a new animal drug for an intended use, appropriate scientific investigations must be conducted. Under specific circumstances, section 512(j) of the FD&C Act (21 U.S.C. 360b(j)) permits the use of an investigational new animal drug to generate data to support an NADA approval. Section 512(j) of the FD&C Act authorizes us to issue regulations relating to the investigational use of new animal drugs.
Our regulations in part 511 (21 CFR part 511) set forth the conditions for investigational use of new animal drugs and require reporting and recordkeeping. The information collected is necessary to protect the public health. We use the information to determine that investigational animal drugs are distributed only to qualified investigators, adequate drug accountability records are maintained, and edible food products from treated food-producing animals are safe for human consumption. We also use the information collected to monitor the validity of the studies submitted to us to support new animal drug approval.
FDA estimates the burden of this collection of information as follows:
The estimate of the time required for reporting requirements, record preparation, and maintenance for this collection of information is based on our informal communication with industry. Based on the number of sponsors subject to animal drug user fees, we estimate that there are 104 respondents. We use this estimate consistently throughout the table and calculate the “number of responses per respondent” by dividing the total annual responses by number of respondents. Additional information needed to make a final calculation of the total burden hours
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency) is withdrawing approval of 38 new drug applications (NDAs) and 43 abbreviated new drug applications (ANDAs) from multiple applicants. The holders of the applications notified the Agency in writing that the drug products were no longer marketed and requested that the approval of the applications be withdrawn.
Approval is withdrawn as of March 26, 2018.
Florine P. Purdie, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 6248, Silver Spring, MD 20993-0002, 301-796-3601.
The holders of the applications listed in the table have informed FDA that these drug products are no longer marketed and have requested that FDA withdraw approval of the applications under the process in § 314.150(c) (21 CFR 314.150(c)). The applicants have also, by their requests, waived their opportunity for a hearing. Withdrawal of approval of an application or abbreviated application under § 314.150(c) is without prejudice to refiling.
Therefore, approval of the applications listed in the table, and all amendments and supplements thereto, is hereby withdrawn as of March 26, 2018. Introduction or delivery for introduction into interstate commerce of products without approved new drug applications violates section 301(a) and (d) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 331(a) and (d)). Drug products that are listed in the table that are in inventory on March 26, 2018 may continue to be dispensed until the inventories have been depleted or the drug products have reached their expiration dates or otherwise become violative, whichever occurs first.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (PRA), Federal Agencies are required to publish notice in the
Submit either electronic or written comments on the collection of information by April 23, 2018.
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before April 23, 2018. The
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
Amber Sanford, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-8867,
Under the PRA (44 U.S.C. 3501-3520), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, 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 respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
This collection of information implements section 518(e) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 360h(e)) and part 810 (21 CFR part 810), mandatory medical device recall authority provisions. Section 518(e) of the FD&C Act provides FDA with the authority to issue an order requiring an appropriate person, including manufacturers, importers, distributors, and retailers of a device, if FDA finds that there is reasonable probability that the device intended for human use would cause serious adverse health consequences or death, to: (1) Immediately cease distribution of such device and (2) immediately notify health professionals and device-user facilities of the order and to instruct such professionals and facilities to cease use of such device.
FDA will then provide the person named in the cease distribution and notification order with the opportunity for an informal hearing on whether the order should be amended to require a mandatory recall of the device.
If, after providing the opportunity for an informal hearing, FDA determines that such an order is necessary, the Agency may amend the order to require a mandatory recall.
FDA issued part 810 to implement the provisions of section 518 of the FD&C Act. The information collected under the mandatory recall authority provisions will be used by FDA to implement mandatory recalls.
The burden estimate has not changed for information collection related to section 518(e) of the FD&C Act and part 810 since the last OMB approval.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (PRA), Federal Agencies are required to publish notice in the
Submit either electronic or written comments on the collection of information by April 23, 2018.
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before April 23, 2018. The
Submit electronic comments in the following way:
• Federal eRulemaking Portal:
• 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.” 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
Amber Sanford, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-8867,
Under the PRA (44 U.S.C. 3501-3520), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, 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 respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
The Administrative Procedures Act (5 U.S.C. 553(e)) provides that every Agency shall give an interested person the right to petition for issuance, amendment, or repeal of a rule. Section 10.30 (21 CFR 10.30) sets forth the format and procedures by which an interested person may submit to FDA, in accordance with § 10.20 (21 CFR 10.20), a citizen petition requesting the Commissioner of Food and Drugs (the Commissioner) to issue, amend, or revoke a regulation or order, or to take or refrain from taking any other form of administrative action.
The Commissioner may grant or deny such a petition, in whole or in part, and may grant such other relief or take other action as the petition warrants. Respondents are individuals or households, State or local governments, and not-for-profit institutions or groups.
Section 10.33 (21 CFR 10.33), issued under section 701(a) of the Federal, Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 371(a)), sets forth the format and procedures by which an interested person may request reconsideration of part or all of a decision of the Commissioner on a petition submitted under 21 CFR 10.25 (Initiation of administrative proceedings). A petition for reconsideration must contain a full statement in a well-organized format of the factual and legal grounds upon which the petition relies. The grounds must demonstrate that relevant information and views contained in the administrative record were not previously or not adequately considered by the Commissioner. The respondent must submit a petition no later than 30 days after the decision involved. However, the Commissioner may, for good cause, permit a petition to be filed after 30 days. An interested person who wishes to rely on information or views not included in the administrative record shall submit them with a new petition to modify the decision. FDA uses the information provided in the request to determine whether to grant the petition for reconsideration. Respondents to this collection of information are individuals of households, State or local governments, not-for-profit institutions, and businesses or other for-profit institutions who are requesting from the Commissioner of FDA a reconsideration of a matter.
Section 10.35 (21 CFR 10.35), issued under section 701(a) of the FD&C Act, sets forth the format and procedures by which an interested person may request, in accordance with § 10.20, the Commissioner to stay the effective date of any administrative action.
Such a petition must do the following: (1) Identify the decision involved; (2) state the action requested, including the length of time for which a stay is requested; and (3) include a statement of the factual and legal grounds on which the interested person relies in seeking the stay. FDA uses the information provided in the request to determine whether to grant the petition for stay of action.
Respondents to this information collection are interested persons who choose to file a petition for an administrative stay of action.
Section 10.85 (21 CFR 10.85), issued under section 701(a) of the FD&C Act, sets forth the format and procedures by which an interested person may request, in accordance with § 10.20, an advisory opinion from the Commissioner on a matter of general applicability. When making a request, the petitioner must provide a concise statement of the issues and questions on which an opinion is requested, and a full statement of the facts and legal points relevant to the request. Respondents to this collection of information are interested persons seeking an advisory opinion from the Commissioner.
FDA has developed a method for electronic submission of citizen petitions. The Agency still allows for non-electronic submissions; however, electronic submissions of a citizen petition to a specific electronic docket presents a simpler and more straightforward approach. FDA has created a single docket on
The regulations in 21 CFR 12.22, issued under section 701(e)(2) of the FD&C Act, set forth the instructions for filing objections and requests for a hearing on a regulation or order under § 12.20(d) (21 CFR 12.20(d)). Objections and requests must be submitted within the time specified in § 12.20(e). Each objection, for which a hearing has been requested, must be separately numbered and specify the provision of the regulation or the proposed order. In addition, each objection must include a detailed description and analysis of the factual information and any other document, with some exceptions, supporting the objection. Failure to include this information constitutes a waiver of the right to a hearing on that objection. FDA uses the description and analysis to determine whether a hearing request is justified. The description and
Respondents to this information collection are those parties that may be adversely affected by an order or regulation.
Section 12.45 (21 CFR 12.45), issued under section 701 of the FD&C Act, sets forth the format and procedures for any interested person to file a petition to participate in a formal evidentiary hearing, either personally or through a representative. Section 12.45 requires that any person filing a notice of participation state their specific interest in the proceedings, including the specific issues of fact about which the person desires to be heard. This section also requires that the notice include a statement that the person will present testimony at the hearing and will comply with specific requirements in 21 CFR 12.85, or, in the case of a hearing before a Public Board of Inquiry, concerning disclosure of data and information by participants (21 CFR 13.25). In accordance with § 12.45(e) the presiding officer may omit a participant's appearance.
The presiding officer and other participants will use the collected information in a hearing to identify specific interests to be presented. This preliminary information serves to expedite the prehearing conference and commits participation.
The respondents are individuals or households, State or local governments, not-for-profit institutions and businesses, or other for-profit groups and institutions.
FDA estimates the burden of this collection of information as follows:
The burden estimates for this collection of information are based on Agency records and experience over the past 3 years. The increase in burden hours is due to an increase in the number of respondents under several provisions.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) announces a forthcoming joint public advisory committee meeting of the Blood Products Advisory Committee and the Microbiology Devices Panel of the Medical Devices Advisory Committee. The Committee will function as a medical device panel to provide advice and recommendations to the Agency on classification of devices. The Committee will also provide advice and recommendations to the FDA on research programs in the Office of Blood Research and Review. At least one portion of the meeting will be closed to the public.
The meeting will be held on March 21, 2018, from 8 a.m. to 5:15 p.m. and March 22, 2018, from 8 a.m. to 5 p.m.
FDA White Oak Campus, 10903 New Hampshire Ave., Building 31 Conference Center, the Great Room (Rm. 1503, sections B&C), 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:
Bryan Emery or Joanne Lipkind, Division of Scientific Advisors and Consultants, Center for Biologics Evaluation and Research (CBER), Food and Drug Administration, 10903 New Hampshire Ave., Silver Spring, MD 20993-0002, Bldg. 71, Rm. 6132, at 240-402-8054,
On March 22, 2018, the Joint Committee will discuss and make recommendations regarding the reclassification from Class III to Class II of nucleic acid and serology-based in vitro diagnostic devices indicated for use as aids in diagnosis of hepatitis C virus (HCV) infection and/or for use as aids in the management of HCV infected patients.
All the devices that will be discussed by the Committee during the 2-day meeting are post-amendment devices that currently are classified into Class III under section 513(f)(1) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360c(f)(1)).
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 the Agency is not responsible for providing access to electrical outlets.
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 Bryan Emery at least 7 days in advance of the meeting (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.)
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (PRA), Federal Agencies are required to publish notice in the
Submit either electronic or written comments on the collection of information by April 23, 2018.
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before April 23, 2018. The
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.” 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
Ila S. Mizrachi, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-7726,
Under the PRA (44 U.S.C. 3501-3520), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, 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 respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
Under the Safe Medical Devices Act of 1990 (Pub. L. 101-629), FDA may establish special controls, including performance standards, postmarket surveillance, patient registries, guidelines, and other appropriate actions it believes necessary to provide reasonable assurance of the safety and effectiveness of the device. The special control guidance serves as the special control for the automated blood cell separator device operating by centrifugal or filtration separation principle intended for the routine collection of blood and blood components (§ 864.9245 (21 CFR 864.9245)).
For currently marketed products not approved under the premarket approval process, the manufacturer should file with FDA for 3 consecutive years an annual report on the anniversary date of the device reclassification from class III to class II or on the anniversary date of the 510(k) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 360(k)) clearance. Any subsequent change to the device requiring the submission of a premarket notification in accordance with section 510(k) of the FD&C Act should be included in the annual report. Also, a manufacturer of a device determined to be substantially equivalent to the centrifugal or filtration-based automated cell separator device intended for the routine collection of blood and blood components should comply with the same general and special controls.
The annual report should include, at a minimum, a summary of anticipated and unanticipated adverse events that have occurred and that are not required to be reported by manufacturers under Medical Device Reporting (MDR) (part
Reclassification of this device from class III to class II relieves manufacturers of the burden of complying with the premarket approval requirements of section 515 of the FD&C Act (21 U.S.C. 360e) and may permit small potential competitors to enter the marketplace by reducing the burden. Although the special control guidance recommends that manufacturers of these devices file with FDA an annual report for 3 consecutive years, this would be less burdensome than the current postapproval requirements under 21 CFR part 814, subpart E, including the submission of periodic reports under 21 CFR 814.84.
Collecting or transfusing facilities, the intended users of the device, and the device manufacturers have certain responsibilities under the Federal regulations. For example, collecting or transfusing facilities are required to maintain records of any reports of complaints of adverse reactions (21 CFR 606.170), while the device manufacturer is responsible for conducting an investigation of each event that is reasonably known to the manufacturer and evaluating the cause of the event (§ 803.50(b) (21 CFR 803.50(b)). In addition, manufacturers of medical devices are required to submit to FDA individual adverse event reports of death, serious injury, and malfunctions (§ 803.50).
In the special control guidance document, FDA recommends that manufacturers include in their three annual reports a summary of adverse reactions maintained by the collecting or transfusing facility or similar reports of adverse events collected.
FDA estimates the burden of this collection of information as follows:
Based on FDA records, there are approximately three manufacturers of automated blood cell separator devices. We estimate that the manufacturers will spend approximately 5 hours preparing and submitting the annual report. The total burden hours are reduced from previous collections due to a decrease in the number of manufacturers.
Other burden hours required for § 864.9245 are reported and approved under OMB control number 0910-0120 (premarket notification submission 510(k), 21 CFR part 807, subpart E), and OMB control number 0910-0437 (MDR, part 803).
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or the Agency) has determined the regulatory review period for OFEV and is publishing this notice of that determination as required by law. FDA has made the determination because of the submission of an application to the Director of the U.S. Patent and Trademark Office (USPTO), Department of Commerce, for the extension of a patent which claims that human drug product.
Anyone with knowledge that any of the dates as published (in the
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.” 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
Beverly Friedman, Office of Regulatory Policy, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 6250, Silver Spring, MD 20993, 301-796-3600.
The Drug Price Competition and Patent Term Restoration Act of 1984 (Pub. L. 98-417) and the Generic Animal Drug and Patent Term Restoration Act (Pub. L. 100-670) generally provide that a patent may be extended for a period of up to 5 years so long as the patented item (human drug product, animal drug product, medical device, food additive, or color additive) was subject to regulatory review by FDA before the item was marketed. Under these acts, a product's regulatory review period forms the basis for determining the amount of extension an applicant may receive.
A regulatory review period consists of two periods of time: A testing phase and an approval phase. For human drug products, the testing phase begins when the exemption to permit the clinical investigations of the drug becomes effective and runs until the approval phase begins. The approval phase starts with the initial submission of an application to market the human drug product and continues until FDA grants permission to market the drug product. Although only a portion of a regulatory review period may count toward the actual amount of extension that the Director of USPTO may award (for example, half the testing phase must be subtracted as well as any time that may have occurred before the patent was issued), FDA's determination of the length of a regulatory review period for a human drug product will include all of the testing phase and approval phase as specified in 35 U.S.C. 156(g)(1)(B).
FDA has approved for marketing the human drug product OFEV (nintedanib esylate). OFEV is indicated for treatment of idiopathic pulmonary fibrosis. Subsequent to this approval, the USPTO received a patent term restoration application for OFEV (U.S. Patent No. 6,762,180) from Boehringer Ingelheim Pharma Gmbh & Co. KG, and the USPTO requested FDA's assistance in determining this patent's eligibility for patent term restoration. In a letter dated December 17, 2015, FDA advised the USPTO that this human drug product had undergone a regulatory review period and that the approval of OFEV represented the first permitted commercial marketing or use of the product. Thereafter, the USPTO requested that FDA determine the product's regulatory review period.
FDA has determined that the applicable regulatory review period for OFEV is 3,480 days. Of this time, 3,313 days occurred during the testing phase of the regulatory review period, while 167 days occurred during the approval phase. These periods of time were derived from the following dates:
1.
2.
3.
This determination of the regulatory review period establishes the maximum potential length of a patent extension. However, the USPTO applies several statutory limitations in its calculations of the actual period for patent extension. In its application for patent extension, this applicant seeks 1,822 days of patent term extension.
Anyone with knowledge that any of the dates as published are incorrect may submit either electronic or written comments and, under 21 CFR 60.24 ask for a redetermination (see DATES). Furthermore, as specified in § 60.30 (21 CFR 60.30), any interested person may petition FDA for a determination regarding whether the applicant for extension acted with due diligence during the regulatory review period. To meet its burden, the petition must comply with all the requirements of § 60.30, including but not limited to: must be timely (see DATES), must be filed in accordance with § 10.20, must contain sufficient facts to merit an FDA investigation, and must certify that a true and complete copy of the petition
Submit petitions electronically to
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications,the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the Board of Scientific Counselors, NIA. The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public as indicated below in accordance with the provisions set forth in section 552b(c)(6), Title 5 U.S.C., as amended for the review, discussion, and evaluation of individual intramural programs and projects conducted by the NATIONAL INSTITUTE ON AGING, including consideration of personnel qualifications and performance, and the competence of individual investigators, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
National Institutes of Health, HHS.
Notice.
The Interagency Coordinating Committee on the Validation of Alternative Methods (ICCVAM) announces the workshop “Predictive Models for Acute Oral System Toxicity.” Workshop attendees will discuss development of in silico models for acute oral system toxicity and the next steps to encourage appropriate use of these models in regulatory contexts. Interested persons may attend in person or view the meeting remotely by webcast. Registration is requested to attend in person and required to view the webcast. Information about the workshop and registration links are available at
Dr. Nicole Kleinstreuer, Deputy Director, NTP Interagency Center for the Evaluation of Alternative Toxicological Methods (NICEATM), at telephone: (984) 287-3150 or email:
Security information for visitors to NIH is available at
NICEATM administers ICCVAM, provides scientific and operational support for ICCVAM-related activities, and conducts and publishes analyses and evaluations of data from new, revised, and alternative testing approaches. NICEATM and ICCVAM work collaboratively to evaluate new and improved testing approaches applicable to the needs of U.S. federal agencies.
NICEATM and ICCVAM welcome the public nomination of new, revised, and alternative test methods and strategies for validation studies and technical evaluations.
Additional information about NICEATM can be found at
U.S. Customs and Border Protection, Department of Homeland Security.
Notice of accreditation and approval of Saybolt LP (LaPlace, LA), as a commercial laboratory.
Notice is hereby given, pursuant to CBP regulations, that Saybolt LP (LaPlace, LA), has been accredited to test petroleum and certain petroleum products for customs purposes for the next three years as of April 7, 2017.
Saybolt LP (LaPlace, LA) was approved and accredited as a commercial gauger and laboratory as of April 7, 2017. The next triennial inspection date will be scheduled for April 2020.
Christopher J. Mocella, Laboratories and Scientific Services Directorate, U.S. Customs and Border Protection, 1300 Pennsylvania Avenue NW, Suite 1500N, Washington, DC 20229, tel. 202-344-1060.
Notice is hereby given pursuant to 19 CFR 151.12 that Saybolt LP, 109 Woodland Dr., LaPlace, LA 70068, has been accredited to test petroleum and certain petroleum
Saybolt LP (LaPlace, LA) is accredited for the following laboratory analysis procedures and methods for petroleum and certain petroleum products set forth by the U.S. Customs and Border Protection Laboratory Methods (CBPL) and American Society for Testing and Materials (ASTM):
Anyone wishing to employ this entity to conduct laboratory analyses should request and receive written assurances from the entity that it is accredited by the U.S. Customs and Border Protection to conduct the specific test service requested. Alternatively, inquiries regarding the specific test service this entity is accredited or approved to perform may be directed to the U.S. Customs and Border Protection by calling (202) 344-1060. The inquiry may also be sent to
U.S. Customs and Border Protection, Department of Homeland Security.
Notice of accreditation and approval of Saybolt LP (Clarksville, IN), as a commercial gauger.
Notice is hereby given, pursuant to CBP regulations, that Saybolt LP (Clarksville, IN), has been approved to gauge petroleum and certain petroleum products for customs purposes for the next three years as of July 18, 2017.
Saybolt LP (Clarksville, IN) was approved and accredited as a commercial gauger and laboratory as of July 18, 2017. The next triennial inspection date will be scheduled for July 2020.
Christopher J. Mocella, Laboratories and Scientific Services Directorate, U.S. Customs and Border Protection, 1300 Pennsylvania Avenue NW, Suite 1500N, Washington, DC 20229, tel. 202-344-1060.
Notice is hereby given pursuant to 19 CFR 151.13, that Saybolt LP, 905C Eastern Blvd., Clarksville, IN 47129, has been approved to gauge petroleum and certain petroleum products for customs purposes in accordance with the provisions of 19 CFR 151.13. Saybolt LP (Clarksville, IN) is approved for the following gauging procedures for petroleum and certain petroleum products from the American Petroleum Institute (API):
Anyone wishing to employ this entity to conduct gauger services should request and receive written assurances from the entity that it is approved by the U.S. Customs and Border Protection to conduct the specific gauger service requested. Alternatively, inquiries regarding the specific gauger service this entity is approved to perform may be directed to the U.S. Customs and Border Protection by calling (202) 344-1060. The inquiry may also be sent to
Federal Emergency Management Agency, DHS.
Notice and request for comments.
The Federal Emergency Management Agency, as part of its continuing effort to reduce paperwork
Comments must be submitted on or before April 23, 2018.
To avoid duplicate submissions to the docket, please use only one of the following means to submit comments:
(1)
(2)
All submissions received must include the agency name and Docket ID. Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at
Clarence (Smiley) White, Chief, Operations and Support Branch, United States Fire Administration, 301-447-1055 or by email at
FEMA offers courses and programs that are delivered by the National Fire Academy (NFA) and the Emergency Management Institute (EMI) at the National Emergency Training Center (NETC) in Emmitsburg, MD, the Center for Domestic Preparedness (CDP) in Anniston, AL, and throughout the Nation in coordination with State and local training officials and local colleges and universities to carry out the authorities listed below:
1. Section 7 of Public Law 93-498, Federal Fire Prevention and Control Act, as amended, established the National Fire Academy (NFA) to advance the professional development of fire service personnel and of other persons engaged in fire prevention and control activities.
2. Section 611(f) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) as amended, 42 U.S.C. 5121-5207, authorizes the Director to conduct or arrange, by contract or otherwise, for the training programs for the instruction of emergency preparedness officials and other persons in the organization, operation, and techniques of emergency preparedness; conduct or operate schools or classes, including the payment of travel expenses, in accordance with subchapter I of chapter 57 of title 5, United States Code, and the Standardized Government Travel Regulations, and per diem allowances, in lieu of subsistence for trainees in attendance or the furnishing of subsistence and quarters for trainees and instructors on terms prescribed by the Director; and provide instructors and training aids as deemed necessary. This training is conducted through the Emergency Management Institute (EMI).
To facilitate meeting these requirements, FEMA collects information necessary to apply and be accepted for courses and for the student stipend reimbursement program for these courses. There are several organizations within the Federal Emergency Management Agency that deliver training and education in support of the FEMA mission.
Comments may be submitted as indicated in the
Federal Emergency Management Agency, DHS.
Notice.
Comments are requested on proposed flood hazard determinations, which may include additions or modifications of any Base Flood Elevation (BFE), base flood depth, Special Flood Hazard Area (SFHA) boundary or zone designation, or regulatory floodway on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports for the communities listed in the table below. The purpose of this notice is to seek general information and comment regarding the preliminary FIRM, and where applicable, the FIS report that the Federal Emergency Management Agency (FEMA) has provided to the affected communities. The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP). In addition, the FIRM and FIS report, once effective, will be used by insurance agents and others to calculate appropriate flood insurance premium rates for new buildings and the contents of those buildings.
Comments are to be submitted on or before May 23, 2018.
The Preliminary FIRM, and where applicable, the FIS report for each community are available for inspection at both the online location
You may submit comments, identified by Docket No. FEMA-B-1802, to Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
FEMA proposes to make flood hazard determinations for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).
These proposed flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. These flood hazard determinations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings built after the FIRM and FIS report become effective.
The communities affected by the flood hazard determinations are provided in the tables below. Any request for reconsideration of the revised flood hazard information shown on the Preliminary FIRM and FIS report that satisfies the data requirements outlined in 44 CFR 67.6(b) is considered an appeal. Comments unrelated to the flood hazard determinations also will be considered before the FIRM and FIS report become effective.
Use of a Scientific Resolution Panel (SRP) is available to communities in support of the appeal resolution process. SRPs are independent panels of experts in hydrology, hydraulics, and other pertinent sciences established to review conflicting scientific and technical data and provide recommendations for resolution. Use of the SRP only may be exercised after FEMA and local communities have been engaged in a collaborative consultation process for at least 60 days without a mutually acceptable resolution of an appeal. Additional information regarding the SRP process can be found online at
The watersheds and/or communities affected are listed in the tables below. The Preliminary FIRM, and where applicable, FIS report for each community are available for inspection at both the online location
Federal Emergency Management Agency, DHS.
Committee management; request for applicants for appointment to the national advisory council.
The Federal Emergency Management Agency (FEMA) is requesting that qualified individuals who are interested in serving on the FEMA National Advisory Council (NAC) apply for appointment as identified in this notice. Pursuant to the
FEMA will accept applications until 11:59 p.m. EDT on March 18, 2018.
The preferred method for application package submission is by email:
•
You may also submit your application package by U.S. mail:
•
Use only one method to submit your application. The Office of the National Advisory Council will send you an email that confirms receipt of your application and will notify you of the final status of your application once FEMA selects new members.
Deana Platt, Designated Federal Officer, Office of the National Advisory Council, Federal Emergency Management Agency, 500 C Street SW, Washington, DC 20472-3184; telephone (202) 646-2700; and email
The NAC is an advisory committee established in accordance with the provisions of the
The NAC Charter contains more information and can be found at:
If you are interested, qualified, and want FEMA to consider appointing you to fill an open position on the NAC, please submit an application package to the Office of the NAC as listed in the
• Cover letter, addressed to the Office of the NAC, that includes or indicates: Current position title and employer or organization you represent, home and work addresses, and preferred telephone number and email address; the discipline area position(s) for which you are qualified; why you are interested in serving on the NAC; and how you heard about the solicitation for NAC members;
• Resume or Curriculum Vitae (CV); and
• One Letter of Recommendation addressed to the Office of the NAC.
Your application package must be eight (8) pages or less. Information contained in your application package should clearly indicate your qualifications to serve on the NAC and fill one of the current open positions. FEMA will not consider incomplete applications. FEMA will review the information contained in application packages and make selections based on: (1) Leadership attributes, (2) emergency management experience, (3) expert knowledge in discipline area, and (4) ability to meet NAC member expectations. FEMA will also consider overall NAC composition, including geographic diversity and mix of officials, emergency managers, and emergency response providers from state, local, and tribal governments, when selecting members.
Appointees may be designated as a SGE as defined in section 202(a) of title 18, United States Code, or as a Representative member. SGEs speak as experts in their field and Representative members speak for the stakeholder group they represent. Candidates selected for appointment as SGEs are required to complete a Confidential Financial Disclosure Form (Office of Government Ethics (OGE) Form 450) each year. You can find this form at the Office of Government Ethics website (
The NAC generally meets in person twice per year. FEMA does not pay NAC members for their time, but may reimburse travel expenses such as airfare, per diem to include hotel stays, and other transportation costs within federal travel guidelines when pre-approved by the Designated Federal Officer. NAC members must serve on one of the three NAC Subcommittees, which meet regularly by teleconference. FEMA estimates the total time
DHS does not discriminate on the basis of race, color, religion, sex, national origin, political affiliation, sexual orientation, gender identity, marital status, disability and genetic information, age, membership in an employee organization, or other non-merit factor. DHS strives to achieve a widely diverse candidate pool for all of its recruitment actions. Current DHS and FEMA employees, including FEMA Reservists, are not eligible for membership. Federally registered lobbyists may apply for positions designated as Representative appointments but are not eligible for positions that are designated as SGE appointments.
Federal Emergency Management Agency, DHS.
Final 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 section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
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 also 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.
Final notice.
Flood hazard determinations, which may include additions or modifications of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or regulatory floodways on the Flood Insurance Rate Maps (FIRMs) and where applicable, in the supporting Flood Insurance Study (FIS) reports
The FIRM and FIS report are the basis of the floodplain management measures that a community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the Federal Emergency Management Agency's (FEMA's) National Flood Insurance Program (NFIP). In addition, the FIRM and FIS report are used by insurance agents and others to calculate appropriate flood insurance premium rates for buildings and the contents of those buildings.
The date of June 6, 2018 has been established for the FIRM and, where applicable, the supporting FIS report showing the new or modified flood hazard information for each community.
The FIRM, and if applicable, the FIS report containing the final flood hazard information for each community is available for inspection at the respective Community Map Repository address listed in the tables below and will be available online through the FEMA Map Service Center at
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the new or modified flood hazard information for each community listed. Notification of these changes has been published in newspapers of local circulation and 90 days have elapsed since that publication. The Deputy Associate Administrator for Insurance and Mitigation has resolved any appeals resulting from this notification.
This final notice is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.
Interested lessees and owners of real property are encouraged to review the new or revised FIRM and FIS report available at the address cited below for each community or online through the FEMA Map Service Center at
The flood hazard determinations are made final in the watersheds and/or communities listed in the table below.
U.S. Citizenship and Immigration Services, Department of Homeland Security.
30-Day notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. The purpose of this notice is to allow an additional 30 days for public comments.
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until March 26, 2018. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, must be directed to the OMB USCIS Desk Officer via email at
You may wish to consider limiting the amount of personal information that you provide in any voluntary submission you make. For additional information please read the Privacy Act notice that is available via the link in the footer of
USCIS, Office of Policy and Strategy, Regulatory Coordination Division, Samantha Deshommes, Chief, 20 Massachusetts Avenue NW, Washington, DC 20529-2140, Telephone number (202) 272-8377 (This is not a toll-free number; comments are not accepted via telephone message.). Please note contact information provided here is solely for questions regarding this notice. It is not for individual case status inquiries. Applicants seeking information about the status of their individual cases can check Case Status Online, available at the USCIS website at
The information collection notice was previously published in the
You may access the information collection instrument with instructions, or additional information by visiting the Federal eRulemaking Portal site at:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(1)
(2)
(3)
(4)
(5)
(6)
(7)
Office of the Chief Information Officer, HUD.
Notice.
On February 13, 2018, HUD inadvertently published a 30-day notice of proposed information collection entitled Public Housing Agencies Service Areas Solicitation of Comments. HUD will republish the notice in the
Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410; email Colette Pollard at
Bureau of Land Management, Interior.
Notice of public meeting.
In accordance with the Federal Land Policy and Management Act of 1976, and the Federal Advisory Committee Act of 1972, the U.S. Department of the Interior, Bureau of Land Management's (BLM) Southeast Oregon Resource Advisory Council (RAC) will meet as indicated below.
The Southeast Oregon RAC will hold a public meeting on Thursday, March 15, 2018, from 8 a.m. to 5 p.m. Pacific Daylight Time, and Friday, March 16, 2018, from 8 a.m. to 12:00 p.m. Pacific Daylight Time. A public comment period will be available from 10:45 a.m. to 11:15 a.m. on Friday, March 16, 2018.
The meetings will be held at the Harney County Chamber of Commerce, 484 N. Broadway, Burns, OR 97720.
Larisa Bogardus, Public Affairs Officer, 1301 S G Street, Lakeview, Oregon 97630; 541-947-6237;
The 15-member Southeast Oregon RAC is chartered and appointed by the Secretary of the Interior. The members' diverse perspectives are represented in commodity, conservation, and general interests. The RAC provides advice to BLM resource managers regarding management plans and proposed resource actions on public lands in southeast Oregon. All meetings are open to the public.
Agenda items for this meeting include election of 2018 officers; recommendations of management approaches for areas identified by BLM as lands with wilderness characteristics as part of the Vale and Lakeview Districts' respective resource
Before including your address, phone number, email address, or other personal identifying information in your comments, please 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.
43 CFR 1784.4-2.
National Park Service, Interior.
Notice.
The New Jersey State Museum, in consultation with the appropriate Indian Tribes or Native Hawaiian organizations, has determined that the cultural items listed in this notice meet the definition of unassociated funerary objects. Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request to the New Jersey State Museum. If no additional claimants come forward, transfer of control of the cultural items to the lineal descendants, Indian Tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to the New Jersey State Museum at the address in this notice by March 26, 2018.
Dr. Gregory D. Lattanzi, Bureau of Archaeology & Ethnology, New Jersey State Museum, 205 West State Street, Trenton, NJ 08625, telephone (609) 984-9327, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate cultural items under the control of the New Jersey State Museum, Trenton, NJ that meet the definition of unassociated funerary objects under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American cultural items. The National Park Service is not responsible for the determinations in this notice.
In the 1930s, 5 cultural items were removed from Kyle Mound in Muscogee County, GA. Kyle Mound, consisting of a mound and associated cemetery, has been a known collecting site for artifacts, including funerary objects, since the 1880s. A hand-written label found with one of the artifacts, suggests that Mr. F.W. Miller sold part of the Kyle Mound to Charles A. Philhower. The note states “Bought from Mr. Miller in East Orange found by him on the Chattahoochee River between Alabama and Georgia—Pyle (sp. Kyle) Mound south of Columbus C.A.P. (Charles A. Philhower).” Philhower's entire archeological and ethnographic collection was transferred to the New Jersey State Museum from the Rutgers University Archives and Library. The 5 unassociated funerary objects are 2 ceramic bowls, 1 stone bowl, 1 necklace of blue and white beads, and 1 necklace of an assortment of different colored beads.
On an unknown date, 11 cultural items were removed from unknown locations in the state of Georgia. The circumstances of their removal are unclear as no documentation exists on the location within the state of Georgia. Where information exists, it is listed in the following sentences. The 11 unassociated funerary objects are 1 amber necklace from a grave, trade beads (1 necklace) from a grave, 6 necklaces of blue and white beads from a grave, 1 pearl necklace from a grave, and 2 necklaces of shell and beads from a grave.
A videoconference was held on July 14, 2016 between representatives of the New Jersey State Museum and the Eastern Band of Cherokee Indians, The Muscogee (Creek) Nation, and United Keetoowah Band of Cherokee Indians in Oklahoma. Through this consultation, it was determined that the cultural affiliation of the objects with the Cherokee could reasonably be ascertained. The United Keetoowah Band of Cherokee Indians in Oklahoma has taken the lead role in the repatriation process.
Officials of the New Jersey State Museum have determined that:
• Pursuant to 25 U.S.C. 3001(3)(B), the 16 cultural items described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony and are believed, by a preponderance of the evidence, to have been removed from a specific burial site of a Native American individual.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the unassociated funerary objects and the United Keetoowah Band of Cherokee Indians in Oklahoma.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to Dr. Gregory D. Lattanzi, Bureau of Archaeology & Ethnology, New Jersey State Museum, 205 West State Street, Trenton, NJ 08625, telephone (609) 984-9327, email
The New Jersey State Museum is responsible for notifying the Eastern Band of Cherokee Indians, The Muscogee (Creek) Nation, and United Keetoowah Band of Cherokee Indians in Oklahoma that this notice has been published.
National Park Service, Interior.
Notice.
The Field Museum of Natural History, in consultation with the appropriate Indian Tribes or Native Hawaiian organizations, has determined that the cultural items listed in this notice meet the definition of sacred objects. Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request to the Field Museum of Natural History. If no additional claimants come forward, transfer of control of the cultural items to the lineal descendants, Indian Tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to the Field Museum of Natural History at the address in this notice by March 26, 2018.
Helen Robbins, Field Museum of Natural History, 1400 South Lake Shore Drive, Chicago, IL 60605, telephone (312) 665-7317, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate cultural items under the control of the Field Museum of Natural History, Chicago, IL, that meet the definition of sacred objects under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American cultural items. The National Park Service is not responsible for the determinations in this notice.
In the summer of 1900, one cultural item was removed from an unknown location in Humboldt County, CA. Museum records indicate that these objects are Wiyot in origin and were collected by Stewart Culin for The Field Museum as part of an expedition co-sponsored by the Museum. Mr. Culin collected objects from what he described as an Indian Rancheria on the Mad River, about a mile away from Blue Lake in the summer of 1900. The one cultural item is a set of “doctor's feathers” that were collected from a Wiyot man named Dick, whose father had been a doctor. The set of doctor's feathers was accessioned by the Field Museum in 1900 and is represented by catalog number 60069. There are seven bundles of condor feathers, which have had their edges trimmed. Some bundles have additional smaller feathers, such as those from a northern flicker, and abalone shells. The feathers would have been used by a doctor in either a healing ceremony or as part of a religious ceremony, including the World Renewal Ceremony. These feathers are imbued and are necessary today for the revitalization and present day practice of Wiyot traditional religion. The Wiyot are culturally affiliated with the area from which the sacred objects were removed. This is supported by archival records and reports, museum records, Department of the Interior sources, academic sources, and correspondence with Wiyot representatives.
Officials of the Field Museum of Natural History have determined that
• Pursuant to 25 U.S.C. 3001(3)(C), the one cultural item described above is a specific ceremonial object needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present-day adherents.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the sacred object and the Wiyot Tribe, California (previously listed as the Table Bluff Reservation—Wiyot Tribe).
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to Helen Robbins, Field Museum of Natural History, 1400 South Lake Shore Drive, Chicago, IL 60605, telephone (312) 665-7317, email
The Field Museum of Natural History is responsible for notifying the Bear River Band of the Rohnerville Rancheria, California; Blue Lake Rancheria, California; Cher-Ae Heights Indian Community of the Trinidad Rancheria, California; and Wiyot Tribe, California (previously listed as the Table Bluff Reservation—Wiyot Tribe) that this notice has been published.
National Park Service, Interior.
Notice.
History Colorado has completed an inventory of human remains, in consultation with the appropriate Indian Tribes or Native Hawaiian organizations, and has determined that there is no cultural affiliation between the human remains and any present-day Indian Tribes or Native Hawaiian organizations. Representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request to History Colorado. If no additional requestors come forward, transfer of control of the human remains to the Indian Tribes or Native Hawaiian organizations stated in this notice may proceed.
Representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these
Sheila Goff, History Colorado, Denver, CO 80203, telephone (303) 866-4531, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains under the control of History Colorado, Denver, CO. The human remains were removed from an unknown location in South Dakota.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by History Colorado professional staff in consultation with representatives of the Cheyenne River Sioux Tribe of the Cheyenne River Reservation, South Dakota; Flandreau Santee Sioux Tribe of South Dakota; Iowa Tribe of Kansas and Nebraska; Iowa Tribe of Oklahoma; Lower Brule Sioux Tribe of the Lower Brule Reservation, South Dakota; Lower Sioux Indian Community in the State of Minnesota; Oglala Sioux Tribe (previously listed as the Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota); Otoe-Missouria Tribe of Indians, Oklahoma; Ponca Tribe of Indians of Oklahoma; Ponca Tribe of Nebraska; Prairie Island Indian Community in the State of Minnesota; Rosebud Sioux Tribe of the Rosebud Indian Reservation, South Dakota; Sac & Fox Nation, Oklahoma; Sac & Fox Tribe of the Mississippi in Iowa; Santee Sioux Nation, Nebraska; Sisseton-Wahpeton Oyate of the Lake Traverse Reservation, South Dakota; Spirit Lake Tribe, North Dakota; Standing Rock Sioux Tribe of North & South Dakota; Three Affiliated Tribes of the Fort Berthold Reservation, North Dakota; Upper Sioux Community, Minnesota; and the Yankton Sioux Tribe of South Dakota. The Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation, Montana; Crow Creek Sioux Tribe of the Crow Creek Reservation, South Dakota; Omaha Tribe of Nebraska; and the Sac & Fox Nation of Missouri in Kansas and Nebraska were invited to consult, but did not participate (hereafter referred to as “The Invited and Consulted Tribes”).
At some time before 1996, human remains representing, at minimum, one individual were removed from an unknown location in South Dakota and delivered to the Colorado Office of Archaeology and Historic Preservation in 1996. The human remains are of an adult female. No known individual was identified. No associated funerary objects are present.
History Colorado has no evidence that at the time of the excavation and removal of these human remains the land from which the human remains were removed was the tribal land of any Indian Tribe or Native Hawaiian organization. Between February 2015 and November 2017, History Colorado contacted The Invited and Consulted Tribes, who are recognized as aboriginal to the area from which these Native American human remains were removed, requesting telephonic consultation. The Cheyenne River Sioux Tribe of the Cheyenne River Reservation, South Dakota, have agreed to accept control of the human remains and the Indian Tribes who participated in consultations concurred.
Officials of History Colorado have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice are Native American based on osteological analysis conducted at Metropolitan State University of Denver.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and any present-day Indian Tribe.
• According to final judgments of the Indian Claims Commission or the Court of Federal Claims, the land from which the Native American human remains were removed is the aboriginal land of The Invited and Consulted Tribes.
• Treaties, Acts of Congress, or Executive Orders, indicate that the land from which the Native American human remains were removed is the aboriginal land of The Invited and Consulted Tribes.
• Pursuant to 43 CFR 10.11(c)(1), the disposition of the human remains may be to The Invited and Consulted Tribes.
Representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to Sheila Goff, History Colorado, Denver, CO 80203, telephone (303) 866-4531, email
History Colorado is responsible for notifying The Invited and Consulted Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The U.S. Fish and Wildlife Service, Alaska Region (Alaska Region USFWS) has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian Tribes or Native Hawaiian organizations, and has determined that there is a cultural affiliation between the human remains and present-day Indian Tribes or Native Hawaiian organizations. Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request to the Alaska Region USFWS. If no additional requestors come forward, transfer of control of the human remains and associated funerary objects to the lineal descendants, Indian Tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian Tribe or
Edward DeCleva, Regional Historic Preservation Officer, U.S. Fish and Wildlife Service, Alaska Region, 1011 East Tudor Road MS-235, Anchorage, AK 99503, telephone (907) 786-3399, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects under the control of the Alaska Region USFWS, Anchorage, AK. The human remains and associated funerary objects were removed from Amchitka Island and Adak Island, Aleutians West Census Area, AK.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the Alaska Region USFWS professional staff in consultation with representatives of the Native Village of Atka, the Atxam Corporation, and the Aleut Corporation.
In 1944, human remains representing, at minimum, one individual were removed from an unknown site on Amchitka Island, Aleutians West Census Area, AK, by Fred Swearingen, who made surface collections from the midden site. The human remains were transferred to the University of Washington, Burke Museum in 1945, and then to the Alaska Region USFWS headquarters in 2016. The human remains include 21 vertebrae, three ribs, sternum, sacrum, one patella, and hand and foot bones, and represent one adult male. No known individual was identified. The one associated funerary object is an unmodified mammal bone.
There are no diagnostics artifacts or radiocarbon dates associated with the human remains. The consensus among anthropologists is that midden sites began to appear around 3,000 years ago. The human remains were found on the surface of the midden and likely date to the Late Prehistoric period, possibly no earlier than 500—1000 years B.P.
On April 15th, 1944, human remains representing, at minimum, one individual were removed from Adak Island, Aleutians West Census Area, AK, by Harley Goodrich while operating a bulldozer. The human remains include one cranium, discovered at a depth of approximately 25 feet. The human remains were transferred to the University of Washington, Burke Museum on August 1, 1944. A physical anthropologist at the Burke Museum determined that the human remains are from an adult female. No known individuals were identified. No known funerary objects were present.
The present-day Aleut cultural affiliation with prehistoric Aleut populations is evident in the human remains. The context and physical traits are consistent with those expected for pre-contact Aleut populations.
Officials of the Alaska Region USFWS have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of two individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the one object described in this notice is reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and the Native Village of Atka.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Edward DeCleva, Regional Historic Preservation Officer, U.S. Fish and Wildlife Service, Alaska Region, 1011 East Tudor Road MS-235, Anchorage, AK 99503, telephone (907) 786-3399, email
The Alaska Region USFWS is responsible for notifying the Native Village of Atka, the Atxam Corporation, and the Aleut Corporation that this notice has been published.
National Park Service, Interior.
Notice.
The United States Army Corps of Engineers, Tulsa District, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, has determined that the cultural items listed in this notice meet the definition of unassociated funerary objects. Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request to the United States Army Corps of Engineers, Tulsa District. If no additional claimants come forward, transfer of control of the cultural items to the lineal descendants, Indian tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to the United States Army Corps of Engineers, Tulsa District, at the address in this notice by March 26, 2018.
Michelle Horn, CESWT-ODR-N, US Army Corps of Engineers, Tulsa District, 2488 East 81st Street, Tulsa, OK 74137-4290, telephone (918) 669-7642, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate cultural
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American cultural items. The National Park Service is not responsible for the determinations in this notice.
In 1971, human remains and funerary objects were exposed during a work project at site 34JN30, Lake Texoma, Johnson County, OK, and removed by University of Oklahoma staff. No known individuals were identified. Two hand painted semi-porcelain tea cup fragments (re-fit into one object) were located with human tibiae fragments and interpreted as representing a burial. The tibiae fragments were not located in the collection during a NAGPRA inventory in 1995, nor during a re-inventory in 2004, and may not have been collected at the time of excavation. The one unassociated funerary object consists of the two teacup fragments re-fit into a whole object.
The burial was located within the region historically occupied by The Chickasaw Nation. Two other burials were recovered at 34JN30 and were repatriated to The Chickasaw Nation in accordance with NAGPRA in 2013 (78 FR 27995-27996, 05/13/2013). Those burials conformed to the burial practices of the Chickasaw as seen in ethnographic data, including the placement of grave goods on top of the burial with sheets of bark. The third burial, represented by the tibiae fragments and broken teacup, was located 25 feet from the other two and can reasonably be assumed to be associated with the same site. The temporal placement of this site in the mid-1800s was based on the archaeological seriation of historic artifacts from the burials and larger site assemblage.
Officials of the United States Army Corps of Engineers, Tulsa District, have determined that:
• Pursuant to 25 U.S.C. 3001(3)(B), the one cultural item described above is reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony and are believed, by a preponderance of the evidence, to have been removed from a specific burial site of a Native American individual.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the unassociated funerary object and The Chickasaw Nation.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to Michelle Horn, CESWT-ODR-N, US Army Corps of Engineers, Tulsa District, 2488 East 81st Street, Tulsa, OK 74137-4290, telephone (918) 669-7642, email
The United States Army Corps of Engineers, Tulsa District, is responsible for notifying The Chickasaw Nation that this notice has been published.
National Park Service, Interior.
Notice.
The U.S. Fish and Wildlife Service, Alaska Region (Alaska Region USFWS) has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is a cultural affiliation between the human remains and present-day Indian tribes or Native Hawaiian organizations. Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request to the Alaska Region USFWS. If no additional requestors come forward, transfer of control of the human remains and associated funerary objects to the lineal descendants, Indian tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to the Alaska Region USFWS at the address in this notice by March 26, 2018.
Edward DeCleva, Regional Historic Preservation Officer, U.S. Fish and Wildlife Service, Alaska Region, 1011 East Tudor Road MS-235, Anchorage, AK 99503, telephone (907) 786-3399, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects under the control of the Alaska Region USFWS, Anchorage, AK. The human remains and associated funerary objects were removed from multiple sites on Kodiak Island, AK.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the Alaska Region USFWS professional staff in consultation with representatives of the Alutiiq Museum and Archaeological Repository, acting as agent for the Alutiiq Tribe of Old Harbor (previously listed as Native Village of Old Harbor and Village of Old Harbor); Kaguyak Village; Native Village of Afognak; Native Village of Akhiok; Native Village of Larsen Bay; Native Village of Ouzinkie; Native Village of Port Lions; Sun'aq Tribe of Kodiak (previously listed as the Shoonaq' Tribe of Kodiak); and Tangirnaq Native Village (formerly Lesnoi Village (aka Woody Island)).
In 1977 and 1978, human remains representing, at minimum, 2 individuals were removed from 49-KOD-171 on Chief Cove, Spiridon Bay on Kodiak Island, AK. Some of these human remains were identified as human in 1977, during faunal analysis and additional elements were identified during the 2010 review of unmodified faunal material. No known individuals were identified. No associated funerary objects are present.
In 1977, human remains representing, at minimum, 7 individuals were removed from 49-KOD-172 on Chief Cove Island, Spiridon Bay, on Kodiak Island, AK. Some of these human remains were identified as human in 1977 during faunal analysis and additional elements were identified during the 2010 review of unmodified faunal material. No known individuals were identified. No associated funerary objects are present.
In 1977, human remains representing, at minimum, 3 individuals were removed from 49-KOD-221 along Uganik Passage on Kodiak Island, AK. No known individuals were identified. No associated funerary objects are present.
In 1977, human remains representing, at minimum, 1 individual were removed from 49-KOD-223 on Uganik Island, in the Kodiak Island Borough, AK. No known individuals were identified. No associated funerary objects are present.
In 1977 or 1978, human remains representing, at minimum, 5 individuals were removed from 49-KOD-224 on the southwest side of Uganik Island, in the Kodiak Island Borough, AK. These human remains were probably removed during the 1978 archeological excavation lead by U.S. Fish and Wildlife Service archeologist Michael Nowak. No known individuals were identified. No associated funerary objects are present.
In 1978, human remains representing, at minimum, 1 individual were removed from 49-KOD-249 on the southwest side of Uganik Island, in the Kodiak Island Borough, AK. No known individuals were identified. No associated funerary objects are present.
In 1978, human remains representing, at minimum, 4 individuals were removed from 49-KOD-257 on the southwest coast of Uganik Island, in the Kodiak Island Borough, AK. No known individuals were identified. The one associated funerary object is a lot of shell, rock, and faunal remains.
In 1978, human remains representing, at minimum, 1 individual were removed from 49-KOD-260 on the northeast shore of East Arm Uganik Bay, in the Kodiak Island Borough, AK. No known individuals were identified. No associated funerary objects are present.
In 1978, human remains representing, at minimum, 1 individual were removed from 49-KOD-280 on the west shore of South Arm Uganik Bay, in the Kodiak Island Borough, AK. No known individuals were identified. No associated funerary objects are present.
The human remains from the above sites were removed during an archeological survey led by Alaska Region USFWS archeologist Michael Nowak and were transferred to the University of Alaska Fairbanks, Museum of the North (UAMN). Portions of the collection were subsequently transferred to other institutions for study and curation. On October 28, 2016, the entire collection was once again consolidated at the UAMN.
Stratigraphic observations, cultural materials, and carbon dates indicate that the sites contain deposits spanning at least 2,000 years, from both the Late Kachemak and Koniag traditions. Archeological data indicate that modern Alutiiq peoples evolved from these archeologically documented societies. As such, the human remains from the above sites are likely Native American and most closely culturally affiliated with the modern Kodiak Alutiiq people.
Officials of the Alaska Region USFWS have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of 25 individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the 1 associated funerary object described in this notice is reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary objects and the Native Village of Larsen Bay.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Edward DeCleva, Regional Historic Preservation Officer, U.S. Fish and Wildlife Service, Alaska Region, 1011 East Tudor Road MS-235, Anchorage, AK 99503, telephone (907) 786-3399, email
The Alaska Region USFWS is responsible for notifying the Alutiiq Tribe of Old Harbor (previously listed as Native Village of Old Harbor and Village of Old Harbor), Kaguyak Village, Native Village of Afognak, Native Village of Akhiok, Native Village of Larsen Bay, Native Village of Ouzinkie, Native Village of Port Lions, Sun'aq Tribe of Kodiak (previously listed as the Shoonaq' Tribe of Kodiak), Tangirnaq Native Village (formerly Lesnoi Village (aka Woody Island)) that this notice has been published.
National Park Service, Interior.
Notice.
The New York State Museum, in consultation with the appropriate Indian Tribes or Native Hawaiian organizations, has determined that the cultural item listed in this notice meets the definition of a sacred object. Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request to the New York State Museum. If no additional claimants come forward, transfer of control of the cultural items to the lineal descendants, Indian Tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to
Lisa Anderson, New York State Museum, 3049 Cultural Education Center, Albany, NY 12230, telephone (518) 486-2020, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate a cultural item under the control of the New York State Museum, Albany, NY, that meets the definition of a sacred object under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American cultural items. The National Park Service is not responsible for the determinations in this notice.
In 1956, the museum acquired one cultural item as part of a larger collection purchased from the Albert G. Heath Collection at the Logan Museum of Anthropology at Beloit College in Beloit, WI. The cultural item was originally purchased by Mr. Heath from Joe Kishigobenesse, an Ottawa, who resided in Emmet County, MI.
The sacred object is a water drum identified by representatives of the Little Traverse Bay Bands of Odawa Indians, Michigan, as a Grandfather Drum used by the Midewiwin medicine society. Traditional religious leaders of the Little Traverse Bay Bands of Odawa Indians, Michigan, have identified the drum as necessary for the practice of traditional Native American religions by present-day adherents. Museum documentation, supported by oral and written evidence presented during consultation, indicates the drum is culturally affiliated with the Little Traverse Bay Bands of Odawa Indians, Michigan.
Officials of the New York State Museum have determined that:
• Pursuant to 25 U.S.C. 3001(3)(C), the one cultural item described above is a specific ceremonial object needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present-day adherents.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the sacred object and the Little Traverse Bay Bands of Odawa Indians, Michigan.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to claim this cultural item should submit a written request with information in support of the claim to Lisa Anderson, New York State Museum, 3049 Cultural Education Center, Albany, NY 12230, telephone (518) 486-2020, email
The New York State Museum is responsible for notifying the Little Traverse Bay Bands of Odawa Indians, Michigan, that this notice has been published.
National Park Service, Interior.
Notice.
The Mount Holyoke College Art Museum, in consultation with the appropriate Indian Tribes or Native Hawaiian organizations, has determined that the cultural items listed in this notice meet the definition of sacred objects and/or objects of cultural patrimony. Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request to the Mount Holyoke College Art Museum. If no additional claimants come forward, transfer of control of the cultural items to the lineal descendants, Indian Tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to the Mount Holyoke College Art Museum at the address in this notice by March 26, 2018.
Aaron F. Miller, NAGPRA Coordinator, Mount Holyoke College Art Museum, 50 College Street, South Hadley, MA 01075, telephone (413) 538-3394, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate cultural items under the control of the Mount Holyoke College Art Museum that meet the definition of sacred objects and/or objects of cultural patrimony under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American cultural items. The National Park Service is not responsible for the determinations in this notice.
At some time prior to 1892, one cultural item was removed from an unknown location and entered the Mount Holyoke College Art Museum collection. No additional information regarding the date or method of the accession of the cultural item (MH 3.F.A) is available. The sacred object/object of cultural patrimony is a handled earthenware vessel with white slip and red and black pigments.
At some time prior to 1886, one cultural item was removed from an unknown location and given to Mount Holyoke College Art Museum by Mary Pease. The cultural item (MH 4.F.A) is listed in the Seminary's
At an unknown date in the late 19th or early 20th century, one cultural item was removed from an unknown location and acquired by Joseph Allen Skinner through unknown methods. The
At some time prior to 1936, one cultural item was removed from an unknown location. The cultural item (MH SK K.B.22) was accessioned into the Joseph Allen Skinner Museum collection on August 30, 1936. No additional information regarding the source or method of acquisition is available. The sacred object/object of cultural patrimony is a handled earthenware vessel with white slip and black pigment.
In January of 2017, representatives from the Pueblo of San Felipe, New Mexico, identified these four cultural items as culturally affiliated with San Felipe and as sacred objects/objects of cultural patrimony. Based on National NAGPRA definitions of sacred objects and objects of cultural patrimony and a general knowledge of these objects incorporating sacred imagery and being used in various types of ceremonies and/or funerary contexts, the claim for repatriation to the Pueblo of San Felipe has merit.
Officials of the Mount Holyoke College Art Museum have determined that
• Pursuant to 25 U.S.C. 3001(3)(C), the four cultural items described above are specific ceremonial objects needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present-day adherents.
• Pursuant to 25 U.S.C. 3001(3)(D), the four cultural items described above have ongoing historical, traditional, or cultural importance central to the Native American group or culture itself, rather than property owned by an individual.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the sacred objects and objects of cultural patrimony and the Pueblo of San Felipe, New Mexico.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to Aaron F. Miller, NAGPRA Coordinator, Mount Holyoke College Art Museum, 50 College Street, South Hadley, MA 01075, telephone (413) 538-3394, email
The Mount Holyoke College Art Museum is responsible for notifying the Pueblo of San Felipe, New Mexico, that this notice has been published.
National Park Service, Interior.
Notice.
The U.S. Department of the Interior, Bureau of Land Management (BLM), Alaska State Office, has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian Tribes, and with the cooperation of the University of Alaska Museum of the North, and has determined that there is a cultural affiliation between the human remains and associated funerary objects and present-day Indian Tribes. Lineal descendants or representatives of any Indian Tribe not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request to the BLM, Alaska State Office. If no additional requestors come forward, transfer of control of the human remains and associated funerary objects to the Indian Tribes stated in this notice may proceed.
Lineal descendants or representatives of any Indian Tribe not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to the BLM, Alaska State Office, at the address in this notice by March 26, 2018.
Dr. Robert King, BLM-Alaska State NAGPRA Coordinator, 222 West 7th Avenue, Box 13, Anchorage, AK 99513-7599, telephone (907) 271-5510, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects under the control of the BLM and housed at the University of Alaska Museum of the North. The human remains and associated funerary objects were removed from the Sikoruk site (XHP-00002) in the North Slope Borough, AK, on land administered by the BLM.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the BLM, Alaska State Office, and the University of Alaska Museum of the North professional staff in consultation with representatives of Native Village of Barrow Inupiat Traditional Government, Native Village of Nuiqsut (aka Nooiksut), and Village of Anaktuvuk Pass.
In 1971, human remains representing, at minimum, 1 individual were removed from the Sikoruk site (XHP-00002) at Tukuto Lake in the North Slope Borough, AK, by Dr. Edwin S. Hall. The lands surrounding Tukuto Lake are within the National Petroleum Reserve-Alaska and are administrated by the BLM. In 2016, the human remains were transferred from Ohio History Connection in Columbus, OH, where they had been held since 1971, to the University of Alaska Museum of the North in Fairbanks, AK, which serves as the primary repository for the BLM, Alaska State Office. The human remains are a 75-percent complete skeleton of a young adult female, 20-34 years old, and their condition suggests they are a few hundred years old. No known individual was identified. The two
Officials of the BLM, Alaska State Office, have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the two objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and Native Village of Barrow Inupiat Traditional Government, Native Village of Nuiqsut (aka Nooiksut), and Village of Anaktuvuk Pass.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Dr. Robert King, BLM-Alaska State NAGPRA Coordinator, 222 West 7th Avenue, Box 13, Anchorage, AK 99513-7599, telephone (907) 271-5510, email
The BLM, Alaska State Office, is responsible for notifying tribal representatives of Native Village of Barrow Inupiat Traditional Government, Native Village of Nuiqsut (aka Nooiksut), and Village of Anaktuvuk Pass that this notice has been published.
National Park Service, Interior.
Notice.
The U.S. Department of the Interior, National Park Service, Kaloko-Honokōhau National Historical Park, in consultation with the appropriate Indian Tribes or Native Hawaiian organizations, has determined that the cultural items listed in this notice meet the definition of unassociated funerary objects. Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request to Kaloko-Honokōhau National Historical Park. If no additional claimants come forward, transfer of control of the cultural items to the lineal descendants, Indian Tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to Kaloko-Honokōhau National Historical Park at the address in this notice by March 26, 2018.
Barbara Alberti, Acting Superintendent, Kaloko-Honokōhau National Historical Park, 73-4786 Kanalani Street #14, Kailua-Kona, HI 96740, telephone (808) 329-6881 x1201, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate cultural items under the control of the U.S. Department of the Interior, National Park Service, Kaloko-Honokōhau National Historical Park, City, HI, that meet the definition of unassociated funerary objects under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the Superintendent, Kaloko-Honokōhau National Historical Park.
In 1971, 15 cultural items were removed from D13-26 in Hawaii County, HI, by the University of California, Santa Barbara during extensive archeological excavations under the direction of Robert Renger. D13-26 is located on lands which now comprise Kaloko-Honokōhau National Historical Park, but the park was not established as a unit of the National Park Service until November 10, 1978. The collections were entrusted to Robert Renger by the land owner at the conclusion of fieldwork. On October 29, 1990, Robert Renger donated the Kaloko archeological collection to Kaloko-Honokōhau National Historical Park. The 15 unassociated funerary objects are 2 echinoid files, 1 bone fishhook point, 1 basalt abrader, 3 metal nails, 3 glass fragments, 1 cylindrical object, and 4 metal fragments.
D13-26 is a low platform with a low rectangular alignment and a possible fire pit. One set of human remains was identified and left in place within the low rectangular alignment further described as a crypt. Three building/use stages are identifiable at the site: the construction of the platform, the additional use of the platform, and the construction of the crypt and rectangular alignment of stones. Artifacts present at the site are representative of both pre- and post-contact time periods.
Officials of Kaloko-Honokōhau National Historical Park have determined that
• Pursuant to 25 U.S.C. 3001(3)(B), the 15 cultural items described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony and are believed, by a preponderance of the evidence, to have been removed from a specific burial site of a Native American individual.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the unassociated funerary objects and the `ohana of Kuali`i, (Guye) Lee, (Reggie) Lee, Lui, Naboa, Nazara, Palacat-Nelson, and Vincent.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with
Kaloko-Honokōhau National Historical Park is responsible for notifying Makani Hou o Kaloko-Honokōhau, Na Hoa Pili o Kaloko-Honokōhau, the Office of Hawaiian Affairs, and the 'ohana of Aloua, Ayau, Ching, Cobb-Adams, DeAguiar, Haleamau, Ha`o, Harp, Keana`āina, Kuali`i, (Guye) Lee, (Reggie) Lee, Lui, Naboa, Nazara, Pai, Palacat-Nelson, Punihaole, Reeves, Roy, Springer, and Vincent that this notice has been published.
National Park Service, Interior.
Notice.
The U.S. Department of the Interior, Bureau of Land Management (BLM), Alaska State Office, has completed an inventory of human remains, in consultation with the appropriate Indian Tribes, and has determined that there is a cultural affiliation between the human remains and present-day Indian Tribes. Lineal descendants or representatives of any Indian Tribe not identified in this notice that wish to request transfer of control of these human remains should submit a written request to the BLM, Alaska State Office. If no additional requestors come forward, transfer of control of the human remains to the Indian Tribes stated in this notice may proceed.
Lineal descendants or representatives of any Indian Tribe not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to the BLM, Alaska State Office, at the address in this notice by March 26, 2018.
Dr. Robert King, BLM-Alaska State NAGPRA Coordinator, 222 West 7th Avenue, Box 13, Anchorage, AK 99513-7599, telephone (907) 271-5510, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains under the control of the BLM, and housed at the University of Alaska Museum of the North. The human remains were removed from the Crag Point Site (KOD-00044), Kodiak Island, AK, on land administered by the BLM.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the BLM, Alaska State Office, and the University of Alaska Museum of the North professional staff, with additional information provided by the Alutiiq Museum and Archaeological Repository, in consultation with representatives of Native Village of Ouzinkie, the past and present-day inhabitants of Kodiak Island.
In 1986, human remains representing, at minimum, 26 individuals were removed from the Crag Point archeological site (KOD-00044), located inside Crag Point, on the west side of the entrance to Anton Larsen Bay, on the north coast of Kodiak Island, AK, on land administered by the BLM. The site was extensively excavated by Richard W. Jordan, an archeologist with Bryn Mawr College, and human remains were accessioned by the University of Alaska Museum of the North (accession number UA86-202). These partial sets of human remains represent two adult males, 21-35 years old; one adult male, 25-35 years old; one adult male, 35-45 years old; one adult female 21-35 years old; one adult female over 50 years old; two adults of indeterminate sex and age; one juvenile of indeterminate sex, 1-3 years old; and 17 individuals of indeterminate sex and age. No known individuals were identified. No associated funerary objects are present.
The human remains are determined to be Native American based on the geographic location (Kodiak Island, AK), the condition of the human remains, and their morphology. Nine of the individuals were excavated from burials and the other 17 individuals were from three collections of “scattered remains.” Radiocarbon dating of organic materials contextually associated with the human remains date within the last 2,000 years. Archeological studies and oral traditions show a 7,500-year ancestry between present-day and past residents on Kodiak Island. Therefore, the human remains are determined to be directly related to Kodiak Alutiiq people represented by the Native Village of Ouzinkie.
Officials of the BLM, Alaska State Office, have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of 26 individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and the Native Village of Ouzinkie.
Lineal descendants or representatives of any Indian Tribe not identified in this notice that wishes to request transfer of control of these human remains should submit a written request with information in support of the request to Dr. Robert King, BLM-Alaska State NAGPRA Coordinator, 222 West 7th Avenue, Box 13, Anchorage, AK 99513-7599, telephone (907) 271-5510, email
The BLM, Alaska State Office, is responsible for notifying the Native Village of Ouzinkie that this notice has been published.
National Park Service, Interior.
Notice.
The University of North Carolina at Chapel Hill, Research Laboratories of Archaeology, has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian Tribes or Native Hawaiian organizations, and has determined that there is no cultural affiliation between the human remains and associated funerary objects and any present-day Indian Tribes or Native Hawaiian organizations. Representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request to the University of North Carolina at Chapel Hill, Research Laboratories of Archaeology. If no additional requestors come forward, transfer of control of the human remains and associated funerary objects to the Indian Tribes or Native Hawaiian organizations stated in this notice may proceed.
Representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to the University of North Carolina at Chapel Hill, Research Laboratories of Archaeology at the address in this notice by March 26, 2018.
Dr. C. Margaret Scarry, Research Laboratories of Archaeology, University of North Carolina, Campus Box 3120, Chapel Hill, NC 27599-3120, telephone (919) 962-6574, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects under the control of the University of North Carolina at Chapel Hill, Research Laboratories of Archaeology, Chapel Hill, NC. The human remains and associated funerary objects were removed from multiple counties in the states of Kentucky, North Carolina, and Tennessee.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the University of North Carolina at Chapel Hill, Research Laboratories of Archaeology, professional staff in consultation with representatives of the Cherokee Nation, Eastern Band of Cherokee Indians, and the United Keetoowah Band of Cherokee Indians in Oklahoma.
In 1980, human remains representing, at minimum, 1 individual were removed from the Indian Fort Mountain site (15Ma25) in Madison County, KY. The University of North Carolina at Chapel Hill, Research Laboratories of Archaeology (UNC-CH), and Berea College jointly sponsored test excavations at Indian Fort Mountain, a presumed Middle Woodland hilltop enclosure near Berea, Kentucky. These investigations were undertaken by UNC graduate student David Moore. One of the five archeological features excavated (Feature 1) was a thin lens of dark soil that contained 17 small fragments of human bone that were placed in two vials. Moore suggests that these bones may represent a secondary burial within the confines of the stone enclosure. The human remains were transported to UNC-CH for cleaning and storage. No known individual was identified. No associated funerary objects are present.
From 1963 to 1964, human remains representing, at minimum, 13 individuals were removed from the Cane Creek site (31Ml3) in Mitchell County, NC. The site was excavated by archeologists from UNC-CH in 1964, following a period of digging into the site by the landowner. This excavation identified and removed three human burials (designated Burials 1, 2, and 3) and associated artifacts. Forty additional human bone fragments were recovered from the site surface and from test units over the burials. The landowner donated to UNC-CH human bone from 6 additional burials that were dug in 1963. All burials have been assigned to the late Middle Woodland period (A.D. 700-1100) based on artifacts recovered from the site. No known individuals were identified. The 315 associated funerary objects from Burials 2 and 3 include one bone awl and 314 disk and shell beads.
In 1963, human remains representing, at minimum, 1 individual were removed from the Great Tellico site (40Mr75) in Monroe County, TN. Three human bone fragments were collected from the site's surface by UNC-CH archeologist Ed Dolan. The human remains were transported to UNC-CH for cleaning and storage. This site visit was part of a regional survey for a National Science Foundation-funded project to investigate the origins of the Cherokee. Dolan noted that the site had recently been torn up by relic hunters, so it is likely that the bone fragments are from looter-disturbed burials. These human remains likely date to either the Dallas phase (A.D. 1300-1600) or Overhill phase (after A.D. 1600). No known individual was identified. No associated funerary objects are present.
In 1965, human remains representing, at minimum, 1 individual were removed from the Toqua site (40Mr6) in Monroe County, TN. Four human bone fragments were collected by UNC-CH archeologists Brian Egloff and Jeff Reid from the spoil pile of a looter's pit that had been dug into the top of the mound. The human remains were transported to UNC-CH for cleaning and storage. This site visit was part of a regional survey for a National Science Foundation-funded project to investigate the origins of the Cherokee. These human remains likely date to the Dallas phase (A.D. 1300-1600). No known individual was identified. No associated funerary objects are present.
In 1963, human remains representing, at minimum, 3 individuals were removed from the Citico site (40Mr7) in Monroe County, TN. Four human bone fragments were collected from the site's surface by UNC-CH archeologist Ed Dolan. The human remains were transported to UNC-CH for cleaning and storage. This site visit was part of a regional survey for a National Science Foundation-funded project to investigate the origins of the Cherokee. Dolan noted that the site had recently been torn up by relic hunters, so it is likely that the bone fragments are from looter-disturbed burials. These human remains likely date to either the Dallas phase (A.D. 1300-1600) or Overhill phase (after A.D.-1600). No known individuals were identified. No associated funerary objects are present.
In 1935, human remains representing, at minimum, 3 individuals were removed from the R. H. Bell site (40Re1) in Roane County, TN. Four human bone fragments were surface collected from the village area of the site by Joffre Coe during a visit to T. M. N. Lewis' excavation there. The human remains were transported to the University of North Carolina at Chapel Hill and subsequently donated to the Research Laboratories of Archaeology (formerly Laboratory of Anthropology) after its creation in 1939. These human remains likely date to the Dallas phase (A.D. 1300-1600). No known individuals were identified. No associated funerary objects are present.
In 1964, human remains representing, at minimum, 1 individual were removed from the Fudd Campbell site (40Ce3) in Carter County, TN. One human bone fragment was collected from the site's surface by UNC-CH archeologists Bennie Keel and Brian Egloff. The human remains were transported to UNC-CH for cleaning and storage. This site visit was part of a regional survey for a National Science Foundation-funded project to investigate the origins of the Cherokee. Keel noted that the site was in the process of being destroyed by the Tennessee Archaeological Society, so it is likely that the bone fragment is from a disturbed burial. The archeological association of the human bone is unknown. No known individual was identified. No associated funerary objects are present.
In 1966, human remains representing, at minimum, 1 individual were removed from the Great Hiwassee site (40Pk3) in Polk County, TN. Two human bone fragments were collected from the site's surface by UNC-CH archeologist Brian Egloff. The human remains were transported to UNC-CH for cleaning and storage. This site visit was part of a regional survey for a National Science Foundation-funded project to investigate the origins of the Cherokee. Egloff noted that the site had recently been torn up by relic hunters, so it is likely that the bone fragments are from looter-disturbed burials. The archeological association of the human bone is unknown. No known individual was identified. No associated funerary objects are present.
Officials of the University of North Carolina at Chapel Hill have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice are Native American based on their physical association with Native American cultural remains and occurrence at Native American archeological sites.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of a minimum of 24 individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the 315 objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and associated funerary objects and any present-day Indian Tribe.
• According to final judgments of the Indian Claims Commission or the Court of Federal Claims, the land from which the Native American human remains and associated funerary objects were removed is the aboriginal land of the Cherokee Nation, Eastern Band of Cherokee Indians, and United Keetoowah Band of Cherokee Indians in Oklahoma.
• Treaties, Acts of Congress, or Executive Orders, indicate that the land from which the Native American human remains and associated funerary objects were removed is the aboriginal land of the Cherokee Nation, Eastern Band of Cherokee Indians, and United Keetoowah Band of Cherokee Indians in Oklahoma.
• Pursuant to 43 CFR 10.11(c)(1), the disposition of the human remains and associated funerary objects may be to the Cherokee Nation, Eastern Band of Cherokee Indians, and United Keetoowah Band of Cherokee Indians in Oklahoma.
Representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Dr. C. Margaret Scarry, Research Laboratories of Archaeology, University of North Carolina, Campus Box 3120, Chapel Hill, NC 27599-3120, telephone (919) 962-6574, email
The University of North Carolina at Chapel Hill, Research Laboratories of Archaeology is responsible for notifying the Cherokee Nation, Eastern Band of Cherokee Indians, and United Keetoowah Band of Cherokee Indians in Oklahoma that this notice has been published.
United States International Trade Commission.
Notice.
The Commission hereby gives notice of the scheduling of the final phase of antidumping and countervailing duty investigation Nos. 701-TA-582 and 731-TA-1377 (Final) pursuant to the Tariff Act of 1930 (“the Act”) to determine whether an industry in the United States is materially injured or threatened with material injury, or the establishment of an industry in the United States is materially retarded, by reason of imports of ripe olives from Spain, provided for in subheadings 2005.70.02, 2005.70.04, 2005.70.50, 2005.70.60, 2005.70.70, and 2005.70.75 of the Harmonized Tariff Schedule of the United States, preliminarily determined by the Department of Commerce to be subsidized and sold at less-than-fair-value.
“The products covered by this investigation are certain processed olives, usually referred to as `ripe olives.' The subject merchandise includes all colors of olives; all shapes and sizes of olives, whether pitted or not pitted, and whether whole, sliced, chopped, minced, wedged, broken, or otherwise reduced in size; all types of packaging, whether for consumer (retail) or institutional (food service) sale, and whether canned or packaged in glass, metal, plastic, multi-layered airtight containers (including pouches), or otherwise; and all manners of preparation and preservation, whether low acid or acidified, stuffed or not stuffed, with or without flavoring and/or saline solution, and including in ambient, refrigerated, or frozen conditions.
Included are all ripe olives grown, processed in whole or in part, or packaged in Spain. Subject merchandise includes ripe olives that have been further processed in Spain or a third country,
For a full description of Commerce's scope, see
January 26, 2018.
Jordan Harriman (202-205-2610), Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
For further information concerning the conduct of this phase of the investigations, hearing procedures, and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A and B (19 CFR part 201), and part 207, subparts A and C (19 CFR part 207).
Additional written submissions to the Commission, including requests pursuant to section 201.12 of the Commission's rules, shall not be accepted unless good cause is shown for accepting such submissions, or unless the submission is pursuant to a specific request by a Commissioner or Commission staff.
In accordance with sections 201.16(c) and 207.3 of the Commission's rules, each document filed by a party to the investigations must be served on all other parties to the investigations (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
These investigations are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.21 of the Commission's rules.
By order of the Commission.
On February 9, 2018, the Department of Justice lodged a proposed Consent Decree with the United States District Court for the Western District of Washington in the lawsuit entitled
The Complaint initiating this matter seeks civil penalties and injunctive relief for alleged violations of the Clean Water Act (“CWA”), 33 U.S.C. Section 1319, against Trident Seafoods Corporation, the owners and/or operators of seafood processing facilities in Sand Point and Wrangell, Alaska.
Under the proposed Consent Decree, Defendant would be enjoined from discharging pollutants except as authorized by the NPDES permits, required to remediate the Sand Point seafood wastepile and to take specified steps to reduce foam discharges to ocean waters, and required to complete an independent evaluation of Trident's internal corporate environmental management system. The proposed Consent Decree also mandates compliance with the CWA and Trident's NPDES permits, and payment to the United States of a civil penalty for past violations.
The publication of this notice opens a period for public comment on the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the Consent Decree may be examined and downloaded at this Justice Department website:
Consent Decree Library, U.S. DOJ—ENRD, P.O. Box 7611, Washington, DC 20044-7611.
Please enclose a check or money order for $3.00 (25 cents per page reproduction cost) payable to the United States Treasury.
National Institute of Justice, Justice.
Notice.
The National Institute of Justice (NIJ) seeks feedback from the public on a proposed specification of the threat levels and associated ammunition intended for use with voluntary NIJ Standards that specify a minimum performance requirement for U.S. law enforcement equipment intended to protect against handgun and rifle ammunition. This document defines ballistic threats identified by U.S. law enforcement as representative of prevalent threats in the United States.
Comments must be received by 5 p.m. Eastern Time on May 23, 2018.
The draft document can be found here:
Mark Greene, Policy and Standards Division Director, Office of Science and Technology, National Institute of Justice, 810 7th Street NW, Washington, DC 20531; telephone number: (202) 307-3384; email address:
The proposed specification
National Institute of Justice, Justice.
Notice.
The National Institute of Justice (NIJ) seeks feedback from the public on a proposed revision of NIJ Standard 0101.06,
Comments must be received by 5 p.m. Eastern Time on May 23, 2018.
The draft document can be found here:
Mark Greene, Policy and Standards Division Director, Office of Science and Technology, National Institute of Justice, 810 7th Street NW, Washington, DC 20531; telephone number: (202) 307-3384; email address:
This draft document is a proposed revision of NIJ Standard 0101.06,
The draft NIJ specification
For more information on NIJ's voluntary standards, please visit
I, J. Patricia Wilson Smoot, of the United States Parole Commission, was present at a meeting of said Commission, which started at approximately 12:00 a.m., on Tuesday, February 13, 2018 at the U.S. Parole Commission, 90 K Street NE, Third Floor, Washington, DC 20530. The purpose of the meeting was to discuss original jurisdiction cases pursuant to 28 CFR 2.25. and 28 CFR 2.68(i)(1) Three Commissioners were present, constituting a quorum when the vote to close the meeting was submitted.
Public announcement further describing the subject matter of the meeting and certifications of the General Counsel that this meeting may be closed by votes of the Commissioners present were submitted to the Commissioners prior to the conduct of any other business. Upon motion duly made, seconded, and carried, the following Commissioners voted that the meeting be closed: J. Patricia Wilson Smoot, Patricia K. Cushwa and Charles T. Massarone.
In Witness Whereof, I make this official record of the vote taken to close this meeting and authorize this record to be made available to the public.
Veterans' Employment and Training Service (VETS), Department of Labor.
Notice of open meeting.
This notice sets forth the schedule and proposed agenda of a forthcoming meeting of the ACVETEO. The ACVETEO will discuss the DOL core programs and services that assist veterans seeking employment and raise employer awareness as to the advantages of hiring veterans. There will be an opportunity for individuals or organizations to address the committee. Any individual or organization that wishes to do so should contact Mr. Gregory Green at 202-693-4734.
Individuals who will need accommodations for a disability in order to attend the meeting (
Tuesday, March 13, 2018 beginning at 9:00 a.m. and ending at approximately 4:00 p.m. (EST).
The meeting will take place at the U.S. Department of Labor, Frances Perkins Building, 200 Constitution Avenue NW, Washington, DC 20210, Conference Room N-5437 A, B & C. Members of the public are encouraged to arrive early to allow for security clearance into the Frances Perkins Building.
1. Present a valid photo ID to receive a visitor badge.
2. Know the name of the event being attended: The meeting event is the Advisory Committee on Veterans' Employment, Training and Employer Outreach (ACVETEO).
3. Visitor badges are issued by the security officer at the Visitor Entrance located at 3rd and C Streets NW. When receiving a visitor badge, the security officer will retain the visitor's photo ID until the visitor badge is returned to the security desk.
4. Laptops and other electronic devices may be inspected and logged for identification purposes.
5. Due to limited parking options, Metro's Judiciary Square station is the easiest way to access the Frances Perkins Building.
Mr. Gregory Green, Assistant Designated Federal Official for the ACVETEO, (202) 693-4734.
The ACVETEO is a Congressionally mandated advisory committee authorized under Title 38, U.S. Code, Section 4110 and subject to the Federal Advisory Committee Act, 5 U.S.C. App. 2, as amended. The ACVETEO is responsible for: Assessing employment and training needs of veterans; determining the extent to which the programs and activities of the U.S. Department of Labor meet these needs; assisting to conduct outreach to employers seeking to hire veterans; making recommendations to the Secretary, through the Assistant Secretary for VETS, with respect to outreach activities and employment and training needs of Veterans; and carrying out such other activities necessary to make required reports and recommendations. The ACVETEO meets at least quarterly.
Office of the Assistant Secretary for Policy, Chief Evaluation Office, Department of Labor.
Notice of Information Collection; request for comment.
The Department of Labor (DOL), as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95). This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents is properly assessed.
Currently, DOL is soliciting comments concerning the collection of survey data about the HVRP Impact Evaluation. A copy of the proposed Information Collection Request (ICR) can be obtained by contacting the office listed in the addressee section of this notice.
Written comments must be submitted to the office listed in the addressee's section below on or before April 23, 2018.
You may submit comments by either one of the following methods:
Christina Yancey by email at
I.
The HVRP Impact Evaluation is examining the effectiveness of the HVRP program, building evidence of HVRP's effects on participants' employment and earning-related outcomes. In addition, the evaluation will provide a better understanding of program models and variations, partnerships, and populations served. Goals of the specific data collection plan included in this Notice is to help DOL make informed decisions about what works best for whom and about effective ways to improve the service systems seeking to support veterans experiencing homelessness. The research questions to be answered by the planned data collection pertain to what impact the HVRP has on Veterans experiencing homelessness; how the HVRP impacts vary by individual, grantee, and community characteristics and how they vary by services and referrals available or received; how HVRPs are implemented; and how systems and
This
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II.
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility.
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• 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- for example, permitting electronic submission of responses.
III.
Comments submitted in response to this request will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
Mine Safety and Health Administration, Labor.
Notice.
This notice is a summary of a petition for modification submitted to the Mine Safety and Health Administration (MSHA) by the parties listed below.
All comments on the petition must be received by MSHA's Office of Standards, Regulations, and Variances on or before March 26, 2018.
You may submit your comments, identified by “docket number” on the subject line, by any of the following methods:
1.
2.
3.
MSHA will consider only comments postmarked by the U.S. Postal Service or proof of delivery from another delivery service such as UPS or Federal Express on or before the deadline for comments.
Barbara Barron, Office of Standards, Regulations, and Variances at 202-693-9447 (Voice),
Section 101(c) of the Federal Mine Safety and Health Act of 1977 and Title 30 of the Code of Federal Regulations Part 44 govern the application, processing, and disposition of petitions for modification.
Section 101(c) of the Federal Mine Safety and Health Act of 1977 (Mine Act) allows the mine operator or representative of miners to file a petition to modify the application of any mandatory safety standard to a coal or other mine if the Secretary of Labor (Secretary) determines that:
1. An alternative method of achieving the result of such standard exists which will at all times guarantee no less than the same measure of protection afforded the miners of such mine by such standard; or
2. That the application of such standard to such mine will result in a diminution of safety to the miners in such mine.
In addition, the regulations at 30 CFR 44.10 and 44.11 establish the requirements and procedures for filing petitions for modification.
The petitioner states that:
(1) Central Plains Cement is the operator of the Sugar Creek Mine, and controlled by Eagle Materials, Inc.
(2) Sugar Creek is an underground limestone mine, located at 2200 N. Courtney Road, Sugar Creek, Missouri 64050, in Jackson County, Missouri, Mine I.D. No. 23-02171. The active workings are accessed from the surface via a 700 foot vertical shaft. Sugar Creek is a room and pillar mine with multiple openings to active milling areas. (3) The petitioner has established a single mine rescue team for Sugar Creek. The mine rescue team consists of eight qualified and trained members.
(4) The petitioner has entered into an agreement with Martin Marietta Kansas City, LLC (“Martin Marietta”) whereby Martin Marietta agrees to provide mine rescue services by the Martin Marietta Materials, Kansas City Mine Rescue team as needed to Sugar Creek. Similarly, petitioner has agreed to provide rescue services by the Sugar Creek mine rescue team as needed to three Martin Marietta locations.
(5) The Sugar Creek mine rescue team will provide services to the Martin Marietta's Randolph Deep Mine (Randolph) located at 401 Randolph Road, Randolph, Missouri 64161, in Clay County, Missouri, Mine I.D. No. 23-02308; The Stamper Underground Mine (Stamper) is an underground limestone mine, located at 13500 Interurban Road, Kansas City, Missouri 64163, in Platte County, Missouri, Mine I.D. No. 23-02232; and its Parkville Quarry (Parkville) is an underground limestone mine, is located at 7600 NW 9 Hwy., Parkville, Missouri 64152, in Platte County, Missouri, Mine I.D. No. 23-01883.
(6) On January 2, 2018, Martin Marietta filed a Petition for Modification seeking approval for the identical modification of 30 CFR 49.6(a)(1) requested herein.
(7) The petitioner has a mine rescue station located at Sugar Creek. Prior to December 20, 2017, the Sugar Creek mine rescue station and Martin Marietta's Mine rescue station at Randolph each contained equipment sufficient only to supply one mine rescue team. As of December 20, 2018, Martin Marietta relocated certain mine rescue team equipment, including six self-contained breathing apparatus, gas monitors, cap lamps, and oxygen bottles, to the Sugar Creek mine rescue station to ensure that the combined mine rescue station at Sugar Creek is in compliance with 30 CFR 49.6(a). However, if MSHA grants the relief sought by this petition, Martin Marietta intends to return that mine rescue team equipment to Randolph.
(8) The proposed modification would provide at least the same measure of safety contemplated by the standard. Pursuant to the mine rescue services arrangement between Martin Marietta and petitioner, there will always be two mine rescue teams available whenever miners are underground and a minimum of twelve approved self-contained breathing apparatus available for a mine emergency. Both Stamper and Parkville are within thirty minutes or less of ground travel time from Randolph, and Randolph is located within fifteen minutes of ground travel time from Sugar Creek. When maintained in the individual mine rescue stations as petitioned for, the self-contained breathing apparatus could be used immediately or transported to another mine within a maximum forty-five minutes ground travel time.
(9) The petitioner seeks an alternative method of compliance with 30 CFR 49.6(a)(1) and proposes the following for the Sugar Creek mine rescue station:
(a) Self-Contained Breathing Apparatus: The mine rescue station will be equipped with a minimum of six self-contained breathing apparatus, each with a minimum of four hours capacity (approved by MSHA and NIOSH under 42 CFR part 84, subpart H), and any necessary equipment for testing such apparatus.
(b) The petitioner will maintain a mine rescue station provided with all equipment identified in 30 CFR 49.6(a)(2) through (a)(9).
The petitioner asserts that the proposed alternative method will at all times guarantee no less than the same measure of protection afforded the miners under the existing standard.
Occupational Safety and Health Administration (OSHA), Labor.
Request for public comments.
OSHA solicits public comments concerning its proposal to extend the Office of Management and Budget's (OMB) approval of the information collection requirements specified in the Vinyl Chloride Standard.
Comments must be submitted (postmarked, sent, or received) by April 23, 2018.
Theda Kenney or Charles McCormick, Directorate of Standards and Guidance, OSHA, U.S. Department of Labor, telephone (202) 693-2222.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent (
The Standard specifies a number of paperwork requirements. The following is a brief description of the collection of information requirements contained in the Vinyl Chloride (VC) Standard.
Paragraph 1910.1017(d)(2) requires employers to conduct exposure monitoring at least quarterly if the results show that worker exposures are above the permissible exposure limit (PEL), while those exposed at or above the Action Level (AL) must be monitored no less than semiannually. Paragraph (d)(3) requires that employers perform additional monitoring whenever there has been a change in VC production, process or control that may result in an increase in the release of VC.
Paragraph (f)(2) requires employers whose engineering and work practice controls cannot sufficiently reduce worker VC exposures to a level at or below the PEL to develop and implement a plan for doing so. Paragraph (f)(3) requires employers to develop this written plan and provide it upon request to OSHA for examination and copying. These plans must be updated annually.
When respirators are required, the employer must establish a respiratory protection program in accordance with 1910.134, paragraphs (b) through (d) (except (d)(1)(iii) and (d)(3)(iii)(B)(1) and (2)) and (f) through (m). Paragraph 1910.134(c) requires the employer to develop and implement a written respiratory protection program with worksite-specific procedures and elements for required respirator use. The purpose of these requirements is to ensure that employers establish a standardized procedure for selecting, using, and maintaining respirators for each workplace where respirators will be used. Developing written procedures ensures that employers develop a respirator program that meets the needs of their workers.
Employers must develop a written operational plan for dealing with emergencies; the plan must address the storage, handling, and use of VC as a liquid or compressed gas. In the event of an emergency, appropriate elements of the plan must be implemented. Emergency plans must maximize workers' personal protection and minimize the hazards of an emergency.
Paragraph (k) requires employers to develop a medical surveillance program for workers exposed to VC in excess of the action level. Examinations must be provided in accord with this paragraph at least annually. Employers must also obtain, and provide to each worker, a copy of a physician's statement
Under paragraph 1910.1017(l)(1), Hazard Communication, the employer shall ensure that at least the following hazards are addressed: Cancer; central nervous system effects; liver effects; blood effects; and flammability. Under paragraph 1910.1017(l)(1)(iii), the employer shall include vinyl chloride and polyvinyl chloride (PVC) in the program established to comply with the Hazard Communication Standard (HCS) (§ 1910.1200). The employer shall ensure that each employee has access to labels on containers of chemicals and substances associated with vinyl and polyvinyl chloride and to safety data sheets, and is trained in accordance with the provisions of HCS and paragraph (j) of this section.
Employers must maintain worker exposure and medical records. Medical and monitoring records are maintained principally for worker access, but are designed to provide valuable information to both workers and employers. The medical and monitoring records required by this standard will aid workers and their physicians in determining whether or not treatment or other interventions are needed for VC exposure. The information also will enable employers to ensure that workers are not being overexposed; such information may alert the employer that steps must be taken to reduce VC exposures.
Exposure records must be maintained for at least 30 years, and medical records must be kept for the duration of employment plus 20 years, or for a total of 30 years, whichever is longer. Records must be kept for extended periods because of the long latency period associated with VC-related carcinogenesis (
OSHA has a particular interest in comments on the following issues:
• Whether the proposed information collection requirements are necessary for the proper performance of the Agency's functions, including whether the information is useful;
• The accuracy of OSHA's estimate of the burden (time and costs) of the information collection requirements, including the validity of the methodology and assumptions used;
• The quality, utility, and clarity of the information collected; and
• Ways to minimize the burden on employers who must comply. For example, by using automated or other technological information collection and transmission techniques.
OSHA is requesting that OMB extend its approval of the information collection requirements contained in the Vinyl Chloride Standard. The Agency is requesting an adjustment decrease in burden hours from 535 to 428 hours, a total decrease of 107 burden hours. The reduction is a result of fewer VC and PVC establishments identified for this ICR. The currently approved ICR estimates a total of 24 establishments, and this proposed ICR estimates a total of 19 establishments. There is also a decrease in the cost under Item 13 from $43,320 to $34,279, a total decrease of $9,041. The cost decrease results from a decrease in the number of exposure monitoring samples and medical examinations.
You may submit comments in response to this document as follows: (1) Electronically at
Because of security procedures, the use of regular mail may cause a significant delay in the receipt of comments. For information about security procedures concerning the delivery of materials by hand, express delivery, messenger, or courier service, please contact the OSHA Docket Office at (202) 693-2350, (TTY (877) 889-5627).
Comments and submissions are posted without change at
Loren Sweatt, Deputy Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice. The authority for this notice is the Paperwork Reduction Act of 1995 (44 U.S.C. 3506
Occupational Safety and Health Administration (OSHA), Labor.
Request for public comments.
OSHA solicits public comments concerning its proposal to extend OMB approval of the information collection requirements specified in the Confined Spaces in Construction Standard.
Comments must be submitted (postmarked, sent, or received) by April 23, 2018.
Theda Kenney or Charles McCormick, Directorate of Standards and Guidance, OSHA, U.S. Department of Labor, telephone (202) 693-2222.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent (
The Standard specifies several information collection requirements. The following sections describe who uses the information collected under each requirement, as well as how they use it. Employers and employees would use these information collection requirements when they identify a confined space at a construction worksite. The purpose of the information would permit employers and employees to systematically evaluate the dangers in confined spaces before entry is attempted, and to ensure that adequate measures have been implemented to make the spaces safe for entry. In addition, the information collection requirements of the Standard specify requirements for developing and maintaining a number of records and other documents. Further, OSHA compliance safety and health officers would need the information to determine, during an inspection, whether employers are complying with the requirements.
Paragraph 1203(b)(1) requires employers who identify a permit required confined space (PRCS) to post danger signs or take other equally effective means to inform employees of the existence and location of, and the danger posed by, permit spaces. The note following paragraph 1203(b)(1) provides an example of the content of the optional danger sign.
Paragraph 1203(b)(2) requires employers to inform, in a timely manner and in a manner other than posting, its employees' authorized representatives and the controlling contractor, of the hazards of confined spaces and the location of those spaces.
Paragraph 1203(d) requires any employer that has employees who will enter a confined space to have and implement a written permit confined space program and to make the program available for inspection by employees and their representatives. Employers may write detailed permit space programs, while making the entry permits associated with the written programs less specific than the programs, provided the permits address the hazards of the particular space; conversely, the program may be less specific than the entry permit, in which case the employer must draft a detailed permit.
Paragraph 1203(e)(1) sets forth the six conditions that an employer must meet before its employees can enter a permit space under the alternate procedures specified in paragraph (e)(2).
Paragraph 1203(e)(1)(v) requires employers to document the initial conditions before entry, including the determinations and supporting data required by paragraphs (e)(1)(i) through (e)(1)(iii) of the Standard (develop monitoring
In addition, paragraph 1203(e)(2)(ix) requires the employer to verify that the permit space is safe for entry and that the employer took the measures required by paragraph 1203(e)(2) (the procedures that employers must follow for permit space entries made under paragraph 1203(e)(1)). The verification must be in the form of a certification that contains the date, the location of the space, and the signature of the certifying individual. The employer must make the alternate procedure documentation of paragraphs (e)(1)(v) and (e)(2)(ix) available to entrants or to their employees' authorized representatives before entry.
Paragraph 1203(e)(2)(vii) allows for the use of job-made hoisting systems if a registered professional engineer approves these systems for personnel hoisting prior to use in entry operations regulated by § 1926.1203(e). Unlike the proposed rule, the final rule requires an engineer's approval to be in writing to ensure that the specifications and limitations of use are conveyed accurately to the employees implementing the job-made hoist, and that the approval can be verified.
Paragraph 1203(g)(3) requires an entry employer seeking to reclassify a space from permit to non-permit status to document the basis for determining that it eliminated all permit space hazards through a certification that contains the date, the location of the space, and the signature of the certifying individual. In addition, the employer must make the certification available to each employee entering the space or his or her authorized representative. A reevaluation aimed at reestablishing compliance with paragraph 1203(g) will involve the demonstrations, testing, inspection, and documentation required in paragraphs (g)(1) through (g)(3). The employer must substantiate all determinations so that employers, employees, and the Agency have the means necessary to evaluate those determinations and ensure compliance with the conditions that would enable the employer to conduct entry operations using the alternate procedures specified by § 1926.1203 following reclassification.
In paragraph (h), OSHA designates the controlling contractor, rather than the host employer, as the information hub for confined spaces information-sharing and coordination because the controlling contractor's function at a construction site makes it better situated than the host employer (assuming that the host employer is not also the controlling contractor) to contribute to and to facilitate a timely and accurate information exchange among all employers who have employees involved in confined space work. On a construction worksite, the controlling contractor has overall authority for the site and is best situated to receive and disseminate information about the previous and current work performed there.
Paragraph 1203(h)(1) requires the host employer to share with the controlling contractor information that the host has about the location of known permit spaces, the hazards or potential hazards in each space or the reason it is a permit space, and any previous steps that it took, or that other employers took, to protect workers from the hazards in those spaces.
OSHA requires controlling contractors to obtain the information specified in paragraph (h)(1) from the host employer (
Paragraph 1203(h)(2)(i) requires the controlling contractor to obtain from the host employer, before permit space entry, available information regarding permit space hazards and previous entry operations.
Paragraph 1203(h)(2)(ii)(A) and (B) require the controlling contractor, before entry operations begin, to share with the entrants, and any other entity at the worksite whose activities could foreseeably result in a hazard in the permit space, the information that the controlling contractor received from the host employer, as well as any additional information the controlling contractor has about the topics listed in paragraphs (h)(1)(i) through (iii) (
Paragraph 1203(h)(2)(ii)(C) requires the controlling contractor, before entry operations begin, to share with each specified entity any precautions or procedures that the host employer, controlling contractor, or any entry employer implemented earlier for the protection of employees working in permit spaces.
This provision sets forth the information-exchange requirements for entry employers.
Paragraph (h)(3)(i) requires an entry employer to obtain information about the permit space entry operations from the controlling contractor, and works with paragraph 1203(h)(2), which requires the controlling contractor to share information about permit-space entry operations with the entry employer.
Paragraph (h)(3)(ii) requires an entry employer to inform the controlling contractor of the permit space program that the entry employer will follow, including information about any hazards likely to be confronted or created in each permit space. This exchange must take place prior to entry to ensure that the controlling contractor is informed of all the hazards in a timely manner and can take action, if needed,
Paragraph 1203(h)(4) requires controlling contractors and entry employers to coordinate permit space entry operations in two circumstances: (1) When more than one entity performs entry operations at the same time, or (2) when permit space entry is performed at the same time that any activities that could foreseeably result in a hazard in the permit space are performed.
Paragraph 1203(h)(5)(i) requires the controlling contractor to debrief each entity that entered a permit space, at the end of entry operations, about the permit space program followed, and any hazards confronted or created in the permit space(s) during entry operations, and then, as required by paragraph 1203(h)(5)(iii), relay appropriate information to the host employer. Paragraph 1203(h)(5)(ii) requires the entry employer to share the same information with the controlling contractor in a timely manner.
Paragraph 1203(i) provides that, in the event no employer meets the definition of a controlling contractor on a particular worksite, the host employer or other employer that arranges for permit space entry work must fulfill the information exchange and coordination duties of a controlling contractor.
The Agency requires each employer with employees who will enter a permit space to have and implement a written permit space program at the construction site (with the exception of ventilation-only entries conducted in accordance with § 1926.1203(e)). Also see discussion of 29 CFR 1926.1203(d) and 29 CFR 1926.1212(a), requirements that pertain to the written program.
As required elements of the written program, OSHA considers all provisions of § 1926.1204 to be information collection requirements:
Paragraph 1926.1204(c) requires an employer to develop procedures needed to facilitate safe entry operations into permit spaces. The subparagraphs in 1204(c) provide specific elements of the required procedures that employers must include in the permit program: Identifying safe entry conditions that employers must meet to initiate and conduct the entry safely (paragraph (c)(1)); providing each authorized entrant with the opportunity to observe monitoring or testing (paragraph (c)(2)); isolating the PRCS (paragraph (c)(3)); purging, inerting, flushing, or ventilating the permit space (paragraph (c)(4)); ensuring that monitoring devices will detect an increase in atmospheric hazard levels in the event that the ventilation system malfunctions, and to do so in adequate time for employees to safely exit the space (paragraph (c)(5)); providing barriers to protect entrants from external hazards (paragraph (c)(6)); verifying that conditions are acceptable for entry and preventing employees from entering the permit space with a hazardous atmosphere unless demonstrating that personal protective equipment (PPE) will be effective for each employee (paragraph (c)(7)); and eliminating any conditions that could make it unsafe to remove an entrance cover (paragraph (c)(8)). Before entry is authorized, each entry employer must document the completion of these measures by preparing an entry permit, as required by paragraph 1926.1205(a).
Under paragraphs 1204 (g) through (l), entry employers are also required to develop procedures for: Having an attendant respond to emergencies affecting multiple permit spaces monitored (paragraph 1204(g)); specifying employees' name, confined space entry roles and duties (paragraph 1204(h)); summoning rescue and emergency services, rescuing entrants from permit spaces, providing necessary emergency services to rescued employees, preventing unauthorized personnel from attempting a rescue (paragraph 1204(i)); cancelling entry permits (paragraph 1204(j)); coordinating entry operations (paragraph 1204(k)); and for terminating an entry permit and entry operations (paragraph 1204(l)).
Paragraphs 1204(c)(3) and 1203(e)(1)(i) (for PRCSs using alternate procedures) require tagging in accordance with the definition of “isolate” or “isolation” (see paragraph 1202), which requires employers to “lockout or tagout . . . all sources of energy.”
Paragraph 1204(e)(6) requires each entry employer to immediately provide the results of any testing conducted in accordance with paragraph 1204 to each authorized entrant or that employee's authorized representative.
Paragraph 1204(m) requires each entry employer to review its permit space program whenever the procedures are inadequate, and to revise those procedures when necessary.
Paragraph 1204(n) requires each entry employer to review its permit space program at least every year and make revisions to its procedures as necessary. This provision requires an employer to review cancelled permits within one year after each entry.
An employer conducting a permit space entry must post an entry permit outside the permit space to document the employer's efforts to identify and control conditions in that permit space. Section 1205 sets forth the required process for establishing entry permits and § 1206 sets forth the required specific information that must be identified on the permit.
Paragraph 1205(a) requires each entry employer to prepare, prior to entry into a PRCS, an entry permit containing all the information specified in
Paragraph 1205(b) requires the entry supervisor to sign the permit before entry begins. Similarly, paragraph 1926.1210(b) requires the entry supervisor to verify that the employer performed all tests specified by the entry permit, and that all procedures and equipment so specified are in place before he or she may sign the permit and allow entry. The paragraph also specifies that the entry supervisor must verify this information by checking that the corresponding entries made on the permit.
Paragraph 1205(c) requires an employer to make the completed entry permit available to all authorized entrants, or their authorized representatives, at the time each employee enters the space, by posting it at the entry portal or by any other equally effective means, so that entrants can confirm that pre-entry preparations have been accomplished.
Paragraph 1205(f) requires the employer to retain each entry permit for at least 1 year to facilitate the review of the permit required by paragraph 1926.1204(n) of the Standard. Any problems encountered during an entry operation must be noted on the pertinent permit so that appropriate revisions to the permit space program can be made. Employers should list the problems encountered during entry resulting in the cancellation or suspension of a permit on the entry permit.
An employer conducting a permit space entry must post an entry permit outside the permit space to document the employer's efforts to identify and control conditions in that permit space (see § 1926.1205(c)).
Paragraphs 1206(a)-(p) and 1926.1209(c) set forth the information which must be identified on the permit. Paragraph 1206(a) requires the employer to identify the permit space workers are planning to enter. Paragraph 1206(b) requires the employer to record the purpose of the entry. This information must be sufficiently specific, such as identifying specific tasks or jobs that employees are to perform within the space, to confirm that the employer considered performance of each specific construction activity in the hazard assessment of the PRCS. Paragraph 1206(c) requires the employer to record the date and authorized duration of the planned entry. Paragraph 1206(d) requires the employer to record the identity of the authorized entrants so that the attendant is capable of safely overseeing the entry operations. Employers can meet this requirement by referring in the entry permit to a system such as a roster or tracking system used to keep track of who is currently in the PRCS. Under paragraph 1206(e), when a permit program requires ventilation, OSHA requires employers to ensure that they have a monitoring system in place that will alert employees of increased atmospheric hazards in the event the ventilation system stops working. (See § 1926.1204(c)(5).) This provision requires the employer to record the means of detecting an increase in atmospheric-hazard levels if the ventilation system stops working. Paragraph 1206(f) requires the employer to record the names of each attendant required to be stationed outside each permit space for the duration of entry operations. Paragraph 1206(g) requires the employer to record the name of each employee currently serving as entry supervisor. Paragraph 1206(h) requires the employer to record the hazards associated with the planned confined space entry operations. This list must include all hazards, regardless of whether the employer protects the authorized entrants from the hazards by isolation, control, or PPE. Paragraph 1206(i) requires the employer to record the measures used to isolate or control the hazards prior to entry. Paragraph 1206(j) requires the employer to specify the acceptable entry conditions. Paragraph (j) also requires employers, when applicable, to provide the ventilation malfunction determinations made in paragraph (c)(5) of § 1926.1204. Paragraph 1206(k) requires the employer to record the dates, times, and results of the tests and monitoring performed prior to entry, and the names or initials of the individual/s who performed each test. Employers also must include the initial entry monitoring results on the entry permit; these results serve as a baseline for subsequent measurements. Paragraph 1206(l) requires the employer to identify the rescue and emergency services required by the Standard, and the means by which these services will be summoned when needed. In some cases, an employer must include pertinent information, such as communication equipment and emergency telephone numbers, on the permit to sufficiently identify the means by which the rescue services will be summoned. Paragraph 1206(m) requires the employer to record all the methods of communication used by authorized entrants and attendants during entry operations. Paragraph 1206(o) requires the employer to record any additional information needed to ensure safe confined space entry operations. Paragraph 1206(p) requires the employer to record information about any other permits, such as for hot work, issued for work inside the confined space. If the employer identifies additional permits, these additional permits may be, but are not required to be, attached to the entry permit.
Under paragraph 1207(d), employers must maintain training records. In addition, the employer record must contain the names of each employee trained, the trainer's name, and the dates of training, and the employer must make these records available for inspection by employees and their authorized representatives for the period of time that the employee is employed by the employer. This documentation can take any form that reasonably demonstrates the employee's completion of the training.
Paragraph 1208(c) requires an employer to ensure that an authorized entrant communicates effectively with the attendant to facilitate the assessment of entrant status and timely evacuation as required by § 1209(f).
Paragraph 1208(d) requires an employer to ensure that an authorized entrant alerts the attendant whenever one of the following circumstances in paragraphs 1926.1208(d)(1)-(2) arises: (1) There is a warning sign or symptom of exposure to a dangerous situation; or (2) the entrant recognizes a prohibited condition. In some instances, a properly trained authorized entrant may be able to recognize and report his/her own symptoms, such as headache, dizziness, or slurred speech, and take the required action. In other cases, the authorized entrant, once the effects begin, may be unable to recognize or report them. In these latter cases, this provision requires that other, unimpaired, authorized entrants in the PRCS, who employers
Paragraph 1209(e) requires the attendant to communicate with authorized entrants as necessary to assess and keep track of the entrants' status and to notify entrants if evacuation under paragraph 1926.1209(f) of the Standard is necessary. Use of the word “assess” connotes an interactive duty in which the attendant may ask questions of the entrant, or ask the entrant to perform a task so that the attendant can evaluate the entrant's status.
Paragraph 1926.1209(f) requires the attendant to assess the activities and conditions inside and outside the space to determine if it is safe for entrants to stay in the space. OSHA requires the attendant to evacuate the permit space under any of the four “conditions” listed in paragraphs 1926.1209(f)(1) through (f)(4): (1) The attendant notices a prohibited condition, (2) the attendant identifies the behavioral effects of hazard exposure in an authorized entrant, (3) there is a condition outside the space that could endanger the authorized entrants, or (4) the attendant cannot effectively and safely perform the duties required under § 1926.1209. If the attendant notices a condition or activity outside the space not addressed by the entry coordination procedures, then the attendant or entry supervisor could, directly or through the controlling contractor, seek to correct the condition or stop the activity (such as described in the example above). If the attendant cannot address the situation immediately, then the attendant must order the entrants to evacuate the permit space until the employer resolves the problem.
Paragraph 1209(g) requires the attendant to call upon rescue and other emergency services as soon as he or she decides that authorized entrants may need assistance to escape from permit space hazards.
Paragraph 1209(h) requires the attendant to take the actions specified in § 1926.1209(h)(1) through (h)(3) to prevent unauthorized persons from entering a permit space while entry is taking place.
If someone other than an authorized entrant happens to approach the PRCS, paragraph 1209(h)(1) specifies that the attendant must make that individual aware that he/she must stay away from the PRCS. Some construction sites may be accessible to the public, so the attendant also would be responsible for warning members of the public who may attempt to enter a permit space at the site.
Paragraph (h)(2) requires the attendant, should an unauthorized person enter the PRCS, to advise him/her to exit the space immediately.
Paragraph (h)(3) requires the attendant to notify the entry supervisor, along with the authorized entrants, of unauthorized persons who have entered the PRCS.
Paragraph 1210(b) is described above in the discussion of paragraph 1205(a). Paragraph 1210(d) is described below in the discussion of paragraph 1211(c).
Paragraph 1211(a)(1) requires an employer to assess a prospective rescue service's ability to respond to a rescue summons in a timely manner. Paragraph 1211(a)(2) requires an employer to assess a prospective rescue service's ability to provide adequate and effective rescue services. In evaluating a prospective rescue provider's abilities, the employer also must consider the willingness of the service to become familiar with the particular hazards and circumstances faced during its permit space entries. Paragraphs (a)(4) and (a)(5) of § 1926.1211 require the employer to provide its designated rescuers with information about its confined spaces and access to those spaces to allow the rescuers to develop appropriate rescue plans and to perform rescue drills.
Paragraph 1211(a)(4) requires an employer to inform the designated rescue service of the known hazards associated with the permit space in the event that a rescue becomes necessary. To meet the requirements of this provision, the employer would have to inform the rescue service prior to issuing a permit that the employer selected the service to rescue its employees in the event of an emergency, and that the employer is relying on the rescue services to perform these rescues when necessary. Compliance with this paragraph, as well as with paragraphs (a)(1) and (a)(2) of this section, often requires the employer to provide this information to the rescue service immediately prior to each permit space entry. Similarly, if an entry involves hazards not usually encountered by the rescue service, or hazards or a configuration that would require the rescue service to use equipment that it does not always have available, then the employer would have to notify the rescue service of these hazards and conditions prior to beginning the entry operation.
Paragraph 1211(a)(5) requires an employer to provide the designated rescue team or service with access to all permit spaces from which the rescue may need to perform a rescue so that the rescue team or service, whether in-house or third party, can develop appropriate rescue plans.
If an entry employer determines that it will use non-entry rescue, it must confirm, prior to entry, that emergency assistance
Paragraph 1211(d) requires an employer to provide relevant information about a hazardous substance to a medical facility treating an entrant exposed to the hazardous substance if the substance is one for which the employer must keep a SDS or other similar information at the worksite.
Paragraph 1212(a) requires employers to consult with affected employees and their authorized representatives in the development and implementation of the written permit space program required by § 1926.1203.
Paragraph 1212(b) requires that affected employees and their authorized representatives have access to all information developed under this standard. Other sections of this standard already specifically require that employers make information available to employees and their representatives. These provisions include §§ 1926.1203(d) (written program); 1203(e)(1)(v) and (e)(2)(ix) (alternate procedure certification); 1203(g) (reclassification certification); 1204(e)(6) (monitoring and testing results); 1205(c) (completed permit); and 1207(d) (training records).
Paragraph 1213 requires an employer, who must retain documentation under the Standard, to make this information available to the Secretary of Labor, or a designee, upon request. The request from the Secretary or the Secretary's designee (for example, OSHA) may be either oral or written.
OSHA has a particular interest in comments on the following issues:
• Whether the proposed information collection requirements are necessary for the proper performance of the Agency's functions, including whether the information is useful;
• The accuracy of OSHA's estimate of the burden (time and costs) of the information collection requirements, including the validity of the methodology and assumptions used;
• The quality, utility, and clarity of the information collected; and
• Ways to minimize the burden on employers who must comply—for example, by using automated or other technological information collection and transmission techniques.
The Agency requests approval for an adjustment increase of 5,589 burden hours (from 654,514 to 660,103) associated with training records. This increase is offset by a requested decrease in burden hour time for a clerical employee to generate a training record for an existing employee (from 3 minutes to generate and maintain the record to 1 minute to maintain the record). The request seeks approval to maintain all other previously approved burden hours. The Agency also requests approval to maintain $1,017,859 in Item 13 costs for signs, tags and gas monitors.
You may submit comments in response to this document as follows: (1) Electronically at
Because of security procedures, the use of regular mail may cause a significant delay in the receipt of comments. For information about security procedures concerning the delivery of materials by hand, express delivery, messenger, or courier service, please contact the OSHA Docket Office at (202) 693-2350, (TTY (877) 889-5627).
Comments and submissions are posted without change at
Loren Sweatt, Deputy Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice. The authority for this notice is the Paperwork Reduction Act of 1995 (44 U.S.C. 3506
The ACRS Subcommittee on Metallurgy and Reactor Fuels will hold a meeting on February 23, 2018 at 11545 Rockville Pike, Room T-2B1, Rockville, Maryland 20852.
The entire meeting will be open to public attendance.
The agenda for the subject meeting shall be as follows:
The Subcommittee will review the draft project plan to license and regulate Accident Tolerant Fuel. The Subcommittee will hear presentations by and hold discussions with NRC staff and other interested persons regarding this matter. The Subcommittee will gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as
Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official (DFO), Kent Howard (Telephone 301-415-2989 or Email:
Detailed meeting agendas and meeting transcripts are available on the NRC website at
If attending this meeting, please enter through the One White Flint North building, 11555 Rockville Pike, Rockville, Maryland 20852. After registering with Security, please contact Mr. Theron Brown (Telephone 301-415-6702) to be escorted to the meeting room.
The ACRS Subcommittee on Planning and Procedures will hold a meeting on March 8, 2018, 11545 Rockville Pike, Room T-2B3, Rockville, Maryland 20852.
The meeting will be open to public attendance.
The agenda for the subject meeting shall be as follows:
The Subcommittee will discuss proposed ACRS activities and related matters. The Subcommittee will gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the Full Committee.
Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official (DFO), Quynh Nguyen (Telephone 301-415-5844 or Email:
Information regarding changes to the agenda, whether the meeting has been canceled or rescheduled, and the time allotted to present oral statements can be obtained by contacting the identified DFO. Moreover, in view of the possibility that the schedule for ACRS meetings may be adjusted by the Chairman as necessary to facilitate the conduct of the meeting, persons planning to attend should check with the DFO if such rescheduling would result in a major inconvenience.
If attending this meeting, please enter through the One White Flint North building, 11555 Rockville Pike, Rockville, Maryland 20852. After registering with Security, please contact Mr. Theron Brown at 301-415-6207 to be escorted to the meeting room.
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add Global Expedited Package Services—Non-Published Rates 13 (GEPS-NPR 13) to the Competitive Products List.
Kyle R. Coppin, 202-268-2368.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642, on February 15, 2018, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service
Elizabeth A. Reed, 202-268-3179.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on February 13, 2018, it filed with the Postal Regulatory Commission a
Pursuant to the provisions of Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange is filing a proposal to expand the Short Term Option Series Program to allow Monday expirations for options listed pursuant to the Short Term Option Series Program, including options on the SPDR S&P 500 ETF Trust (“SPY”).
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 amend MIAX Options Rule 100, Definitions, and Rule 404, Series of Option Contracts Open for Trading, Interpretations and Policies .02, to expand the Short Term Option Series Program (“Program”) to permit the listing and trading of options series with Monday expirations that are listed pursuant to the Program, including options on SPY. The Exchange is also proposing to make a number of non-substantive, organizational changes to MIAX Options Rule 100 and Rule 404, Interpretations and Policies .02, for purposes of clarification and uniformity.
Presently, MIAX Options Rule 100 defines a Short Term Options Series as “a series in an option class that is approved for listing and trading on the Exchange in which the series is opened for trading pursuant to the Short Term Option Series Program provision of Rule 404, Interpretations and Policies .02.” MIAX Options Rule 404, Interpretations and Policies .02, provides that a Short Term Option Series is a series in an option class that is approved for listing and trading on the Exchange in which the series is opened for trading on any Tuesday, Wednesday, Thursday or Friday that is a business day and that expires on the Wednesday or Friday of the next business week.
The Exchange notes that this proposed rule change is substantially similar to the proposal by Nasdaq PHLX LLC (“Phlx”) which was recently approved by the Commission.
Specifically, the Exchange is proposing that it may open for trading series of options on any Monday that is a business day and that expires on the Monday of the next business week. The Exchange is also proposing to list Monday expiration series on Fridays that precede the expiration Monday by one business week plus one business day. Since MIAX Options Rule 404, Interpretations and Policies .02, already provides for the listing of short term option series on Fridays, the Exchange is not modifying this provision in MIAX Options Rule 100, to allow for Friday listing of Monday expiration series. However, the Exchange is amending MIAX Options Rule 100 to clarify that, in the case of a series that is listed on a Friday and expires on a Monday, that series must be listed one business week and one business day prior to that expiration (
As part of this proposal, the Exchange is also proposing to amend MIAX Options Rule 100 to address the expiration of Monday expiration series when the Monday is not a business day. In that case, the Rule will provide that the series shall expire on the first business day immediately following that Monday. This procedure differs from the expiration date of Wednesday expiration series that are scheduled to expire on a holiday. In that case, the Wednesday expiration series shall expire on the first business day immediately prior to that Wednesday,
The Exchange also proposes to make corresponding changes to MIAX Options Rule 404, Interpretations and Policies .02, which sets forth the requirements for SPY options that are listed pursuant to the Short Term Options Series Program, to permit Monday SPY expirations (“Monday SPY Expirations”). Accordingly, the Exchange proposes to amend Interpretations and Policies .02 to Rule 404, to state that, with respect to Monday SPY Expirations, the Exchange may open for trading on any Friday or Monday that is a business day, series of options on SPY to expire on any Monday of the month that is a business day and is not a Monday in which Quarterly Options Series expire, provided that Monday SPY Expirations that are listed on a Friday must be listed at least one business week and one business day prior to the expiration. As with the current rules for Wednesday SPY Expirations, the Exchange will also amend Interpretations and Policies .02 to state that it may list up to five consecutive Monday SPY Expirations at one time, and may have no more than a total of five Monday SPY Expirations (in addition to the maximum of five Short Term Option Series expirations for SPY expiring on Friday and five Wednesday SPY Expirations). The Exchange will also clarify that, as with Wednesday SPY Expirations, Monday SPY Expirations will be subject to the provisions of this Rule.
The interval between strike prices for the proposed Monday SPY Expirations will be the same as those for the current Short Term Option Series for Wednesday and Friday SPY Expirations. Specifically, the Monday SPY Expirations will have a $0.50 strike interval minimum. As is the case with other options series listed pursuant to the Short Term Option Series, the Monday SPY Expiration series will be P.M.-settled.
Currently, for each option class eligible for participation in the Program, the Exchange is limited to opening thirty (30) series for each expiration date for the specific class. The thirty (30) series restriction does not include series that are open by other securities exchanges under their respective short term option rules; the Exchange may list these additional series that are listed by other exchanges.
Finally, the Exchange is amending Interpretations and Policies .02(b) to Rule 404, which addresses the listing of Short Term Options Series that expire in the same week as monthly or quarterly options series. Currently, that rule states that no Short Term Option Series may expire in the same week in which monthly option series on the same class expire (with the exception of Wednesday SPY Expirations) or, in the case of Quarterly Options Series, on an expiration that coincides with an expiration of Quarterly Option Series on the same class. As with Wednesday SPY Expirations, the Exchange is proposing to permit Monday SPY Expirations to expire in the same week as monthly options series on the same class. The Exchange believes that it is reasonable to extend this exemption to Monday SPY Expirations because Monday SPY Expirations and standard monthly options will not expire on the same trading day, as standard monthly options expire on Fridays. Additionally, the Exchange believes that not listing Monday SPY Expirations for one week every month because there was a monthly SPY expiration on the Friday of that week would create investor confusion.
Relatedly, the Exchange is also amending Interpretations and Policies .02(b) to Rule 404 to clarify that Monday and Wednesday SPY Expirations may expire in the same week as monthly option series in the same class expire, but that no Short Term Option Series may expire on the same day as an expiration of Quarterly Option Series on the same class. This change will make that provision more consistent with the existing language in Interpretations and Policies .02 to Rule 404, which prohibits Wednesday SPY Expirations from expiring on a Wednesday in which Quarterly Options Series expire.
The Exchange does not believe that any market disruptions will be encountered with the introduction of P.M.-settled Monday expirations. The Exchange has the necessary capacity and surveillance programs in place to support and properly monitor trading in the proposed Monday expiration series, including Monday SPY Expirations. The Exchange currently trades P.M.-settled Short Term Option Series that expire almost every Wednesday and Friday, which provide market participants a tool to hedge special events and to reduce the premium cost of buying protection. The Exchange notes that it has been listing Wednesday expirations pursuant to MIAX Options Rule 100 and Rule 404 since 2016.
The Exchange seeks to introduce Monday expirations to, among other things, expand hedging tools available to market participants and to continue the reduction of the premium cost of buying protection. The Exchange believes that Monday expirations, similar to Wednesday and Friday expirations, will allow market participants to purchase an option based on their timing as needed and allow them to tailor their investment and hedging needs more effectively.
As noted above, Phlx recently received approval to list Monday expirations for SPY options pursuant to its Short Term Options program. In addition, other exchanges currently permit Monday expirations for other options. For example, Cboe lists options on the SPX with a Monday expiration as part of its Nonstandard Expirations Pilot Program.
The Exchange believes that its proposed rule change is consistent with Section 6(b) of the Act
In particular, the Exchange believes the Short Term Option Series Program has been successful to date and that Monday expirations, including Monday SPY Expirations, simply expand the ability of investors to hedge risk against market movements stemming from economic releases or market events that occur throughout the month in the same way that the Short Term Option Series Program has expanded the landscape of hedging. Similarly, the Exchange believes Monday expirations, including Monday SPY Expirations, should create greater trading and hedging opportunities and flexibility, and will provide customers with the ability to tailor their investment objectives more effectively. While other exchanges do not currently list Monday SPY Expirations, the Exchange notes that Cboe currently permits Monday expirations for other options with a weekly expiration, such as options on the SPX.
With the exception of Monday expiration series that are scheduled to expire on a holiday, the Exchange does not believe that there are any material differences between Monday expirations, including Monday SPY Expirations, and Wednesday or Friday expirations, including Wednesday and Friday SPY Expirations, for Short Term Option Series. The Exchange notes that it has been listing Wednesday expiration pursuant to MIAX Options Rule 100 and Rule 404 since 2016.
Given the similarities between Monday SPY Expiration series and Wednesday and Friday SPY Expiration series, the Exchange believes that applying the provisions in Interpretations and Policies .02 to Rule 404 that currently apply to Wednesday SPY Expirations, to Monday SPY Expirations, is justified. For example, the Exchange believes that allowing Monday SPY Expirations and monthly SPY expirations in the same week will benefit investors and minimize investor confusion by providing Monday SPY Expirations in a continuous and uniform manner. The Exchange also believes that it is appropriate to amend Interpretations and Policies .02(b) to Rule 404 to clarify that no Short Term Option Series may expire on the same day as an expiration of Quarterly Option Series on the same class. This change will make that provision more consistent with the existing language in Interpretations and Policies .02 to Rule 404 that prohibit Wednesday SPY Expirations from expiring on a Wednesday in which Quarterly Options Series expire.
Finally, the Exchange represents that it has an adequate surveillance program in place to detect manipulative trading in Monday expirations, including Monday SPY Expirations, in the same way that it monitors trading in the current Short Term Option Series. The Exchange also represents that it has the necessary systems capacity to support the new options series.
The Exchange believes the proposed rule text organizational changes promote just and equitable principles of trade and remove impediments to and perfect the mechanism of a free and open market and a national market system because the proposed rule text organizational change conforms its rules to the rules of other exchanges. As such, the proposed amendments would foster cooperation and coordination with persons engaged in facilitating transactions in securities and would remove impediments to and perfect the mechanism of a free and open market and a national exchange system. In particular, the Exchange believes that the proposed changes will provide greater clarity to Members and the public regarding the Exchange's Rules. It is in the public interest for rules to be accurate and concise so as to eliminate the potential for confusion.
MIAX Options does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange notes that having Monday expirations is not a novel proposal, as Cboe currently lists and trades short-term SPX options with a Monday expiration, and Phlx has recently received approval from the Commission to list Monday SPY expirations. The Exchange does not believe the proposal will impose any burden on intra-market competition, as all market participants will be treated in the same manner under this proposal. Additionally, the Exchange does not believe the proposal will impose any burden on inter-market competition, as nothing prevents the other options exchanges from proposing similar rules to list and trade short-term options series with Monday expirations.
Written comments were neither solicited nor received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6) 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. 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
Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for website viewing and printing in the Commission's Public Reference Room, 100 F Street NE, Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the Exchange. 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-MIAX-2018-05 and should be submitted on or before March 15, 2018.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On December 2, 2016, the Chicago Stock Exchange, Inc. (“CHX” or “Exchange”) filed with the Securities and Exchange Commission (“Commission” or “SEC”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Exchange Act”)
In conducting a
To minimize the potential for any person who has an ownership or voting interest in a national securities exchange to direct its operation so as to cause the exchange to neglect or otherwise fail to fulfill its obligations under the Exchange Act, the rules of national securities exchanges generally include ownership and voting limitations.
The information before the Commission has highlighted unresolved questions about whether the proposed new ownership structure would comply with the ownership and voting limitations, as well as whether certain aspects of the Proposed Transaction undermine the purpose of those ownership and voting limitations. Nor has the Exchange shown that it would be able to effectively monitor or enforce compliance with these limitations upon consummation of the Proposed Transaction, as it would be required to do in its role as an SRO under the federal securities laws. And the review process has also raised questions about whether the proposed ownership structure will allow the Commission to exercise sufficient oversight of the Exchange.
Because of these concerns, whether viewed independently or in combination, we are unable to find that CHX has met its burden of demonstrating that the proposed rule change is consistent with the Exchange Act and the applicable rules and regulations thereunder. We therefore disapprove the proposed rule change.
The proposed rule change was published for comment in the
Pursuant to Exchange Act Section 4A
The Commission's Rules of Practice set forth procedures for reviewing actions made pursuant to delegated authority.
Currently, the Exchange is a wholly owned subsidiary of CHX Holdings, and CHX Holdings is beneficially owned by 193 firms or individuals, including certain Participants or affiliates of Participants.
• NA Casin Group, Inc. (“NA Casin Group”), a corporation incorporated under the laws of the State of Delaware and wholly owned by Chongqing Casin, a limited company organized under the laws of the People's Republic of China (“PRC”)—29%
• Castle YAC Enterprises, LLC (“Castle YAC”), a limited liability company organized under the laws of the State of New York, the sole member of which is Jay Lu,
• Raptor, a limited liability company organized under the laws of the State of Delaware—25%
• Saliba, a limited liability company organized under the laws of the State of Illinois—24.5%
• Five members of the CHX Holdings management team, all U.S. citizens—collectively, 8.32%, with no one person attributed more than 5%
• Penserra, a limited liability company organized under the laws of the State of New York—2.18%
After the closing of the Proposed Transaction, CHX would remain a national securities exchange, registered under Section 6 of the Exchange Act,
To effect the Proposed Transaction, the Exchange proposes to amend its certificate of incorporation and bylaws (“CHX Bylaws”),
The Exchange proposes several substantive and technical amendments to its corporate governance documents, rules, and the governing documents of CHX Holdings. Among other items, the proposed amendments revise provisions in the CHX Holdings Certificate relating to ownership and voting limitations. In addition, to govern the upstream owners, the Exchange proposes to establish in the NA Casin Holdings Certificate ownership and voting limitations that are identical to those contained in the proposed CHX Holdings documents. In particular, these provisions prohibit any Person,
In addition, both the CHX Holdings Certificate and NA Casin Holdings Certificate contain voting restrictions that would preclude any stockholder, either alone or with its Related Persons, from voting more than 20% of the then outstanding shares entitled to be cast on any matter unless specific procedures are followed prior to voting in excess of the limitation.
Relevant to the ownership and voting limitations, the Exchange represents that there are two sets of Related Persons among the upstream owners: (1) Castle YAC and NA Casin Group and (2) the five members of the CHX Holdings management team.
The Exchange also has proposed revisions to the corporate governance documents of NA Casin Holdings and CHX Holdings to provide notice requirements with respect to changes in ownership that may affect the ownership and voting limitations. Specifically, the NA Casin Holdings Certificate and CHX Holdings Certificate will provide that: (1) Each Person involved in an acquisition for shares of stock of the corporation shall provide the corporation with written notice 14 days prior to the closing date of any acquisition that would result in a Person having voting rights or beneficial ownership, alone or together with its Related Persons, of record or beneficially, of five percent or more of the then outstanding shares of stock of the corporation entitled to vote on any matter; (2) NA Casin Holdings and CHX Holdings will be required to provide 10-day advance written notice to the Commission of any such changes in ownership; (3) any Person that, either alone or together with its Related Persons, has voting rights or beneficial ownership of, five percent or more of the outstanding voting shares of CHX Holdings or NA Casin Holdings (whether by acquisition or by change in the number of shares outstanding or otherwise), will be required, immediately upon acquiring knowledge of its ownership, to give the board of directors of CHX Holdings or NA Casin Holdings, as applicable, notice of such ownership; (4) any Person that, either alone or together with its Related Persons, of record or beneficially, has voting rights or beneficial ownership of five percent or more of NA Casin Holdings or CHX Holdings must promptly update the corporation if its ownership stake in or voting power regarding NA Casin Holdings or CHX Holdings increases or decreases by one
Furthermore, Article VIII of the NA Casin Holdings Certificate sets forth a supermajority vote requirement for certain corporate actions.
Additionally, CHX is amending the CHX Holdings Bylaws,
The proposed rule change also includes changes to CHX Holdings' and the Exchange's certificates of incorporation and bylaws addressing, among other items, board and committee composition and procedures, procedures regarding stockholder meetings, consent to U.S. federal court and Commission jurisdiction, and Commission access to corporate books and records related to the activities of the Exchange. The proposed rule change also adopts provisions in the new NA Casin Holdings Certificate and NA Casin Holdings Bylaws relating to these matters.
Under Section 19(b)(2)(C) of the Exchange Act, the Commission must approve the proposed rule change of an SRO if the Commission finds that the proposed rule change is consistent with the requirements of the Exchange Act and the applicable rules and regulations thereunder; if it does not make such a finding, the Commission must disapprove the proposed rule change.
Section 6(b)(1) of the Exchange Act requires a national securities exchange to be so organized and have the capacity to be able to carry out the purposes of the Exchange Act and to comply, and enforce compliance by its members, with the provisions of the Exchange Act and its own rules.
In reviewing the proposed rule change, the Commission has analyzed information provided by the Exchange, both in its public filings and subject to confidential treatment requests, as well as information derived from a recent staff examination of the Exchange.
Section 19(b)(2)(D) of the Exchange Act requires the Commission to “issue an order” approving or disapproving a proposed rule change within 240 days.
First, nothing about a stay vitiates the issuance of the underlying order. Moreover, at the time Congress enacted the time restrictions in Section 19(b)(2)(D) of the Exchange Act, it was known that the Commission could delegate authority to approve SRO rule filings pursuant to Exchange Act Section 4A, and that such delegated actions could be reviewed by the Commission, either at the request of a person aggrieved or on the Commission's own initiative.
Nor is such a construction necessary to fulfill Congress's purpose in enacting the statutory timelines. Congress intended to “streamline” the rule filing process
Finally, the proposed rule change now before the Commission differs from that addressed in the Delegated Order because the Exchange itself filed a material amendment to its original proposal after the Commission review of the delegated authority action began. The practical implications of the Exchange's assertion that the
As discussed above, in order to minimize the potential for persons who have ownership or voting interests in a national securities exchange to direct its operation so as to cause the exchange to neglect or otherwise fail to fulfill its obligations under the Exchange Act, the rules of such exchanges include ownership and voting limitations, as well as mechanisms to monitor for compliance with those limits.
In its original filing, the Exchange represented that the Proposed Transaction complied with these
CHX responded with documents and information, accompanied by a request for confidential treatment, that gave rise to additional questions. In a series of follow-up requests for information pertaining to the proposed upstream owners, Commission staff continued to seek additional information from CHX.
For example, the information provided, as well as information derived from the Commission staff's own due diligence, indicated potential connections between Shengju Lu, his son Jay Lu (who controls Castle YAC), or Chongqing Casin (the entity Shengju Lu controls) on one hand and the funds used by one of the members of the original investor consortium, Xian Tong, on the other hand. It appeared from Commission staff research and a review of certain bank records and supporting documents provided by the Exchange that Xian Tong received funding from an individual and entities that may have familial and financial connections to Shengju Lu or Jay Lu (neither of whom, according to representations submitted by the Exchange, was a Related Person to Xian Tong).
As another example, the funds used by Chongqing Longshang and Chongqing Jintian to fund their respective shares of the Proposed Transaction were purportedly derived from payments owed to them under pre-existing business contracts. But the amount of each of those payments (which approximated the amount of their respective levels of investment in the Proposed Transaction), and the timing of their receipt of those payments, raised questions about whether they were, in fact, bona fide payments under those business contracts.
Shortly after Commission staff requested additional documents and information in an attempt to resolve questions about the source of funds used by these three entities and whether there were, in fact, undisclosed connections between those funds and other proposed investors, Chongqing Jintian, Chongqing Longshang, and Xian Tong withdrew from the Proposed Transaction.
The significance of these unanswered questions to the Commission's review did not disappear with the withdrawal of the former proposed upstream owners. Although Xian Tong, Chongqing Longshang, and Chongqing Jintian are no longer parties to the Proposed Transaction, as described in Amendment No. 2, Shengju Lu and Chongqing Casin remain central to the Proposed Transaction. Together with Jay Lu's Castle YAC, they would control the largest block (40%) of the outstanding shares in NA Casin Holdings following consummation of the Proposed Transaction. If, in fact, Shengju Lu or Chongqing Casin had undisclosed relationships with, or provided undisclosed funding directly or indirectly to, the withdrawn investors, the representations made in connection with the initial rule filing and Amendment No. 1 would have been inaccurate. That potential (and unresolved) inaccuracy, in turn, would raise questions about the accuracy of the representations made regarding the current structure of the Proposed Transaction and its compliance with the ownership and voting limitations.
These concerns about the possibility of, and the risks posed by, undisclosed relationships are exacerbated by the terms of the Put Agreements, which heighten the potential for circumvention of the ownership limitations.
The Exchange states that concerns about circumvention of the ownership and voting limitations are mitigated by the fact that NA Casin Holdings cannot compel exercise of the puts. But regardless of who initiates any transactions triggered by the Put Agreements, the proposed investors who are parties to those agreements are guaranteed a return on a discounted investment. In other words, the Exchange's arguments regarding the voluntary nature of the Put Agreements do not fully take into account or explain the underlying and asymmetric economic relationship between the investors who have the benefit of puts and those who do not. The Exchange also asserts that the Put Agreements are similar to other such agreements that have been approved by the Commission.
Commission staff's inability to obtain sufficient documentation to verify the relationships between, and the source of funds used by, the original and subsequent proposed upstream owners leaves us unable to find that the Exchange has met its burden of showing that—upon consummation of the Proposed Transaction—the Exchange would be organized in compliance with its own rules and, accordingly, unable to find that the Exchange has met its burden of showing that the proposed rule change is consistent with Section 6(b)(1) of the Exchange Act.
The fact that the Commission staff's extensive, iterative requests to the Exchange during the review process resulted in an insufficient basis for us to find that the Proposed Transaction complies with the ownership and voting limitations separately calls into question the Exchange's ability to ensure
• Voting limits on a person (individually or with its Related Persons) subject to any statutory disqualification;
• a requirement that CHX Holdings or NA Casin Holdings call shares held in excess of ownership limits;
• a prohibition on registering shares transferred in violation of ownership limits;
• procedural requirements to ensure compliance with the voting limitations; and
• a range of notice requirements relating to various changes in ownership or Related Person status.
The inability of the Exchange to obtain documents and information necessary for it and the Commission to resolve key questions regarding the funding of, and relationships between, upstream investors—notwithstanding its strong incentive to do so in light of the pending Commission review of the proposed rule change—raises significant doubts about the Exchange's ability to engage in this extensive monitoring following approval of the Proposed Transaction.
As a result, the Commission is unable to find on the current record that the Exchange has met its burden
We are also not moved by the Exchange's suggestion that we should be comfortable with the proposed ownership arrangements, including the puts and the discount, and nonetheless approve the proposed rule change because we have broad oversight authority, will receive notice of the transfer of shares, and can take recourse to mitigate non-compliance with the
The Commission is also unable to find that the provision in the NA Casin Holdings Certificate requiring supermajority approval for certain transactions is consistent with Section 6(b)(1) of the Exchange Act. As discussed above, the NA Casin Holdings Certificate would require approval by the holders of 85% of the shares of the company's common stock to undertake certain corporate transactions related to NA Casin Holdings or any of its subsidiaries, including CHX Holdings and the Exchange.
Finally, the Exchange's inability to obtain sufficient information to ensure compliance with the ownership and voting limitations during the rule filing process leaves us unable to find that the proposed transaction satisfies Section 6(b)(1)'s requirement that an exchange have the capacity to carry out the purposes of the Exchange Act, which includes allowing for sufficient Commission oversight.
Congress has charged the Commission “with supervising the exercise of . . . self-regulatory power in order to [ensure] that it is used effectively to fulfill the responsibilities assigned to the self-regulatory agencies[.]”
The Exchange asserts that it will be able to ensure that the Commission has access to such books and records, notwithstanding the significant role played by foreign investors in the Proposed Transaction. In particular, the Exchange notes that the remaining foreign upstream owner has submitted to United States jurisdiction and that this owner pledges to maintain relevant books and records in the United States. But we are unable to conclude that these assurances are sufficient to support a finding that the proposed rule change is consistent with the requirements of the Exchange Act, including the provisions of Section 17(b)(1) and Exchange Act Rule 17a-1.
Because under the terms of the Proposed Transaction the most significant stockholder of NA Casin Holdings would be wholly owned by a foreign entity, material portions of the relevant records may not be under the Exchange's control. As a result, the judgment about which of those books and records are sufficiently related to the activities of the Exchange that they must be maintained in the United States would rest in the first instance with the foreign indirect upstream owner.
This concern is particularly significant in our analysis because the nature of the reviews that we and the Exchange must conduct—including monitoring compliance with the ownership and voting limitations and compliance with Exchange Act requirements more broadly—requires prompt access to documents. Without the assurance of such access, neither the Commission nor the Exchange will be able to reliably assess compliance with the requirements in the proposed corporate documents, to look behind the attestations made by stockholders, or to monitor compliance with the ownership and voting limitations more broadly.
We have approved exchange rules that may, at least theoretically, raise similar questions about access to books and records.
Because we cannot conclude, on the current record, that such access will be assured or that the Exchange will be able to satisfy Rule 17a-1(c), we are unable to find that the proposed rule change is consistent with Section 6(b)(1)'s requirement that the Exchange be so organized and have the capacity to comply with the Exchange Act, and to perform its functions as a self-regulatory organization, which includes allowing for sufficient Commission oversight.
Separately, we note that Section 6(b)(5) of the Exchange Act requires that the rules of a national securities exchange be designed, in general, to protect investors and the public interest. Here, the proposed rules are designed to effect the Proposed Transaction as currently structured and, if approved, the amended rules would be implemented through consummation of the Proposed Transaction. In light of the concerns discussed above regarding the effect of the Proposed Transaction on the ability of the Exchange and the Commission to ensure regulatory compliance now and in the future, as well as concerns raised by the confidential information, we cannot determine that the rules, as proposed, meet this requirement. Congress has stressed the importance of Commission oversight to ensure that such self-regulatory authority “is not used in a manner inimical to the public interest or unfair to private interests.”
A number of other issues have been raised by commenters in arguing that the proposed rule change should be disapproved, including questions about the involvement of the Chinese government or the impact of Chinese foreign investment in an SRO or in U.S. markets more generally. On the record before us, for the independently sufficient reasons discussed in more detail above, we have concluded that the Exchange has not met its burden to show that approval of the proposed rule change is appropriate. Accordingly, it is not necessary for us to consider either the relevance of such foreign investment concerns to our statutory review of this proposed rule change or the merits of the concerns themselves.
For the reasons set forth above, the Commission does not find, pursuant to Section 19(b)(2) of the Exchange Act, that the proposed rule change, as modified by Amendments No. 1 and No. 2, is consistent with the requirements of the Exchange Act and the rules and regulations thereunder applicable to a national securities exchange, and in particular, with Sections 6(b)(1) and 6(b)(5) of the Exchange Act.
By the Commission.
In total, the Commission received 90 comment letters on the proposal and 8 response letters from the Exchange.
As explained above, in Amendment No. 2, the Exchange noticed, among other items, a change in the proposed capital structure for the upstream owners.
Several commenters also opined that the proposed upstream ownership of CHX was opaque.
In addition, one commenter stated that as a result of the proposed ownership, there would have been “reputational risks” for CHX, and that “compliance frustrations” related to the Foreign Corrupt Practices Act and Anti-Money Laundering rules would have been at the “front and center” in the Commission's oversight of CHX.
Commenters also expressed concern about the ability of the Commission to exercise regulatory oversight over the Exchange following the closing of the Proposed Transaction.
In response to these concerns, the Exchange stated that it did not misrepresent any facts regarding the Proposed Transaction.
The Exchange further asserted that it provided detailed information regarding the upstream owners to CFIUS and that CFIUS determined that there are no unresolved national security concerns with respect to the Proposed Transaction.
Commenters expressed further concern about whether the Chinese government could have influence or control over the Exchange and its upstream owners.
Commenters also asserted that Chongqing Casin owns an entity that has large outstanding debts to a Chinese-government controlled bank, and that Chongqing Casin has been using its stock and the stock of its subsidiaries to collateralize those loans, which make Chongqing Casin subject to Chinese government control.
Commenters also stated that Chongqing Casin's financial assets were originally state-controlled, and that its chairman sits on an industry council overseen directly by the mayor of the Chongqing Municipality.
Another commenter expressed concern that the original proposed upstream ownership structure would have left CHX and U.S. markets open to “undetectable manipulation” by Chongqing Casin and the Chinese government.
In response, CHX denied the claim that it would be impossible for the Commission to fully monitor Chinese government
CHX also disagreed with the commenters' claim that the Chinese entities involved in the Proposed Transaction had not yielded themselves to full U.S. jurisdiction or agreed to make their records available to the Exchange to ensure compliance with ownership and voting limitations.
CHX next responded to commenters' prediction that Chinese ownership of a U.S. exchange could provide enormous new opportunities for Chinese firms to list on U.S. markets and expose U.S. investors to new and unknown risks.
The Exchange also stated that the Proposed Transaction will enable it to accelerate implementation of its strategic plan, which includes implementing a primary listing program focused on capital formation for emerging growth companies.
In addition, some commenters expressed concern that the Saliba Put Agreement and the Raptor Put Agreement could create voting collusion between Raptor and Saliba, resulting in an aggregate voting interest that exceeds the 20% voting limitation.
Moreover, two commenters expressed concern that CHX and the Commission may not be aware of or able to control future transfers of ownership or voting in contravention of the ownership and voting limitations.
In response, the Exchange stated that to the contrary, the governing documents of NA Casin Holdings and CHX Holdings do restrict the voting and sale of the Exchange's shares.
Commenters also expressed concern about the ability of the Commission to exercise regulatory oversight over the Exchange following the closing of the Proposed Transaction.
Similarly, another commenter opined that what the commenter cites as the Chinese government's continued rejection of fundamental free-market norms and property rights of private citizens makes the commenter strongly doubt whether an Exchange operating under the direct control of a Chinese entity can be trusted to self-regulate now and in the future.
Furthermore, another commenter asserted that, due to jurisdiction limitations and transparency concerns, under the current proposal, the Commission would not be able to exercise proper regulatory oversight.
The Exchange responded that it believes that its rules are consistent with the requirements of the Exchange Act, and that its rules and the Exchange Act contain various provisions that would facilitate the ability of U.S. regulators, including the Commission, to monitor, compel, and enforce compliance by each of the upstream owners. In particular, upstream owners would be required to adhere to the ownership and voting limitations, submit to U.S. regulatory jurisdiction and maintain agents in the U.S. for the service of process, maintain open books and records related to their ownership of CHX and keep such books and records in the U.S., and refrain from interfering with, and give due consideration to, the SRO function of the Exchange.
In addition, NA Casin Holdings asserted that extensive regulatory and governance safeguards would empower the Commission and the Exchange to prevent any influence over the Exchange and its operations that is improper or a violation of U.S. securities laws and regulations.
The Commission also received several comments regarding the approval process of the proposed rule change. One commenter expressed concern that the staff's approval order was issued so soon after CHX submitted Amendment No. 1, which the commenter stated did not allow time for the public to comment.
On October 2, 2017, during the Commission's review of the delegated action, CHX informed the Commission that three of the proposed upstream investors were withdrawing from the investor group. On November 6, 2017, CHX filed Amendment No. 2 to the proposed rule change to update its proposal to reflect this change in the investor group and to reflect other changes to the terms of the Proposed Transaction and the proposed rule change.
In Amendment No. 2, the Exchange asserts that the new proposed capitalization structure complies with the ownership and voting limitations set forth in the NA Casin Holdings Certificate because the proposed upstream owners and their Related Persons will neither exceed the proposed 40% ownership limitation nor be permitted to vote in excess of the proposed voting limitation.
In response to Amendment No. 2, the Commission received 21 comment letters.
Several commenters also raise the possibility that, under the Put Agreements, NA Casin Holdings may be able to force the transfer of Saliba's, Raptor's, and Penserra's shares to someone from a Chinese government agency, unknown foreign third-party entities, or a “non-descript affiliated company.”
Similarly, and citing one of the commenters above, another commenter asserts that the Put Agreements make the entities that are parties to them “fake” investors, and that those investors are entering into risk-free transactions that involve the Chinese upstream owners “pulling all the strings” and “dictating terms on both the timing and pricing of the put.”
Likewise, another commenter asserts that the parties subject to the Put Agreements are “merely placeholders for un-disclosed third parties.”
Two commenters question why CHX management would obtain an aggregate 8.32% ownership interest in NA Casin Holdings, which the commenters speculate would be granted to management at no cost.
Several commenters also assert that Chongqing Jintian, Chongqing Longshang, and Xian Tong exited the Proposed Transaction only when faced with due diligence by the Commission regarding their ownership structure.
In addition, one commenter does not express support or opposition to the proposed rule change, but encourages the Commission to carefully examine the bank statements and other sources of funding for both the current proposed upstream owners and the previous upstream owners who left the group.
One commenter states his belief that Chongqing Casin's source of funding is at issue, asserting that Shengju Lu leveraged stock of his company in return for loans from Chinese-government controlled banks.
The Commission also received nine comment letters advocating that the Commission approve the proposed rule change.
In addition, one commenter asserts that nothing will change with the acquisition of the Exchange, and that the operational processes of the Exchange, which it states conform to guidelines set by the Commission and observed by the Financial Industry Regulatory Authority (“FINRA”), must remain the same.
In addition, one commenter asserts that the NA Casin Group is a privately-owned company and that it is not the Chinese government and should not be treated as such.
NA Casin Holdings states that no new investors were added to the investor consortium under the revised ownership structure in Amendment No. 2, and asserts that the arrangements among the investors were the result of arm's-length negotiations among the parties.
Two commenters respond to questions about why Chongqing Jintian, Chongqing Longshang, and Xian Tong withdrew from the Proposed Transaction.
Two commenters deny other commenters' assertions regarding the Put Agreements.
The Exchange submitted three response letters following its filing of Amendment No. 2.
The Exchange asserts that the three investors that withdrew from the Proposed Transaction did so due to the length of the approval process.
The Exchange asserts that, in response to Commission requests, it provided the Commission staff with various financial statements and other evidence of financial wherewithal and sources of funds from all of the prospective investors, including the three prospective investors that withdrew from the investor group.
Regarding the Put Agreements, the Exchange notes that the MIAX has offered similar put options as an incentive to its prospective stockholders through an equity rights program through which MIAX offered shares and warrants for shares in MIAX International Holdings, Inc. (“MIH”) to MIAX members that met certain financial order flow requirements, and included a provision whereby all MIAX members that received equity through the program retained a put option to require MIH to buy back shares at a fixed percentage of fair market value.
The Exchange also describes provisions in the CHX Holdings and NA Casin Holdings corporate documents that it believes would facilitate the ability of the Commission and the Exchange to ensure that the put options are exercised in a manner consistent with CHX rules and the Exchange Act.
In addition, in response to comments that question the details of the NA Casin Holdings shares that would be held by CHX management,
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Rule 7039 (Nasdaq Last Sale and Nasdaq Last Sale Plus Data Feeds)
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 purpose of this proposal is to amend Rule 7039 to modify the pricing framework for the NLS data product. NLS is a market data product that comprises two proprietary data feeds containing real-time last sale Information
As reflected in the filing that originally established it,
The fee schedule for NLS currently offers Distributors
Many data products sold by Nasdaq and others distinguish between data usage based on whether the data is being used by “Professionals” or “Non-Professionals,” with different prices charged for each category.
Nasdaq is proposing changes to the current NLS fee structure in order to more clearly reflect the use cases under which NLS is currently made available and to establish pricing for additional use cases. First, Nasdaq is proposing to categorize existing fee distribution models as “distribution models for the general investing public,” while also specifically identifying the terms and conditions applicable to each of these pricing categories. Thus, distribution via a username/password entitlement system is being defined as a “Per User” distribution model. In order to adopt the Per User model, (i) a Distributor must distribute NLS solely to “Users” for “Display Usage,”
Thus, a Per User model might be used by a BD to distribute NLS to customers through on-line brokerage accounts accessible after the customer logs in using a username and password. While many of the Recipients of data under such a model would be Non-Professionals, the model does not require a Distributor to limit distribution to Non-Professionals. Rather, the model would allow a Distributor to provide the data to Professionals, as long as it has no reason to believe that they are using the data in a professional capacity. Thus, for example, if a BD makes the data available to all of its on-line customers, it would not have any basis to believe that customers who happen to be Professionals would be using the data in a Professional capacity. By contrast, the Per User model would not allow a BD to distribute the data to a set of Users consisting solely of its own employees, since it would be reasonable to expect that the employees would use the data in connection with their employment. Similarly, if a Distributor provided the data through terminals generally made available to Professionals in their place of employment, or marketed the product to persons known to be Professionals, it would be unreasonable for the Distributor to believe that the data was not being used for professional purposes.
The proposed standard for the applicability of the Per User model is similar to, but less strict than, the standard adopted by Nasdaq with respect to the availability of an enterprise license for a BD to distribute Nasdaq Basic
A Distributor selecting the Per User model is charged based on the number of Users with the potential to access NLS during a month. However, if the Distributor is able to track the number of Users that actually accessed NLS during a month, the Distributor will be charged based on the number of such Users. This latter provision represents a change from current methodology, and will provide an incentive for Distributors to implement systems to track actual data usage, since this will allow them to reduce the fees that they pay. Apart from this change, the fees applicable to this model are not being modified.
The “Per Query” model will be available if: (i) A Distributor distributes NLS solely to Users for Display Usage, and (ii) the Distributor tracks queries using a method approved by Nasdaq. Thus, in contrast to a Per User model, which makes all data available in a streaming or montage format, the Per Query model supplies only as much data as the User requests on an ad hoc basis. Because a Per Query model is unlikely to be of significant use to Professionals acting in a professional capacity, the model does not place limitations on the persons to whom it is offered (as long as they are natural persons viewing the data through Display Usage). The model also does not require the Distributor to limit access through any sort of entitlement system; thus, Per Query data may be made available through a publicly accessible website. However, if a Distributor selecting the Per Query model does restrict access using a username/password system, the Distributor may opt to be charged under the Per User model in a particular month if the applicable Per Query charges that month would exceed the applicable Per User charges.
Unrestricted distribution via the internet is being defined as a “Per Device” model, and is available to a Distributor that: (i) Distributes NLS for Display Usage in a manner that does not restrict access, and (ii) tracks the number of unique Devices that access NLS during each month using a method approved by Nasdaq.
Rule 7039 currently uses the term “Unique Visitors” and requires the number of Unique Visitors to be validated by a Nasdaq-approved vendor, but does not define the term. The new term “Device” is intended to clarify that the fee is to be assessed based on the number of Devices that visit a site to get data, rather than the number of persons. While this term does not reflect a change from the manner in which the term “unique visitor” has been interpreted by the Exchange, Nasdaq believes that the change will make the application of the rule clearer. Moreover, the fees associated with particular levels of distribution under this model are not changing. Nasdaq is also replacing the requirement that the number be validated by a third party with a requirement that the Distributor's tracking method be approved by Nasdaq. This change reflects the fact that methods of tracking web traffic have become more developed since the time Rule 7039 was first adopted and therefore do not require third-party validation.
As is currently the case, the maximum fee that any Distributor would be required to pay for NLS under any combination of these distribution models would be $41,500. However, Nasdaq is proposing to eliminate the existing fee schedule for television distribution and is instead proposing that a Distributor that wishes to distribute Nasdaq Last Sale via television must pay the maximum fee and may then distribute Nasdaq Last Sale either solely via television or in
The current fee and distribution framework for NLS is not structured in a manner that contemplates distribution to a base of Professionals, such as might occur if a BD made the data available to its registered representatives through an employer-provided workstation or software application. For this reason, Nasdaq believes that it is appropriate to adopt a fee schedule that covers use cases that are not contemplated by the current fee schedule. Under the proposal, if a Distributor is not able to use any of the distribution models for the general investing public but still wishes to distribute NLS, it will be required to pay fees applicable to a model for “specialized usage.” In general, the model would require a Distributor to track either the number of Subscribers to which the data is made available or the number of queries made for the data, and would impose either a per Subscriber fee or a per query fee. The per Subscriber fee will be $13 for NLS for Nasdaq and $13 for NLS for NYSE/NYSE American or any Derived Data therefrom.
For Distributors under the specialized usage model that provides “Display Usage,” a net reporting option would be available to reduce the overall number of Subscribers for which a fee will be assessed.
• A Subscriber that receives access to NLS through multiple products controlled by an internal Distributor will be considered one Subscriber. Thus, if a BD acts as a Distributor of NLS in multiple forms through terminals provided to its employees, each terminal would be considered one Subscriber.
• A Subscriber that receives access to NLS through multiple products controlled by one external Distributor will be considered one Subscriber. Thus, if a BD arranges for its employees to receive access to multiple NLS products through a terminal provided by a single vendor on a terminal, each terminal would be considered one Subscriber.
• A Subscriber that receives access to NLS through one or more products controlled by an internal Distributor and also one or more products controlled by one external Distributor will be considered one Subscriber. Thus, if the BD provides employees with access through its own product(s) and through products from a single vendor on a terminal, each employee's terminal would still be considered one Subscriber.
• A Subscriber that receives access to NLS through one or more products controlled by an internal Distributor and also products controlled by multiple external Distributors will be treated as one Subscriber with respect to the products controlled by the internal Distributor and one of the external Distributors, and will be treated as an additional Subscriber for each additional external Distributor. Thus, a Subscriber receiving products through an internal Distributor and two external Distributors will be treated as two Subscribers. Put another way, access through an internal Distributor may be netted against access through one external Distributor, but netting may not occur beyond one external Distributor.
As an alternative to per Subscriber or per query fees, a Distributor that is a BD may purchase an enterprise license for internal Subscribers to receive NLS or Derived Data therefrom. The fee is $365,000 per month; provided, however, that if the BD obtains the license with respect to usage of NLS provided by an external Distributor that controls display of the product, the fee will be $365,000 per month for up to 16,000 internal Subscribers, plus $2 for each additional internal Subscriber over 16,000; and provided further that the BD must obtain a separate enterprise license for each external Distributor that controls display of the product if it wishes such external Distributor to be covered by an enterprise license rather than per-Subscriber fees. The enterprise license is in addition to the applicable Distributor Fee provided in Rule 7039(d).
NLS Plus combines information available through NLS with information available through similar products—BX Last Sale and PSX Last Sale—offered by Nasdaq's affiliates, Nasdaq BX, Inc. (“BX”) and Nasdaq PHLX LLC (“Phlx”). Moreover, as provided in that Rule, NLS Plus may be received either by itself or in combination with Nasdaq Basic. The fees charged for NLS Plus, however, incorporate the underlying fees for the data elements combined through NLS Plus, together with an additional data consolidation fee of $350 per month. Thus, a Distributor receiving NLS Plus by itself would need to select a fee model under Rule 7039 to determine the applicable charges for the NLS component of NLS Plus (including the Distributor fee provided for by Rule 7039(d)). In addition, because a Distributor of NLS Plus is distributing each of the underlying components of NLS Plus, it also pays the administrative fees charged for distribution of Nasdaq, BX, and PSX data feeds.
Since the fees for NLS Plus sold without Nasdaq Basic incorporate the fees for NLS, the various pricing model options available under Rule 7039, including the new pricing for specialized usage, would also be incorporated into the pricing for NLS Plus. No change to rule language is needed to effectuate this, since the rule language already incorporates NLS fees. However, Nasdaq is proposing to amend the rule to reflect the recent change in the assessment period for administrative fees under Nasdaq Rule 7035, BX Rule 7035, and the Phlx Pricing Schedule from annual to monthly, and to use the new defined term “Information.”
In addition, Nasdaq is amending the description of NLS contained in Rule 7039(a). As described therein, NLS contains real-time last sale information for trades executed on Nasdaq or reported to the FINRA/Nasdaq TRF for stocks listed on Nasdaq and on other markets. At the time of adoption of Rule 7039, however, it appears that the drafters of the rule used a reference to “NYSE/Amex” (subsequently amended to refer to “NYSE/NYSE MKT”) as a short-hand term for stocks listed on venues other than Nasdaq, since NYSE and the American Stock Exchange were, together with Nasdaq, the primary listing venues at that time.
Nasdaq is amending Rule 7039(d) (formerly 7039(c)) to provide that the monthly Distributor fee for a Distributor under subsection (c) (Distribution Models for Specialized Usage) providing external, or external and internal, distribution, is $2,000; in all other cases, the Distributor fee for NLS remains $1,500. However, Nasdaq is also adding language to provide that a Distributor of two or more products containing NLS data (
Nasdaq believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
Rule 7039 and the fees established thereunder reflect Nasdaq's expectation, in creating NLS, that it would be used by market data Distributors (including retail BDs) to provide widespread distribution of last-sale information to individual investors by means of websites and television. The fee structure also reflects Nasdaq's assumption that BDs and others seeking proprietary data for Professional usage would purchase data with more content than NLS or NLS Plus, such as Nasdaq Basic or Nasdaq TotalView. Nevertheless, because there is a small amount of demand for use of NLS for purely Professional purposes, Nasdaq believes that it is appropriate to specifically define the circumstances to which the current fee schedule applies, while also establishing a set of fees for other circustances [sic], including usage other than Display Usage and purely Professional use.
The statutory basis for Nasdaq's current fees for NLS has already been described in prior filings,
With respect to Per User fees (formerly username/password fees), Nasdaq is likewise proposing only minimal changes to state that the existing fee schedule requires distribution to “Users” (
The changes to the “Per Device” (formerly, unique visitor) use case are reasonable because they allow a Distributor to track usage based on readily available means of tracking unique Devices. Because Distributors have already adopted this methodology, the change in rule language makes it clear that this is the appropriate method to measure usage and that verification by a third-party is not required. Accordingly, the change imposes no additional administrative burdens on Distributors. The change is equitable and not unfairly discriminatory because all Distributors adopting this use case may readily use this methodology.
The elimination of a specific model for television distribution, in favor of a model under which a Distributor engaging in television distribution pays the maximum NLS fee of $41,500 per month and may then distribute Nasdaq Last Sale via television to an unlimited number of households, either solely via television or in combination with unlimited use of the Per User, Per Query, and/or Per Device model, is reasonable because the fee allows the Distributor to engage in unlimited distribution of NLS via either television alone or television in combination with another distribution model for the general investing public, without the need to monitor usage or track the identity of Recipients. Moreover, the change is equitable and not unfairly discriminatory because all current television Distributors already pay this maximum fee. Accordingly, the change will have no impact on any current Distributors. Moreover, it is unlikely that under the current fee schedule for television, distribution by a particular broadcaster would occur at a level that would allow it to pay less than the maximum fee. As a result, the per viewer cost of television distribution is, and will continue to be, extremely small when expressed as the ratio between $41,500 and the total number of viewers.
The introduction of a fee schedule for other use cases, including targeted use by Professionals and usage other than Display Usage, is not unfairly discriminatory because it is consistent with the fee schedules for numerous other data products that impose higher fees on Professionals in recognition of their more intensive usage of data feeds and the greater value they derive from such usage. Moreover, the proposed new fee schedule is consistent with an equitable allocation of fees because it recognizes the administrative costs and burdens associated with tracking Professional usage of the product, especially given the low demand for exclusively Professional use. Finally, the change is reasonable because the fees are geared to the actual level of usage, with options for either per Subscriber or per query fees. Moreover, Nasdaq is offering alternative pricing features that may allow some Distributors to reduce their level of fees, including a method for netting Subscribers and an enterprise license to allow unlimited usage by broker-dealer employees.
Nasdaq further believes that the proposed change regarding a higher monthly Distributor fee for external distribution for use by Professionals and usage other than Display Usage (
In adopting Regulation NMS, the Commission granted self-regulatory organizations (“SROs”) and BDs increased authority and flexibility to offer new and unique market data to the public. It was believed that this authority would expand the amount of data available to consumers, and also spur innovation and competition for the provision of market data. The Commission concluded that Regulation NMS—by deregulating the market in proprietary data—would itself further the Act's goals of facilitating efficiency and competition:
[E]fficiency is promoted when broker-dealers who do not need the data beyond the prices, sizes, market center identifications of the NBBO and consolidated last sale information are not required to receive (and pay for) such data. The Commission also believes that efficiency is promoted when broker-dealers may choose to receive (and pay for) additional market data based on their own internal analysis of the need for such data.
Products such as NLS provide additional choices to BDs and other data consumers, in that they provide
Nasdaq believes that the defined terms being adopted in this proposed rule change are consistent with the provisions of Section 6 of the Act,
Finally, the Exchange notes that the housekeeping changes made by this filing—clarifying the scope of Tape B data included in NLS and the monthly nature of the administrative fee—are non-substantive in nature and do not affect the equitable allocation of reasonable dues, fees, and other charges. Rather, these changes will make affected rules clearer, more succinct, and easier to use. Accordingly, the Exchange believes that these changes are consistent with Section 6(b)(5) 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 fee structure is designed to ensure a fair and reasonable use of Exchange resources by allowing the Exchange to recoup costs while continuing to offer its data products at competitive rates to firms. In particular, the proposal with respect to existing fees and associated standards for Per User, Per Query, and Per Device fee models, as well as the fee for television distribution, are designed to promote wide distribution to investors by placing less emphasis on the distinction between Professionals and Non-Professionals than is the case with respect to other data products. Nasdaq believes that this approach will promote competition by reducing administrative burdens on Distributors. The addition of a fee schedule for targeted Professional or Non-Display usage will not place a burden on competition because Nasdaq believes that the demand for such usage is limited, but adopting the applicable fee schedule will ensure that the product is available in cases where such demand exists.
The market for data products is extremely competitive and firms may freely choose alternative venues and data vendors based on the aggregate fees assessed, the data offered, and the value provided. This rule proposal does not burden competition, since other SROs and data vendors continue to offer alternative data products and, like the Exchange, set fees, but rather reflects the competition between data feed vendors and will further enhance such competition. NLS competes directly with existing similar products and potential products of market data vendors. The product is part of the existing market for proprietary last sale data products that is currently competitive and inherently contestable because there is fierce competition for the inputs necessary to the creation of proprietary data and strict pricing discipline for the proprietary products themselves. Numerous exchanges compete with each other for listings, trades, and market data itself, providing virtually limitless opportunities for entrepreneurs who wish to produce and distribute their own market data. This proprietary data is produced by each individual exchange, as well as other entities, in a vigorously competitive market. Similarly, with respect to the FINRA/Nasdaq TRF data that is a component of the product, allowing exchanges to operate TRFs has permitted them to earn revenues by providing technology and data in support of the non-exchange segment of the market. This revenue opportunity has also resulted in fierce competition between the two current TRF operators, with both TRFs charging extremely low trade reporting fees and rebating the majority of the revenues they receive from core market data to the parties reporting trades.
Transaction execution and proprietary data products are complementary in that market data is both an input and a byproduct of the execution service. In fact, market data and trade execution are a paradigmatic example of joint products with joint costs. The decision whether and on which platform to post an order will depend on the attributes of the platform where the order can be posted, including the execution fees, data quality and price, and distribution of its data products. Without trade executions, exchange data products cannot exist. Moreover, data products are valuable to many end users only insofar as they provide information that
The costs of producing market data include not only the costs of the data distribution infrastructure, but also the costs of designing, maintaining, and operating the exchange's transaction execution platform and the cost of regulating the exchange to ensure its fair operation and maintain investor confidence. The total return that a trading platform earns reflects the revenues it receives from both products and the joint costs it incurs.
Moreover, the operation of the exchange is characterized by high fixed costs and low marginal costs. This cost structure is common in content and content distribution industries such as software, where developing new software typically requires a large initial investment (and continuing large investments to upgrade the software), but once the software is developed, the incremental cost of providing that software to an additional user is typically small, or even zero (
In Nasdaq's case, it is costly to build and maintain a trading platform, but the incremental cost of trading each additional share on an existing platform, or distributing an additional instance of data, is very low. Market information and executions are each produced jointly (in the sense that the activities of trading and placing orders are the source of the information that is distributed) and are each subject to significant scale economies. In such cases, marginal cost pricing is not feasible because if all sales were priced at the margin, Nasdaq would be unable to defray its platform costs of providing the joint products. Similarly, data products cannot make use of TRF trade reports without the raw material of the trade reports themselves, and therefore necessitate the costs of operating, regulating,
An exchange's BD customers view the costs of transaction executions and of data as a unified cost of doing business with the exchange. A BD will disfavor a particular exchange if the expected revenues from executing trades on the exchange do not exceed net transaction execution costs and the cost of data that the BD chooses to buy to support its trading decisions (or those of its customers). The choice of data products is, in turn, a product of the value of the products in making profitable trading decisions. If the cost of the product exceeds its expected value, the BD will choose not to buy it. Moreover, as a BD chooses to direct fewer orders to a particular exchange, the value of the product to that BD decreases, for two reasons. First, the product will contain less information, because executions of the BD's trading activity will not be reflected in it. Second, and perhaps more important, the product will be less valuable to that BD because it does not provide information about the venue to which it is directing its orders. Data from the competing venue to which the BD is directing more orders will become correspondingly more valuable.
Similarly, in the case of products such as NLS that may be distributed through market data vendors, the vendors provide price discipline for proprietary data products because they control the primary means of access to end users. Vendors impose price restraints based upon their business models. For example, vendors such as Bloomberg and Reuters that assess a surcharge on data they sell may refuse to offer proprietary products that end users will not purchase in sufficient numbers. Internet portals, such as Google, impose a discipline by providing only data that will enable them to attract “eyeballs” that contribute to their advertising revenue. Retail BDs, such as Schwab and Fidelity, offer their retail customers proprietary data only if it promotes trading and generates sufficient commission revenue. Although the business models may differ, these vendors' pricing discipline is the same: they can simply refuse to purchase any proprietary data product that fails to provide sufficient value. Exchanges, TRFs, and other producers of proprietary data products must understand and respond to these varying business models and pricing disciplines in order to market proprietary data products successfully. Moreover, Nasdaq believes that products such as NLS can enhance order flow to Nasdaq by providing more widespread distribution of information about transactions in real time, thereby encouraging wider participation in the market by investors with access to the internet or television. Conversely, the value of such products to Distributors and investors decreases if order flow falls, because the products contain less content.
Competition among trading platforms can be expected to constrain the aggregate return each platform earns from the sale of its joint products, but different platforms may choose from a range of possible, and equally reasonable, pricing strategies as the means of recovering total costs. Nasdaq pays rebates to attract orders, charges relatively low prices for market information and charges relatively high prices for accessing posted liquidity. Other platforms may choose a strategy of paying lower liquidity rebates to attract orders, setting relatively low prices for accessing posted liquidity, and setting relatively high prices for market information. Still others may provide most data free of charge and rely exclusively on transaction fees to recover their costs. Finally, some platforms may incentivize use by providing opportunities for equity ownership, which may allow them to charge lower direct fees for executions and data.
In this environment, there is no economic basis for regulating maximum prices for one of the joint products in an industry in which suppliers face competitive constraints with regard to the joint offering. Such regulation is unnecessary because an “excessive” price for one of the joint products will ultimately have to be reflected in lower prices for other products sold by the firm, or otherwise the firm will experience a loss in the volume of its sales that will be adverse to its overall profitability. In other words, an increase in the price of data will ultimately have to be accompanied by a decrease in the cost of executions, or the volume of both data and executions will fall.
The proposed fee structure is designed to ensure a fair and reasonable use of Exchange resources by allowing the Exchange to recoup costs while continuing to offer its data products at competitive rates to firms.
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
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to the provisions of Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange is filing a proposal to expand the Short Term Option Series Program to allow Monday expirations for options listed pursuant to the Short Term Option Series Program, including options on the SPDR S&P 500 ETF Trust (“SPY”).
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 amend MIAX PEARL Rule 100, Definitions, and Rule 404, Series of Option Contracts Open for Trading, Interpretations and Policies .02, to expand the Short Term Option Series Program (“Program”) to permit the listing and trading of options series with Monday expirations that are listed pursuant to the Program, including options on SPY. The Exchange is also proposing to make a number of non-substantive, organizational changes to MIAX PEARL Rule 100 and Rule 404, Interpretations and Policies .02, for purposes of clarification and uniformity.
Presently, MIAX PEARL Rule 100 defines a Short Term Options Series as “a series in an option class that is approved for listing and trading on the Exchange in which the series is opened for trading pursuant to the Short Term Option Series Program provision of Rule 404, Interpretations and Policies .02.” MIAX PEARL Rule 404, Interpretations and Policies .02, provides that a Short Term Option Series is a series in an option class that is approved for listing and trading on the Exchange in which the series is opened for trading on any Tuesday, Wednesday, Thursday or Friday that is a business day and that expires on the Wednesday or Friday of the next business week.
The Exchange notes that this proposed rule changed is substantially similar to the proposal by Nasdaq PHLX LLC (“Phlx”) which was recently approved by the Commission.
Specifically, the Exchange is proposing that it may open for trading series of options on any Monday that is a business day and that expires on the Monday of the next business week. The Exchange is also proposing to list Monday expiration series on Fridays that precede the expiration Monday by one business week plus one business day. Since MIAX PEARL Rule 404, Interpretations and Policies .02, already provides for the listing of short term option series on Fridays, the Exchange is not modifying this provision in MIAX PEARL Rule 100, to allow for Friday listing of Monday expiration series. However, the Exchange is amending MIAX PEARL Rule 100 to clarify that, in the case of a series that is listed on a Friday and expires on a Monday, that series must be listed one business week and one business day prior to that expiration (
As part of this proposal, the Exchange is also proposing to amend MIAX PEARL Rule 100 to address the expiration of Monday expiration series when the Monday is not a business day. In that case, the Rule will provide that the series shall expire on the first business day immediately following that Monday. This procedure differs from the expiration date of Wednesday expiration series that are scheduled to expire on a holiday. In that case, the Wednesday expiration series shall expire on the first business day immediately prior to that Wednesday,
The Exchange also proposes to make corresponding changes to MIAX PEARL Rule 404, Interpretations and Policies .02, which sets forth the requirements for SPY options that are listed pursuant to the Short Term Options Series Program, to permit Monday SPY expirations (“Monday SPY Expirations”). Accordingly, the Exchange proposes to amend Interpretations and Policies .02 to Rule 404, to state that, with respect to Monday SPY Expirations, the Exchange may open for trading on any Friday or Monday that is a business day, series of options on SPY to expire on any Monday of the month that is a business day and is not a Monday in which Quarterly Options Series expire, provided that Monday SPY Expirations that are listed on a Friday must be listed at least one business week and one business day prior to the expiration. As with the current rules for Wednesday SPY Expirations, the Exchange will also amend Interpretations and Policies .02 to state that it may list up to five consecutive Monday SPY Expirations at one time, and may have no more than a total of five Monday SPY Expirations (in addition to the maximum of five Short Term Option Series expirations for SPY expiring on Friday and five Wednesday SPY Expirations). The Exchange will also clarify that, as with Wednesday SPY Expirations, Monday SPY Expirations will be subject to the provisions of this Rule.
The interval between strike prices for the proposed Monday SPY Expirations will be the same as those for the current Short Term Option Series for Wednesday and Friday SPY Expirations. Specifically, the Monday SPY Expirations will have a $0.50 strike interval minimum. As is the case with other options series listed pursuant to the Short Term Option Series, the Monday SPY Expiration series will be P.M.-settled.
Currently, for each option class eligible for participation in the Program, the Exchange is limited to opening thirty (30) series for each expiration date for the specific class. The thirty (30) series restriction does not include series that are open by other securities exchanges under their respective short term option rules; the Exchange may list these additional series that are listed by other exchanges.
Finally, the Exchange is amending Interpretations and Policies .02(b) to
Relatedly, the Exchange is also amending Interpretations and Policies .02(b) to Rule 404 to clarify that Monday and Wednesday SPY Expirations may expire in the same week as monthly option series in the same class expire, but that no Short Term Option Series may expire on the same day as an expiration of Quarterly Option Series on the same class. This change will make that provision more consistent with the existing language in Interpretations and Policies .02 to Rule 404, which prohibits Wednesday SPY Expirations from expiring on a Wednesday in which Quarterly Options Series expire.
The Exchange does not believe that any market disruptions will be encountered with the introduction of P.M.-settled Monday expirations. The Exchange has the necessary capacity and surveillance programs in place to support and properly monitor trading in the proposed Monday expiration series, including Monday SPY Expirations. The Exchange currently trades P.M.-settled Short Term Option Series that expire almost every Wednesday and Friday, which provide market participants a tool to hedge special events and to reduce the premium cost of buying protection. The Exchange notes that it has been listing Wednesday expirations pursuant to MIAX PEARL Rule 100 and Rule 404 since 2017.
The Exchange seeks to introduce Monday expirations to, among other things, expand hedging tools available to market participants and to continue the reduction of the premium cost of buying protection. The Exchange believes that Monday expirations, similar to Wednesday and Friday expirations, will allow market participants to purchase an option based on their timing as needed and allow them to tailor their investment and hedging needs more effectively.
As noted above, Phlx recently received approval to list Monday expirations for SPY options pursuant to its Short Term Options program. In addition, other exchanges currently permit Monday expirations for other options. For example, Cboe lists options on the SPX with a Monday expiration as part of its Nonstandard Expirations Pilot Program.
The Exchange notes that this filing is substantially similar to a companion MIAX Options filing, expanding the Short Term Option Series Program to allow Monday expirations for options listed pursuant to the Program, including options on SPY.
MIAX PEARL believes that its proposed rule change is consistent with Section 6(b) of the Act
In particular, the Exchange believes the Short Term Option Series Program has been successful to date and that Monday expirations, including Monday SPY Expirations, simply expand the ability of investors to hedge risk against market movements stemming from economic releases or market events that occur throughout the month in the same way that the Short Term Option Series Program has expanded the landscape of hedging. Similarly, the Exchange believes Monday expirations, including Monday SPY Expirations, should create greater trading and hedging opportunities and flexibility, and will provide customers with the ability to tailor their investment objectives more effectively. While other exchanges do not currently list Monday SPY Expirations, the Exchange notes that Cboe currently permits Monday expirations for other options with a weekly expiration, such as options on the SPX.
With the exception of Monday expiration series that are scheduled to expire on a holiday, the Exchange does not believe that there are any material differences between Monday expirations, including Monday SPY Expirations, and Wednesday or Friday expirations, including Wednesday and Friday SPY Expirations, for Short Term Option Series. The Exchange notes that it has been listing Wednesday expiration pursuant to MIAX PEARL Rule 100 and Rule 404 since 2017.
Given the similarities between Monday SPY Expiration series and Wednesday and Friday SPY Expiration series, the Exchange believes that applying the provisions in Interpretations and Policies .02 to Rule 404 that currently apply to Wednesday SPY Expirations, to Monday SPY Expirations, is justified. For example, the Exchange believes that allowing
Finally, the Exchange represents that it has an adequate surveillance program in place to detect manipulative trading in Monday expirations, including Monday SPY Expirations, in the same way that it monitors trading in the current Short Term Option Series. The Exchange also represents that it has the necessary systems capacity to support the new options series.
The Exchange believes the proposed rule text organizational changes promote just and equitable principles of trade and remove impediments to and perfect the mechanism of a free and open market and a national market system because the proposed rule text organizational change conforms its rules to the rules of other exchanges. As such, the proposed amendments would foster cooperation and coordination with persons engaged in facilitating transactions in securities and would remove impediments to and perfect the mechanism of a free and open market and a national exchange system. In particular, the Exchange believes that the proposed changes will provide greater clarity to Members and the public regarding the Exchange's Rules. It is in the public interest for rules to be accurate and concise so as to eliminate the potential for 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 notes that having Monday expirations is not a novel proposal, as Cboe currently lists and trades short-term SPX options with a Monday expiration, and Phlx has recently received approval from the Commission to list Monday SPY expirations. The Exchange does not believe the proposal will impose any burden on intra-market competition, as all market participants will be treated in the same manner under this proposal. Additionally, the Exchange does not believe the proposal will impose any burden on inter-market competition, as nothing prevents the other options exchanges from proposing similar rules to list and trade short-term options series with Monday expirations.
Written comments were neither solicited nor received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6) 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. 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
Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to the provisions of Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange is filing a proposal to amend Exchange Rule 517A, Aggregate Risk Manager for EEMs (“ARM-E”), and Rule 517B, Aggregate Risk Manager for Market Makers (“ARM-M”).
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 amend Rule 517A, Aggregate Risk Manager for EEMs (“ARM-E”), and Rule 517B, Aggregate Risk Manager for Market Makers (“ARM-M”), to enhance the Aggregate Risk Manager (“ARM”) protections available to Members
The Exchange currently offers a number of risk protection mechanisms to its Members. One important risk protection mechanism is the ARM. The purpose of the ARM is to remove the Member from the market, once certain pre-determined trading limit thresholds (set up in advance by the Member) have been triggered, to limit the risk exposure of the Member.
The Exchange now proposes to further enhance the ARM to introduce an SSP feature. The SSP feature, which is optional, will provide an additional level of granularity to the ARM, as this protection will apply only to quotes
To implement the SSP feature for Electronic Exchange Members
To implement the SSP feature for Market Makers,
The Exchange notes that the proposed rule change is substantially similar to a rule that is currently operative on the Exchange's affiliate, MIAX Options Exchange (“MIAX Options”).
Similarly, MIAX PEARL has two types of Members; Market Makers
On MIAX PEARL, the proposed rule provides that when the SSP is triggered the System will cancel all open orders submitted via the MEO interface and block all new inbound orders. Intermarket Sweep Orders are not eligible for SSP and are not canceled or blocked when the SSP is triggered. On MIAX Options, the rule text provides that when the SSP is triggered the System
To maintain consistency in the functionality between MIAX Options and MIAX PEARL, and to promote the operation of a fair and orderly market, the Exchange is excluding Intermarket Sweep Orders from the SSP functionality on MIAX PEARL.
The Exchange has analyzed its capacity and represents that it has the necessary systems capacity to handle the potential additional message traffic that may arise from the cancellation of open orders as a result of SSP being triggered.
The Exchange will announce the implementation date of the proposed rule change by Regulatory Circular to be published no later than 60 days following the operative date of the proposed rule. The implementation date
MIAX PEARL believes that its proposed rule change is consistent with Section 6(b) of the Act
The Exchange believes the proposed changes remove impediments to and perfect the mechanisms of a free and open market and a national market system and, in general, protect investors and the public interest by providing Members with an additional risk management tool. Members who are Market Makers have a heightened obligation on the Exchange and are obligated to submit continuous two-sided quotations in a certain number of series in their appointed classes for a certain percentage of time in each trading session,
The ability of a Member to engage the SSP feature of ARM is a valuable tool in assisting Members in risk management. Without adequate risk management tools Members could reduce the size of their quotations and orders which could undermine the quality of the markets available to customers and other market participants. The proposed rule change removes impediments to and is designed to perfect the mechanisms of a free and open market by giving Members the ability to further refine their risk protections from an option class level to a single side of an individual option. Accordingly, the SSP feature is designed to provide Members with greater control over their quotations and orders in the market, thereby removing impediments to and helping to perfect the mechanisms of a free and open market and a national market system and, in general, protecting investors and the public interest. In addition, providing Members with more tools for managing risk will facilitate transactions in securities because, as noted above, Members will have more confidence that protections are in place that reduce the risks from market events. As a result, the new functionality has the potential to promote just and equitable principles of trade.
The Exchange believes the proposed changes remove impediments to and perfect the mechanisms of a free and open market and a national market system and, in general, protect investors and the public interest, and promote a fair and orderly market by excluding Intermarket Sweep Orders from the SSP functionality. Intermarket Sweep Orders are used to prevent locked and crossed markets from occurring
The Exchange notes that the proposed rule change will not relieve Exchange Market Makers of their continuous quoting obligations under Exchange Rule 605 or any other obligation under the Rules of the Exchange, or any obligations arising under Reg NMS Rule 602.
Additionally, the Exchange notes that a similar rule is currently operative on the Exchange's affiliate, MIAX Options.
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 will foster competition by providing Members with the ability to specifically customize their use of the Exchange's risk management tools in order to compete for executions and order flow.
Additionally, the Exchange believes that the proposed rule change should promote competition as it is designed to allow Members greater flexibility and control of their risk exposure to protect them from market conditions that may increase their risk exposure in the market. The Exchange does not believe the proposed rule change will impose a burden on intra-market competition as the optional risk protection feature is equally available to all Members of the Exchange.
For all the reasons stated, 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, and believes the proposed change will enhance competition.
Written comments were neither solicited nor received.
Because the proposed rule change does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Securities and Exchange Commission (“Commission”).
Notice.
Notice of an application for an order under section 12(d)(1)(J) of the Investment Company Act of 1940 (the “Act”) for an exemption from sections 12(d)(1)(A), (B), and (C) of the Act and under sections 6(c) and 17(b) of the Act for an exemption from sections 17(a)(1) and (2) of the Act. The requested order would permit certain registered open-end investment companies to acquire shares of certain registered open-end investment companies (each an “Unaffiliated Open-End Investment Company”), registered closed-end investment companies and “business development companies,” as defined in section 2(a)(48) of the Act (each registered closed-end management and each business development company, an “Unaffiliated Closed-End Investment Company” and, together with the Unaffiliated Open-End Investment Companies, the “Unaffiliated Investment Companies”), and registered unit investment trusts (the “Unaffiliated Trusts,” and together with the Unaffiliated Investment Companies, the “Unaffiliated Funds”) that are within the same group of investment companies (collectively, the “Affiliated Funds”) and outside the same group of investment companies as the acquiring investment companies (collectively, the Affiliated Funds and, together with the Unaffiliated Funds, the “Underlying Funds”), in excess of the limits in section 12(d)(1) of the Act.
Secretary, U.S. Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090. Applicants: Daniel Needham, Morningstar Investment Management LLC, 22 West Washington Street, Chicago, IL 60602; and Michael W. Mundt, Esq., Stradley Ronon Stevens & Young, LLP, 1250 Connecticut Avenue NW, Suite 500, Washington, DC 20036.
Judy Lee, Senior Special Counsel, at (202) 551-6259, or Holly Hunter-Ceci, Assistant Chief Counsel, at (202) 551-
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 to permit (a) a Fund
2. Applicants agree that any order granting the requested relief will be subject to the terms and conditions stated in the application. Such terms and conditions are designed to, among other things, help prevent any potential (i) undue influence over an Underlying Fund that is not in the same “group of investment companies” as the Fund of Funds 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), (B), and (C) of the Act.
3. 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. 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.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
Social Security Administration.
Notice of public availability of FY 2016 Service Contract Inventories.
In accordance with section 743 of Division C of the Consolidated Appropriations Act of 2010, we are publishing this notice to advise the public of the availability of the FY 2016 Service Contract inventory. This inventory provides information on FY 2016 service contract actions over $25,000. We organized the information by function to show how we distribute contracted resources throughout the agency. We developed the inventory in accordance with guidance issued on December 19, 2011 by the Office of Management and Budget's Office of Federal Procurement Policy (OFPP). OFPP's guidance is available at
Steven Knight Jr., Office of Budget, Social Security Administration, 6401 Security Boulevard, Baltimore, MD 21235-6401. Phone (410) 965-5522, email
Department of State.
Announcement of meeting; solicitation of comments; invitation to public session.
The Department of State is providing notice that the governments of the United States and the Kingdom of Bahrain (the governments) intend to hold a Joint Forum on Environmental Cooperation (Joint Forum) and a public session in Manama, Bahrain, on March 7, 2018, pursuant to paragraphs 2-5 of the Memorandum of Understanding on Environmental Cooperation between the Governments of the United States and the Kingdom of Bahrain, which was signed September 14, 2004. During the Joint Forum, the governments will discuss how the United States and Bahrain can cooperate to protect the environment, review past bilateral environmental cooperation, and identify priority projects pursuant to the 2017-2021 Work Program on Environmental Cooperation (Work Program), approved in August 2017. The Department of State invites members of the public to submit written comments on items to include on the meeting agenda or in the 2017-2021 Work Program.
The Department of State also invites interested persons to attend a public session to learn more about the work of the Joint Forum and the new Work Program, and to provide advice or comments on its implementation.
The public session will be held on March 7, 2018. Information about the venue and time is available from the contact below. Comments on the Joint Forum meeting agenda and/or the 2017-2021 Work Program should be provided no later than March 1, 2018, to facilitate consideration.
Persons interested in attending the public session or in submitting comments and suggestions should contact Marko Velikonja, Office of Environmental Quality and Transboundary Issues, U.S. Department of State, by electronic mail at
Marko Velikonja, Telephone (202) 647-4828 or email at
In preparing comments, submitters are encouraged to refer to:
• 2017-2021 Plan of Action,
• Other useful documents are available at:
This notice announces a meeting of the Department of State's International Telecommunication Advisory Committee (ITAC). The ITAC will meet on March 9, 2018, at 10:00 a.m. EST at 1101 K Street (NW), Suite 610 to review the results of recent multilateral meetings, update on preparations for the International Telecommunication Union (ITU) 2018 Plenipotentiary Conference (PP-18), and discuss preparations for upcoming other multilateral meetings at the ITU. The meeting will focus on the following topics:
PP-18 will take place in Dubai, United Arab Emirates, from October 29 to November 17, 2018. The Plenipotentiary Conference, which takes place every four years, is the highest policy-making body of the ITU. PP-18 will determine the overall policy direction of the ITU; adopt the strategic and financial plans for the next four years; elect the 48 members of Council, 12 members of the Radio Regulations Board, and five senior ITU elected officials; and consider and adopt, if appropriate, amendments to the ITU Constitution and Convention.
Attendance at this meeting is open to the public as seating capacity allows. The public will have an opportunity to provide comments at this meeting at the invitation of the chair. Further details on this ITAC meeting will be announced on the Department of State's email list,
Please send all inquiries to
Surface Transportation Board.
Notice tentatively approving and authorizing finance transaction.
On January 23, 2018, Academy Bus LLC (Academy), a motor carrier of passengers; Franmar Leasing LLC (Franmar), a non-carrier; and Daniel's Charters & Tours LLC (Daniel's Charters), a motor carrier of passengers (collectively, Applicants) jointly filed an
Comments must be filed by April 9, 2018. The applicants may file a reply by April 23, 2018. If no opposing comments are filed by April 9, 2018, this notice shall be effective on April 10, 2018.
Send an original and 10 copies of any comments referring to Docket No. MCF 21079 to: Surface Transportation Board, 395 E Street SW, Washington, DC 20423-0001. In addition, send one copy of comments to: Joseph J. Ferrara, Ferrara and Associates, 111 Paterson Avenue, Hoboken, NJ 07030.
Sarah Fancher (202) 245-0355. Federal Information Relay Service (FIRS) for the hearing impaired: 1-800-877-8339.
Academy is a motor carrier licensed by the Federal Motor Carrier Safety Administration (MC-646780) that provides motor carrier passenger services in Florida and Georgia, with its principal place of business located in Florida. (Appl. 3, 8.) Applicants state that Academy (Florida) ESB Trust (Academy Trust), a non-carrier controlled by Francis Tedesco (the sole trustee), is the sole member of Academy. According to Applicants, Franmar is a non-carrier New Jersey limited liability company controlled by the Tedesco Family ESB Trust (Tedesco Trust), also a non-carrier. Applicants state that Franmar is exclusively engaged in the ownership and leasing of passenger motor coaches to Academy and its affiliates.
Daniel's Charters proposes to sell certain assets used in its motor coach passenger charter transportation business pursuant to an Asset Purchase Agreement, dated January 19, 2018. According to Applicants, this transaction is a result of the business determination made by Daniel's Charters to permanently withdraw from the motor coach transportation business and focus its efforts on the continued development of its tour business operations. Applicants state that, under the terms of the Asset Purchase Agreement, Academy will acquire Daniel's Charters' customer lists, charter contracts, telephone numbers, website, pending motor coach customer contracts existing as of the closing date, charter contract deposits associated with the pending contracts, and related assets and intangibles, and Franmar will acquire 32 of 34 motor coaches currently owned by Daniel's Charters. (Appl. 7.)
Under 49 U.S.C. 14303(b), the Board must approve and authorize a transaction that it finds consistent with the public interest, taking into consideration at least: (1) The effect of the proposed transaction on the adequacy of transportation to the public; (2) the total fixed charges that result; and (3) the interest of affected carrier employees. Applicants submitted information required by 49 CFR 1182.2, including information to demonstrate that the proposed transaction is consistent with the public interest under 49 U.S.C. 14303(b) and a statement, pursuant to 49 U.S.C. 14303(g), that Academy and its motor carrier affiliated companies exceeded $2 million in gross operating revenues for the preceding 12-month period.
Applicants state that this acquisition is in the public interest because the transaction will not have a materially detrimental impact on the adequacy of transportation services available to the public. According to Applicants, Daniel's Charters will be selling all of its motor coach vehicles that it no longer desires to operate, no operable motor vehicles will be scrapped by Daniel's Charters, and no new buses will need to be purchased by Franmar at this time. Thus, Applicants state that the public would not lose service because the same number of buses would continue to operate. Applicants state that the transaction would promote more efficiencies and greater economic use of existing transportation capital resources, and offer the public continued service options to those customers of Daniel's Charters in need of such service.
Applicants also assert that the proposed transaction would not result in an increase to fixed charges, as the proposed transaction is expected to be for cash.
Additionally, Applicants state that the proposed transaction would have no adverse effect on qualified Daniel's Charters' employees at the locations from which Daniel's Charters operates because Academy will interview and offer employment opportunities to those employees, which Applicants claim is “a necessity to permit Academy to continue to operate the assets acquired as a carrier.”
According to Applicants, anticompetitive effects would be unlikely because none of the operable motor vehicles will be scrapped by the seller and no new buses will need to be purchased by Franmar at this time. Thus, Applicants state, the same number of buses presently operated will continue to be operated in Academy's bus operations in Georgia.
On the basis of the application, the Board finds that the proposed acquisition is consistent with the public interest and should be tentatively approved and authorized. If any opposing comments are timely filed, these findings will be deemed vacated, and, unless a final decision can be made on the record as developed, a procedural schedule will be adopted to reconsider the application.
Board decisions and notices are available on our website at “
This action is categorically excluded from environmental review under 49 CFR 1105.6(c).
1. The proposed transaction is approved and authorized, subject to the filing of opposing comments.
2. If opposing comments are timely filed, the findings made in this notice will be deemed as having been vacated.
3. This notice will be effective April 10, 2018, unless opposing comments are filed by April 9, 2018.
4. A copy of this notice will be served on: (1) The U.S. Department of Transportation, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590; (2) the U.S. Department of Justice, Antitrust Division, 10th Street & Pennsylvania Avenue NW, Washington, DC 20530; and (3) the U.S. Department of Transportation, Office of the General Counsel, 1200 New Jersey Avenue SE, Washington, DC 20590.
By the Board, Board Members Begeman and Miller.
Office of the United States Trade Representative.
Request for comments and notice of public hearing; Correction.
The Office of the United States Trade Representative (USTR) published a document in the
Sung Chang, Director for Innovation and Intellectual Property, Office of the United States Trade Representative, at
In the
In the
Section 182 of the Trade Act of 1974 (Trade Act) (19 U.S.C. 2242), commonly known as the “Special 301” provisions, requires the Trade Representative to identify countries that deny adequate and effective IPR protections or fair and equitable market access to U.S. persons who rely on intellectual property protection. The Trade Act requires the Trade Representative to determine which, if any, of these countries to identify as Priority Foreign Countries. Acts, policies or practices that are the basis of a country's identification as a Priority Foreign Country can be subject to the procedures set out in sections 301-305 of the Trade Act (19 U.S.C. 2411-2415).
In addition, USTR has created a “Priority Watch List” and “Watch List” to assist the Administration in pursuing the goals of the Special 301 provisions. Placement of a trading partner on the Priority Watch List or Watch List indicates that particular problems exist in that country with respect to IPR protection, enforcement or market access for persons that rely on intellectual property protection. Trading partners placed on the Priority Watch List are the focus of increased bilateral attention concerning the problem areas.
USTR chairs the Special 301 Subcommittee (Subcommittee) of the Trade Policy Staff Committee. The Subcommittee reviews information from many sources, and consults with and makes recommendations to the Trade Representative on issues arising under Special 301. Written submissions from the public are a key source of information for the Special 301 review process. In 2018, USTR will conduct a public hearing as part of the review process and will allow hearing participants to provide additional information relevant to the review. At the conclusion of the process, USTR will publish the results of the review in a Special 301 Report.
USTR requests that interested persons identify through the process outlined in this notice those countries whose acts, policies, or practices deny adequate and effective protection for intellectual property rights or deny fair and equitable market access to U.S. persons who rely on intellectual property protection.
Section 182 also requires the Trade Representative to identify any act, policy, or practice of Canada that affects cultural industries, was adopted or expanded after December 17, 1992, and is actionable under Article 2106 of the North American Free Trade Agreement (NAFTA). USTR invites the public to submit views relevant to this aspect of the review.
Section 182 requires the Trade Representative to identify all such acts, policies, or practices within 30 days of the publication of the NTE Report. In accordance with this statutory requirement, USTR will publish the annual Special 301 Report about April 30, 2018.
In the
To facilitate the review, written comments should be as detailed as possible and provide all necessary information to identify and assess the effect of the acts, policies, and practices. USTR invites written comments that provide specific references to laws, regulations, policy statements, including innovation policies, executive, presidential, or other orders, and administrative, court, or other determinations that should factor in the review. USTR also requests that, where relevant, submissions mention particular regions, provinces, states, or other subdivisions of a country in which an act, policy, or practice is believed to warrant special attention. Finally, submissions proposing countries for review should include data, loss estimates, and other information regarding the economic impact on the United States, U.S. industry, and the U.S. workforce caused by the denial of adequate and effective intellectual property protection. Comments that include quantitative loss claims should include the methodology used to calculate the estimated losses.
In the
The Special 301 Subcommittee will convene a public hearing on March 8, 2018, at the Office of the United States Trade Representative, 1724 F Street NW, Rooms 1 & 2, Washington DC, at which interested persons, including representatives of foreign governments, may appear to provide oral testimony. If necessary, the hearing may continue on the next business day. Because the hearing will take place in Federal facilities, attendees must show photo identification and will be screened for security purposes. Please consult
Notices of intent to testify and hearing statements from the public were due on February 8, 2017, and are due from foreign governments on February 22, 2018. The submissions must be in English and should include: (1) The name, address, telephone number, fax number, email address, and firm or affiliation of the individual wishing to testify, and (2) a hearing statement that is relevant to the Special 301 review.
Federal Aviation Administration, (FAA), DOT.
Notice.
Notice is being given that the FAA is considering a proposal from the Great Falls International Airport Authority to change certain portions of the airport from aeronautical use to non-aeronautical use at the Great Falls International Airport, Great Falls, MT. The proposal consists of 2.99 acres acquired with an Airport Improvement Program grant shown on the Airport's Exhibit “A” as Parcel 15.
Comments must be received by March 26, 2018.
Comments on this application may be mailed or delivered to the FAA at the following address: Mr. William C. Garrison, Manager, Federal Aviation Administration, Northwest Mountain Region, Airports Division, Helena Airports District Office, 2725 Skyway Drive, Suite 2, Helena, Montana, 59602.
Mr. Joe Nye, Civil Engineer, Federal Aviation Administration, Northwest Mountain Region, Helena Airports District Office, 2725 Skyway Drive, Suite 2, Helena, MT, 59602, (406) 449-5719. The request to release aeronautical use restrictions may be reviewed, by appointment, in person at the same location.
The FAA invites public comment on the request to release aeronautical use restriction of 2.99 acres at the Great Falls International Airport under the provisions of the Title 49, U.S.C. Section 47107(h).
The Great Falls International Airport Authority, referred to herein as the Authority, has requested release from the aeronautical use restrictions assigned to 2.99 acres acquired under Airport Improvement Program Grant 3-30-0036-007-1986. The 2.99 acres is shown on the Airport's Exhibit “A” as Parcel 15 and is isolated from the airfield by the airport entry road to the south and west.
The Great Falls International Airport has completed an appraisal of Parcel 15 and found that current fair market value of the property is $236,103. The Authority proposes to reimburse the federal interest in Parcel 15 by reinvesting an amount of $212,493 (90% of the current fair market value) towards the acquisition of an AIP eligible piece of snow removal equipment.
The Authority proposes to lease the property for continued operation of the City of Great Falls 911 Call Center as well as the construction and operation of a fueling station and restaurant on the property. The revenue from the lease of this property will be used for airport purposes. The proposed use of this property is compatible with other airport operations and is in accordance with FAA's Policy and Procedures Concerning the Use of Airport Revenue, published in
Any person may inspect the request in person at the FAA office listed above under
Federal Aviation Administration (FAA), DOT.
Notice.
This notice contains a summary of a petition seeking relief from specified requirements of Federal Aviation Regulations. The purpose of this notice is to improve the public's awareness of, and participation in, the FAA's exemption process. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before March 14, 2018.
Send comments identified by docket number FAA-2017-1212 using any of the following methods:
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Keira Jones (202) 267-6109, Office of Rulemaking, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
Federal Aviation Administration (FAA), DOT.
Notice.
This notice contains a summary of a petition seeking relief from specified requirements of Federal Aviation Regulations. The purpose of this notice is to improve the public's awareness of, and participation in, the FAA's exemption process. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before March 14, 2018.
Send comments identified by docket number FAA-2017-1218 using any of the following methods:
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J. Justin Barcas (202) 267-7023, Office of Rulemaking, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
Federal Aviation Administration (FAA), DOT.
Notice.
The FAA is considering a proposal to change 31.581 acres of airport land from aeronautical use to non-aeronautical use and to authorize the lease of airport property located at Akron-Canton Airport, North Canton, OH. The aforementioned land consists of a partial release of Parcel ID 00 (4.53 acres) and Parcel ID 38 (27.051 acres) which is not needed for aeronautical use. The parcels are located in the Northwest quadrant of the airport, south of Greensburg Road, North Canton, OH. The property is currently designated as aeronautical use for compatible land use in support of the airfield approach. The proposed non-aeronautical use is for commercial/general industrial development.
Comments must be received on or before March 26, 2018.
Documents are available for review by appointment at the FAA Detroit Airports District Office, Evonne M. McBurrows, 11677 South Wayne Road, Suite 107, Romulus, MI, 48174 Telephone: (734) 229-2900/Fax: (734) 229-2950 and Akron-Canton Airport, 5400 Lauby Road NW#9, North Canton, OH. Telephone: (330) 499-4059.
Written comments on the Sponsor's request must be delivered or mailed to: Evonne M. McBurrows, Program Manager, Federal Aviation Administration, Detroit Airports District
Evonne M. McBurrows, Program Manager, Federal Aviation Administration, Detroit Airports District Office, 11677 South Wayne Road, Suite 107, Romulus, MI 48174. Telephone Number: (734) 229-2900/FAX Number: (734) 229-2950.
In accordance with section 47107(h) of Title 49, United States Code, this notice is required to be published in the
The property is currently designated as aeronautical use for compatible land use. This parcel of land (31.581 acres) was acquired with federal funds under project numbers 6-39-0001-08 and 3-39-0001-26. Akron-Canton Regional Airport Authority (AA) proposed non-aeronautical use is for commercial/general industrial development. AA will lease the land and receive fair market value.
The disposition of proceeds from the lease of the airport property will be in accordance with FAA's Policy and Procedures Concerning the Use of Airport Revenue, published in the
This notice announces that the FAA is considering the release of the subject airport property at the Akron-Canton Airport, North Canton, OH from its obligations to be maintained for aeronautical purposes. Approval does not constitute a commitment by the FAA to financially assist in the change in use of the subject airport property nor a determination of eligibility for grant-in-aid funding from the FAA.
The land referred to in the commitment is described as follows:
Situated in the City of Green, County of Summit, State of Ohio and known as being Lot 24 in the CAK International Business Park No. 3 Port Green, as shown on the recorded plat in Reception No. 55975637 and re-recorded as Reception No. 56001757 of Summit County Records.
Situated in the City of Green, County of Summit, and State of Ohio and known as being a part of Lot No. 24 in CAK International Business Park No. 3 Port Green as shown by plat recorded in Reception No. 55975637 and re-recorded as Reception No. 56001757 of Summit County Records and parts of the Southwest Quarter of Section No. 26 and the Northwest Quarter of Section No. 35 in the Twelfth Township of the Ninth Range of the Congress Lands North of the Old Seven Ranges, now in said city, and is bounded and described as follows:
Beginning in the easterly line of Global Parkway, 60 feet in width, at its intersection with the southerly line of said Lot No. 24, said point of beginning being marked by a
COURSE I Thence North 1°20′39″ East along said easterly line of Global Parkway a distance of 567.36 feet to a point at the beginning of a curve therein and witness a one inch diameter iron pin stake in a monument box in the centerline of said Global Parkway bearing North 88°39′21″ West a distance of 30.00 feet therefrom;
COURSE II Thence northerly continuing along said easterly line of Global Parkway on the arc of a curve deflecting to the LEFT (said curve having a radius of 830.00 feet, an included angle of 15°54′54″, and a chord which bears North 6°36′48″ West and is 229.81 feet in length) a distance of 230.55 feet to the point of tangency and witness a one inch diameter iron pin stake in a monument box in the centerline of said Global Parkway bearing South 75°25′46″ West a distance of 30.00 feet therefrom;
COURSE III Thence North 14°34′14″ West continuing along said easterly line of Global Parkway a distance of 412.97 feet to a point at the beginning of a curve therein and witness a one inch diameter iron pin stake in a monument box in the centerline of said Global Parkway bearing South 75°25′46″ West a distance of 30.00 feet therefrom;
COURSE IV Thence northerly continuing along said easterly line of Global Parkway on the arc of a curve deflecting to the RIGHT (said curve having a radius of 770.00 feet, an included angle of 13°34′14″, and a chord which bears North 7°47′07″ West and is 181.95 feet in length) a distance of 182.37 feet to the point of tangency and witness a one inch diameter iron pin stake in a monument box in the centerline of said Global Parkway bearing South 89°00′00″ West a distance of 30.00 feet therefrom;
COURSE V Thence North 1°00′00″ West continuing along said easterly line of Global Parkway a distance of 4.93 feet to a point therein;
COURSE VI Thence North 78°23′22″ East a distance of 695.21 feet to a point in an easterly line of the aforesaid Lot No. 24;
COURSE VII Thence South 12°16′15″ East a distance of 481.03 feet to a point;
COURSE VIII Thence South 88°14′09″ East by a line which is parallel with a northerly line of said Lot No. 24 and 20.00 feet northerly by normal measure therefrom, a distance of 183.20 feet to a point;
COURSE IX Thence South 12°16′59″ East at 20.62 feet passing through a northerly line of said Lot No. 24 and at 313.70 feet passing through the easterly line of said Lot No. 24, a total distance of 470.61 feet to a point;
COURSE X Thence South 4°22′58″ West by a line which is parallel with the most southerly line of said Lot No. 24 and 45.00 feet easterly by normal measure therefrom, a distance of 661.53 feet to a point;
COURSE XI Thence South 78°10′29″ West by a line which is parallel with the most southerly line of said Lot No. 24 and 155.00 feet southerly by normal measure therefrom, a distance of 899.28 feet to the aforesaid easterly line of Global Parkway;
COURSE XII Thence North 1°20′39″ East along said easterly line of Global Parkway a distance of 159.19 feet to the point of beginning and containing a total of 31.581 Acres of land of which 27.051 Acres of land is contained within the bounds of said Lot No. 24.
Bearings contained herein are based upon the State of Ohio Co-ordinate System of 1983 (North Zone) from observations utilizing the NAD83(2011) Reference Frame.
The intent of the above is to provide a description of the perimeter of a leasehold estate upon lands currently designated as Summit County Auditor's Permanent Parcels No. 2815964 and No. 2809144.
The Akron Canton Regional Airport Authority claims title to the above described parcel of land by or through documents recorded in Instrument No. 56001757 and Volume 6870, Page 685 of Summit County Deed Records.
Federal Aviation Administration, (FAA), DOT.
Notice.
Notice is being given that the FAA is considering a proposal from the Great Falls International Airport Authority to change certain portions of the airport from aeronautical use to non-aeronautical use at the Great Falls International Airport, Great Falls, MT. The proposal consists of 5 acres of surplus property shown on the Airport's Exhibit “A” as the portion of Parcel 4 east of the airport's access road.
Comments must be received by March 26, 2018.
Comments on this application may be mailed or delivered to the FAA at the following address: Mr. William C. Garrison, Manager, Federal Aviation Administration, Northwest Mountain Region, Airports Division, Helena Airports District Office, 2725 Skyway Drive, Suite 2, Helena, Montana 59602.
Mr. Joe Nye, Civil Engineer, Federal Aviation Administration, Northwest Mountain Region, Helena Airports District Office, 2725 Skyway Drive, Suite 2, Helena, MT 59602-1213.
The request to release deed restrictions may be reviewed, by appointment, in person at the same location.
The FAA invites public comment on the request to release the aeronautical use restriction of 5 acres at the Great Falls International Airport under the provisions of Title 49, U.S.C. Section 47153(c) and 47107(h)2.
The Great Falls International Airport Authority, referred to herein as the Authority, has requested release from the aeronautical use restrictions assigned to 5 acres donated by the U.S. Government as surplus property in 1948.
The 5 acres are a fragment of a larger 780-acre parcel identified on the Airport's Exhibit A as Parcel 4. The 5 acres proposed for non-aeronautical use are isolated from the airfield by the airport entry road to the south and west. The Authority has identified these 5 acres as no longer needed for aeronautical purposes.
The Authority proposes to lease the property for the construction and operation of a fueling station and restaurant. The revenue from the lease of this property will be used for airport purposes. The proposed use of this property is compatible with other airport operations and is in accordance with FAA's Policy and Procedures Concerning the Use of Airport Revenue, published in
Any person may inspect the request in person at the FAA office listed above under
Federal Highway Administration (FHWA), U.S. Department of Transportation (DOT).
Notice.
The FHWA is finalizing one guidance document and issuing one interim guidance document: Transportation Asset Management Plan Development Processes Certification and Recertification Guidance, and Transportation Asset Management Plan Consistency Determination Interim Guidance. These documents provide implementation guidance on provisions of the Moving Ahead for Progress in the 21st Century Act (MAP-21) and the Asset Management Final Rule, which requires a State department of transportation (State DOT) to develop and implement a risk-based asset management plan. Under these authorities, FHWA must certify that Transportation Asset Management Plan (TAMP) development processes established by a State DOT meet applicable requirements, and make an annual consistency determination, evaluating whether a State DOT has developed and implemented a State-approved TAMP that meets all applicable requirements. This notice finalizes the Transportation Asset Management Plan Development Processes Certification and Recertification Guidance, issues interim guidance on transportation asset management plan consistency determinations, and summarizes the comments received on the drafts of both guidance documents, FHWA's response to those comments, and any changes that were made to the guidance documents issued with this notice.
For questions about this notice contact Mr. Stephen Gaj, FHWA Office of Infrastructure, (202) 366-1336, Federal Highway Administration, 1200 New Jersey Ave. SE, Washington, DC 20590, or via email at
Copies of the proposed Transportation Asset Management Plan Development Processes Certification and Recertification Guidance; and Transportation Asset Management Plan Consistency Determination Interim Guidance are available online for download and public inspection online under the docket at the Federal eRulemaking portal at:
Under the asset management provisions enacted in MAP-21, codified at 23 U.S.C. 119, State DOTs must develop and implement a risk-based TAMP. This TAMP must include all National Highway System (NHS) pavements and bridges, regardless of whether the State or some other entity owns the relevant NHS facility.
The FHWA Division Offices (Divisions) must take two actions with respect to State DOT asset management activities. The first is TAMP development process certification/recertification. Under 23 U.S.C. 119(e)(6), FHWA must certify at least every 4 years that the State DOT's processes for developing its TAMP are consistent with applicable
Draft versions of guidance were made available for public review and comment June 6, 2017, at 82 FR 25905. The FHWA received seven comment letters from the following organizations: Alaska Department of Transportation and Public Facilities, Georgia DOT, Maryland DOT, Michigan DOT, New Jersey DOT, Wyoming DOT, and joint comments from the DOTs of Idaho, Montana, New York, North Dakota, South Dakota, and Wyoming. A summary of the comments received and FHWA's response, including any changes made in response to comments, is provided below. Based on the comments received, as well as FHWA's experience to date as it implements the certification and consistency determination requirements, FHWA concluded it is appropriate to issue final certification guidance. However, FHWA believes that issues that may affect FHWA consistency determinations are less well-defined at this time. Accordingly, FHWA is issuing the guidance on consistency determinations as interim guidance, with the expectation of finalizing that guidance later in 2018.
Several commenters (Alaska, Wyoming, and the joint commenters) expressed concern that these guidance documents would impose new requirements without undergoing the required notice and comment procedures. In response to these concerns, FHWA notes that the guidance does not impose any new requirements. Any requirements discussed in the guidance are imposed by existing statute or regulation, and those requirements can be changed only by revising these underlying authorities. Recommended best practices are clearly described as not required, and may be revised as practices advance and asset management is further implemented. The FHWA revised the introduction of both documents to clarify this point.
Alaska asked for more information on the factors that Divisions will use to determine that State DOT funding allocations are “reasonably consistent” with 23 U.S.C. 119. Under that section, the Secretary must determine annually that a State has developed and implemented an acceptable TAMP. As indicated in 23 CFR 515.13(b)(2), each State DOT may determine the most suitable approach for demonstrating implementation of its TAMP, so long as the information is current, documented, and verifiable. The FHWA considers the best evidence of plan implementation to be that, for the 12 months preceding the consistency determination, the State DOT funding allocations are reasonably consistent with the investment strategies in the State DOT's TAMP. This demonstration takes into account the alignment between the actual and planned levels of investment for various work types (
Alaska also asked for more information about how the Division will communicate its consistency determination to the State DOT. As provided in 23 CFR 515.13(b), FHWA will notify the State DOT, in writing, whether the State DOT has developed and implemented a TAMP consistent with applicable requirements. The FHWA does not believe it is necessary to further specify how the notice is delivered to the State DOT.
Joint commenters and Wyoming noted that the performance management regulations in 23 CFR part 490 allow a State DOT to adopt targets for NHS bridge and pavement conditions that reflect conditions that decline at faster rates than previously was the case. The FHWA recognizes that, due to the fiscal conditions and the need for trade-offs across assets, conditions of an asset may improve, stay constant, or decline. In response to this comment, FHWA added clarifying language to the Consistency Determination Interim Guidance regarding such declining targets and asset conditions. However, the State DOT should explain in its TAMP how these improvements or declines affect long-term goals of achieving and sustaining a state of good repair. The TAMP investment strategies must, during the life of the long-term TAMP, be designed to support or make progress toward (1) achieving and sustaining a desired state of good repair over the life cycle of the assets, (2) improving or preserving the condition of the assets and the performance of the NHS relating to physical assets, and (3) achieving the national goals identified in 23 U.S.C. 150(b).
Michigan asked for clarification on the relationship between existing transportation processes and TAMP requirements, specifically on page 20 of the draft Development Processes Certification Guidance. The requirement to integrate the State-approved TAMP into the transportation planning process calls for consideration of TAMP information and investment strategies when making programming and project selection decisions during transportation planning. The asset management rule, at 23 CFR 515.9(h), clearly describes the interaction between the TAMP and STIP: “the State DOT must integrate its TAMP into the State DOT's planning processes that lead to the STIP, to support the State DOT's efforts to achieve the goals in 23 CFR 515.9(f).” The FHWA encourages (but does not require) that such integration extend to including, in the STIP performance management target achievement discussion under 23 CFR 450.218(q), information about how TAMP investment strategies have been used when programming projects into the STIP. In contrast, the draft Development Processes Certification Guidance addresses the appropriate role of STIPs when State DOTs are developing their TAMPs.
The statement noted by the commenter does not contradict 23 CFR 515.9(h). The TAMPs are the product of analyses and data requirements that do not necessarily apply to other documents, such as STIPs. The guidance emphasizes the long-term nature of the TAMP. A short-term
Georgia asked for clarification on the extent and detail it should include in its TAMP submission regarding the LCP process and modeling. In response, FHWA clarifies that States do not need to include their deterioration models in detail in their TAMPs. However, the deterioration models are required to perform the required analysis, and a State DOT must identify the model(s) that are part of the State DOT's process for developing its TAMP. The State DOTs should include, as part of their process description, an explanation of how the selected model(s) provide insight into LCP, and why a certain type of management strategy is the most appropriate strategy at the time of TAMP development.
The asset management rule does not specifically require State DOTs to break assets into sub-groups; however, asset inventories normally break assets into sub-groups (for example a pavement inventory distinguishes between asphalt and concrete pavements), including appropriate condition data for each asset sub-group that are used to predict how each sub-group deteriorates. The State DOTs typically have agency-specific deterioration curves for different pavement types and components/elements of bridges by bridge type. The FHWA believes the Consistency Determination Interim Guidance, the interim document “Using a Life Cycle Planning Process to Support Asset Management,” and the final asset management rule adequately cover this information. No change was made to the guidance.
Georgia and Maryland requested clarification on the TAMP update and amendment timelines. The State DOTs must update or amend TAMPs at least every 4 years (23 CFR 515.13(c)). The State DOTs are otherwise free to update or amend plans whenever such revision is warranted.
Michigan and Maryland requested further information on the requirements for the initial TAMP. The initial TAMP must include a description of all the required TAMP development processes described in 23 CFR 515.7. The scope of this requirement includes policies, procedures, documentation, and an implementation approach that satisfy the requirements of 23 CFR part 515. The FHWA process certification is based on those aspects of the initial TAMP. Separate from the information required for the TAMP development process certification, there are requirements for additional types of information in the initial TAMP. Those requirements are discussed in Question and Answer #1 in FHWA's “Asset Management Initial Plan Guidance,” available on FHWA's Asset Management web page (Initial TAMP Q&A #1), at
Specifically, Maryland asserts that the Development Processes Certification Guidance contains requirements for the initial plans that falls outside the scope of the asset management rule. The FHWA does not agree with the commenter's interpretation. Section 515.11(b) of the rule establishes flexibility for State DOTs, when preparing their initial TAMPs, to deviate in certain respects from 23 CFR 515.7 and 515.9 requirements by eliminating certain analyses from the plans. In response to the comment, FHWA added language to the Development Processes Certification Guidance clarifying that (1) certification of the State DOT's TAMP development processes is based on meeting the process requirements described in 23 CFR 515.7; and (2) the initial TAMP must provide all the information specified in 23 CFR 515.7 and 515.9, except the analyses in the three areas listed as exclusions under 515.11(b). For a detailed discussion of the initial TAMP requirements, see Initial TAMP Q&A #1, discussed above.
Further, Michigan requested that FHWA add a list of processes required for the initial TAMP to the Development Processes Certification Guidance. Because this information goes beyond the scope of the guidance documents that are the subject of this notice, FHWA did not revise the documents based on this comment. The requested information appears in the Initial TAMP Q&A #1, discussed above.
Georgia and Michigan requested clarification on how to conduct the performance gap analysis, particularly, whether to use current asset condition targets given that the targets required under 23 U.S.C. 150(d) are not due until May 20, 2018.
In response to the commenter's specific questions about the use of targets in initial TAMPs, pursuant to 23 CFR 515.11(b), State DOTs are not required to include 23 U.S.C. 150(d) targets in the Initial TAMPs because the deadline for setting those targets is less than 6 months before the deadline for submission of the initial TAMP on April 30, 2018. However, FHWA encourages (but does not require) State DOTs that have performance targets, whether developed to meet 23 U.S.C. 150(d) requirements or for other reasons, to include those targets if possible. This will provide the State DOT with more experience in analysis and implementation. A State DOT that includes targets can test the effectiveness of its proposed TAMP development processes. The State DOTs may wish to establish “temporary targets” for use in the initial TAMP. For
As discussed above, State DOT may amend its TAMP at any time to add section 150(d) targets, or to revise or remove any other targets. Procedures applicable to TAMP amendments appear in 23 CFR 515.13(c). Note, however, that 23 CFR part 490 contains separate procedures that govern the amendment of part 490 targets.
The FHWA believes this information is adequately addressed in the guidance, the final asset management rule, and FHWA's “Asset Management Initial Plan Guidance,” available on FHWA's Asset Management web page, at
Michigan noted that the examples of good practices for the performance gap analysis would be better suited for the portion of the Development Processes Certification Guidance entitled “Process for Ensuring Use of Best Available Data and Use of Bridge and Pavement Management Systems” on page 20. The FHWA agrees, and revised the final guidance as suggested.
Michigan and Georgia requested additional guidance on the role of long-term targets and the State DOT's long-term vision. Michigan commented that the Consistency Determination Guidance should be expanded to clarify how the long-term vision under the performance gap analysis should fit with other TAMP requirements. Michigan is concerned that Federal and some States' performance management pavement categories may not be in alignment, and that the 10-year period for the financial plan may not align with time periods some States use for asset management.
In response to the comments concerning the use of “long-term targets” and “long-term vision,” FHWA notes that neither the rule, nor the Development Processes Certification Guidance, specifically requires the State DOT's performance gap process to include identification of long-term targets. However, it is good practice for a State DOT's performance gap process to include identification of long-term targets and performance goals. The purpose of the TAMP is to achieve or maintain the State DOT's desired SOGR, which is a long-term goal and typically will look forward more than 10 years. Identification of long-term targets is inherent in defining SOGR.
Each State DOT is required to define asset management objectives and SOGR for itself. The asset management objectives of the State DOT's TAMP should align with the State DOT's mission. The objectives must be consistent with the purpose of asset management, which is to achieve and sustain the desired SOGR over the life cycle of the assets at minimum practicable cost (23 CFR 515.9(d)(1)). In fact, to achieve this goal, the performance gap, life-cycle plan, and risk management analyses should cover periods longer than 10 years. For example, life cycle plans for bridges may cover a period of 70-100 years; however, the TAMP must include the information that covers the immediate next 10 years, not the entire 70-100 years (
Michigan specifically noted that it uses freeway and non-freeway categories for its long-term vision, rather than Interstate and NHS (excluding the Interstate) categories. The State DOT TAMPs must specifically address the Interstate and NHS (excluding the Interstate) as required under the performance management and asset management rules. State DOTs have flexibility in how they make the needed adjustments. For example, if the State DOT is managing all its freeways and the Interstate the same way, with the same SOGR goals, the State DOT should explain this in its asset management plan. No change was made in response to this comment.
Michigan also asked how it should treat assets other than NHS pavements and bridges in its long-term vision, specifically, whether it could include other assets without making those other assets subject to all TAMP requirements. If the State DOT wants to address other assets without subjecting those assets to section 515.7 or 515.9(l) analyses, the State DOT can group such assets and identify them as assets outside the TAMP (
Michigan asked FHWA for clarification or examples of “extenuating circumstances” that would allow a State to deviate from its TAMP investment strategies, pursuant to 23 CFR 515.13(b)(2)(ii). In response to these comments, FHWA revised the Consistency Determination Interim Guidance, to better describe the case-by-case, extenuating circumstances determination and the information that the State DOT should provide to support deviation from the TAMP.
The FHWA may find that a State DOT has implemented its TAMP even if the State DOT has deviated from the TAMP investment strategies (23 CFR 515.13(b)(2)(ii)). To support such finding, the State DOT's deviation from its TAMP investment strategies must be the result of circumstances beyond its reasonable control. If major changes in available funding or program costs are due to natural disasters or third party (non-State) actions, those circumstances likely will qualify.
If the State believes extenuating circumstances apply, it should provide an explanation of the extenuating circumstances, the impacts, the State DOT's efforts to avoid or offset the changes and impacts, and program changes that will be undertaken to account for the changed conditions. In addition, State DOT should consider updating or amending its TAMPs whenever there is a material impact on the accuracy and validity of the processes, analysis, or investment strategies in the plan. Updates and other amendments may require FHWA review (
New Jersey asked whether State DOTs could use adjusted historical data to analyze NHS bridge and pavement conditions. The State DOT must use the best available data (23 CFR 515.7(g)). If changes are made to historic data, the State DOT needs to explain what it has done, and why the State DOT believes that the quality of the historic data is improved by the changes. However, any changes in historical data will not be used to revise reporting submitted pursuant to 23 U.S.C. 150(e) or to change determinations made under 23 U.S.C. 119(e)(7) or 119(f). No change was made to either document based on this comment.
23 U.S.C. 119; 23 CFR part 515; 49 CFR 1.85.
Federal Highway Administration (FHWA), Department of Transportation (DOT).
Notice.
This Notice announces and outlines the final guidance for requirements contained in Section 1411(a) and (b) of the FAST Act regarding the treatment of over-the-road buses (OTRBs).
This guidance is effective February 22, 2018.
Ms. Cynthia Essenmacher, Federal Tolling Program Manager, Center for Innovative Finance Support, Office of Innovative Program Delivery, Federal Highway Administration, 315 W. Allegan St., Ste. 201, Lansing, MI 48913, (517) 702-1856. For legal questions: Mr. Steven Rochlis, Office of the Chief Counsel, Federal Highway Administration, 1200 New Jersey Avenue SE, Washington, DC 20590, (202) 366-1395. Office hours are from 8:00 a.m. to 4:30 p.m. E.T., Monday through Friday, except for Federal holidays.
The FHWA published a
Section 1411(a) and (b) of the FAST Act contained new requirements regarding the treatment of OTRBs that access toll highways and HOV facilities. Specifically, the FAST Act amended 23 U.S.C. 129 and 23 U.S.C. 166 to address equal access to toll or HOV facilities for OTRBs. The FAST Act amendments defined certain key terms but did not define other terms. The FHWA considered how to define the terms that were not defined under Section 1411 (Section C) as well as enumerating the toll facilities subject to the OTRB requirements (Section D), as the OTRB amendment related to toll facilities that received or will receive Federal participation under 23 U.S.C. 129. In addition, FHWA believes that Congress intended that the OTRB equal access provisions be effective beginning on December 4, 2015, the enactment date of the FAST Act, in contrast to the FAST Act effective date of October 1, 2015, as noted further in Sections B and F. Application of the OTRB requirements retroactive to the FAST Act enactment date raised potential constitutional implications associated with the application prior to the enactment date, particularly for those toll facilities operated by private taxpayers under agreement with a public authority that may have assessed different toll rates to OTRBs during this period between October 1, 2015, and December 4, 2015, without notice of the change in law.
For HOV facilities, 23 U.S.C. 166 (b)(3) was amended by the FAST Act, adding subparagraph (C) to grant HOV authorities an exception to allow public transportation vehicles (which FHWA interprets to include all public transportation vehicles, including public transportation buses) that do not meet the minimum occupancy requirements to use HOV lanes, but only if the HOV authority also gives equal access to OTRBs that serve the public. Under this exception, HOV authorities may allow all public transportation vehicles to use HOV lanes, whether they meet the minimum occupancy requirements or not, if they provide equal access to OTRBs serving the public, under the same rates, terms, and conditions as all other public transportation vehicles.
Additionally, 23 U.S.C. 166(b)(4)(C) was amended by the FAST Act, adding subparagraph (iii), to grant HOV authorities the alternative to toll vehicles not meeting the minimum occupancy requirements in HOV lanes. In that case, HOV authorities are required to provide access to OTRBs that serve the public under the same rates, terms, and conditions as public transportation buses (which FHWA interprets to exclude other types of public transportation vehicles, which may be treated differently by the HOV authority). Similarly, on toll facilities subject to 23 U.S.C. 129, the FAST Act amended 23 U.S.C. 129(a) by adding paragraph (9) to also require that OTRBs that serve the public be provided access to the toll facility under the same rates, terms, and conditions as public transportation buses.
Comments were submitted to the
Commenters included the public transit constituency, both public and private operators, as well as individuals. The respondents directed their comments within three categories. The three categories are general comments, compliance, and information availability. The following summarizes the comments and FHWA's response.
• Two commenters recommended that FHWA use the
• One commenter inquired about toll transponders recognizing exemptions on different facilities.
• One commenter would like to see FHWA explain why certain facilities are not included in the Section 129 covered facilities list.
• Three commenters requested that FHWA use the existing annual audit process required under 23 U.S.C. 129(a)(3)(B) to determine whether tolling facilities are complying with the OTRB equal access requirements.
• Three commenters requested FHWA clearly state that bus companies have a legal right to seek refunds from toll operators to correct unequal treatment.
• Three commenters recommended that the FHWA guidance should make it clear to Division Administrators and to the public authority recipients of Federal funding that the OTRB requirements are already effective and have been in effect since October 1, 2015, and do not depend on any further guidance or other action by FHWA to be enforceable.
• Three commenters suggested that FHWA require that all facility agencies create and publish their respective rates, terms, and conditions for use of their facilities.
• One commenter requested FHWA amend the Section 129 facilities list to include the names of the tolling authorities responsible for the operation of each facility.
All comments were taken into consideration when developing this final
For the purposes of implementing FAST Act Section 1411 amendments to 23 U.S.C. 129 and 166, FHWA will use the following definitions previously stated in the
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Section 1411 of the FAST Act is applicable to Federal-aid toll facilities where construction of the facility occurred under 23 U.S.C. 129(a) authority. Facilities “constructed under” Section 129 includes both facilities subject to Section 129 tolling agreements executed prior to the Moving Ahead for Progress in the 21st Century Act (MAP-21) (Pub. L. 112-141), which eliminated the requirement for a Section 129 toll agreement, and facilities that have become (or will become) subject to Section 129 post-MAP-21 (which may, or may not, have a tolling Memorandum of Understanding with FHWA). This would include a facility that either uses Federal-aid funds on an existing toll facility in accordance with Section 129(a), or imposes tolls on a facility constructed with Federal-aid funds pursuant to Section 129(a).
Federal-aid toll facilities that were constructed under other Federal tolling authorities and not subject to Section 1411 of the FAST Act are included in the Section 129 Covered Facilities list
The OTRB Section 129 Covered Facilities list can be found at the FHWA's Center for Innovative Finance Support's website at:
Under 23 U.S.C. 166(f)(2), the term “HOV facility” means a high occupancy vehicle facility. There are no exclusions or exceptions under this definition based on Federal-aid participation in the construction or operation of the HOV facility. Therefore, FHWA believes amendments made by Section 1411 of the FAST Act are applicable to all Section 166 HOV facilities, regardless of Federal-aid participation in the project.
The requirements of 23 U.S.C. 129(a) and 23 U.S.C. 301 apply to the use of Federal-aid funds for construction (as defined at 23 U.S.C. 101(a)(4)) on tolled highways, bridges, and tunnels, including the use of emergency relief funds for repairs to toll facilities (see 23 CFR 668.109(b)(9)). When Federal funds are used for allowable purposes under 23 U.S.C. 129, grantees are required to follow applicable statute, regulations, and policies. This includes equal access and treatment for OTRBs.
If an OTRB entity believes equal access was not provided by a covered facility any time after December 4, 2015, that entity should contact the owner/operator of the facility to address this concern.
U.S. Department of Transportation, Federal Highway Administration.
Notice of Intent to prepare an environmental impact statement.
The U.S. Department of Transportation, Federal Highway Administration (FHWA), in coordination with the Virginia Department of Transportation (VDOT), is issuing this notice of intent to advise the public, agencies, and stakeholders that an Environmental Impact Statement (EIS) will be prepared to study the effects of a highway project under consideration along the Route 220 corridor in Henry County, Virginia.
To ensure that a full range of issues related to the study are addressed and all potential issues are identified, comments and suggestions are invited from all interested parties. Comments and suggestions concerning the range of issues to be evaluated in the EIS should be submitted to FHWA at the address below within 30 days of the issuance of this notice to ensure timely consideration.
Mr. Mack Frost, Planning and Environment Specialist, Federal Highway Administration, 400 North 8th Street, Suite 750, Richmond, VA 23219-4825; email:
The environmental review of transportation improvement alternatives for the Route 220 corridor will be conducted in accordance with the requirements of the National Environmental Policy Act (NEPA) of 1969, as amended (42 U.S.C. 4321,
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Notification of the draft EIS for public and agency review will be made in the
For the draft EIS, public hearings will be held and a minimum 45-day comment period will be provided. The hearings will be conducted by VDOT and announced a minimum of 15 days in advance of the meetings. VDOT will provide information for the public hearings, including the locations, dates, and times for each meeting through a variety of means including the VDOT website (
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Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice of Funding Opportunity (NOFO).
This notice details the application requirements and procedures to obtain grant
Applications for funding under this solicitation are due no later than 5:00 p.m. EDT, on April 23, 2018. Applications for funding received after 5:00 p.m. EDT on April 23, 2018 will not be considered for funding. See Section D of this notice for additional information on the application process.
Applications must be submitted via
For further information regarding this notice, please contact Michail Grizkewitsch, Office of Railroad Safety, Federal Railroad Administration, 1200 New Jersey Avenue SE, Room W33-446, Washington, DC 20590; email:
Trespassing on a railroad's private property and along railroad rights-of-way is the leading cause of rail-related fatalities in America. Since 1997, more people have been fatally injured each year by trespassing than in motor vehicle collisions with trains at highway-rail grade crossings. Nationally, approximately 500 trespassing deaths occur each year.
By definition, trespassers are on railroad property without permission. They are most often people who walk across or along railroad tracks as a shortcut to another destination. They also may be engaged in another activity such as loitering, hunting, bicycling, snowmobiling, or all-terrain vehicle (ATV) riding.
From August 3 to August 6, 2015, FRA sponsored the 2015 Right-of-Way (ROW) Fatality and Trespass Prevention Workshop in Charlotte, North Carolina (
The Enforcement Session of the Workshop covered effective safety and security initiatives to identify, apprehend, prosecute, and track trespassers along railroad ROWs. One of the top recommended actions from the Enforcement Session was to “establish a federally funded grant program designed specifically for the enforcement of state, county, or municipal laws relating to railroad trespass violations.”
In response to that recommendation, FRA is initiating a “Pilot Grant Program” to assist communities at risk for rail trespassing related incidents and fatalities. The objective of this program is to evaluate the effectiveness of funding local law enforcement activities intended to reduce trespassing on the rail ROWs.
The funded agencies will perform rail trespassing enforcement related activities and report those activities and associated benefits to FRA. The data obtained from the activities performed in this Pilot Grant Program will help determine the effectiveness of funding local law enforcement agencies for rail trespass prevention activities.
Funding for research and development, including this Pilot Grant Program, was made available by the Consolidated Appropriations Act, 2016, Public Law 114-113, Div. L, Tit. I, 129 Stat. 2242, 2853 (2015). FRA's research and development programs are authorized in 49 U.S.C. 20108, 49 U.S.C. 301(6) and 49 U.S.C. 103(i) authorizes the Administrator to make grants.
This notice contains the requirements and procedures applicants must follow to secure funding under the Pilot Grant Program. The total amount of discretionary funding available for approved expenses under this NOFO is $150,000. There are no predetermined minimum or maximum dollar thresholds for awards. FRA anticipates making multiple awards with the available funding. FRA may not be able to award grants to all eligible applications, nor even to all applications that meet or exceed the stated evaluation criteria (see Section E, Application Review Information). Projects must be completed within the six-month period of performance under the grant. FRA will make awards for projects selected under this notice
This section of the notice explains the requirements for submitting an eligible grant application. Applications that do not meet the requirements in this section will be considered ineligible for funding. Instructions for conveying eligibility information to FRA are detailed in Section D of this NOFO.
The following entities are eligible applicants for all project types permitted under this notice (see Section C.3, “Other—Project Eligibility”):
a. The applicant and co-applicant pool is limited to state, county, municipal, local, and regional law enforcement agencies in the U.S.
b. Applicants for this grant must have a demonstrated rail trespass problem in their community.
c. At least 1 mile of FRA-regulated railroad mainline track must be within the boundaries of the applying agency's jurisdiction.
Neither cost sharing nor matching is a requirement for this grant program.
Projects eligible for funding under this NOFO are for enforcement activities focused on specific railroad trespassing laws to reduce related incidents and casualties, particularly in areas near railroad trespass “hot” spots.
The hourly rate for enforcement officer activities should be limited to the officer's overtime rate (
The applicant must collect and report the following information to FRA for activities performed using the grant funding:
• Date, time, number of officers, location and description of enforcement activity;
• Justification or reason for selected enforcement activity;
• Number of contacts (
• Number of warnings and/or citations issued; and
• The deterrence effect of such activities and method for measuring such deterrence. The grantee must explain how they determine deterrence effect.
Required documents for the application package are outlined below. Applicants must complete and submit the application package. The application package must include historical data such as law enforcement activity, trespassing incident and casualty records, or criminal complaints. FRA suggests submission of supporting documentation such as letters of support.
Applicants must submit all application materials through
Applicants should read this section carefully and must submit all required information.
This section describes the minimum requirement for the Project Narrative. FRA also recommends the Project Narrative generally adhere to the following outline. The narrative may include spreadsheet documents, tables, maps, drawings, and other materials, as appropriate. The Project Narrative must not exceed 25 pages excluding cover pages and table of contents. Pages in excess of the maximum will not be reviewed.
The Project Narrative must:
i. Include a title page that lists the following elements in either a table or formatted list: project title; location (
ii. Designate a point of contact for the applicant and provide his or her name and contact information, including phone number, mailing address, and email address. The point of contact must be an employee of the applicant;
iii. Explain how the applicant meets the applicant eligibility criteria outlined in Section C of this notice;
iv. Provide a brief 4-6 sentence summary of the proposed project, capturing the challenges the proposed project aims to address, intended outcomes, and anticipated benefits that will result from the proposed project;
v. Include a detailed project description that expands upon the brief summary required above. This detailed description should provide, at a minimum, additional background on the challenges the project aims to address, the expected beneficiaries of the project, the specific components and elements of the project, and any other information the applicant deems necessary to justify the proposed project. The detailed description should clearly explain how the proposed project meets the project eligibility criteria in Section C of this notice;
vi. Include geospatial data for the project showing trespass “hotspots.” If applicable, the project description must also cite specific DOT National Highway-Rail Crossing Inventory information for trespass “hot” spots at grade crossings, including the name of the railroad that owns the infrastructure (or the crossing owner, if different from the railroad), the name of the primary operating railroad, the DOT National Highway-Rail Crossing Inventory Number, and the name of the roadway at the crossing. Applicants can search for data to meet this requirement at the following link:
vii. Include a thorough discussion of how the proposed project meets all the evaluation criteria. Applicants should note that FRA reviews applications based upon the evaluation criteria in Section E.1.b; therefore, an application should sufficiently address the evaluation criteria.
Applicants must include the following documents in the application package:
i. SF 424—Application for Federal Assistance;
ii. SF 424A—Budget Information for Non-Construction;
iii. SF 424B—Assurances for Non-Construction;
iv. FRA's Additional Assurances and Certifications; and
v. SF LLL—Disclosure of Lobbying Activities.
Forms needed for the electronic application process are at
See Section F(2) for post-selection requirements.
To apply for funding through
FRA may not make a grant award to an applicant until the applicant has complied with all applicable Data Universal Numbering System (DUNS) and SAM requirements. (Please note that if a Dun & Bradstreet DUNS number must be obtained or renewed, this may take a significant amount of time to complete.) Late applications that are the result of a failure to register or comply with
A DUNS number is required for
All applicants for Federal financial assistance must maintain current registrations in the SAM database. An applicant must be registered in SAM to successfully register in
Applicants must complete an Authorized Organization Representative (AOR) profile on
The E-Biz POC at the applicant's organization must respond to the registration email from
If an applicant experiences difficulties at any point during this process, please call the
Please use generally accepted formats such as .pdf, .doc, .docx, .xls, .xlsx and .ppt, when uploading attachments. While applicants may embed picture files, such as .jpg, .gif, and .bmp, in document files, applicants should not submit attachments in these formats. Additionally, the following formats will not be accepted: .com, .bat, .exe, .vbs, .cfg, .dat, .db, .dbf, .dll, .ini, .log, .ora, .sys, and .zip.
Complete applications must be received through
To ensure a fair competition of limited discretionary funds, the following conditions are not valid reasons to permit late submissions: (1) Failure to complete the
Executive Order 12372 requires applicants from State and local units of government or other organizations providing services within a State to submit a copy of the application to the State Single Point of Contact (SPOC), if one exists, and if this program has been selected for review by the State. Applicants must contact their State SPOC to determine if the program has been selected for State review.
Court costs are not an eligible expense under this grant. FRA will only approve pre-award costs consistent with 2 CFR 200.458. Under 2 CFR 200.458, grant recipients must seek written approval from FRA for pre-award activities to be eligible for reimbursement under the cooperative agreement.
FRA will first screen each application for eligibility (eligibility requirements are outlined in Section C of this notice) and completeness (application documentation and submission requirements are outlined in Section D of this notice).
FRA-led technical panels of subject-matter experts will evaluate all eligible and complete applications using the evaluation criteria outlined in this section. FRA will analyze each application using the criteria and factors below.
i. Technical Merit. FRA will evaluate application information for the degree to which:
a. The application is thorough and responsive to all the requirements outlined in this notice.
b. The tasks outlined in the project narrative are appropriate to achieve the expected safety benefits of the proposed project.
c. The proposed costs or level of effort are realistic and sufficient to accomplish the tasks.
ii. Project Benefits
FRA intends to award funds to projects that achieve the maximum benefits possible. FRA will evaluate the extent to which:
a. The application contains data and/or supporting information to describe the safety risk posed by rail trespassing in the applicant's jurisdiction. This information could include counts of trespass incidents and casualties, close calls and media coverage of high-visibility encounters.
b. The applicant describes the expected safety benefit of the project, namely how initiatives funded by this program will reduce trespassing on the rail ROW.
c. The applicant demonstrates a cooperative relationship with stakeholders (
In addition to the evaluation criteria, the projects selected for funding will advance FRA's current mission and key priorities.
FRA will review the applications as follows:
a. Screen applications for completeness and eligibility;
b. Evaluate complete and eligible applications (conducted by technical panels applying the evaluation criteria); and
c. Select projects for funding (completed by the FRA Administrator applying selection criteria).
Applications selected for funding will be announced after the application review period through a press release on FRA's website. Following the announcement, unsuccessful applicants will be notified in writing of the outcomes of the application selection process with a brief explanation of the decision. FRA will contact applicants with successful applications after announcement with information and instructions about the award process. Notification of a selected application is not an authorization to begin proposed project activities. A formal Notice of Grant Agreement signed by both the grantee and the FRA containing an approved scope, schedule, and budget, is required before the award is considered complete.
The period of performance for grants awarded under this notice will be six months. FRA will only consider written requests to extend the period of performance with specific and compelling justifications for why an extension is required. Any obligated funding not spent by the grantee and reimbursed by the FRA upon completion of the grant will be de-obligated.
Due to funding limitations, projects that are selected for funding may receive less than the amount originally requested. In those cases, applicants must be able to demonstrate that the proposed projects are still viable and can be completed with the amount awarded.
Grantees and entities receiving funding from the grantee (sub-recipients) must comply with all applicable laws and regulations. A non-exclusive list of administrative and national policy requirements that grantees must follow includes: 2 CFR part 200; procurement standards; compliance with Federal civil rights laws and regulations; disadvantaged business enterprises; debarment and suspension; drug-free workplace; FRA's and OMB's Assurances and Certifications; Americans with Disabilities Act; and labor standards, safety requirements, environmental protection, National Environmental Policy Act, environmental justice, and Buy American (41 U.S.C. 8302) provisions. See:
Before making a Federal award with a total amount of Federal share greater than the simplified acquisition threshold (see 2 CFR 200.88 Simplified Acquisition Threshold), FRA will review and consider any information about the applicant that is in the designated integrity and performance system accessible through SAM (currently the Federal Awardee Performance and Integrity Information System (FAPIIS)) (see 41 U.S.C. 2313).
An applicant, at its option, may review information in the designated integrity and performance systems accessible through SAM and comment on any information about itself that a Federal awarding agency previously entered and is currently in the designated integrity and performance system accessible through SAM.
FRA will consider any comments by the applicant, in addition to the other information in the designated integrity and performance system, in making a judgment about the applicant's integrity, business ethics, and record of performance under Federal awards when completing the review of risk posed by applicants as described in 2 CFR 200.205.
Each applicant selected for a grant will be required to comply with all standard FRA reporting requirements, including quarterly progress reports, quarterly Federal financial reports, and interim and final performance reports, as well as all applicable auditing, monitoring and close out requirements. Reports may be submitted electronically.
Each applicant selected for funding must collect information and report on the project's performance as directed by the FRA to assess progress.
The applicant must comply with all relevant requirements of 2 CFR part 200.
For further information regarding this notice and the grants program, please contact Michail Grizkewitsch, Office of Railroad Safety, Federal Railroad Administration, 1200 New Jersey Avenue SE, Room W33-446, Washington, DC 20590; email:
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Receipt of petition.
Hino Motors Sales USA, Inc., a wholly owned subsidiary of Hino Motors, Ltd. (collectively referred to as “Hino”), has determined that certain model year (MY) 2014-2018 Hino heavy duty trucks do not fully comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 101,
The closing date for comments on the petition is March 26, 2018.
Interested persons are invited to submit written data, views, and arguments on this petition. Comments must refer to the docket and notice number cited in the title of this notice and submitted by any of the following methods:
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• Comments may also be faxed to (202) 493-2251.
Comments must be written in the English language, and be no greater than 15 pages in length, although there is no limit to the length of necessary attachments to the comments. If comments are submitted in hard copy form, please ensure that two copies are provided. If you wish to receive confirmation that comments you have submitted by mail were received, please enclose a stamped, self-addressed postcard with the comments. Note that all comments received will be posted without change to
All comments and supporting materials received before the close of business on the closing date indicated above will be filed in the docket and will be considered. All comments and supporting materials received after the closing date will also be filed and will be considered to the fullest extent possible.
When the petition is granted or denied, notice of the decision will also be published in the
All comments, background documentation, and supporting materials submitted to the docket may be viewed by anyone at the address and times given above. The documents may also be viewed on the internet at
DOT's complete Privacy Act Statement is available for review in a
This notice of receipt of their petition is published under 49 U.S.C. 30118 and 30120 and does not represent any agency decision or other exercise of judgment concerning the merits of the petition.
• Each passenger car, multipurpose passenger vehicle, truck and bus that is fitted with a control, a telltale, or an indicator must meet the requirements listed in Table 1 or Table 2 of FMVSS No. 101 for the location, identification, color, and illumination of that control, telltale or indicator.
• Each control, telltale and indicator that is listed in column 1 of Table 1 or Table 2 of FMVSS No. 101 must be identified by the symbol specified for it in column 2 or the word or abbreviation specified for it in column 3 of Table 1 or Table 2.
In support of its petition, Hino submitted the following reasoning:
1. Hino notes that the purpose of the low brake air pressure telltale is to alert the driver to a low air condition, consistent with the requirements of FMVSS No. 121, S5.1.5 (warning signal). The ISO symbol for brake system malfunction together with an audible alert that occurs in the subject vehicles would alert the driver to an air issue with the brake system. Once alerted, the driver can check the actual air pressure by reading the front and rear air gauges and seeing the red contrasting color on the gauges indicating low pressure.
2. When the air pressure drops below 79 psi, the ISO symbol illuminates and the audible alert sounds, both of which are described in the Driver's/Owner's Manual of the subject vehicles. Therefore, even if the telltale is not “BRAKE AIR,” it is possible for the driver to be alerted that the air pressure is low.
3. There are two scenarios when a low brake air pressure condition could exist: A parked vehicle and a moving vehicle. In both conditions, the driver would be alerted to a low-air condition by the following means:
• Red contrasting color of the ISO symbol
• Audible alert to the driver as long as the vehicle has low air (and park brake is released)
• Air pressure gauges for the front and rear air reservoirs clearly indicating the level of air pressure in the system
• Red contrasting color on the air gauges indicating low air pressure
The functionality of both the parking brake system and the service brake system remains unaffected by using the ISO symbol for brake malfunction instead of “Brake Air” for the telltale in the subject vehicles.
4. NHTSA Precedents—Hino notes that NHTSA has previously granted petitions for decisions of inconsequential noncompliance for similar brake telltale issues:
(a) Docket No. NHTSA-2017-0011, 82 FR 33551 (July 20, 2017), grant of petition for Daimler Trucks North America, LLC.
(b) Docket No. NHTSA-2014-0046, 79 FR 78559 (December 30, 2014), grant of petition for Chrysler Group, LLC
(c) Docket No. NHTSA-2012-0004, 78 FR 69931 (November 21, 2013), grant of petition for Ford Motor Company.
In these instances, the vehicles displayed an ISO symbol for the brake telltale instead of the wording required under FMVSS No. 101. The ISO symbol in combination with other available warnings was deemed sufficient to provide the necessary driver warnings.
Hino concluded by expressing the belief that the subject noncompliance is inconsequential as it relates to motor vehicle safety, and that its petition to be exempted from providing notification of the noncompliance, as required by 49 U.S.C. 30118, and a remedy for the noncompliance, as required by 49 U.S.C. 30120, should be granted.
To view Hino's petition analyses in their entirety you can visit
NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 30120(h)) that permit manufacturers to file petitions for a determination of inconsequentiality allow NHTSA to exempt manufacturers only from the duties found in sections 30118 and 30120, respectively, to notify owners, purchasers, and dealers of a defect or noncompliance and to remedy the defect or noncompliance. Therefore, any decision on this petition only applies to the subject vehicles that Hino no longer controlled at the time it determined that the noncompliance existed. However, any decision on this petition does not relieve vehicle distributors and dealers of the prohibitions on the sale, offer for sale, or introduction or delivery for introduction into interstate commerce of the noncompliant vehicles under their control after Hino notified them that the subject noncompliance existed.
49 U.S.C. 30118, 30120: delegations of authority at 49 CFR 1.95 and 501.8.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Grant of petition.
General Motors, LLC, (GM) has determined that certain model year (MY) 2015 GMC multipurpose passenger vehicles (MPV) do not fully comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 108,
Mike Cole, Office of Vehicle Safety Compliance, NHTSA, telephone (202) 366-5319, facsimile (202) 366-3081.
Notice of receipt of the petition was published with a 30-day public comment period, on June 11, 2015, in the
• Parking lamps must be activated when the headlamps are activated in a steady burning state.
(A) GM explains that the condition is difficult to create even in laboratory settings, let alone real-world driving conditions. GM also stated that they were only able to duplicate the condition under the following circumstances:
• The vehicle is being operated during the daytime with the master lighting switch in “AUTO” mode.
• The transmission is not in “Park.”
• Three or more high-inrush current spikes that exceed the body control module (BCM) inrush current threshold occur on the parking lamp/daytime running lamp (DRL) circuit within a period of 0.625 seconds. While there may be other methods for triggering these spikes (
(B) GM believes that drivers are unlikely to cause these spikes during real-world driving. The subject vehicles are equipped with automatic-headlamp operation, so there is very little need for drivers to ever manually operate their vehicle's master lighting control. But even if a driver were inclined to do so, rapidly cycling a vehicle's master lighting control from “AUTO” to parking lamp (or headlamp) back to “AUTO” and back to parking lamp (or headlamp) in less than a second is a highly unusual maneuver that few (if
(C) GM additionally explained that the condition is short-lived and that if the condition does occur any of the following routine operations will automatically correct the condition:
• The ignition is turned off and then on with the master lighting control in “AUTO” mode.
• Turning the ignition off with the master lighting control in any mode other than “AUTO,” and then turning the ignition back on after a minimum of ten minutes.
• Cycling the master lighting control to off and then back to any on position.
• If the vehicle is in DRL mode, activating both turn signals, or shifting the transmission in and out of “PARK.”
(D) GM notes that while the condition affects the parking lamps and DRLs it does not affect the operation of the vehicle's other lamps.
(E) GM also cited a previous petition that NHTSA granted dealing with a noncompliance that GM believes is similar to the noncompliance that is the subject of its petition.
GM is not aware of any field incidents or warranty claims relating to the subject noncompliance.
GM has additionally informed NHTSA that it corrected the noncompliance in subsequent production of the subject vehicles.
In summation, GM believes that the described noncompliance of the subject vehicles is inconsequential to motor vehicle safety, and that its petition, seeking to exempt GM from providing recall notification of noncompliance as required by 49 U.S.C. 30118 and remedying the recall noncompliance as required by 49 U.S.C. 30120 should be granted.
GM's complete petition and all supporting documents are available by logging onto the Federal Docket Management System (FDMS) website at:
NHTSA'S Decision:
NHTSA stresses that compliant parking lamps are important safety features of vehicles. There are a number of factors that led NHTSA to the conclusion that under the specific circumstances described in this petition, this situation would have a low probability of occurrence and, if it should occur, it would neither be long lasting nor likely to occur during a period when parking lamps are generally in use. Importantly, when the noncompliance does occur, other lamps remain functional. The combination of all of the factors, specific to this case, abate the risk to safety.
As defined by FMVSS No. 108, parking lamps are lamps on both the left and right of the vehicle which show to the front and are intended to mark the vehicle when parked or serve as a reserve front position indicating system in the event of headlamp failure. While this definition does not mention daytime or nighttime, NHTSA believes the primary benefit of parking lamps to motor vehicle safety occurs during dusk and darkness.
Based on GM's explanation, the condition during which the parking lamps do not activate simultaneously with the headlamps could only originate under a very narrow set of circumstances that cause the vehicle to falsely diagnose a short-to-ground of the parking lamp circuit. Furthermore, these narrow circumstances would only occur when the DRLs are activated which is during the daytime. For the condition to present itself during darkness, it would have had to originate during the day and continue operation past twilight, because that is when the headlamps and other required lamps (including parking lamps) are automatically activated. In addition, the condition would only exist until one of the actions that would reset the system and eliminate the condition occurred. GM explains the five conditions under which this occurs,
Therefore, NHTSA concludes that there is a very remote chance that this situation would occur during dusk or darkness when parking lamps are important to safety and, importantly, that if the situation were to occur, it would correct itself during normal vehicle operations.
GM referred to two prior inconsequential noncompliance petitions NHTSA granted involving noncompliant conditions caused by a rare, or very specific and rare sequence of events. The first was a petition from Nissan North America (see 78 FR 59090), regarding a unique sequence of actions that can lead to the shift position indicator displaying the incorrect shift position. While this issue was considered a rare occurrence, the primary reason for granting the petition was that the vehicle could not be started or operated when the shift position indicator was in its noncompliant state. NHTSA does not believe that this prior petition supports GM's argument in this case since the relevant issue is that the vehicles under GM's current petition can be operated with the noncompliant condition.
The second was a petition from GM (see 78 FR 35355), regarding the occupant classification system telltale. In this case, GM explained, that on rare occasions (estimated as once every 18 months) during a particular ignition cycle, the passenger airbag telltale indicates that the airbag is “OFF,” regardless of whether the airbag was or was not suppressed at the time. Despite the erroneous telltale, the airbag still functioned as designed and there was no danger to the vehicle occupants because of this noncompliance. Once again, NHTSA does not believe that this prior petition supports GM's argument in this case because the airbag was still fully functional and operating as designed.
NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 30120(h)) that permit manufacturers to file petitions for a determination of inconsequentiality allow NHTSA to exempt manufacturers only from the duties found in sections 30118 and 30120, respectively, to notify owners, purchasers, and dealers of a defect or noncompliance and to remedy the defect or noncompliance. Therefore, this decision only applies to the subject vehicles that GM no longer controlled at the time it determined that the noncompliance existed. However, the granting of this petition does not relieve vehicle distributors and dealers of the prohibitions on the sale, offer for sale, or introduction or delivery for introduction into interstate commerce of the noncompliant vehicles under their
(49 U.S.C. 30118, 30120: delegations of authority at 49 CFR 1.95 and 501.8).
U.S.-China Economic and Security Review Commission.
Notice of open public hearing.
Notice is hereby given of the following hearing of the U.S.-China Economic and Security Review Commission.
The Commission is mandated by Congress to investigate, assess, and report to Congress annually on “the national security implications of the economic relationship between the United States and the People's Republic of China.” Pursuant to this mandate, the Commission will hold a public hearing in Washington, DC on March 8, 2018 on “China, the United States, and Next Generation Connectivity.”
The hearing is scheduled for Thursday, March 8, 2018 from 9:00 a.m. to 2:50 p.m.
TBD, Washington, DC. A detailed agenda for the hearing will be posted on the Commission's website at
Any member of the public seeking further information concerning the hearing should contact Leslie Tisdale, 444 North Capitol Street NW, Suite 602, Washington DC 20001; telephone: 202-624-1496, or via email at
Congress created the U.S.-China Economic and Security Review Commission in 2000 in the National Defense Authorization Act (Pub. L. 106-398), as amended by Division P of the Consolidated Appropriations Resolution, 2003 (Pub. L. 108-7), as amended by Public Law 109-108 (November 22, 2005), as amended by Public Law 113-291 (December 19, 2014).
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995, this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before March 26, 2018.
Submit written comments on the collection of information through
Cynthia Harvey-Pryor, Enterprise Records Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (202) 461-5870 or email
Pub. L. 104-13; 44 U.S.C. 3501-3521.
The
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an
Written comments and recommendations on the proposed collection of information should be received on or before April 23, 2018.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Cynthia Harvey-Pryor at (202) 461-5870.
Under the PRA of 1995, Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506 of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA'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 respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Federal Communications Commission.
Final rule.
In this document, the Federal Communications Commission (Commission) returns to the light-touch regulatory scheme that enabled the internet to develop and thrive for nearly two decades. The Commission restores the classification of broadband internet access service as a lightly-regulated information service and reinstates the private mobile service classification of mobile broadband internet access service. The
Ramesh Nagarajan, Competition Policy Division, Wireline Competition Bureau, at (202) 418-2582,
This is a summary of the Commission's Declaratory Ruling, Report and Order, and Order (“
In this Declaratory Ruling, Report and Order, and Order, the Commission restores the light-touch regulatory scheme that fostered the internet's growth, openness, and freedom. Through these actions, we advance our critical work to promote broadband deployment in rural America and infrastructure investment throughout the nation, brighten the future of innovation both within networks and at their edge, and move closer to the goal of eliminating the digital divide.
1. We reinstate the information service classification of broadband internet access service, consistent with the Supreme Court's holding in
2. We continue to define “broadband internet access service” as a mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all internet endpoints, including any capabilities that are incidental to and enable the operation of the communications service, but excluding dial-up internet access service. By mass market, we mean services marketed and sold on a standardized basis to residential customers, small businesses, and other end-user customers such as schools and libraries. “Schools” would include institutions of higher education to the extent that they purchase these standardized retail services. For purposes of this definition, “mass market” also includes broadband internet access service purchased with the support of the E-rate and Rural Healthcare programs, as well as any broadband internet access service offered using networks supported by the Connect America Fund (CAF), but does not include enterprise service offerings or special access services, which are typically offered to larger organizations through customized or individually negotiated arrangements.
3. The term “broadband internet access service” includes services provided over any technology platform, including but not limited to wire, terrestrial wireless (including fixed and mobile wireless services using licensed or unlicensed spectrum), and satellite. For purposes of our discussion, we divide the various forms of broadband internet access service into the two categories of “fixed” and “mobile.” With these two categories of services—fixed and mobile—we intend to cover the entire universe of internet access services at issue in the Commission's
4. As the Commission found in 2010, broadband internet access service does not include services offering connectivity to one or a small number of internet endpoints for a particular device,
5. Broadband internet access service also does not include virtual private network (VPN) services, content delivery networks (CDNs), hosting or data storage services, or internet backbone services (if those services are separate from broadband internet access service), consistent with past Commission precedent. The Commission has historically distinguished these services from “mass market” services, as they do not provide the capability to transmit data to and receive data from all or substantially all internet endpoints. We do not disturb that finding here. Consistent with past Commissions, we note that the transparency rule we adopt today applies only so far as the limits of an ISP's control over the transmission of data to or from its broadband customers.
6. Finally, we observe that to the extent that coffee shops, bookstores, airlines, private end-user networks such as libraries and universities, and other businesses acquire broadband internet access service from an ISP to enable patrons to access the internet from their respective establishments, provision of such service by the premise operator would not itself be considered a broadband internet access service unless it was offered to patrons as a retail mass market service, as we define it here. Although not bound by the transparency rule we adopt today, we encourage premise operators to disclose relevant restrictions on broadband service they make available to their patrons. Likewise, when a user employs, for example, a wireless router or a Wi-Fi hotspot to create a personal Wi-Fi network that is not intentionally offered for the benefit of others, he or she is not offering a broadband internet access service under our definition, because the user is not marketing and selling such service to residential customers, small business, and other end-user customers such as schools and libraries.
7. In deciding how to classify broadband internet access service, we find that the best reading of the relevant definitional provisions of the Act supports classifying broadband internet access service as an information service. Section 3 of the Act defines an “information service” as “the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service.” Section 3 defines a “telecommunications service,” by contrast, as “the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.” Finally, Section 3 defines “telecommunications”—used in each of the prior two definitions—as “the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received.” Prior to the
8. When interpreting a statute it administers, the Commission, like all agencies, “must operate `within the bounds of reasonable interpretation.' And reasonable statutory interpretation must account for both `the specific context in which . . . language is used' and `the broader context of the statute as a whole.' ” Below, we first explore the meaning of the “capability” contemplated in the statutory definition of “information service,” and find that broadband internet access service provides consumers the “capability” to engage in all of the information processes listed in the information service definition. We also find that broadband internet access service likewise provides information processing functionalities itself, such as DNS and caching, which satisfy the capabilities set forth in the information service definition. We then address what “capabilities” we believe are being “offered” by ISPs, and whether these are reasonably viewed as separate from or inextricably intertwined with transmission, and find that broadband internet access service offerings inextricably intertwine these information processing capabilities with transmission.
9. We find that applying our understanding of the statutory definitions to broadband internet access service as it is offered today most soundly leads to the conclusion that it
10. A body of precedent from the courts and the Commission served as the backdrop for the 1996 Act and informed the Commission's original interpretation and implementation of the statutory definitions of “telecommunications,” “telecommunications service,” and “information service.” The classification decisions in the
11. We begin by evaluating the “information service” definition and conclude that it encompasses broadband internet access service. Broadband internet access service includes “capabilit[ies]” meeting the information service definition under a range of reasonable interpretations of that term. In other contexts, the Commission has looked to dictionary definitions and found the term “capability” to be “broad and expansive,” including the concepts of “potential ability” and “the capacity to be used, treated, or developed for a particular purpose.” Because broadband internet access service necessarily has the capacity or potential ability to be used to engage in the activities within the information service definition—“generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications”—we conclude that it is best understood to have those “capabilit[ies].” The record reflects that fundamental purposes of broadband internet access service are for its use in “
12. We also find that broadband internet access is an information service irrespective of whether it provides the
13. From the earliest decisions classifying internet access service, the Commission recognized that even when ISPs enable subscribers to access third party content and services, that can constitute “a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications.” As the Commission explained in the
14. But even if “capability” were understood as requiring more of the information processing to be performed by the classified service itself, we find that broadband internet access service meets that standard. Not only do ISPs offer end users the capability to interact with information online in each and every one of the ways set forth above, they also do so through a variety of functionally integrated information processing components that are part and parcel of the broadband internet access service offering itself. In particular, we conclude that DNS and caching functionalities, as well as certain other information processing capabilities offered by ISPs, are integrated information processing capabilities offered as part of broadband internet access service to consumers today. In addition to DNS and caching, the record reflects that ISPs may also offer a variety of additional features that consist of information processing functionality inextricably intertwined with the underlying service. These additional features include, and are not limited to: email, speed test servers, backup and support services, geolocation-based advertising, data storage, parental controls, unique programming content, spam protection, pop-up blockers, instant messaging services, on-the-go access to Wi-Fi hotspots, and various widgets, toolbars, and applications. While we do not find the offering of these information processing capabilities determinative of the classification of broadband internet access service, their inclusion in the broadband internet access service, and the capabilities and functionalities necessary to make these features possible, further support the “information service” classification.
15.
16. The treatment of similar functions in MFJ precedent bolsters our conclusion. Despite the fact that the telecommunications management exception (and information service definition more broadly) was drawn most directly from the MFJ, the
17. We thus find that the
18. The
19. The
20. The
21. The regulatory history of traditional telephone service also informs our understanding of
22.
23. We find that ISP-provided caching does not merely “manage” an ISP's broadband internet access service and underlying network, it enables and enhances consumers' access to and use of information online. The record shows that caching can be realized as part of a service, such as DNS, which is predominantly to the benefit of the user (DNS caching). We disagree with assertions in the record that suggest that ISP-provided caching is not a vital part of broadband internet access service offerings, as it may be stymied by the use of HTTPS encryption. Caching can also be realized in terms of content that can be accumulated by the ISP through non-confidential (
24. In addition, the
25. Ignoring that MFJ precedent, the
26. Having established that broadband internet access service has the information processing capabilities outlined in the definition of “information service,” the relevant inquiry is whether ISPs' broadband internet access service offerings make available information processing technology inextricably intertwined with transmission. Below we examine both how consumers perceive the offer of broadband internet access service, as well as the nature of the service actually offered by ISPs, and conclude that ISPs are best understood as offering a service that inextricably intertwines the information processing capabilities described above and transmission.
27. We begin by considering the ordinary customer's perception of the ISP's offer of broadband internet access service. As
28. This view also accords with the Commission's historical understanding that “[e]nd users subscribing to . . . broadband internet access service expect to receive (and pay for) a finished, functionally integrated service that provides access to the internet. End users do not expect to receive (or pay for) two distinct services—both internet access service and a distinct transmission service, for example.” While the
29. The
30. Separate and distinct from our finding that an ISP “offers” an information service from the consumer's perspective, we find that as a factual matter, ISPs offer a single, inextricably intertwined information service. The record reflects that information processes must be combined with transmission in order for broadband internet access service to work, and it is the combined information processing capabilities and transmission functions that an ISP offers with broadband internet access service. Thus, even assuming that any individual consumer could perceive an ISP's offer of broadband internet access service as akin to a bare transmission service, the information processing capabilities that are actually offered as an integral part of the service make broadband internet access service an information service as defined by the Act. As such, we reject commenters' assertions that the primary function of ISPs is to simply transfer packets and not process information.
31. The inquiry called for by the relevant classification precedent focuses on the nature of the service offering the provider makes, rather than being limited to the functions within that offering that particular subscribers do, in fact, use or that third parties also provide. As the Commission recognized in the
32. Our findings today are consistent with classification precedent prior to the
33. We disagree with commenters who assert that ISPs necessarily offer both an information service and a telecommunications service because broadband internet access service includes a transmission component. In providing broadband internet access service, an ISP
34. The approach we adopt today best implements the Commission's long-standing view that Congress intended the definitions of “telecommunications service” and “information service” to be mutually exclusive ways to classify a given service. As the
35. The
36. In contrast, our approach leaves ample room for a meaningful range of “telecommunications services.” Historically, the Commission has distinguished service offerings that “always and necessarily combine” functions such as “computer processing, information provision, and computer interactivity with data transport, enabling end users to run a variety of applications such as email, and access web pages and newsgroups,” on the one hand, from services “that carriers and end users typically use [ ] for basic transmission purposes” on the other hand. Our interpretation thus stops far short of the view that “
37. We reject assertions that the analysis we adopt today would necessarily mean that standard telephone service is likewise an information service. The record reflects that broadband internet access service is categorically different from standard telephone service in that it is “
38. Additionally, efforts to treat the
39. We also find that other provisions of the Act support our conclusion that broadband internet access service is best classified as an information service. We do not assert that the language in Sections 230 and 231 is determinative of the information service classification; rather, we find it to be supportive of our analysis of the textual provisions at issue. As such, we find Public Knowledge's assertions that the Commission's reasoning “would overrule the Supreme Court's holding in
40. Additional provisions within Sections 230 and 231 of the Act lend further support to our interpretation. Section 230(f)(2) defines an interactive computer service to mean “
41. Section 230 states that an “information service” includes “a service or system that provides access to the internet,” and we disagree with commenters who read the definition of “interactive computer service” differently. Specifically, we disagree with commenters asserting that it is unclear whether the clause “including specifically a service . . . that provides access to the internet” modifies “information service” or some other noun phrase, such as “access software provider” or “system.” We think it a more reasonable interpretation that the phrase “service . . . that provides access to the internet” modifies the noun phrase “information service.” Similarly, we disagree that Section 230(f)(2) proves only “that there exist information services that provide access to the internet, not that all services that provide access to the internet are information services.” On the contrary, we agree with AT&T that “the formula `any X, including specifically a Y,' does logically imply that all Ys are Xs.”
42. Reliance on Section 230(f)(2) to inform the Commission's interpretations and applications of Titles I and II accords with widely accepted canons of statutory interpretation. The Supreme Court has recognized there is a “natural presumption that identical words used in different parts of the same act are intended to have the same meaning.” And there is nothing in the context of either section that overcomes the presumption. Indeed, the similarity of circumstances confirms the presumption of similar meaning, as the deregulatory approach to information services embodied in Titles I and II, as well as the deregulatory policy of Section 230, were all adopted as part of the 1996 Act. Thus, we disagree with the
43. Section 231, inserted into the Communications Act a year after the 1996 Act's passage, similarly lends support to our conclusion that broadband internet access service is an information service. It expressly states that “internet access service” “does not include telecommunications services,” but rather “means a service that enables users to access content, information, electronic mail, or other services offered over the internet, and may also include access to proprietary content, information, and other services as part of a package of services offered to consumers.” Further, the carve-outs in Section 231(b)(1)-(2) differentiate the provision of telecommunications services and the provision of internet access service. It is hard to imagine clearer statutory language. The Commission has consistently held that categories of telecommunications service and information service are mutually exclusive; thus, because it is an information service, internet access cannot be a telecommunications service. Our interpretation of “telecommunications service” and “information service” as mutually exclusive ways to classify a given service thus demonstrates the relevance of Section 231 notwithstanding that it does not expressly define broadband internet access service as an information service. On its face then, this language strongly supports our conclusion that, under the best reading of the statute, broadband internet access service is an information service, not a telecommunications service. Nothing in the text of Section 231 reveals that the use of “internet access service” there is limited to dial-up internet access. To the contrary, it would seem anomalous for Congress only to exempt entities providing dial-up internet access and not other forms of internet access from the prohibitions of Section 231(a). We thus are unpersuaded by arguments advocating a narrower interpretation of “internet access service” in Section 231.
44. We also find that the purposes of the 1996 Act are better served by classifying broadband internet access service as an information service. Congress passed the Telecommunications Act to “promote competition and reduce regulation.” Further, as a bipartisan group of Senators stated, “[n]othing in the 1996 Act or its legislative history suggests that Congress intended to alter the current classification of internet and other information services or to expand traditional telephone regulation to new and advanced services.” Or as Senator John McCain put it, “[i]t certainly was not Congress's intent in enacting the supposedly pro-competitive, deregulatory 1996 Act to extend the burdens of current Title II regulation to internet services, which historically have been excluded from regulation.” It stands these goals on their head for the Commission, as deployment of advanced services reaches the mainstream of Americans' lives, to perpetuate the very Title II regulatory edifice that the 1996 Act sought to dismantle. An information service classification will “reduce regulation” and preserve a free market “unfettered by Federal or State regulation.”
45. Finally, we observe that the structure of Title II appears to be a poor fit for broadband internet access service. Indeed, numerous Title II provisions explicitly assume that all telecommunications services are a telephone service. For example, Section 221 addresses special provisions related to telephone companies, Section 251 addresses the obligations of local exchange carriers and incumbent local exchange carriers, and Section 271 addresses limitations on Bell Operating Companies' provision of interLATA services. For example, to obtain authority to offer in-region interLATA services, the BOCs have to offer a number of functions of particular relevance to the provision of telephone service. Therefore, it is no surprise that the
46. Having determined that broadband internet access service, regardless of whether offered using fixed or mobile technologies, is an information service under the Act, we now address the appropriate classification of mobile broadband internet access service under Section 332 of the Act. We restore the prior longstanding definitions and interpretation of this section and conclude that mobile broadband internet access service should not be classified as a commercial mobile service or its functional equivalent.
47.
48. Section 332 distinguishes commercial mobile service from “private mobile service,” defined as “any mobile service . . . that is not a commercial mobile service or the functional equivalent of a commercial mobile service, as specified by regulation by the Commission.” In 1994, the Commission established its functional equivalence test, which starts with a presumption that “a mobile service that does not meet the definition of CMRS is a private mobile radio service.” Overcoming this presumption requires an analysis of a variety of factors to determine whether the mobile service in question is the functional equivalent of commercial mobile service, including “consumer demand for the service to determine whether the service is closely substitutable for a commercial mobile radio service; whether changes in price for the service under examination, or for the comparable commercial mobile radio service would prompt customers to change from one service to the other; and market research information identifying the targeted market for the service under review.” Emphasizing the high bar it had set, the Commission expected that “very few mobile services that do not meet the definition of CMRS will be a close substitute for a commercial mobile radio service.” We note that, in another Order adopted today, we are recodifying these factors under Section 20.3 of the Commission's rules, but not modifying their substance.
49. The Act treats providers of commercial mobile service as common carriers, and the legislative history of the 1996 Act suggests that Congress intended the definition of “telecommunications service” to include commercial mobile service. In contrast, the Act prohibits the Commission from treating providers of private mobile service as common carriers.
50. In 2007, the Commission found that wireless broadband internet access service was not a commercial mobile service because it did not meet the definition of an “interconnected service” under the Act and the Commission's rules. It found that wireless broadband internet access was not “interconnected” with the “public switched network” because it did not use the North American Numbering Plan, which limited “subscribers' ability to communicate to or receive communication from all users in the public switched network.” The Commission concluded that Section 332 and the Commission's rules “did not contemplate wireless broadband internet access service as provided today” and that a commercial mobile service “must still be interconnected with the local exchange or interexchange switched network as it evolves.”
51. In the
52. Second, the
53. Third, the
54. In the
55.
56. We find that the Commission's original interpretation of “public switched network” was more consistent with the ordinary meaning and commonly understood definition of the term and with Commission precedent. On multiple prior occasions before Section 332(d)(2) was enacted, the Commission used the term “public switched network” to refer to the traditional public switched telephone network. In 1981, for example, the Commission noted that “the public switched network interconnects all telephones in the country.” In 1992, the Commission described its cellular service policy as “encourag[ing] the creation of a nationwide, seamless system, interconnected with the public switched network so that cellular and landline telephone customers can
57. We also find that the Commission's prior interpretation is more consistent with the text of Section 332(d)(2), in which Congress provided that commercial mobile service must provide a service that is interconnected with “
58. We also restore the definition of “interconnected service” that existed prior to the
59. Some commenters who argue that the
60. We find that mobile broadband internet access service does not meet the regulatory definition of “interconnected service” that the Commission originally adopted in 1994 and which we readopt today, and therefore it does not meet the definition of commercial mobile service. As the Commission found in the
61. We disagree with the conclusion in the
62. Consistent with the Commission's analysis in the
63. Moreover, in light of the determination above that mobile broadband internet access service should be restored to its classification as an information service, and consistent with our findings today that reinstating this classification will serve the public interest, we also find that it will serve the public interest for the Commission to exercise its statutory authority to return to its original conclusion that mobile broadband internet access is not a commercial mobile service. We note that commenters who support the
64. In addition to finding that mobile broadband internet access is not a commercial mobile service, we also adopt our proposal to reconsider the Commission's analysis regarding functional equivalence in the
65. We believe the test of functional equivalence adopted in the
66. Applying the test adopted by the Commission in the
67. While our legal analysis concluding that broadband internet access service is best classified as an information service under the Act is sufficient grounds alone on which to base our classification decision, the public policy arguments advanced in the record and economic analysis reinforce that conclusion. We find that reinstating the information service classification for broadband internet access service is more likely to encourage broadband investment and innovation, furthering our goal of making broadband available to all Americans and benefitting the entire internet ecosystem. For almost 20 years, there was a bipartisan consensus that broadband should remain under Title I, and ISPs cumulatively invested $1.5 trillion in broadband networks between 1996 and 2015. Commenters who claim recent growth in online video streaming services is evidence of the need for Title II regulation ignore the fact that the growth of online video streaming services was largely made possible by the network investments made under Title I and as such demonstrates instead the success of the longstanding light-touch framework under Title I. During that period of intense investment, broadband deployment and adoption increased dramatically, as the combined number of fixed and mobile internet connections increased from 50.2 million to 355.2 million from 2005 to 2015, and even as early as 2011, a substantial majority of Americans had access to broadband at home. As of 2016, roughly 91 percent of homes had access to networks offering 25 Mbps, and there were 395.9 million wireless connections, twenty percent more than the U.S. population. Mobile data speeds have also dramatically increased, with speeds increasing 40-fold from the 3G speeds of 2007. Cable broadband speeds increased 3,200 percent between 2005 and 2015, while prices per Mbps fell by more than 87 percent between 1996 and 2012.
68. Based on the record in this proceeding, we conclude that economic theory, empirical studies, and observational evidence support reclassification of broadband internet access service as an information service rather than the application of public-utility style regulation on ISPs. We find the Title II classification likely has resulted, and will result, in considerable social cost, in terms of foregone investment and innovation. At the same time, classification of broadband internet access service under Title II has had no discernable incremental benefit relative to Title I classification. The regulations promulgated under the Title II regime appear to have been a solution in search of a problem. Close examination of the examples of harm cited by proponents of Title II to justify heavy-handed regulation reveal that they are sparse and often exaggerated. Moreover, economic incentives, including competitive pressures, support internet openness. We find that the gatekeeper theory, the bedrock of the
69. The Commission has long recognized that regulatory burdens and uncertainty, such as those inherent in Title II, can deter investment by regulated entities and, until the
70.
71. We first look to broadband investment in the aggregate and find that it has decreased since the adoption of the
72. Comparisons of ISP investment before and after the
73. A comparative assessment that adjusted the Free Press and Singer numbers so that they covered the same ISPs, spanned the same time period, and subtracted investments unaffected by the regulatory change, found that both sets of numbers demonstrate that ISP investment fell by about 3 percent in 2015 and by 2 percent in 2016. A Free State Foundation calculation using broadband capital expenditure data for 16 of the largest ISPs reached a result similar to Singer's, but this analysis simply compared actual ISP investment to a trend extrapolated from pre-2015 data. These types of comparisons can only be regarded as suggestive, since they fail to control for other factors that may affect investment (such as technological change, the overall state of the economy, and the fact that large capital investments often occur in discrete chunks rather than being spaced evenly over time), and companies may take several years to adjust their investment plans. Nonetheless, these comparisons are consistent with other evidence in the record that indicates that Title II adversely affected broadband investment. A separate comparison of the United States' ISP investment with ISP investment in Europe also suggests that ISP investment might decline further if the U.S., under the
74. The record also contains analyses attempting to assess the predicted causal effects of Title II regulation on ISP investment and/or output. Some of these studies are “natural experiments” that seek to compare outcomes occurring after policy changes to a relevant counterfactual that shows what outcomes would have occurred in the absence of the policy change. No single study is dispositive, but methodologies designed to estimate impacts relative to a counterfactual tend to provide more convincing evidence of causal impacts of Title II classification. Having reviewed the record of these studies, the balance of the evidence indicates that Title II discourages investment by ISPs—a finding consistent with economic theory. The record does not provide sufficient evidence to quantify the size of the effect of Title II on investment. An additional type of evidence is the effect of the
75. Prior FCC regulatory decisions provide a natural experiment allowing this question to be studied. Scholars employing the natural experiment approach found that prior to 2003, subscribership to cable modem service (not regulated under Title II) grew at a far faster rate than subscribership to DSL internet access service (the underlying `last mile' facilities and transmission which were regulated under Title II). After 2003, when the Commission removed line-sharing rules on DSL, DSL internet access service subscribership experienced a statistically significant upward shift relative to cable modem service. A second statistically significant upward shift in DSL internet access service subscribership relative to cable modem service occurred after the Commission classified DSL internet access service as an information service in 2005. This evidence suggests that Title II discourages not just ISP investment, but also deployment and subscribership, which ultimately create benefits for consumers. While some commenters contend that deployment and subscribership continued to increase after the
76. An assessment of how ISP investment reacted to news of impending Title II regulation suggests that the threat of Title II regulation discouraged ISP investment. Such statistical analysis allows one to compare the actual level of investment with a counterfactual estimate of what investment would have been in the absence of the change in risk. This study found that Chairman Genachowski's 2010 announcement of a framework for reclassifying broadband under Title II—a credible increase in the risk of reclassification that surprised financial markets—was associated with a $30 billion-$40 billion annual decline in investment in the U.S. Bureau of Economic Analysis' “broadcasting and telecommunications” category between 2011 and 2015. The study attributes the decline to the threat of Title II regulation, rather than net neutrality
77. Some commenters have argued that this study does not identify the effect of Title II on ISP investment, because the “last mile” facilities and transmission underlying DSL internet access service (essentially incumbent LEC broadband supply) were under Title II before 2005, during the study's pre-treatment period. However, to the extent that a fraction of the industry was subject to Title II (and at the time the bulk of broadband subscribers used cable modem services that were not regulated under Title II), this would imply Ford's negative result for investment was understated.
78. The study is also disputed by the Internet Association, which submitted an economic study arguing that the threat and eventual imposition of Title II status on broadband internet service providers in 2010 and 2015 did not have a measurable impact on telecommunications investment in the U.S. While we appreciate the alternative method and data sources introduced by that study, several elements lead us to discount its findings. The estimation of the impact of events in both 2010 and 2015 relies partially on forecast rather than actual data, which likely lessens the possibility of finding an effect of Title II on investment. In addition, when examining cable and telecommunications infrastructure investment in the U.S., the study relies on a regression discontinuity over time model, thereby eliminating the use of a separate control group to identify the effect of policy changes. We believe use of such a model in these circumstances is unlikely to yield reliable results. The Internet Association study claims that its test of the 2010 effect did not use forecast data. However, comparing the reported number of observations in Tables B1 and B2 of the study clearly indicates that the same datasets were used to estimate 2010 and 2015 effects. Furthermore, we note that the Phoenix Center attempted to replicate the results of Table B1 and obtained strikingly different results when excluding the forecast data. Unfortunately, the Phoenix Center chose to only estimate Hooton's baseline model, which did not control for obviously confounding factors such as the business cycle, and therefore we place limited weight on the Phoenix Center's revisions.
79. In light of the foregoing record evidence, we conclude that reclassification of broadband internet access service from Title II to Title I is likely to increase ISP investment and output. The studies in the record that control the most carefully for other factors that may affect investment (the Ford study and the Hazlett & Wright study) support this conclusion. Ford controls for macroeconomic factors that influence the overall economy using a two-way fixed-effects model. Hazlett & Wright's analysis of the effects of Title II on DSL subscribership cites regression analysis that controls for factors influencing the overall economy by including Canadian DSL subscribership as an explanatory variable. Consequently, we disagree with commenters who assert that Title II has increased or had no effect on ISP investment, given the failure of other studies to account for complexity of corporate decision-making and the macroeconomic effects that can play a role in investment cycles. We also disagree with commenters who assert that it may be too soon to meaningfully assess the economic effects that Title II has had on broadband infrastructure investment.
80.
81. Utility-style regulation is particularly inapt for a dynamic industry built on technological development and disruption. It is well known that extensive regulation distorts production as well as consumption choices. Regulated entities are inherently restricted in the activities in which they may engage, and the products that they may offer. Asking permission to engage in new activities or offer new products or services quickly becomes a major preoccupation of the utility. This is apparent upon a casual observation of heavily-regulated utilities, such as the U.S. power, water, and mass transit systems. These are industries where competition has been effectively deemed impossible, run by quasi-public monopolies that lack incentives to invest, innovate, or even properly maintain their facilities.
82. The record confirms that concern about “regulatory creep”—whereby a regulator slowly increases its reach and the scope of its regulations—has exacerbated the regulatory uncertainty created by the
83. For these reasons, “any rational ISP will think twice before investing in innovative business plans that might someday be found to violate the Commission's undisclosed policy preferences and thus give rise to a cease-and-desist order and perhaps massive forfeiture penalties.” We conclude that this ever-present threat of regulatory creep is substantially likely to affect the risk calculus taken by ISPs when deciding how to invest their shareholders' capital, potentially deterring them from investing in broadband, and to encourage them to direct capital toward less inherently-risky business operations. Many ISPs are part of integrated multi-sector holding companies, which allows them to more easily shift capital away from sectors where their investments would face greater regulatory risk, and toward more investment-friendly sectors. We find unpersuasive the alleged inconsistencies between ISPs claiming that the
84.
85. Small ISPs state that these increased compliance costs and regulatory burdens have forced them to divert money and attention away from planned broadband service and network upgrades and expansions, thus delaying, deferring, or forgoing the benefits they would have brought “to their bottom lines, their customers, and their communities.” A coalition of National Multicultural Organizations highlights that the uncertainty inherent under Title II “already has produced results that slow needed innovation and broadband adoption, effects that are most acutely felt in rural and socioeconomically-challenged urban communities.” The record is replete with instances in which small ISPs reduced planned, or limited new, investment in broadband infrastructure as a result of the regulatory uncertainty stemming from the adoption of the
86. Compounding the difficulties faced by small ISPs, the record also reflects that the “ `black cloud' of common carriage regulations” resulted in increased difficulties for small ISPs in obtaining financing. A coalition of 70 small wireless ISPs cited the uncertainty created by the
87. We anticipate that the beneficial effects of our decision today to restore the classification of broadband internet access service to an information service will be particularly felt in rural and/or lower-income communities, giving smaller ISPs a stronger business case to expand into currently unserved areas. Enabling ISPs to freely experiment with services and business arrangements that can best serve their customers, without excessive regulatory and compliance burdens, is an important factor in connecting underserved and hard-to-reach populations. We are committed to bridging the digital divide, and recognize that small ISPs “disproportionately provide service in rural and underserved areas where they are either the only available broadband service option or provide the only viable alternative to an incumbent broadband provider.” We anticipate that returning broadband internet access service to a light-touch regulatory framework will help further the Commission's statutory imperative to “encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans” by helping to incentivize ISPs to expand coverage to underserved areas. We therefore reject arguments that our classification decision harms low-income communities.
88.
89. In fact, one could argue that in the absence of Title II regulation, edge providers would have made even higher levels of investment than they undertook. In many cases, the strongest growth for a firm or industry predates the
90.
91. The internet as we know it developed and flourished under light-touch regulation. It is self-evident that the hypothetical harms against which the
92. The first instance of actual harm cited by the
93. Next, the
94.
95. The final example—though not an example of harm to consumers—discussed in the
96. Certain commenters have claimed that there have been other harms to internet openness, but most of their anecdotes do not entail harms that the
97. Because of the paucity of concrete evidence of harms to the openness of the internet, the
98.
99. The
100. We find it essential to take a holistic view of the market(s) supplied by ISPs. ISPs, as well as edge providers, are important drivers of the virtuous cycle, and regulation must be evaluated accounting for its impact on ISPs' capacity to drive that cycle, as well as that of edge providers. The underlying economic model of the virtuous cycle is that of a two-sided market. Notably, the two-sided market we discuss here is the economic concept; we are not attempting to define a market for antitrust purposes. In a two-sided market, intermediaries—ISPs in our case—act as platforms facilitating interactions between two different customer groups, or sides of the market—edge providers and end users. The
101. Innovation by ISPs may take the form of reduced costs, network extension, increased reliability, responsiveness, throughput, ease of installation, and portability. These types of innovations are as likely to drive additional broadband adoption as are services of edge providers. In 2016, nearly 80 percent of Americans used fixed internet access at home. There is no evidence that the remaining nearly one-fifth of the population are all waiting for the development of applications that would make internet access useful to them. Rather, the cost of broadband internet access service is a central reason for non-adoption. ISP innovation that lowers the relative cost of internet access service is as likely as edge innovation, if not more so, to positively impact consumer adoption rates. Indeed, ISPs likely play a crucial role by offering, for example, low-margin or loss-leading offers designed to induce skeptical internet users to discover the benefits of access. In response to a larger base of potential customers, the returns to innovation by edge providers would be expected to rise, thereby spurring additional innovative activity in that segment of the market.
102. Accordingly, arguments that ISPs have other incentives to take actions that might harm the virtuous cycle, and hence might require costly Title II regulation, need to be explained and evaluated empirically. In a two-sided market, three potential reasons for Title II regulation arise: The extent to which ISPs have market power in selling internet access to end users; the extent to which ISPs have market power in selling to edge providers access to the ISP's subscribers (end users), which seems to primarily be to what the Commission and others appear to be referring when using the term “gatekeeper”; and the extent to which the positive externalities present in a two-sided market might lead to market failure even in the absence (or because of that absence) of ISP market power. In considering each of these, we find that, where there are problems, they have been overestimated, and can be substantially eliminated or reduced by the more light-handed approach this order implements.
103. Our approach recognizes our limits as regulators, and is appropriately focused on the long-lasting effects of regulatory decisions. Thus, we seek to balance the harms that arise in the absence of regulation against the harms of regulation, accounting for, in particular, the effects of our actions on investment decisions that could increase competition three to five or more years from now. This is different from forbidding certain behavior or a merger on antitrust grounds due to the likelihood of imminent, non-transitory price increases. As a result, our discussion of competition need not have any implications for conventional antitrust analysis. We note that our reclassification of broadband internet access service as an information service leaves the usual recourse of antitrust and consumer protection action available to all parties. That is, heavy-handed Title II regulation is unnecessary to enforce antitrust and consumer protection laws.
104.
105.
106. However, because there are questions as to the extent fixed satellite and fixed terrestrial wireless internet access service are broadly effective competitors for wireline internet access service, we do not rely on this data, except to note that these services, where available, place some competitive constraints on wireline providers. Fixed wireless and satellite subscriptions decisions suggest that consumers generally prefer fixed wireline services to these, even at lower speeds. For example, at bandwidths of 3 Mbps downstream and 0.768 Mbps upstream, satellite providers report deployment in 99.1 percent of developed census blocks, but only account for 1.7 percent of subscriptions, while terrestrial fixed wireless providers report deployment in 38.5 percent of developed census blocks, but only account for 0.9 percent of all subscriptions. Focusing on competition among wireline service providers, and excluding DSL with speeds less than 3 Mbps down and 0.768 Mbps up, shows less, but still widespread, competition:
107. While not reported, the percent of households in developed census blocks closely tracks the entries for the percent of population in developed census tracts. For example, approximately 79.7 percent of U.S. households are in a census block where at least two wireline suppliers offer speeds of at least 3 Mbps down and 0.768 Mbps up. This table understates competition in several respects. First, even two competing wireline ISPs place competitive constraints on each other. ISPs' substantial sunk costs imply that competition between even two ISPs is likely to be relatively strong. Thus, to the extent market power exists, it is unlikely to significantly distort what would otherwise be efficient choices. A wireline ISP, anywhere it is active, necessarily has made substantial sunk investments. Yet, the cost of adding another customer, or of carrying more traffic from the same customers, is relatively low. Accordingly, a wireline ISP has strong incentives, even when facing a single competitor, to capture customers or induce greater use of its network, so long as its current prices materially exceed the marginal cost of such changes. In addition, empirical research finds that the largest benefit from competition generally comes from the presence of a second provider, with added benefits of additional providers falling thereafter, especially in the presence of large sunk costs. Indeed, a wireline provider may be willing to cut prices to as low as the incremental cost of supplying a new customer. Thus, in this industry, even two active suppliers in a location can be consistent with a noticeable degree of competition, and in any case, can be expected to produce more efficient outcomes than any regulated alternative. We do not claim that a second wireline provider results in textbook perfect competition, but rather, given ISP recovery of sunk investments becomes more difficult as competition increases, and the critical nature of allowing such recovery, market outcomes may well ensure approximately competitive rates of return. Other industries with large sunk costs have shown that “price declines with the addition of the first competitor, but drops by very little thereafter.” Nothing in this order should be construed as finding that these statements appropriately characterize the addition of the first fixed wireline competitor in a particular context, only that in general such an addition likely will have a material impact on moving prices toward competitive levels.
108. Second, competitive pressures often have spillover effects across a given corporation, meaning an ISP facing competition broadly, if not universally, will tend to treat customers that do not have a competitive choice as if they do. This is because acting badly in uncompetitive areas may be operationally expensive (
109. The Commission's prior findings on churn in the broadband marketplace do not dissuade us from concluding that wireline broadband ISPs often face competitive pressures. Although the Commission has previously found voluntary churn rates for broadband service to be quite low, a view which some commenters echo, substantial, quantified evidence in the record dissuades us from repeating that finding here. Regardless, even if high churn rates make market power unlikely, low churn rates do not
110.
111. Both the
112.
113. Narrowly focusing on fixed ISPs, Comcast, the largest wireline ISP, has approximately one quarter of all residential subscribers in the US, while at speeds of at least 25 Mbps down and 3 Mbps up, the Herfindahl-Hirschman Index measure of concentration for the supply of access to residential fixed broadband internet access service subscribers meets the Department of Justice (DOJ) designation of “moderately concentrated” (DOJ considers a market with an HHI value of between 1,500 and 2,500 to be moderately concentrated):
114. Large shares of end-user subscribers, and/or market concentration, however, do not seem a likely source or indicator of conventional market power capable of significantly distorting efficient choices, with the possible exception of edge providers whose services require characteristics currently only available on high-speed fixed networks (such as video, which requires both high speeds and substantial monthly data
115. In addition, larger edge providers, such as Amazon, Facebook, Google and Microsoft, likely have significant advantages that would reduce the prospect of inefficient outcomes due to ISP market power. For example, the market capitalization of the smallest of these five companies, Amazon, is more than twice that of the largest ISP, Comcast, and the market capitalization of Google alone is greater than every cable company in America combined. Action by these larger edge providers preventing or reducing the use of ISP market power could spill over to smaller edge providers, and in any case, is unlikely to anticompetitively harm them given existing antitrust protections (since arrangements between an ISP and a large established edge provider must be consistent with antitrust law). Consequently, any market power even the largest ISPs have over access to end users is limited in the extent it can distort edge provider decisions (or those of their end users).
116. Despite the preceding analysis, a second claim is made that relies solely on the second factor, single homing: “regardless of the competition in the local market for broadband internet access, once a consumer chooses a broadband provider, that provider has a monopoly on access to the subscriber . . . Once the broadband provider is the sole provider of access to an end user, this can influence that network's interactions with edge providers, end users, and others.” Commenters have echoed this “terminating access monopoly” concern. This argument is often conflated with arguments about retail competition more generally, but it is a distinct concept that has been endorsed by the FCC and the courts in various contexts. The focus on edge providers' bargaining position vis-à-vis ISPs is warranted in light of the fact that any gatekeeper power applies to edge providers, not end users. The
117. As a blanket statement, this position is not credible. It is unlikely that any ISP, except the very largest, could exercise substantial market power in negotiations with Google or Netflix, but almost certainly no small wireless ISP, or a larger but still small rural cable company or incumbent LEC, could do so. Further, from the perspective of many edge providers, end users do not single home, but subscribe to more than one platform (
118. Moreover, to the extent a terminating monopoly exists for some edge providers, and it is not offset or more than offset by significant advantages, there is the question of the extent to which the resulting prices are economically inefficient. A terminating (access) monopoly arises when customers on one side of the market, roughly speaking end users in our case, single home with little prospect of switching to another platform in the short run, while customers on the other side, roughly speaking edge providers in our case, find it worthwhile to multi-home. The terminating monopoly differs from conventional market power because it can arise despite effective competition between platforms. In that case, platforms must vigorously compete for single-homing end users, but have less need to compete for edge providers, who subscribe to all platforms. Such an arrangement is mutually reinforcing. Single homers can reach all the multi-homers despite only subscribing to one platform. Multi-homers must subscribe to all platforms to reach all single homers. This means each ISP faces strong pressures to cut prices to end users, but does not face similar pressures in pricing to edge providers. However, ISPs are unlikely to earn supranormal profits, so any markups earned from edge providers in excess of total costs are generally passed through to end users. While such an outcome generally will not be efficient, there is no general presumption about the extent of that inefficiency, or even if prices to the multi-homers ideally should be lower than would emerge in the absence of a termination monopoly. In the present case, there is no substantive evidence in the record that demonstrates how different efficient prices to edge providers would be from the prices that would emerge without rules banning paid prioritization or prohibiting ISPs from charging providers at all.
119. Lastly, we find the record presents no compelling evidence that any inefficiencies, to the extent they exist, justify Title II regulation. There is no empirical evidence that the likely effects from conventional market power or the terminating monopoly, to the extent they exist, are likely to be significant, let alone outweigh the harmful effects of Title II regulation. For all these reasons, we find no case for supporting Title II regulation of ISP prices to edge providers. We note that the terminating monopoly problem in voice telecommunications is one created by common-carriage regulation, not one solved by it. Specifically, carriers must interconnect with each other and originating carriers must pay
120.
121. In the unlikely event that ISPs engage in conduct that harms internet openness, despite the paucity of evidence of such incidents, we find that utility-style regulation is unnecessary to address such conduct. Other legal regimes—particularly antitrust law and the FTC's authority under Section 5 of the FTC Act to prohibit unfair and deceptive practices—provide protection for consumers. These long-established and well-understood antitrust and consumer protection laws are well-suited to addressing any openness concerns, because they apply to the whole of the internet ecosystem, including edge providers, thereby avoiding tilting the playing field against ISPs and causing economic distortions by regulating only one side of business transactions on the internet.
122.
123. Many of the largest ISPs have committed in this proceeding not to block or throttle legal content. These
124.
125. Section 1 of the Sherman Act bars contracts, combinations, or conspiracies in restraint of trade, making anticompetitive arrangements illegal. If ISPs reached horizontal agreements to unfairly block, throttle, or discriminate against internet conduct or applications, these agreements likely would be
126. Most of the examples of net neutrality violations discussed in the
127. Among the benefits of the antitrust laws over public utility regulation are (1) the rule of reason allows a balancing of pro-competitive benefits and anti-competitive harms; (2) the case-by-case nature of antitrust allows for the regulatory humility needed when dealing with the dynamic internet; (3) the antitrust laws focus on protecting competition; and (4) the same long-practiced and well-understood laws apply to all internet actors.
128.
129. The case-by-case, content-specific analysis established by the rule of reason will allow new innovative business arrangements to emerge as part of the ever-evolving internet ecosystem. New arrangements that harm consumers and weaken competition will run afoul of the Sherman Act, and successful plaintiffs will receive treble damages. The FTC and DOJ can also bring enforcement actions in situations where private plaintiffs are unable or unwilling to do so. New arrangements benefiting consumers, like so many internet innovations over the last generation, will be allowed to continue, as was the case before the imposition of Title II utility-style regulation of ISPs.
130. We reject commenters' assertions that the case-by-case nature of antitrust enforcement makes it inherently flawed. A case-by-case approach minimizes the costs of overregulation, including tarring all ISPs with the same brush, and reduces the risk of false positives when regulation is necessary. We believe the Commission's bright-line and internet conduct rules are more likely to inhibit innovation before it occurs, whereas antitrust enforcement can adequately remedy harms should they occur. As
131. Moreover, the case-by-case analysis, coupled with the rule of reason, allows for innovative arrangements to be evaluated based on their real-world effects, rather than a regulator's
132. Additionally, the existence of antitrust law deters much potential anticompetitive conduct before it occurs, and where it occurs offers recoupment through damages to harmed competitors. Some commenters have cast doubt on the effectiveness of
133. Moreover, economic research has demonstrated that the threat of antitrust enforcement deters anticompetitive actions. Block et al. find that an increase in the likelihood of antitrust enforcement in the U.S. has a significant effect on lowering prices to consumers. Similarly it has been found that countries with vigorous antitrust statutes and enforcement, such as the United States, reduce the effects of anticompetitive behavior when it does occur. There is also evidence that firms, once they have been subject to an enforcement action, are less likely to violate the antitrust laws in the future. Overall, we have confidence that the use of antitrust enforcement to protect competition in the broadband internet service provider market will ensure that consumers continue to reap the benefits of that competition. We conclude that the light-touch approach that we adopt today, in combination with existing antitrust and consumer protection laws, more than adequately addresses concerns about internet openness, particularly as compared to the rigidity of Title II. Some commenters have raised issues about the feasibility of antitrust as applied to some potential harms. CompTIA and OTI claim that the unilateral refusal to deal and essential facilities cases are more difficult to bring after
134.
135. Finally, applying antitrust principles to ISP conduct is consistent with longstanding economic and legal principles that cover all sectors of the economy, including the entire internet ecosystem. Applying the same body of law to ISPs, edge providers, and all internet actors avoids the regulatory distortions of Title II, which “impos[ed] asymmetric behavioral regulations . . . on broadband ISPs under the banner of protecting internet openness, but le[ft] internet edge providers free to threaten or engage in the same types of behavior prohibited to ISPs free of any
136. The Commission has the legal authority to return to the classification of broadband internet access service as an “information service.” The Supreme Court made clear when affirming the Commission's original information service classification of cable modem service that Congress “delegated to the Commission authority to execute and enforce the Communications Act, as well as prescribe the rules and regulations necessary in the public interest to carry out the provisions.” This delegation includes the legal authority to interpret the definitional provisions of the Communications Act. Nothing in the record meaningfully contests this fundamental point. Relying on that authority, we change course from the
137. An agency of course may decide to change course, and such a decision is not, as some commenters suggest, inherently suspect. The Supreme Court has observed that there is “no basis in the Administrative Procedure Act or in our opinions for a requirement that all agency change be subjected to more searching review. . . . [I]t suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency
138. Such a change in course can be justified on a variety of possible grounds. The Supreme Court observed in
139. For example, we find that the
140. Further, we are not persuaded that there were reasonable reliance interests in the
141. “[A]n agency literally has no power to act . . . unless and until Congress confers power upon it.” And so our role is to achieve the outcomes Congress instructs, invoking the authorities that Congress has given us—not to assume that Congress
142. We also conclude that the Commission should have been cautioned against reclassifying broadband internet access service as a telecommunications service in 2015 because doing so involved “laying claim to extravagant statutory power over the national economy while at the same time strenuously asserting that the authority claimed would render the statute `unrecognizable to the Congress that designed' it.” Such interpretations “typically [are] greet[ed] . . . with a measure of skepticism” by courts, and we believe they should be by the Commission, as well. We rely on these principles to inform what interpretation constitutes the best reading of the Act independent of any broader legal implications that potentially could result from such considerations. Thus, although the separate opinions in the denial of rehearing
143. In this section, we clarify the regulatory effects of today's reinstatement of broadband internet access service as a Title I “information service” on other regulatory frameworks affected or imposed by the
144. The
145.
146. Notwithstanding these developments, but in line with other aspects of the
147.
148. We believe that applying Title II to internet traffic exchange arrangements was unnecessary and is likely to unduly inhibit competition and innovation. As the court in
149. Instead, we find that freeing internet traffic exchange arrangements from burdensome government regulation, and allowing market forces to discipline this emerging and competitive market is the better course. It is telling that, in the absence of Title II regulation, the cost of internet transit fell over 99 percent on a cost-per-megabit basis from 2005 to 2015. We do not rely on transit pricing alone, but consider it in combination with the other factors discussed in this section, and thus reject as inapposite claims that transit pricing alone is an inadequate way of evaluating internet traffic exchange. Further, we find that even those commenters that insist that ISPs wield undue power in the interconnection market have offered no evidence that ISPs generally charge supra-competitive prices for internet traffic exchange arrangements. Moreover, we reject the proposition that prior examples of settlement-free peering necessarily mean that a transit price above zero is inherently anti- or supra-competitive. While the move to paid peering may affect the bottom line of Tier 1 transit providers, those effects cannot justify
150. We welcome the growth of alternative internet traffic exchange arrangements, including direct interconnection, CDNs, and other innovative efforts. All parties appear to agree that direct interconnection has benefited consumers by reducing congestion, increasing speeds, and housing content closer to consumers, and allowed ISPs to better manage their networks. CDNs play a similar role. We believe that market dynamics, not Title II regulation, allowed these diverse arrangements to thrive. Our decision to reclassify broadband internet access service as an information service, and to remove Title II utility-style regulation from internet traffic exchange, will spur further investment and innovation in this market. Returning to the pre-
151. We find that present competitive pressures in the market for internet
152. Insofar as certain commenters contend that incidents such as Cogent's experience delivering Netflix traffic in 2014 suggest otherwise, we note that the origin of the Cogent-Netflix congestion is disputed and that Cogent admitted to de-prioritizing certain types of traffic for the congestion. In any event, there is ample evidence that major edge providers, including Netflix, YouTube, and other large OVDs, are some of the “most-loved” brands in the world. Their reputations and the importance of reputation to their business and brand gives them significant incentive to inform consumers and work to shape consumer perceptions in the event of any dispute with ISPs. This incentive mitigates potential concerns that consumers lack the knowledge and ability to hold their ISPs accountable for interconnection disputes. Further, as NCTA explains, “the edge providers that send enough traffic to impact interconnection—
153. In addition, if an ISP attempts to block or degrade traffic in a manner that is anti-competitive, such conduct may give rise to actions by federal or state agencies under antitrust or consumer protection laws. Some commenters have called for continued
154. Even assuming that economic incentives and antitrust and consumer protection remedies may not prevent or redress all potential harms in the interconnection market, we find the regulatory approach adopted in the
155. As we have reinstated the information service classification of broadband internet access service, the forbearance granted in the
156. Prior to the
157. We agree with NTCA and NECA that the broadband transmission services currently offered by rural LECs under tariff differ substantially from the broadband internet access services at issue in this proceeding, and as such are not impacted by our decision to reclassify broadband internet access service as an information service. The term “wireline broadband internet access service” refers to “a mass-market retail service by wire that provides the capability to transmit data to and receive data from all or substantially all internet endpoints, including any capabilities that are incidental to and enable the operation of the communications service, but excluding dial-up internet access service.” Broadband transmission services do not provide end users with direct connectivity to the internet backbone or content, but instead enable data traffic generated by end users to be transported to an ISP's Access Service Connection Point over rural LEC local exchange service facilities for subsequent interconnection with the internet backbone.
158. Carriers offering broadband transmission service have never been subject to the
159. Today, we return to the pre-
160. We clarify that carriers that choose to offer transmission service on a common carriage basis are, as under the
161. We also reject AT&T's assertion that the Commission should conditionally forbear from all Title II regulations as a preventive measure to address the contingency that a future Commission might seek to reinstate the
162. By reinstating the information service classification of broadband internet access service, we return jurisdiction to regulate broadband privacy and data security to the Federal Trade Commission (FTC), the nation's premier consumer protection agency and the agency primarily responsible for these matters in the past. Restoring FTC jurisdiction over ISPs will enable the FTC to apply its extensive privacy and data security expertise to provide the uniform online privacy protections that consumers expect and deserve.
163. Historically, the FTC protected the privacy of broadband consumers, policing every online company's privacy practices consistently and initiating numerous enforcement actions. In fact, the FTC has “brought over 500 enforcement actions protecting the privacy and security of consumer information, including actions against ISPs and against some of the biggest companies in the internet ecosystem.” When the Commission reclassified broadband internet access service as a common carriage telecommunications service in 2015, however, that action stripped FTC authority over ISPs because the FTC is prohibited from regulating common carriers. The effect of this decision was to shift responsibility for regulating broadband privacy to the Commission. And in lieu of an even playing field, the Commission adopted sector-specific rules that deviated from the FTC's longstanding framework. In March 2017, Congress voted under the Congressional Review Act (CRA) to disapprove the Commission's 2016
164. Undoing Title II reclassification restores jurisdiction to the agency with the most experience and expertise in privacy and data security, better reflects congressional intent, and creates a level playing field when it comes to internet privacy. Restoring FTC authority to regulate broadband privacy and data security also fills the consumer protection gap created by the
165. We also reject arguments that rely on the Ninth Circuit panel decision holding that the common carrier exemption precludes FTC oversight of non-common carriage activities of common carriers. As the FCC's amicus letter explained in that case, the panel decision erred by overlooking the textual relationship between the statutes governing the FTC's and FCC's jurisdiction. We note that commenter concerns focus not just on the FTC's privacy authority but its authority more generally. We reject those arguments for the reasons stated above. Consistent with the Commission's request, the Ninth Circuit granted rehearing
166. To the extent today's classification decision impacts the deployment of wireline infrastructure, we will address that topic in detail in proceedings specific to those issues. The importance of facilitating broadband infrastructure deployment indicates that our authority to address barriers to infrastructure deployment warrants careful review in the appropriate proceedings. We disagree with commenters who assert that Title II classification is necessary to maintain our authority to promote infrastructure investment and broadband deployment. Because the same networks are often used to provide broadband and either telecommunications or cable service, we will take further action as is necessary to promote broadband deployment and infrastructure investment. Further, Title I classification of broadband internet access services is consistent with the Commission's broadband deployment objectives, whereas the Title II regulatory environment undermines the very private investment and buildout of broadband networks the Commission seeks to encourage. Additionally, in the twenty states and the District of Columbia that have reverse-preempted Commission jurisdiction over pole attachments, those states rather than the Commission are empowered to regulate the pole attachment process.
167. We are resolute that today's decision not be misinterpreted or used as an excuse to create barriers to infrastructure investment and broadband deployment. For example, we caution pole owners not to use this
168. When the Commission first classified wireless broadband internet access as an information service in 2007, it emphasized that certain statutory provisions in Section 224 (regarding pole attachments) and 332(c)(7) (local authority over zoning) of the Act would continue to apply where the same infrastructure was used to provide a covered service (
169. As to Section 224, the Commission clarified in the
170. We reaffirm the Commission's interpretations regarding the application of Sections 224 and 332(c)(7) to wireless broadband internet access service here. The Commission's rationale from 2007, that commingling services does not change the fact that the facilities are being used for the provisioning of services within the scope of the statutory provision, remains equally valid today. This clarification will alleviate concerns that wireless broadband internet access providers not face increased barriers to infrastructure
171. Although the wireless infrastructure industry has changed significantly since the adoption of the
172. We reiterate our commitment to expand broadband access, encourage innovation and close the digital divide. We will closely monitor developments on broadband infrastructure deployment and move quickly to address barriers in a future proceeding if necessary.
173. The reclassification of consumer and small business broadband access as an information service does not affect or alter the Commission's existing programs to support the deployment and maintenance of broadband-capable networks,
174.
175. We conclude that regulation of broadband internet access service should be governed principally by a uniform set of federal regulations, rather than by a patchwork that includes separate state and local requirements. Our order today establishes a calibrated federal regulatory regime based on the pro-competitive, deregulatory goals of the 1996 Act. Allowing state and local governments to adopt their own separate requirements, which could impose far greater burdens than the federal regulatory regime, could significantly disrupt the balance we strike here. Federal courts have uniformly held that an affirmative federal policy of
176. We therefore preempt any state or local measures that would effectively impose rules or requirements that we have repealed or decided to refrain from imposing in this order or that would impose more stringent requirements for any aspect of broadband service that we address in this order. This includes any state laws that would require the disclosure of broadband internet access service performance information, commercial terms, or network management practices in any way inconsistent with the transparency rule we adopt herein. Our transparency rule is carefully calibrated to reflect the information that consumers, entrepreneurs, small businesses, and the Commission needs to ensure a functioning market for broadband internet access services and to ensure the Commission has sufficient information to identify market-entry barriers—all without unduly burdening ISPs with disclosure requirements that would raise the cost of service or otherwise deter innovation within the network. Among other things, we thereby preempt any so-called “economic” or “public utility-type” regulations, including common-carriage requirements akin to those found in Title II of the Act and its implementing rules, as well as other rules or requirements that we repeal or refrain from imposing today because they could pose an obstacle to or place an undue burden on the provision of broadband internet access service and conflict with the deregulatory approach we adopt today. The terms “economic regulation” and “public utility-type regulation,” as used here, are terms of art that the
177. Although we preempt state and local laws that interfere with the federal deregulatory policy restored in this order, we do not disturb or displace the states' traditional role in generally policing such matters as fraud, taxation, and general commercial dealings, so long as the administration of such general state laws does not interfere with federal regulatory objectives. We thus conclude that our preemption determination is not contrary to Section 414 of the Act, which states that “[n]othing in [the Act] shall in any way abridge or alter the remedies now existing at common law or by statute.” Under this order, states retain their traditional role in policing and remedying violations of a wide variety of general state laws. The record does not reveal how our preemption here would deprive states of their ability to enforce any remedies that fall within the purview of Section 414. In any case, a general savings clause like Section 414 “do[es] not preclude preemption where allowing state remedies would lead to a conflict with or frustration of statutory purposes.” Indeed, the continued applicability of these general state laws is one of the considerations that persuade us that ISP conduct regulation is unnecessary here. Nor do we deprive the states of any functions expressly reserved to them under the Act, such as responsibility for designating eligible telecommunications carriers under Section 214(e); exclusive jurisdiction over poles, ducts, conduits, and rights-of-way when a state certifies that it has adopted effective rules and regulations over those matters under Section 224(c); or authority to adopt state universal service policies not inconsistent with the Commission's rules under Section 254. We find no basis in the record to conclude that our preemption determination would interfere with states' authority to address rights-of-way safety issues. We note that we continue to preempt any state from imposing any new state universal service fund contributions on broadband internet access service. We appreciate the many important functions served by our state and local partners, and we fully expect that the states will “continue to play their vital role in protecting consumers from fraud, enforcing fair business practices, for example, in advertising and billing, and generally responding to consumer inquiries and complaints” within the framework of this order.
178.
179. First, the U.S. Supreme Court and other courts have recognized that, under what is known as the impossibility exception to state jurisdiction, the FCC may preempt state law when (1) it is impossible or impracticable to regulate the intrastate aspects of a service without affecting interstate communications and (2) the Commission determines that such regulation would interfere with federal regulatory objectives. Here, both conditions are satisfied. Indeed, because state and local regulation of the aspects of broadband internet access service that we identify would interfere with the balanced federal regulatory scheme we adopt today, they are plainly preempted.
180. As a preliminary matter, it is well-settled that internet access is a jurisdictionally interstate service because “a substantial portion of internet traffic involves accessing interstate or foreign websites.” Thus, when the Commission first classified a form of broadband internet access service in the
181. Because both interstate and intrastate communications can travel over the same internet connection (and indeed may do so in response to a single query from a consumer), it is impossible or impracticable for ISPs to distinguish between intrastate and interstate communications over the internet or to apply different rules in each circumstance. Accordingly, an ISP generally could not comply with state or local rules for intrastate communications without applying the same rules to interstate communications. We therefore reject the view that the impossibility exception to state jurisdiction does not apply because some aspects of broadband internet access service could theoretically be regulated differently in different states. Even if it were possible for New York to regulate aspects of broadband service differently from New Jersey, for example, it would not be possible for New York to regulate the use of a broadband internet connection for
182. The second condition for the impossibility exception to state jurisdiction is also satisfied. For the reasons explained above, we find that state and local regulation of the aspects of broadband internet access service that we identify would interfere with the balanced federal regulatory scheme we adopt today.
183. Second, the Commission has independent authority to displace state and local regulations in accordance with the longstanding federal policy of nonregulation for information services. For more than a decade prior to the 1996 Act, the Commission consistently preempted state regulation of information services (which were then known as “enhanced services”). When Congress adopted the Commission's regulatory framework and its deregulatory approach to information services in the 1996 Act, it thus embraced our longstanding policy of preempting state laws that interfere with our federal policy of nonregulation.
184. Multiple provisions enacted by the 1996 Act confirm Congress's approval of our preemptive federal policy of nonregulation for information services. Section 230(b)(2) of the Act, as added by the 1996 Act, declares it to be “the policy of the United States” to “preserve the vibrant and competitive free market that presently exists for the internet and other interactive computer services”—including “any information service”—“unfettered by Federal or State regulation.” The Commission has observed that this provision makes clear that “federal authority [is] preeminent in the area of information services” and that information services “should remain free of regulation.” To this same end, by directing that a communications service provider “shall be treated as a common carrier under [this Act] only to the extent that it is engaged in providing telecommunications services,” Section 3(51)—also added by the 1996 Act—forbids any common-carriage regulation, whether federal or state, of information services.
185. Finally, our preemption authority finds further support in the Act's forbearance provision. Under Section 10(e) of the Act, Commission forbearance determinations expressly preempt any contrary state regulatory efforts. It would be incongruous if state and local regulation were preempted when the Commission decides to forbear from a provision that would otherwise apply, or if the Commission adopts a regulation and then forbears from it, but not preempted when the Commission determines that a requirement does not apply in the first place. Nothing in the Act suggests that Congress intended for state or local governments to be able to countermand a federal policy of nonregulation or to possess any greater authority over broadband internet access service than that exercised by the federal government. Some commenters note that Section 253(c), 47 U.S.C. 253(c), preserves certain state authority over telecommunications services. But that provision has no relevance here, given our finding that broadband internet access service is an information service. Although Section 253(c) recognizes that states have historically played a role in regulating telecommunications services, there is no such tradition of state regulation of information services, which have long been governed by a federal policy of nonregulation.
186. The Communications Act provides the Commission with authority to ensure that consumers with disabilities can access broadband networks regardless of whether broadband internet access service is classified as telecommunications service or information service. The Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA) already applies a variety of accessibility requirements to broadband internet access service. Congress adopted the CVAA after recognizing that “internet-based and digital technologies . . . driven by growth in broadband . . . are now pervasive, offering innovative and exciting ways to communicate and share information.” Congress thus clearly had internet-based communications technologies in mind when enacting the accessibility provisions of Section 716 (as well as the related provisions of Sections 717-718) and in providing important protections with respect to advanced communications services (ACS). ACS means: “(A) interconnected VoIP service; (B) non-interconnected VoIP service; (C) electronic messaging service; and (D) interoperable video conferencing service.” In particular, to ensure that people with disabilities have access to the communications technologies of the Twenty-First Century, the CVAA added several provisions to the Communications Act, including Section 716 of the Act, which requires that providers of advanced communications services (ACS) and manufacturers of equipment used for ACS make their services and products accessible to people with disabilities, unless it is not achievable to do so. These mandates already apply according to their terms in the context of broadband internet access service. The CVAA also adopted a requirement, in Section 718, that ensures access to internet browsers in wireless phones for people who are blind and visually impaired. In addition, the CVAA directed the Commission to enact regulations to prescribe, among other things, that networks used to provide ACS “may not impair or impede the accessibility of information content when accessibility has been incorporated into that content for transmission through . . . networks used to provide [ACS].” Finally, new Section 717 creates new enforcement and recordkeeping requirements applicable to Sections 255, 716, and 718. Section 710 of the Act addressing hearing aid compatibility and implementing rules enacted thereunder also apply regardless of any action taken in this Order. To the extent that other accessibility issues arise, we will address those issues in separate proceedings in furtherance of our statutory authority to ensure that broadband networks are accessible to and usable by individuals with disabilities.
187. We also note that our decision today to classify wireless broadband internet access service as an information service does not affect the general applicability of the spectrum allocation and licensing provisions of Title III and the Commission's rules to this service. Title III generally provides the Commission with authority to regulate “radio communications” and “transmission of energy by radio.” Among other provisions, Title III gives the Commission the authority to adopt rules preventing interference and allows it to classify radio stations. It also establishes the basic licensing scheme for radio stations, allowing the Commission to grant, revoke, or modify
188. For decades, the lodestar of the Commission's approach to preserving internet freedom was a light-touch, market-based approach. This approach debuted at the dawn of the commercial internet during the Clinton Administration, when an overwhelming bipartisan consensus made it national policy to preserve a digital free market “unfettered by Federal or State regulation.” It continued during the Bush Administration, as reflected in the “Four Freedoms” articulated by Chairman Powell in 2004 and was then formally adopted by a unanimous Commission in 2005 as well as in a series of classification decisions reviewed above. These include the freedoms for consumers to (1) “access the lawful internet content of their choice”; (2) “run applications and use services of their choice, subject to the needs of law enforcement”; (3) “connect their choice of legal devices that do not harm the network”; and (4) “enjoy competition among network providers, application and service providers, and content providers.” And it continued for the first six years of the Obama Administration. We reaffirm and honor this longstanding, bipartisan commitment by adopting a light-touch framework that will preserve internet freedom for all Americans.
189. To implement that light-touch framework, we next reevaluate the rules and enforcement regime adopted in the
190. “Sunlight,” Justice Brandeis famously noted, “is . . . the best of disinfectants.” This is the case in our domain. Properly tailored transparency disclosures provide valuable information to the Commission to enable it to meet its statutory obligation to observe the communications marketplace to monitor the introduction of new services and technologies, and to identify and eliminate potential marketplace barriers for the provision of information services. Such disclosures also provide valuable information to other internet ecosystem participants; transparency substantially reduces the possibility that ISPs will engage in harmful practices, and it incentivizes quick corrective measures by providers if problematic conduct is identified. Appropriate disclosures help consumers make informed choices about their purchase and use of broadband internet access services. Moreover, clear disclosures improve consumer confidence in ISPs' practices while providing entrepreneurs and other small businesses the information they may need to innovate and improve products.
191. Today, we commit to balanced ISP transparency requirements based on a sound legal footing. We return, with minor adjustments, to the transparency rule adopted in the 2010
192.
193.
194.
195.
196. Today, we retain the transparency rule as established in the
For purposes of these rules, “consumer” includes any subscriber to the ISP's broadband internet access service, and “person” includes any “individual, group of individuals, corporation, partnership, association, unit of government or legal entity, however organized.”
197. In doing so, we note that the record overwhelmingly supports retaining at least some transparency requirements. Crucially, the transparency rule will ensure that consumers have the information necessary to make informed choices about the purchase and use of broadband internet access service, which promotes a competitive marketplace for those services. Disclosure supports innovation, investment, and competition by ensuring that entrepreneurs and other small businesses have the technical information necessary to create and maintain online content, applications, services, and devices, and to assess the risks and benefits of embarking on new projects. We reject commenter assertions that we should not maintain any transparency requirements. CenturyLink does not identify which requirements from the 2010 transparency rule it believes could arguably be “onerous.” Further, as discussed above, we find that a transparency requirement is necessary and sufficient to protect internet openness, given that we lack authority to adopt conduct rules and in addition find that an enforceable transparency rule obviates the need for bright line conduct rules.
198. What is more, disclosure increases the likelihood that ISPs will abide by open internet principles by reducing the incentives and ability to violate those principles, that the internet community will identify problematic conduct, and that those affected by such conduct will be in a position to make informed competitive choices or seek available remedies for anticompetitive, unfair, or deceptive practices. Transparency thereby “increases the likelihood that harmful practices will not occur in the first place and that, if they do, they will be quickly remedied.” We apply our transparency rule to broadband internet access service, as well as functional equivalents or any service that is used to evade the transparency requirements we adopt today. As the Commission explained in the
199. We require ISPs to prominently disclose network management practices, performance, and commercial terms of their broadband internet access service, and find substantial record support (including from ISPs) for following the course set out by the
200.
201. We specifically require all ISPs to disclose:
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We do not mandate disclosure of any other network management practices. Notably, we define “reasonable network management” to mean a practice “appropriate and tailored to achieving a legitimate network management purpose, taking into account the particular network architecture and technology of the broadband internet access service.” The record reflects an overwhelming preference for this approach from the
202.
203. We specifically require all ISPs to disclose:
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204.
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205.
206. We eliminate the additional reporting obligations adopted in the
207. The record supports the elimination of these additional reporting obligations and our return to the requirements under the
208.
209.
210. We give ISPs two options for disclosure. First, they may include the disclosures on a publicly available, easily accessible website. Consistent with Commission precedent, we expect that ISPs will make disclosures in a manner accessible by people with disabilities. ISPs doing so need not distribute hard copy versions of the required disclosures and need not file them with the Commission, which can review the disclosures as needed on the ISPs' websites. For ISPs electing this option, we reaffirm the means of disclosure requirement from the
211. We also eliminate the direct notification requirement adopted in the
212.
213. Just as the Commission did in the
214. Our disclosure requirements will help us both identify and address potential market entry barriers in the provision and ownership of information services and the provision of parts and services to information service providers. In particular, some internet applications and services previously have been found to be information services, and, more generally, entrepreneurs and small businesses participating in the internet marketplace could be seeking to act as either providers of information services or providers of parts and services to information services (or both). The language of Section 257(a) appears reasonably read to encompass those entrepreneurs' and small businesses' services under one or more of the covered categories, and there is no dispute in the record in that regard. Because we find that internet entrepreneurs and small businesses that depend on their customers using broadband internet access service are covered by Section 257(a) in any case, we need not and do not address with greater specificity the specific category or categories into which particular edge services fall. In addition, the manner in which an ISP provides broadband internet access service, including but not limited to its network management practices, can affect how well particular internet applications or services of entrepreneurs and small businesses perform when used by that ISP's subscribers. Aspects of the performance of broadband internet access services, particularly if undisclosed, thus could constitute barriers within the scope of Section 257(a) in the future, depending on how the marketplace evolves, regardless of whether or not particular practices do so today. For example, if ISPs do not disclose key details of how they provide broadband internet access service, that could leave entrepreneurs and small businesses participating in the internet marketplace unable to determine how well particular existing or contemplated offerings are likely to perform for users, and thus unable to determine if their service will be usable to a sufficient number of potential customers to make the offering viable. Such undisclosed practices also can leave consumers unable to judge which broadband internet access service offerings will best meet their needs given the applications and service they wish to use. As a result, even if a sufficient number of consumers theoretically are accessible by a broadband internet access service offering with sufficient technical characteristics to make a given internet application or service viable, an entrepreneur's or small business's entry into the market for that service could be undermined if consumers are unable to identify which of the various broadband internet access services offerings has the required technical characteristics. By contrast, the record reveals that the disclosure of practices and service characteristics we require today helps entrepreneurs and small businesses understand how well particular internet application or service offerings are likely to work with particular ISPs' broadband internet access services and helps consumers make the most educated choice among ISPs and particular broadband internet access service offerings, especially if they have particular interests in using internet applications or services that are highly dependent on broadband internet access service performance. The disclosures themselves thus are likely to reduce any potential risk of particular practices being such a barrier—had they not been publicly disclosed—and also enable us to recommend to Congress any legislative changes that we might find warranted based on our analysis of these practices. While we observe that the transparency rule will help eliminate potential barriers, our reliance on Section 257 as authority for the transparency rule centers on the need for that rule to identify barriers and report to Congress in that regard. Contrary to some arguments, we thus do not interpret Section 257 as an over-arching grant of authority to eliminate any and all barriers we might identify. We also are not persuaded by summary claims that Section 257 does not grant us authority here insofar as those claims lack meaningful analysis of the text of that provision. Thus, we continue to believe that Section 257 provides us authority for the rule we adopt.
215. We believe that eliminating market entry barriers in the provision
216.
217. The transparency requirements we retain directly advance substantial government interests in encouraging competition and innovation. The Act itself reveals the significance of these interests. In Section 257 of the Act, Congress specifically directed the Commission to identify market entry barriers in the provision of information services and their inputs, eliminating them where possible, and reporting to Congress on the need for any statutory changes required to address such barriers. In carrying out our responsibilities under Section 257, Congress directed us to advance, among other things, “vigorous economic competition” and “technological advancement.” Such interests are similar to those recognized as substantial by courts, as well.
218. The disclosure of information regarding broadband internet access service characteristics, rates, and terms directly advance those statutory directives. We thus disagree with arguments that there is insufficient justification for our transparency requirements to withstand First Amendment scrutiny. Moreover, commenters do not cite precedent demonstrating that only “systematic or enduring problem[s]” can provide the basis for requirements that withstand First Amendment scrutiny. Broadband internet access service subscribers will be able to use the disclosed information to evaluate broadband internet access service offerings and determine which offering will best enable the use of the applications and service they desire. This helps guard against the potential barrier to entry and deterrent to technological advancement that otherwise could be faced by entrepreneurs' and small business' innovative internet applications and service offerings, which may be dependent on the technical characteristics of broadband internet access service. The information disclosed by ISPs also is relevant to internet application and service providers' purchase of services from those ISPs. The record reveals evidence that a number of the internet applications and services that might be particularly sensitive to the manner in which an ISP provides broadband internet access service potentially could benefit from the freedom this order provides for providers of such services and ISPs to enter prioritization arrangements to better ensure the performance of those internet applications and services. Thus, the disclosures enable entrepreneurs, small businesses, and other participants in the internet marketplace to evaluate how well their offerings will perform by default relative to the prioritization services that ISPs offer them. Enabling internet application and service providers to evaluate their options in this way helps reduce barriers to entry that otherwise could exist and encourages entrepreneurs' and small businesses' ability to compete and develop and advance innovating offerings in furtherance of our statutory objectives. In addition to those considerations, as the Commission has recognized, disclosures help ensure accountability by ISPs and the potential for quick remedies if problematic practices occur. The disclosures also provide the Commission the information it needs for the evaluation required by Section 257 of the Act, enabling us to spur regulatory action or seek legislative changes as needed. The transparency rule we retain thus directly advances the substantial government interests identified in Section 257 of the Act.
219. The transparency requirements also are no more extensive than necessary. The disclosures covered by our transparency rule are tied to our duties under Section 257 of the Communications Act. We also observe in this regard that the most significant concerns were raised with respect to the additional reporting obligations adopted in the
220. We eliminate the conduct rules adopted in the
221. Transparency, competition, antitrust laws, and consumer protection laws achieve similar benefits as conduct rules at lower cost. The effect of the transparency rule we adopt is that ISP practices that involve blocking, throttling, and other behavior that may give rise to openness concerns will be disclosed to the Commission and the
222. History demonstrates that public attention, not heavy-handed Commission regulation, has been most effective in deterring ISP threats to openness and bringing about resolution of the rare incidents that arise. The Commission has had transparency requirements in place since 2010, and there have been very few incidents in the United States since then that plausibly raise openness concerns. It is telling that the two most-discussed incidents that purportedly demonstrate the need for conduct rules, concerning Madison River and Comcast/BitTorrent, occurred before the Commission had in place an enforceable transparency rule. And it was the disclosure, through complaints to the Commission and media reports of the conduct at issue in those incidents, that led to action against the challenged conduct.
223. As public access to information on ISP practices has increased, there has been a shift toward ISPs resolving openness issues themselves with less and less need for Commission intervention. In 2005, the Enforcement Bureau entered into a consent decree to resolve the allegations against Madison River. In 2008, Comcast reached a settlement with BitTorrent months before the Commission issued
224. We think the disinfectant of public scrutiny and market pressure, not the threat of heavy-handed Commission regulation, best explain the paucity of issues and their increasingly fast ISP-driven resolution. Since the Commission adopted a transparency rule in the
225. Although we think transparency promotes openness and empowers consumers, we recognize that regulation has an important role to play as a backstop where genuine harm is possible. In particular, transparency amplifies the power of antitrust law and the FTC Act to deter and where needed remedy behavior that harms consumers. While some commenters assert that proof is difficult in antitrust proceedings, our transparency rule requires ISPs to outline their business practices and service offerings forthrightly and honestly. This requirement both deters ISPs from engaging in anticompetitive, unfair, or deceptive conduct and gives consumers and regulators the tools they need to take action in the face of such behavior. Many ISPs have committed to abide by open internet principles. By restoring authority to the FTC to take action against deceptive ISP conduct, reclassification empowers the expert consumer protection agency to exercise the authority granted to them by Congress if ISPs fail to live up to their word and thereby harm consumers.
226. Transparency thus leads to openness and achieves comparable benefits to conduct rules. Moreover, the costs of compliance with a transparency rule are much lower than the costs of compliance with conduct rules. We therefore decline to impose this additional cost given our view that transparency drives a free and open internet, and in light of the FTC's and DOJ's authority to address any potential harms. To the extent that conduct rules lead to any additional marginal deterrence, we deem the substantial costs—including costs to consumers in terms of lost innovation as well as monetary costs to ISPs—not worth the possible benefits.
227. We find that the vague Internet Conduct Standard is not in the public interest. Following adoption of this Order, the FTC will be able to vigorously protect consumers and competition through its consumer protection and antitrust authorities. Given this, we see little incremental benefit and significant cost to retaining the Internet Conduct Standard. The rule has created uncertainty and likely denied or delayed consumer access to innovative new services, and we believe the net benefit of the Internet Conduct Standard is negative. As such, we find commenters urging the Commission to retain this standard, even with modifications, unpersuasive.
228. Based on our experience with the rule and the extensive record, we are persuaded that the Internet Conduct Standard is vague and has created regulatory uncertainty in the marketplace hindering investment and innovation. Because the Internet Conduct Standard is vague, the standard and its implementing factors do not provide carriers with adequate notice of what they are and are not permitted to do,
229. Increasing our concerns about the Internet Conduct Standard, other agencies already have significant experience protecting against the harms to competition and to consumers that the Internet Conduct Standard purports to reach. The FTC, for example, has authority over unfair and deceptive practices, both with respect to competition and consumer protection.
230. We anticipate that eliminating the vague Internet Conduct Standard will reduce regulatory uncertainty and promote network investment and service-related innovation. As we discussed above, regulatory uncertainty serves as a major barrier to investment and innovation. The record reflects that ISPs and edge providers of all sizes have foregone and are likely to forgo or delay innovative service offerings or different pricing plans that benefit consumers, citing regulatory uncertainty under the Internet Conduct Standard in particular. Indeed, these harms are not limited to ISPs—the rule “creates paralyzing uncertainty for app developers and other edge providers,” as well as equipment manufacturers. Even some proponents of Title II acknowledge these public interest harms. Commenters also note that “money spent on backward-looking regulatory compliance is money not spent on more productive uses, such as investments in broadband plant and services.” We anticipate that eliminating the Internet Conduct Standard will benefit consumers, increase competition, and eliminate regulatory uncertainty that has “a corresponding chilling effect on broadband investment and innovation.”
231. The now-rescinded Zero-Rating Report issued by the Wireless Telecommunications Bureau illustrates the uncertainty ISPs experience as a result of the Internet Conduct Standard adopted in the
232. We anticipate that eliminating the vague Internet Conduct Standard will also lower compliance and other related costs. The uncertainty surrounding the rule “establishes a standard for behavior that virtually requires advice of counsel before a single decision is made” and raises “costs [especially for smaller ISPs that] struggle to understand its application to their service prices, terms, conditions, and practices.” Smaller ISPs contend that they cannot “afford to be the subject of enforcement actions by the Commission or defend themselves before the Commission as a result of consumer complaints, because the costs of having to defend their actions before the Commission in Washington are enormous, relative to their resources.” ISPs “that are required to defend themselves against arbitrary enforcement actions and/or frivolous complaints will not have the time or financial resources to invest in their business. The costs of such compliance will likely be passed onto consumers via higher prices and/or limited service offerings and upgrades.” The record reflects widespread agreement from commenters with otherwise-divergent views that the Internet Conduct Standard creates significant harm without countervailing benefits.
233. We are further persuaded that the advisory opinion process introduced in the
234. We also decline to adopt a ban on paid prioritization. The transparency rule we adopt, along with enforcement of the antitrust and consumer protection laws, addresses many of the concerns regarding paid prioritization raised in this record. Thus, the incremental benefit of a ban on paid prioritization is likely to be small or zero. On the other hand, we expect that eliminating the ban on paid prioritization will help spur innovation and experimentation, encourage network investment, and better allocate the costs of infrastructure, likely benefiting consumers and competition. For these reasons and because we find that eliminating the ban on paid prioritization arrangements could lead to lower prices for consumers for broadband internet access service, we find that our action benefits low-income communities and non-profits, and we reject arguments to the contrary. We reject the argument that the benefits of our elimination of the paid prioritization ban must be “uniform across providers or geographic areas.” This is an unnecessarily high and rigid threshold. The public—including low-income communities—benefits, and that is enough. Thus, the costs (forgone benefits) of the ban are likely significant and outweigh any incremental benefits of a ban on paid prioritization.
235.
236. We also expect that ending the flat ban on paid prioritization will encourage the entry of new edge providers into the market, particularly those offering innovative forms of service differentiation and experimentation. As ITTA explains, “[i]t is routine for entities that do business over the internet to pay for a variety of services to provide an optimal user experience for their customers. Companies have been doing so for years without disturbing the thriving internet ecosystem.” We therefore reject arguments that the ban is necessary to provide a level playing field for edge providers. Indeed, in other areas of the economy, paid prioritization has helped the entry of new providers and brands. It is therefore no surprise that paid prioritization has long been used throughout the economy. Paid prioritization could allow small and new edge providers to compete on a more even playing field against large edge providers, many of which have CDNs and other methods of distributing their content quickly to consumers. We thus reject arguments that allowing pro-competitive paid prioritization will reduce the entry and expansion of small, new edge providers. In so finding, we do not mean to suggest that CDN services themselves constitute paid prioritization.
237.
238.
239. We reject assertions that allowing paid prioritization would lead ISPs to create artificial scarcity on their networks by neglecting or downgrading non-paid traffic. This argument has been strongly criticized as having “no support in economic theory that such incentives exist or are sufficiently strong as to outweigh countervailing incentives.” Moreover, as discussed above, in practice paid prioritization is likely to be used to deliver enhanced service for applications that need QoS guarantees. As AT&T explains, “[l]ast-mile access is not a zero-sum game, and prioritizing the packets for latency-sensitive applications will not typically degrade other applications sharing the same infrastructure,” such as email, software updates, or cached video. We thus reject arguments premised on the theory that ISPs could and would act to create artificial scarcity on their networks and thereby broadly require paid prioritization. Because of these practical limits on paid prioritization, we reject the argument that non-profits and independent and diverse content producers, who may be less likely to need QoS guarantees, will be harmed by lifting the ban.
240.
241.
242.
243. Lastly, antitrust laws would not prevent an ISP from exercising legally-acquired market power to earn market rents, so long as it is not used anticompetitively, but we do not consider any harms that might result from this to be so large as to justify the harms that a total prohibition on paid prioritization would entail. For harms from the exercise of legally-acquired market power to arise, the ISP must have market power over the edge provider. However, as shown above, ISPs usually face at least moderate competition, and all the more so taking a medium-term perspective. Consequently, the harms that could possibly occur from exercise of such power are not likely to be large. Further, the extent to which any harms actually occur will be muted by two factors. First, ISPs have strong incentives to keep edge provider output high (as this increases the value end users see in subscribing to the ISP, and signals to edge providers that the ISP recognizes their contribution to the platform). Thus, harm will only occur to the extent the ISP is unable to devise pricing schemes that preserve edge providers' incentives to bring content while maximizing the ISP's profit (the exercise of market power is only harmful when it excludes what would otherwise be efficient purchases of access). Second, as discussed above, increased prices from edge providers are to a potentially significant extent passed through to end users in the form of lower prices for broadband internet access service, with the result that end user demand for edge provider content is increased. The extent of such pass-through offsets these harms. Accordingly, we expect the harms from dictating pricing uniformity to edge providers exceed any harms that may emerge from a lack of such regulation.
244. We find the no-blocking and no-throttling rules are unnecessary to prevent the harms that they were intended to thwart. We find that the transparency rule we adopt today—coupled with our enforcement authority and with FTC enforcement of ISP commitments, antitrust law, consumer expectations, and ISP incentives—will be sufficient to prevent these harms, particularly given the consensus against blocking practices, as reflected in the scarcity of actual cases of such blocking. For the same reasons, we reject alternative formulations of the no-blocking and no-throttling rules.
245.
246.
247. Additionally, as urged by the prior Commission when defending the
248. The record in this proceeding does not persuade us that there are any sources of statutory authority that individually, or in the aggregate, could support conduct rules uniformly encompassing all ISPs. We find that provisions in Section 706 of the 1996 Act directing the Commission to encourage deployment of advanced telecommunications capability are better interpreted as hortatory rather than as independent grants of regulatory authority. We also are not persuaded that Section 230 of the Communications Act is a grant of regulatory authority that could provide the basis for conduct rules here. Nor does the record here reveal other sources of authority that collectively would provide a sure foundation for conduct rules that would treat all similarly-situated ISPs the same.
249. We conclude that the directives to the Commission in Section 706(a) and (b) of the 1996 Act to promote deployment of advanced telecommunications capability are better interpreted as hortatory, and not as grants of regulatory authority. We thus depart from the interpretation of those provisions adopted by the Commission beginning in the
250. We adopt this reading in light of the text, structure, and history of the 1996 Act and Communications Act. Section 706(a) directs that:
The Commission and each State commission with regulatory jurisdiction over telecommunications services shall encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans (including, in particular, elementary and secondary schools and classrooms) by utilizing, in a manner consistent with the public interest, convenience, and necessity, price cap regulation, regulatory forbearance, measures that promote competition in the local telecommunications market, or other regulating methods that remove barriers to infrastructure investment.
In turn, Section 706(b) provides in pertinent part that “[i]f the Commission's determination” under an annual inquiry into deployment of advanced telecommunications capability “is negative, it shall take immediate action to accelerate deployment of such capability by removing barriers to infrastructure investment and by promoting competition in the telecommunications market.”
251. The relevant text of Section 706(a) and (b) of the 1996 Act is reasonably read as exhorting the Commission to exercise market-based or deregulatory authority granted under other statutory provisions, particularly the Communications Act. The Commission otherwise has authority under the Communications Act to employ price cap regulation for services subject to rate regulation; to employ regulatory forbearance; to promote competition in the local telecommunications market; and to remove barriers to infrastructure investment. The Commission thus need not interpret Section 706 as an independent grant of regulatory authority to give those provisions meaning. Further, consistent with
252. We not only find that the relevant language in Sections 706(a) and (b) of the 1996 Act permissibly can be read as hortatory, but are persuaded that is the better interpretation. Arguments in the record supporting Section 706 of the 1996 Act as granting regulatory authority generally contend that this is a permissible interpretation but do not persuade us it is the better reading. For one, although the relevant provisions in Section 706(a) and (b) identify certain regulatory tools (like price cap regulation and regulatory forbearance) and marketplace outcomes (like increased competition and reduced barriers to infrastructure investment), they nowhere identify the providers or entities whose conduct could be regulated under Section 706 if interpreted as a grant of such authority. This lack of detail stands in stark contrast to Congress's approach in many other provisions enacted or modified as part of the 1996 Act that clearly are grants of authority to employ similar regulatory tools or pursue similar marketplace outcomes and that directly identify the relevant providers or entities subject to the exercise of that regulatory authority. The absence of any similar language in Section 706(a) and (b) of the 1996 Act supports our view that those provisions are better read as directing the Commission regarding its exercise of regulatory authority granted elsewhere. Our consideration of this as one factor persuading us that Section 706 of the 1996 Act is better read as hortatory is not undercut by our reliance on Section 257 as authority for disclosure requirements that provide us information needed to identify potential barriers to entry and investment while also helping mitigate any such barriers. Although Section 257 does not expressly identify entities from which we can obtain information, other aspects of Section 257 persuade us that our interpretation of that provision as a grant of authority to obtain the information we require from ISPs is necessary for us to carry out our duties under that provision for the reasons discussed above. Here, by contrast, this consideration combines with many others to collectively persuade us that Section 706 of the 1996 Act is better read as hortatory.
253. Indeed, under the
254. Our interpretation of Section 706 of the 1996 Act as hortatory also is supported by the implications of the
255. In addition, the 1996 Act added Section 230 of the Communications Act, which provides, among other things, that “[i]t is the policy of the United States . . . to preserve the vibrant and competitive free market that presently exists for the internet and other interactive computer services, unfettered by Federal or State regulation.” The
256. Prior Commission guidance regarding how it would interpret and apply the authority it claimed under Section 706(a) and (b) of the 1996 Act does not allay our concerns with the interpretation of those provisions as grants of regulatory authority. For example, the
257. Nor are the specific, problematic implications we identify with the Commission's prior interpretation of Section 706 as a grant of authority avoided by the Commission's explanation that its use of such authority must encourage the deployment of advanced telecommunications capability by promoting competition or removing barriers to infrastructure investment. Given the already-recognized nexus between the relevant Communications Act provisions and the promotion of network deployment and/or local competition, the record provides no reason to believe the Commission would have difficulty demonstrating at least an indirect effect on the deployment of advanced telecommunications capability should it wish, as a policy matter, to impose equivalent requirements under an assertion of authority under Section 706(a) and (b) without adhering to limitations or constraints present in the Communications Act provisions. Perhaps if the Commission required a tighter connection between a given regulatory action and promoting deployment of advanced telecommunications capability, it might reduce the magnitude of the inconsistency somewhat, but the record does not reveal that such an approach would eliminate it entirely or even diminish it to such an extent as to materially strengthen the argument for interpreting the relevant provisions of Section 706(a) and (b) as grants of regulatory authority. Such proposals also do not address the other reasons for viewing Sections 706(a) and (b) as hortatory in light of the statutory text and structure. Likewise, the
258. Guidance in the
259. We also are unpersuaded by the
260. The inability to impose penalties to enforce violations of requirements adopted under Section 706(a) and (b) of the 1996 Act also undercuts arguments that those provisions should be interpreted as grants of regulatory authority. Section 706 of the 1996 Act was not incorporated into the Communications Act, nor does the 1996 Act provide for it to be enforced as part of the Communications Act. Where Congress intended a statute outside the Communications Act to be enforced as if it were part of the Communications Act, it has expressly stated that in the relevant statute. Thus, the Communications Act provisions generally authorizing penalties do not apply to Section 706 of the 1996 Act or rules adopted thereunder. In pertinent part, to enforce rules under Section 503(b)(1) of the Communications Act, the rules must be “issued by the Commission under [the Communications] Act.” Other penalty provisions in the Communications Act are specific to narrower topics or the statutory section in which they appear, and thus also would not be authorized penalties for violations of rules implementing Section 706 of the 1996 Act. Although the
261. We believe that the better view is that reliance on the Communications Act for rulemaking authority alone would not render the resulting rules “issued by the Commission under [the Communications] Act” as required to trigger the forfeiture provisions of Section 503 of the Act. Given that Section 503 is about enforcement consequences from violating standards of conduct specified by, among other things, relevant Commission rules, we think that language is best read as focused on rules implementing the Commission's substantive regulatory authority under the Communications Act. Insofar as the substantive standard to which an entity is being held flows not from the Communications Act but from the Commission's assertion of authority under the 1996 Act, we believe that our forfeiture authority under Section 503 of the Communications Act consequently would not encompass such rules. The practical inability to back up rules implementing Section 706 with penalties thus undercuts the
262. Our conclusion that Section 706 of the 1996 Act is better read as hortatory is not at odds with the fact that two courts concluded that the Commission permissibly could adopt the alternative view that it is a grant of regulatory authority. Those courts did not find that the Commission's previous reading was the only (or even the most) reasonable interpretation of Section 706, leaving the Commission free to adopt a different interpretation upon further consideration. Indeed, the DC Circuit in
263. We also disagree with arguments that we should keep in place a misguided and flawed interpretation of Section 706(a) and (b) of the 1996 Act to preserve any existing rules or our ability going forward to take regulatory action based on such assertions of authority. We are not persuaded by concerns that reinterpreting Section 706(a) and (b) of the 1996 Act in this manner could undercut Commission rules adopted in other contexts because such arguments do not identify circumstances—nor are we otherwise aware of any—where the prior interpretation of the relevant provisions of Section 706(a) and/or (b) was, in whole or in part, a necessary basis for the rules. Similarly, concerns that our interpretation will limit states' regulatory authority do not identify with specificity any concrete need for such authority beyond any authority provided by state law, even assuming
264. Independently, we also are not persuaded that the prior interpretation of Section 706(a) and (b) of the 1996 Act would better advance policy goals relevant here. We have other sources of authority on which to ground our transparency requirements without adopting an inferior interpretation of Section 706(a) and (b). With respect to conduct rules, in addition to our decision that limits on our legal authority counsel against adopting such rules, we separately find that such rules are not otherwise justified by the record here. Consequently, we need not stretch the words of Section 706 of the 1996 Act because we can protect internet freedom even without it. Rather, we are persuaded to act in the manner that we believe reflects the best interpretation given the text and structure of the Act, the legislative history, and the policy implications of alternative interpretations.
265. We are not persuaded that Section 230 of the Communications Act grants the Commission authority that could provide the basis for conduct rules here. In
266. Other identified sources of potential authority appear significantly limited and not capable of bringing all ISPs under one comprehensive regulatory framework. The
267.
268. The
269. An alarm company urges us to rely on Section 275 of the Act, but we see substantial shortcomings in using as a basis for ancillary authority for conduct rules. Section 275 of the Act imposes certain nondiscrimination requirements on incumbent LECs related to alarm monitoring services, along with restrictions on all LECs' recording or use of data from calls to alarm monitoring providers for purposes of marketing competing alarm monitoring services. Arguments that ancillary authority based on Section 275 could support rules that prohibit ISPs that also offer alarm monitoring services from blocking or throttling alarm monitoring traffic or engaging in anticompetitive paid prioritization of alarm monitoring traffic are premised on a reading of Section 275 as a far broader mandate to protecting alarm monitoring competition than the specifics of its language support. Given the Commission's existing ability to directly apply the duties and restrictions of Section 275 to the specific entities covered by that Section, the record leaves us unable to conclude that the proposed alarm monitoring-related ISP conduct rules are sufficiently “necessary” to our implementation of Section 275 to satisfy the standard for ancillary authority under
270.
271. We find significant limitations to the
272. The
273.
274. Our analyses of potential theories of legal authority for conduct rules (other than Title II authority relied upon in the
275. In addition, the absence of demonstrated statutory authority that could support comprehensive conduct rules would leave us with, at most, a patchwork of non-uniform rules that would have problematic consequences and doubtful value. Virtually all of the remaining sources of possible authority identified in the
276. Imposing conduct rules on only some, but not all, ISPs risks introducing regulation-based market distortions by limiting some ISPs' ability to participate in the marketplace in a manner equivalent to other ISPs. ISPs subject to conduct rules would be limited in the ways in which they could manage traffic on their networks and/or the commercial arrangements they could enter related to their carriage of traffic beyond the requirements to which other ISPs are subject. As a result, they are likely to face increased network costs and network management challenges and see decreased revenue opportunities from commercial arrangements relative to existing or potential competitors not similarly constrained by conduct rules. In various contexts, the Commission previously has recognized that such artificial regulatory distinctions can distort the marketplace and undercut competition. The primary objectives of the 1996 Act are “[t]o promote competition and reduce regulation,” and the Commission likewise has observed that “[c]ompetitive markets are superior mechanisms for protecting consumers by ensuring that goods and services are provided to consumers in the most efficient manner possible and at prices that reflect the cost of production.” Thus, the risk that disparate regulatory treatment under patchwork conduct rules could harm existing or potential competition is a significant concern. Even assuming
277. Patchwork conduct rules also would not appear to address many of the theories of harm identified in the
278. In light of the modifications to our regulations, we also revise our enforcement practices under them. The
279.
280. We find that staff from the Consumer and Governmental Affairs Bureau—other than the Ombudsperson—have been performing the Ombudsperson functions envisioned by the
281. We emphasize that we are not making any changes to our informal complaint processes. Our decision to eliminate the Open Internet Ombudsperson does not impact the existing review of trends or existing responses to consumer complaints by the Consumer and Governmental Affairs Bureau and the Enforcement Bureau. Instead, it reduces confusion by making clear that staff specifically trained to work with consumers, known as Consumer Advocacy and Mediation Specialists (CAMS), are best suited to help consumers by providing them with understandable information about the issue they might be experiencing and to help file a complaint against a service provider if the consumer believes the service provider is violating our rules. When a consumer needs additional information that the CAMS cannot provide, that complaint is often shared with the expert Bureau or Office to provide additional information to the consumer.
282. Our experience also persuades us that the demand for a distinct Ombudsperson is not sufficient to retain the position. For the 10 month period from December 16, 2016 through November 16, 2017, the email address and phone number associated with the Ombudsperson received only 38 emails and 10 calls related to the open internet—with only 7 emails and 2 calls coming in during the 5 month period between mid-July and mid November 2017. By comparison, during that same time period, the Consumer and Governmental Affairs Bureau's Consumer Complaint Center received roughly 7,700 complaints that consumers identified as relating to open internet. This figure includes complaints filed through the Consumer Complaint Center and the FCC Call Center for which the consumer self-selected the issue “Open Internet/Net Neutrality” or the call center agent selected “Open Internet” based on the consumer's description of the issue, and does not exclude open internet campaigns. These statistics make clear that consumers have generally not been seeking out the Ombudsperson position for assistance with concerns about internet openness and that consumers are comfortable working with the Consumer and Governmental Affairs Bureau to protect their interests.
283.
284.
285. The
286. As proposed in the
287. The primary benefits, costs, and transfers attributable to this Order are the changes in the economic welfare of consumers, ISPs, and edge providers that would occur due to our actions. In our analysis of the net benefits of maintaining the Title II classification, the internet conduct rule, and the bright-line rules, we compare against a state we would expect to exist if we did
288. To conduct the cost-benefit analysis, we first consider the question of maintaining the Title II classification of broadband internet access service. We next consider approaches to transparency. Then to evaluate the internet conduct rule and the bright-line rules, we assume that we will not maintain the Title II classification and we will adopt our transparency rule. This approach allows us practically to evaluate the rules in a way that incorporates the decisions on classification and transparency that we have come to in this Order.
289.
290. As the
291. The Commission also asked in the
292. Next, we consider the benefits associated with maintaining the Title II classification. The relevant comparison is what incremental benefit the Title II classification provides over and above the Title I scenario. In the Title I scenario, the FTC has jurisdiction over broadband internet access service providers. The record does not convince us that Title II classification
293. Finding that the benefits of maintaining the Title II classification are approximately zero, coupled with our finding that the private and social costs are positive, we conclude that maintaining the Title II classification would have net negative benefits. Thus, maintaining the Title II classification would decrease overall economic welfare, and our cost-benefit analysis supports the decision to reclassify broadband internet access service as a Title I service.
294.
295. The costs of the transparency rules may vary given differences in their implementation. Comparing the transparency approach in the
296. Combining our conclusion about the benefits of a transparency rule with our assessments of the costs of the several transparency rules, we conclude that the transparency rule in the
297.
298. We also find above that the benefits of the internet conduct standard are limited if not approximately zero. In this cost-benefit analysis, we consider the incremental benefit of the internet conduct standard relative to the regulatory environment created by this Order. The regulatory environment created by this Order will have antitrust and consumer protection enforcement in place through the FTC. We find that the internet conduct standard provides approximately zero additional benefits compared to that baseline.
299. Based on the record available, we conclude that maintaining the internet conduct standard would impose net negative benefits. The costs of the rule are considerable as the evidence shows that it had large effects on consumers obtaining innovative services (as demonstrated by the zero-rating experiences). The innovations that were delayed or never brought to market would likely have cost many millions or even billions of dollars in lost consumer welfare. At the same time, for the reasons explained already, the benefits of the conduct rule are approximately zero. This leads us to conclude that the internet conduct standard has a net negative effect on economic welfare,
300.
301. We also find above that the benefits of the ban on paid prioritization are limited. In this cost-benefit analysis, we consider the incremental benefit of the ban on paid prioritization relative to the regulatory environment created by this Order. The regulatory environment created by this Order will have antitrust and consumer protection enforcement in place. So we must ask what the ban on paid prioritization provides in additional benefits when compared to that baseline. We concluded that transparency combined with antitrust and consumer enforcement at the FTC will be able to address the vast majority of harms the ban on paid prioritization is intended to prevent. To the extent there are harms not well addressed by this enforcement, we would expect those cases to be infrequent and involve relatively small amounts of harm, though the record does not allow us to estimate this magnitude. Antitrust law, in combination with the transparency rule we adopt, is particularly well-suited to addressing any potential or actual anticompetitive harms that may arise from paid prioritization arrangements. While antitrust law does not address harms that may arise from the legal use of market power, we have found that such market power is limited, and ISPs also have countervailing incentives to keep edge provider output high and keep subscribers on the network. The record therefore supports a finding of small to zero benefits.
302. Based on the record available, we conclude that maintaining the ban on paid prioritization would impose net negative benefits. The record shows that in some cases innovative services and business models would benefit from paid prioritization. At the same time, for the reasons explained already, the benefits of maintaining the ban are small or zero. We therefore conclude that the ban on paid prioritization has a net negative effect on economic welfare. This conclusion supports our decision to not maintain the ban on paid prioritization.
303.
304. Having adopted a transparency rule, we find the benefits of bans on blocking and throttling are approximately zero since the transparency rule will allow antitrust and consumer protection law, coupled with consumer expectations and ISP incentives, to mitigate potential harms. That is, we have determined that replacing the prohibitions on blocking and throttling with a transparency rule implements a lower-cost method of ensuring that threats to internet openness are exposed and deterred by market forces, public opprobrium, and enforcement of the consumer protection laws. We conclude therefore that maintaining the bans on blocking and throttling has a small net negative benefit, compared to the new regulatory environment we create (
305. INCOMPAS requests that we modify the protective orders in four recent major transaction proceedings involving internet service providers to allow confidential materials submitted in those dockets to be used in this proceeding. INCOMPAS argues that the materials “are necessary to understanding and fully analyzing incumbent broadband providers' ability and incentives to harm edge providers.” The motion is opposed by the three companies whose materials would be most affected—Comcast, Charter and AT&T—as well as by Verizon. For the reasons set forth below, after carefully “balancing . . . the public and private interests involved,” we deny INCOMPAS's request.
306. The Commission's protective orders limit parties' use of the materials obtained under the protective order solely to “the preparation and conduct” of that particular proceeding, and expressly prohibit the materials being used “for any other purpose, including . . . in any other administrative, regulatory or judicial proceedings.” The terms of the relevant protective orders therefore prohibit INCOMPAS from using the confidential materials it obtained in those prior dockets in the current proceeding. Further, parties reasonably expect that the information they submit pursuant to the strictures of a protective order will be used in accordance with the terms of that order and that the order's explicit prohibitions will not be changed years later. That is not to imply, however, that the Commission cannot request the submission of information in a proceeding simply because it has been provided pursuant to a protective order in another proceeding.
307. Before discussing the substance of INCOMPAS's request, we note that, as a formal matter, the Commission does not modify protective orders to allow materials to be used in a different proceeding. Rather, where we find that the public interest is served by submitting certain materials into a docket, we do so, subject to a protective order specific to that proceeding if the material is confidential. That is true whether the materials have been submitted in prior proceedings or not. The question before us, then, is whether we will require the relevant parties to submit into this docket the presumptively confidential information INCOMPAS has identified.
308. The Commission is not required to enter into the record and review every document that a party to a proceeding deems relevant, especially where, as here, those documents may number in the tens of thousands. Nor, as a general matter, does the Commission allow for discovery by parties—which is essentially what INCOMPAS seeks here—except in adjudications that have been set for hearing. The Commission has broad discretion in how to manage its own proceedings, and we find several problems with requiring the materials INCOMPAS seeks to be submitted into this rulemaking docket.
309. First, much of the material INCOMPAS seeks is now several years old and INCOMPAS has offered little demonstration of its relevance to this proceeding. For example, Comcast's ability to discriminate against online video providers in 2009 and 2010 shines little light on its ability to do so now. Also, as the opponents argue, many of the confidential materials cited by the Commission in its prior transaction
310. Second, INCOMPAS asks for information only from the few industry participants who happen to have had large transactions before the Commission. But where the Commission has sought information in large rulemaking proceedings, it sought information from the entire industry, not just from a select few participants. Transaction review is an adjudicatory matter, involving the entities engaging in the transaction—not the entire industry or marketplace. Particularly given that there are thousands of ISPs doing business in the United States, INCOMPAS does not address how a quite incomplete picture of industry practices could meaningfully improve the Commission's analysis.
311. Third, granting the request would pose several administrative difficulties. It is unclear how much of the material INCOMPAS seeks is still in the possession of the parties: The relevant portions of the proceedings are finished, and many of the materials may have been destroyed. And what is available at the Commission would be difficult and costly to produce. Making the information available to others also would be administratively difficult. For example, in the recent Business Data Services proceeding, the Commission made the competitively sensitive data available for review only through a secure data enclave, a process which took significant time and resources to establish. And in most Commission proceedings, the parties who own the confidential information are required to provide that material directly to persons who seek to review it pursuant to terms outlined in the applicable protective order. Here, in contrast, it is likely that the Commission itself would have to make the confidential information available, further depleting scarce Commission resources.
312. Finally, as noted above, the materials INCOMPAS seeks were provided pursuant to express assurances against their use in future proceedings.
313. INCOMPAS cites two examples in which the Commission staff placed into the record competitively sensitive materials originally submitted in another docket. We find both inapposite. As an initial matter, we note that the Commission is not bound by its staff's prior decisions. The first example INCOMPAS cites involved a series of spectrum license transfers between wireless telecommunications companies where the Commission added confidential data to the docket under a new protective order. When evaluating transactions such as these, the Commission regularly uses subscriber data derived from regular periodic confidential filings made by all telecommunications companies to determine market shares. In such transactions, this use of subscriber data is often the only way to calculate market share, which is a critical element to analyzing the potential competitive harms of the proposed transaction. Balancing that need against the potential competitive harm to providers, we have determined that allowing that material to be reviewed pursuant to a protective order best serves the public interest. For the reasons expressed above, we do not reach the same conclusions with respect to the materials here.
314. INCOMPAS also cites the recent investigation of certain business data services tariffs, in which the Commission placed the record of the contemporaneous business data services rulemaking proceeding into the docket of the tariff investigations. As the opponents note, the tariff investigation was not only related to the rulemaking proceeding, it actually was determined by the staff to be “an outgrowth” of that proceeding. Further, there was no Commission decision in the rulemaking proceeding on which the participants in the tariff proceeding could rely; the proceeding was still ongoing. All of the participants in the tariff proceeding, moreover, were participating in the rulemaking proceeding. Here, by contrast, the current rulemaking is not related to the prior transactions; the parties may rely on prior written Commission decisions; and literally millions more comments have been submitted in this rulemaking than in the prior transaction proceedings. Finally, we note that none of the parties that owned the confidential information in the Business Data Services rulemaking proceeding raised confidentiality concerns with respect to that information being placed into the tariff investigation docket. Here, they do.
315. Even absent the legal and administrative barriers discussed above, the substance of the past transaction orders compels us to deny INCOMPAS' motion. When, as it has in the past, the Commission determines a specific transaction involving certain large broadband providers is likely to create competitive or other public interest harm, the conditions imposed are applicable
316. Further, in those limited instances in which the Commission found conduct remedies necessary, it almost always applied them on a temporary basis, in recognition that markets change over time. That is true even more so in industries that are characterized by rapidly changing technologies. Similarly, the Commission often has provided that it will “consider a petition for modification of this condition if it can be demonstrated that there has been a material change in circumstance or the condition has proven unduly burdensome, rendering the condition no longer necessary in the public interest,” and has acted accordingly. None of this would be the case with respect to the regulations that some commenters urge us to adopt in this rulemaking.
317. INCOMPAS argues that “[l]ooking to the past is the standard way for administrative agencies to make predictive judgments.” However, the analysis supporting our decision to re-classify broadband internet access service as an information service is quite different from the analysis the Commission employs when conducting a transaction review. In this rulemaking, we are not considering whether, as a result of a transfer of a Commission license, a licensee is likely to gain market power, allowing it to take anticompetitive actions that it otherwise could not. Instead, we are reasonably considering the long-term costs and benefits of Title II and other
318. In addition to rejecting the INCOMPAS petition on the merits, we find that the petition is procedurally flawed. Although some of the companies that objected to INCOMPAS's request were the applicants in the proceedings from which INCOMPAS seeks confidential information, they are not the only owners of confidential information submitted in those dockets. INCOMPAS did not file its request in those dockets—which are long dormant—and others whose confidential information would be disclosed if we were to grant INCOMPAS's request have not been notified of the request to have the opportunity to object. That would need to occur before any of their information could be made available, even pursuant to a protective order.
319. Taking into account and sensibly balancing the factors discussed above, we find that the public interest would not be served by requiring the submission into the docket of the current proceeding the presumptively confidential information INCOMPAS seeks. We therefore deny INCOMPAS's request.
320. The National Hispanic Media Coalition (NHMC) requests that we incorporate in the record of this proceeding the informal complaint materials released as part of NHMC's Freedom of Information Act (FOIA) request and establish a new pleading cycle for public comment on those materials. NHMC argues that the materials “are directly relevant to the [NPRM's] questions regarding the effectiveness of the [
321. In responding to NHMC's underlying FOIA requests, we produced nearly 70,000 pages of records responsive to the requests. The documents we provided to NHMC included informal consumer complaints filed with the Consumer and Governmental Affairs Bureau, data relating to the complaints, responses to the informal complaints from the carrier involved in a specific complaint—all filed by the consumer under the category of Open Internet/Net Neutrality—and consumer complaint correspondence with the Open Internet Ombudsperson. We provided this large quantity of documents to NHMC on a rolling basis and made all of the documents available to the public in our FOIA Electronic Reading Room.
322. Under Commission rules, and as noted by opponents to the motion, “NHMC is free to put into the record whatever it believes to be relevant via
323. The
324. We are convinced that we have a full and complete record on which to base our determination today without incorporating the materials requested by NHMC. Further, because the record remained open for over three months after the complete production of documents under NHMC FOIA's request, and NHMC filed an analysis the materials it deemed relevant in the record, we believe that NHMC had ample opportunity to “meaningfully review the informal complaint materials and provide comment.”
325. In reviewing the record in this rulemaking, the Commission complied with its obligations under the Administrative Procedure Act (APA), including the obligation to consider all “relevant matter” received, to adequately consider “important aspect[s] of the problem,” and to “reasonably respond to those comments that raise significant problems.” Consistent with these obligations, the Commission focused its review of the record on the submitted comments that bear substantively on the legal and public policy consequences of the actions we take today. Thus, our decision to restore internet freedom did not rely on comments devoid of substance, or the thousands of identical or nearly-identical non-substantive comments that simply convey support or opposition to the proposals in the
326. Because we have complied with our obligations under the APA, we reject calls to delay adoption of this Order out of concerns that certain non-substantive comments (on which the Commission did not rely) may have been submitted under multiple different names or allegedly “fake” names. The Commission is under no legal obligation to adopt any “procedural devices” beyond what the APA requires, such as identity-verification procedures. In addition, the Commission has previously decided not to apply its internal rules regarding false statements in the rulemaking context because we do not want “to hinder full and robust public participation in such policymaking proceedings by encouraging collateral wrangling over
327. As required by the Regulatory Flexibility Act (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated into the
328. This document contains new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office of Management and Budget (OMB) for review under Section 3507(d) of the PRA. OMB, the general public, and other federal agencies will be invited to comment on the new information collection requirements contained in this proceeding. In addition, we note that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
329. In this present document, we require any person providing broadband internet access service to publicly disclose accurate information regarding the network management practices, performance, and commercial terms of their broadband internet access services sufficient to enable consumers to make informed choices regarding the purchase and use of such services and entrepreneurs and other small businesses to develop, market, and maintain internet offerings. We have assessed the effects of this rule and find that any burden on small businesses will be minimal because (1) the rule gives ISPs flexibility in how to implement the disclosure rule, (2) the rule gives providers adequate time to develop cost-effective methods of compliance, and (3) the rule eliminates the additional reporting obligations adopted in the
330. The Commission will send a copy of the Report and Order to Congress and the Government Accountability Office pursuant to the Congressional Review Act,
331. The Commission certifies that it has complied with the Office of Management and Budget Final Information Quality Bulletin for Peer Review, 70 FR 2664, January 14, 2005, and the Data Quality Act, Public Law 106-554 (2001), codified at 44 U.S.C. 3516 note, with regard to its reliance on influential scientific information in the Declaratory Ruling, Report and Order, and Order in WC Docket No. 17-108.
332. To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to
333. As required by the Regulatory Flexibility Act of 1980 (RFA), as amended, Initial Regulatory Flexibility Analysis (IRFAs) was incorporated in the
334. In order to return the internet to the light-touch regulatory environment that allowed investment to increase and consumers to benefit, we return broadband internet access service to its longstanding classification as an information service, and eliminate several rules adopted in the
335. We also eliminate the formal complaint procedures under Part 8 of the Act, because the informal complaint procedures are sufficient. We eliminate the other components of the enforcement regime created in the
The transparency rule we adopt is necessary because properly tailored transparency disclosures provide valuable information to the Commission to enable it to meet its statutory obligation to observe the communications marketplace to monitor the introduction of new services and technologies, and to identify and eliminate potential marketplace barriers for the provision of information service. Such disclosures also provide valuable information to other internet ecosystem participants; transparency substantially reduces the possibility that ISPs will engage in harmful practices, and it incentivizes quick corrective measures by providers if problematic conduct is identified. Appropriate disclosures help consumers make informed choices about their purchase and use of broadband services. Moreover, clear disclosures improve consumer confidence in ISPs' practices, ultimately increasing user adoption and leading to additional investment and innovation, while providing entrepreneurs and other small businesses the necessary information to innovate and improve products.
336. Our enforcement changes will ensure that ISPs will be held accountable for any violations of the transparency rule. We eliminate the formal complaint procedures because the informal complaint procedure, in conjunction with other redress options including consumer protection laws, will sufficiently protect consumers. Additionally, we eliminate the position of Open Internet Ombudsperson because the staff from the Consumer and
337. We return mobile broadband internet access service to its original classification as a private mobile radio service because we find that the definitions of the terms “public switched network” and “interconnected service” that the Commission adopted in the 1994
338. We restore the definition of interconnected service that existed prior to the
339. The legal basis for the rules we adopt today includes sections 3, 4, 201(b), 230, 231, 257, 303, 332, 403, 501, and 503 of the Communications Act of 1934, as amended, 47 U.S.C. 153, 154, 201(b), 230, 231, 257, 303, 332, 403, 501, 503. The transparency rule we adopt today relies on Section 257 of the Communications Act. Section 257 requires the Commission to make triennial reports to Congress, and those triennial reports must identify “market entry barriers for entrepreneurs and other small businesses in the provision and ownership of telecommunications services and information services.”
340. The Wireless Internet Service Providers Association (WISPA) argued that the IRFA was incomplete and inaccurate. We find that this FRFA sufficiently addresses WISPA's concerns and explains how we “alleviate many of the significant financial harms on small providers imposed by the [
341. Pursuant to the Small Business Jobs Act of 2010, which amended the RFA, the Commission is required to respond to any comments filed by the Chief Counsel of the Small Business Administration (SBA), and to provide a detailed statement of any change made to the proposed rule(s) as a result of those comments.
342. The Chief Counsel did not file any comments in response to the proposed rule(s) in this proceeding.
343. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one that: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA). Nationwide, there are a total of approximately 28.2 million small businesses, according to the SBA. A “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.”
344.
345. The rules we adopt apply to broadband internet access service providers. The Economic Census places these firms, whose services might include Voice over Internet Protocol (VoIP), in either of two categories, depending on whether the service is provided over the provider's own telecommunications facilities (
346. The broadband internet access service provider industry has changed since this definition was introduced in 2007. The data cited above may therefore include entities that no longer provide broadband internet access service, and may exclude entities that now provide such service. To ensure that this FRFA describes the universe of small entities that our action might affect, we discuss in turn several different types of entities that might be providing broadband internet access service. We note that, although we have no specific information on the number of small entities that provide broadband internet access service over unlicensed spectrum, we include these entities in our Initial Regulatory Flexibility Analysis.
347.
348.
349.
350.
351. We have included small incumbent LECs in this present RFA analysis. As noted above, a “small business” under the RFA is one that,
352.
353.
354.
355. The broadband internet access service provider category covered by these rules may cover multiple wireless firms and categories of regulated wireless services. Thus, to the extent the wireless services listed below are used by wireless firms for broadband internet access service, the proposed actions may have an impact on those small businesses as set forth above and further below. In addition, for those services subject to auctions, we note that, as a general matter, the number of winning bidders that claim to qualify as small businesses at the close of an auction does not necessarily represent the number of small businesses currently in service. Also, the Commission does not generally track subsequent business size unless, in the context of assignments and transfers or reportable eligibility events, unjust enrichment issues are implicated.
356.
357. The Commission's own data—available in its Universal Licensing System—indicate that, as of October 25, 2016, there are 280 Cellular licensees that will be affected by our actions today. The Commission does not know how many of these licensees are small, as the Commission does not collect that information for these types of entities. Similarly, according to internally developed Commission data, 413 carriers reported that they were engaged in the provision of wireless telephony, including cellular service, Personal Communications Service, and Specialized Mobile Radio Telephony services. Of this total, an estimated 261 have 1,500 or fewer employees, and 152 have more than 1,500 employees. Thus, using available data, we estimate that the majority of wireless firms can be considered small.
358.
359.
360.
361.
362. On January 26, 2001, the Commission completed the auction of 422 C and F Block Broadband PCS licenses in Auction No. 35. Of the 35 winning bidders in that auction, 29
363.
364. The auction of the 1,053 800 MHz SMR geographic area licenses for the General Category channels began on August 16, 2000, and was completed on September 1, 2000. Eleven bidders won 108 geographic area licenses for the General Category channels in the 800 MHz SMR band and qualified as small businesses under the $15 million size standard. In an auction completed on December 5, 2000, a total of 2,800 Economic Area licenses in the lower 80 channels of the 800 MHz SMR service were awarded. Of the 22 winning bidders, 19 claimed small business status and won 129 licenses. Thus, combining all four auctions, 41 winning bidders for geographic licenses in the 800 MHz SMR band claimed status as small businesses.
365. In addition, there are numerous incumbent site-by-site SMR licenses and licensees with extended implementation authorizations in the 800 and 900 MHz bands. We do not know how many firms provide 800 MHz or 900 MHz geographic area SMR service pursuant to extended implementation authorizations, nor how many of these providers have annual revenues of no more than $15 million. One firm has over $15 million in revenues. In addition, we do not know how many of these firms have 1,500 or fewer employees, which is the SBA-determined size standard. We assume, for purposes of this analysis, that all of the remaining extended implementation authorizations are held by small entities, as defined by the SBA.
366.
367. In 2007, the Commission reexamined its rules governing the 700 MHz band in the
368.
369.
370.
371.
372.
373.
374.
375. In 2009, the Commission conducted Auction 86, the sale of 78 licenses in the BRS areas. The Commission offered three levels of bidding credits: (i) A bidder with attributed average annual gross revenues that exceed $15 million and do not exceed $40 million for the preceding three years (small business) received a
376.
377.
378.
379. Because Section 706 requires us to monitor the deployment of broadband using any technology, we anticipate that some broadband service providers may not provide telephone service. Accordingly, we describe below other types of firms that may provide broadband services, including cable companies, MDS providers, and utilities, among others.
380.
381.
382.
383. “All Other Telecommunications” is defined as follows: “This U.S. industry is comprised of establishments that are primarily engaged in providing specialized telecommunications services, such as satellite tracking, communications telemetry, and radar station operation. This industry also includes establishments primarily engaged in providing satellite terminal stations and associated facilities connected with one or more terrestrial systems and capable of transmitting telecommunications to, and receiving telecommunications from, satellite systems. Establishments providing internet services or voice over internet
384. Today's action requires broadband internet access service providers to “publicly disclose accurate information regarding the network management practices, performance, and commercial terms of its broadband internet access services sufficient to enable consumers to make informed choices regarding the purchase and use of such services and entrepreneurs and other small businesses to develop, market, and maintain internet offerings.”
385. Broadband internet access service providers must disclose performance characteristics, network practices, and commercial terms. The required disclosures must either be posted on a publicly available, easily accessible website, or they must be submitted to the Commission, which will post the disclosures on a publicly available, easily accessible website.
386. Because the disclosure requirements we adopt today eliminate the additional reporting obligations found in the
387. Today's action restores broadband internet access service's original classification as an information service. This will significantly decrease the burdens on small entities. Additionally, the removal of the additional reporting obligations, the direct notification requirement, and the broadband provider safe harbor form will minimize the burdens providers face.
388. The transparency rule we adopt today strikes an appropriate balance by requiring ISPs to disclose information that will allow consumers to make informed choices and that will enable the Commission to enable it to meet its statutory obligation to observe the communications marketplace to monitor the introduction of new services and technologies and to identify and eliminate potential marketplace barriers for the provision of information service, while simultaneously freeing providers from onerous burdens that produce little public benefit. While retaining the transparency rule, with modifications, from the
389. We also eliminate several rules adopted in the
390. We also eliminate the position of Open Internet Ombudsperson, the formal complaint process, and the issuance of advisory opinions, because the work of the Open Internet Ombudsperson is more appropriately handled by Commission staff, and because the issuance of advisory opinions and the formal complaint process have not been shown to provide any benefit to broadband internet access service providers or consumers.
391. Finally, we return mobile broadband internet access service to its original classification as a private mobile radio service and restore the definition of interconnected service that existed prior to the
392. The Commission will send a copy of this Declaratory Ruling, Report and Order, and Order, including this FRFA, in a report to be sent to Congress pursuant to the SBREFA. In addition, the Commission will send a copy of this Declaratory Ruling, Report and Order, and Order, including the FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of the Declaratory Ruling, Report and Order, and Order, and the FRFA (or summaries thereof) will also be published in the
393. Accordingly,
394.
395.
396.
397.
398.
399.
Administrative practice and procedure, Cable television, Common carriers, Communications common carriers, Reporting and recordkeeping requirements, Satellites, Telecommunications, Telephone, Radio.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 1, 8, and 20 as follows:
47 U.S.C. 34-39, 151, 154(i), 154(j), 155, 157, 160, 201, 225, 227, 303, 309, 332, 1403, 1404, 1451, 1452, and 1455.
(f) * * *
(1) * * *
(i) Formal complaint proceedings under section 208 of the Act and in §§ 1.720 through 1.736, and pole attachment complaint proceedings under section 224 of the Act and in §§ 1.1401 through 1.1424;
47 U.S.C. 154, 201(b), 257, and 303(r).
(a) Any person providing broadband internet access service shall publicly disclose accurate information regarding the network management practices, performance characteristics, and commercial terms of its broadband internet access services sufficient to enable consumers to make informed choices regarding the purchase and use of such services and entrepreneurs and other small businesses to develop, market, and maintain internet offerings. Such disclosure shall be made via a publicly available, easily accessible website or through transmittal to the Commission.
(b) Broadband internet access service is a mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all internet endpoints, including any capabilities that are incidental to and enable the operation of the communications service, but excluding dial-up internet access service. This term also encompasses any service that the Commission finds to be providing a functional equivalent of the service described in the previous sentence or that is used to evade the protections set forth in this part.
(c) A network management practice is reasonable if it is appropriate and tailored to achieving a legitimate network management purpose, taking into account the particular network architecture and technology of the broadband internet access service.
47 U.S.C. 151, 152(a) 154(i), 157, 160, 201, 214, 222, 251(e), 301, 302, 303, 303(b), 303(r), 307, 307(a), 309, 309(j)(3), 316, 316(a), 332, 610, 615, 615a, 615b, 615c, unless otherwise noted.
The revisions read as follows:
(b) The functional equivalent of such a mobile service described in paragraph (a) of this definition.
(a) That is interconnected with the public switched network, or interconnected with the public switched network through an interconnected service provider, that gives subscribers the capability to communicate to or receive communication from all other users on the public switched network; or
Bureau of Land Management, Interior.
Proposed rule.
On November 18, 2016, the Bureau of Land Management (BLM) published in the
Send your comments on this proposed rule to the BLM on or before April 23, 2018. A comment to the OMB on the proposed information collection revisions is best assured of being given full consideration if the OMB receives it by March 26, 2018.
Please indicate “Attention: OMB Control Number 1004-0211,” regardless of the method used to submit comments on the information collection burdens. If you submit comments on the information-collection burdens, you should provide the BLM with a copy, at one of the street addresses shown earlier in this section, so that we can summarize all written comments and address them in the final rulemaking. Comments not pertaining to the proposed rule's information-collection burdens should not be submitted to OMB. The BLM is not obligated to consider or include in the Administrative Record for the final rule any comments that are improperly directed to OMB.
Catherine Cook, Acting Division Chief, Fluid Minerals Division, 202-912-7145 or
On November 18, 2016, the BLM published in the
On March 28, 2017, President Trump issued Executive Order (E.O.) 13783, “Promoting Energy Independence and Economic Growth,” directing the BLM to review the 2016 final rule and to publish proposed rules suspending, revising, or rescinding it, if appropriate.
The BLM reviewed the 2016 final rule and found that some impacts were under-estimated and many provisions of the rule would add regulatory burdens that unnecessarily encumber energy production, constrain economic growth, and prevent job creation. This proposed rule would revise the 2016 final rule so that the remaining requirements would be consistent with the policies set forth in section 1 of E.O. 13783, which states that “[i]t is in the national interest to promote clean and safe development of our Nation's vast energy resources, while at the same time avoiding regulatory burdens that unnecessarily encumber energy production, constrain economic growth, and prevent job creation.”
More specifically, the BLM acknowledges that the 2016 final rule contains requirements that overlap with other Federal and State requirements and regulations. However, unlike the Environmental Protection Agency (EPA) regulations with which the rule overlaps, the 2016 final rule would affect existing wells, including a substantial number that are likely to be marginal or low-producing and therefore less likely to remain economical to operate if subjected to additional compliance costs. The 2016 final rule also contains numerous administrative and reporting burdens that are unnecessary and likely to constrain development. Finally, as explained in the Regulatory Impact Analysis (RIA) prepared for this rule, the BLM reviewed the 2016 final rule and determined that the costs the rule is expected to impose would exceed the benefits it is expected to generate. For these reasons, the BLM is now proposing to revise the 2016 final rule in a manner that reduces unnecessary compliance burdens and, in large part, re-establishes the long-standing requirements that the 2016 final rule replaced.
If you wish to comment on this proposed rule, you may submit your comments to the BLM by mail, personal or messenger delivery, or through
Please make your comments on the proposed rule as specific as possible, confine them to issues pertinent to the proposed rule, and explain the reason
Comments, including names and street addresses of respondents, will be available for public review at the address listed under “
As explained later, this proposed rule would include revisions to information collection requirements that must be approved by the Office of Management and Budget (OMB). If you wish to comment on the revised information collection requirements in this proposed rule, please note that such comments must be sent directly to the OMB in the manner described in the
The BLM manages more than 245 million acres of public land, known as the National System of Public Lands, primarily located in 12 Western States, including Alaska. The BLM also manages 700 million acres of subsurface mineral estate throughout the nation.
The BLM's onshore oil and gas management program is a major contributor to the nation's oil and gas production. In fiscal year (FY) 2016, sales volumes from Federal onshore production lands accounted for 9 percent of domestic natural gas production, and 5 percent of total U.S. oil production.
The venting or flaring of some natural gas is a practically unavoidable consequence of oil and gas development. Whether during well drilling, production testing, well purging, or emergencies, it is not uncommon for gas to reach the surface that cannot be feasibly used or sold. When this occurs, the gas must either be combusted (“flared”) or released to the atmosphere (“vented”). Depending on the circumstances, operators may also flare natural gas on a longer-term basis from production operations, predominantly in situations where an oil well co-produces natural gas (or “associated gas”) in an exploratory area or a field that lacks adequate gas-capture infrastructure to bring the gas to market. Still other venting or flaring of gas from production equipment may occur by design and as a substitute for other power generated facilities at the wellsite.
In response to oversight reviews and a recognition of increased flaring from Federal and Indian leases, the BLM developed a final rule entitled, “Waste Prevention, Production Subject to Royalties, and Resource Conservation,” which was published in the
The 2016 final rule was intended to: Reduce waste of natural gas from venting, flaring, and leaks during oil and natural gas production activities on onshore Federal and Indian leases; clarify when produced gas lost through venting, flaring, or leaks is subject to royalties; and clarify when oil and gas production may be used royalty free on-site. The 2016 final rule became effective on January 17, 2017, with some requirements taking effect immediately, but the majority of requirements phased-in over time.
On March 28, 2017, President Trump issued E.O. 13783, entitled, “Promoting Energy Independence and Economic Growth,” requiring the BLM to review the 2016 final rule. Section 7(b) of E.O. 13783 directs the Secretary of the Interior to review four specific rules, including the 2016 final rule, for consistency with the policy articulated in section 1 of the Order and to publish proposed rules suspending, revising, or rescinding those rules, if appropriate. Among other things, section 1 of E.O. 13783 states that “[i]t is in the national interest to promote clean and safe development of our Nation's vast energy resources, while at the same time avoiding regulatory burdens that unnecessarily encumber energy production, constrain economic growth, and prevent job creation.”
To implement E.O. 13783, Secretary of the Interior Ryan Zinke issued Secretarial Order No. 3349, entitled, “American Energy Independence” on March 29, 2017, which, among other things, directs the BLM to review the 2016 final rule to determine whether it is fully consistent with the policy set forth in section 1 of E.O. 13783.
The BLM reviewed the 2016 final rule and believes that it is inconsistent with the policy in section 1 of E.O. 13783. The BLM found that the impacts resulting from some provisions of the rule were underestimated and would add regulatory burdens that unnecessarily encumber energy production, constrain economic growth, and prevent job creation. This proposed rule would revise the 2016 final rule so that the remaining requirements would be consistent with the policies set forth in section 1 of E.O. 13783.
On October 5, 2017, the BLM published a proposed rule that would suspend the implementation of certain requirements in the 2016 final rule until January 17, 2019 (82 FR 46458). After a public comment period, the BLM finalized this temporary suspension on December 8, 2017 (82 FR 58050) (“Suspension Rule”). The purpose of the Suspension Rule is to avoid imposing temporary or permanent compliance costs on operators for requirements that may be rescinded or significantly revised in the near future. The BLM plans to conclude its revision of the 2016 final rule during the period of the suspension effected by the Suspension Rule.
The BLM has several reasons for modifying the requirements in the 2016 final rule. First, the 2016 final rule is more expensive to implement and generates fewer benefits than initially
In addition, many of the 2016 final rule's requirements would pose a particular compliance burden to operators of marginal or low-producing wells, and there is concern that those wells would not be economical to operate with the additional compliance costs. Although the characteristics of what is considered to be a marginal well can vary, the percentage of the nation's oil and gas wells classified as marginal is high. The Interstate Oil and Gas Compact Commission (IOGCC) published a report in 2015 detailing the contributions of marginal wells to the nation's oil and gas production and economic activity.
The 2016 final rule's requirements that would impose a particular burden on marginal or low-producing wells include leak detection and repair (LDAR), pneumatic equipment, and liquids unloading requirements. The 2016 final rule allows for exemptions from many of the requirements when compliance would impose such costs that the operator would cease production and abandon significant recoverable reserves. Although the 2016 final rule allowed operators to request an alternative LDAR program, there is no full exemption from the requirement. Due to the prevalence of marginal and low-producing wells, we would expect that many exemptions would be warranted, making the burden imposed by the exemption process excessive. It is also possible that some proportion of marginal wells would be prematurely shut-in by their operators due to the costs and uncertainties involved in obtaining an exemption from the BLM or the costs associated with an alternate LDAR program.
There are many other reporting requirements in the 2016 final rule and the cumulative effect of the burden is substantial. Specifically, the BLM estimates that the 2016 final rule would impose administrative costs of about $14 million per year ($10.7 million to be borne by the industry and $3.27 million to be borne by the BLM). The BLM estimates that the proposed revision of the 2016 final rule would alleviate the vast majority of these burdens and would pose administrative burdens of only $349,000 per year. (See RIA section 3.2.2).
In addition, the 2016 final rule has many requirements that overlap with the EPA's authority under the Clean Air Act, and in particular EPA's New Source Performance Standards at 40 CFR part 60, subparts OOOO (NSPS OOOO) and OOOOa (NSPS OOOOa). For example, the EPA's NSPS OOOO regulates new, reconstructed, and modified pneumatic controllers, storage tanks, and gas wells completed using hydraulic fracturing, while NSPS OOOOa regulates new, reconstructed, and modified pneumatic pumps, fugitive emissions from well sites and compressor stations, and oil wells completed using hydraulic fracturing, in addition to the requirements in NSPS OOOO.
The BLM's 2016 final rule also regulates these source categories. While the EPA regulates new, modified, and reconstructed sources, the BLM crafted the 2016 final rule to address the remaining existing facilities within these same source categories. However, by forcing operators to upgrade equipment to meet the BLM's standard, operators could need to replace old equipment with new equipment. Thus, the 2016 final rule could compel facilities not intended to fall under the purviews of NSPS OOOO and NSPS OOOOa to become regulated facilities.
In addition, as the BLM acknowledged during the development of the 2016 final rule,
Furthermore, the BLM is not confident that all provisions of the 2016 final rule would survive judicial review. During the development of the 2016 final rule, the BLM received comments from the regulated industry and some States arguing that the BLM's proposed rule exceeded the BLM's statutory authority. Specifically, these commenters objected that the proposed rule, rather than preventing “waste,” was actually intended to regulate air quality, a matter within the regulatory jurisdiction of the EPA and the States under the Clean Air Act. Commenters also asserted that the proposed rule exceeded the BLM's waste prevention authority by requiring conservation without regard to economic feasibility, a key factor in determining whether a loss of oil or gas is prohibited “waste” under the Mineral Leasing Act. Immediately after the 2016 final rule was issued, petitions for judicial review of the rule were filed by industry groups and States with significant BLM-managed Federal and Indian minerals.
The 2016 final rule also has requirements that limit the flaring of associated gas produced from oil wells. The 2016 final rule sought to constrain this flaring through the imposition of a “capture percentage” requirement, requiring operators to capture a certain percentage of the gas they produce, after allowing for a certain volume of flaring per well. The requirement would become more stringent over a period of years. The BLM reviewed State regulations, rules, and orders designed to limit the waste of oil and gas resources and the flaring of natural gas, and determined that states with the most significant BLM-managed oil and gas production place restrictions or limitations on gas flaring from oil wells. For example, the State of North Dakota has requirements that are similar (but not identical) to the 2016 final rule. Other States generally have flaring limits that trigger a review by a governing board to determine whether the gas should be conserved. A memorandum containing a summary of the statutory and regulatory restrictions on venting and flaring in the 10 States responsible for approximately 99 percent of Federal oil and gas production is available on the
The BLM regulates the development of Federal and Indian onshore oil and gas resources pursuant to its authority under the following statutes: The Mineral Leasing Act of 1920 (30 U.S.C. 188-287), the Mineral Leasing Act for Acquired Lands (30 U.S.C. 351-360), the Federal Oil and Gas Royalty Management Act (30 U.S.C. 1701-1758), the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701-1785), the Indian Mineral Leasing Act of 1938 (25 U.S.C. 396a-g), the Indian Mineral Development Act of 1982 (25 U.S.C. 2101-2108), and the Act of March 3, 1909 (25 U.S.C. 396). These statutes authorize the Secretary of the Interior to promulgate such rules and regulations as may be necessary to carry out the statutes' various purposes.
The 2016 final rule replaced the BLM's existing policy, NTL-4A, which governed venting and flaring from BLM-administered leases for more than 35 years. Because the BLM has found the 2016 final rule to impose excessive costs, and believes that a regulatory framework similar to NTL-4A can be applied in a manner that limits waste without unnecessarily burdening production, the BLM is proposing to replace the requirements contained in the 2016 final rule with requirements similar to, but with notable improvements on, those contained in NTL-4A.
The preamble to the 2016 final rule suggested that NTL-4A was outdated and needed to be overhauled to account for technological advancements and to incorporate “economical, cost-effective, and reasonable measures that operators can take to minimize gas waste.”
The BLM believes that a return to the NTL-4A framework, as explained in more detail in the section-by-section discussion below, is appropriate and will ensure that operators take “reasonable precautions” to prevent “undue waste.” Where the 2016 final rule introduced sensible improvements on NTL-4A—for example, the requirement that a person remain onsite during liquids unloading in order to minimize the loss of gas—the BLM has endeavored to retain them in this proposed rule.
The BLM requests comments on each of the provisions proposed for rescission, modification, or replacement as outlined below and described more fully in the following section-by-section discussions.
The BLM is proposing to rescind the following requirements of the 2016 final rule:
• Waste Minimization Plans;
• Well drilling requirements;
• Well completion and related operations requirements;
• Pneumatic controllers equipment requirements;
• Pneumatic diaphragm pumps equipment requirements;
• Storage vessels equipment requirements; and
• LDAR requirements.
In addition, under this proposal, the following requirements in the 2016 final rule would be modified and/or replaced with requirements that are similar to those that were in NTL-4A:
• Gas capture requirements would be revised to conform with policy similar to that found in NTL-4A;
• Downhole well maintenance and liquids unloading requirements; and
• Measuring and reporting volumes of gas vented and flared.
The BLM is not proposing to revise the royalty provisions (§ 3103.3-1) or the royalty-free use provisions (subpart 3178) that were part of the 2016 final rule. However, as explained below, the BLM is taking comment on subpart 3178.
Many of the provisions of the 2016 final rule that are proposed for complete rescission are focused on emissions from sources and operations, which are more appropriately regulated by EPA under its Clean Air Act authority, and for which there are analogous EPA regulations at 40 CFR part 60, subparts OOOO and OOOOa. Specifically, these emissions-targeting provisions of the 2016 final rule are §§ 3179.102, 3179.201, 3179.202, and 3179.203, and §§ 3179.301 through 3179.305. The BLM has chosen to rescind these provisions based on a number of considerations.
First, the BLM believes that these provisions create unnecessary regulatory overlap in light of EPA's Clean Air Act authority and its analogous EPA regulations that similarly reduce losses of gas.
Second, the BLM has reviewed and revised the impact analysis and reconsidered whether the substantial compliance costs associated with the emissions-targeting provisions are justified by the value of the gas that is expected to be conserved as a result of compliance. The BLM has made the policy determination that it is not appropriate for “waste prevention” regulations to impose compliance costs greater than the value of the resources they are expected to conserve. Although the RIA for the 2016 final rule found that, in total, the benefits of these provisions outweighed their costs, this finding depended on benefits that were likely overestimated and compliance costs that were likely underestimated. The BLM seeks comment on the uncertainties and assumptions in the RIA.
E.O. 13783, at Section 5, disbanded the earlier Interagency Working Group on Social Cost of Greenhouse Gases (IWG) and withdrew the Technical Support Documents
Finally, the BLM recognizes that the oil and gas exploration and production industry continues to pursue reductions in methane emissions on a voluntary basis. For example, XTO Energy, Inc., which operates 2,435 BLM-administered leases, has publicly stated that it is undertaking a 3-year plan to phase out high-bleed pneumatic devices from its operations and will be implementing an enhanced LDAR program. In December 2017, the American Petroleum Institute (API) announced a voluntary program to reduce methane emissions. The API announced that 26 companies, including ExxonMobil, Chevron, Shell, Anadarko and EOG Resources, would take action to implement LDAR programs and replace, remove, or retrofit high-bleed pneumatic controllers with low- or zero-emitting devices.
The BLM seeks comment on this proposed rule. The BLM has allowed a 60-day comment period for this proposed rule, which the BLM believes will afford the public a meaningful opportunity to comment.
The BLM intends that each of the provisions of the proposed rule are severable. It is reasonable to consider the provisions severable as they do not depend on each other. To the extent that two or more provisions inextricably depend on each other, they would not be severable. The BLM requests comment on the severability of the proposed provisions.
The BLM is also seeking comment on the royalty-free use regulations, which were codified at 43 CFR subpart 3178 as part of the 2016 final rule. The royalty-free use provisions in subpart 3178 are viewed as being consistent with applicable Federal law, executive orders, and policies. However, the BLM is still interested in whether the requirements of subpart 3178 can be improved. An issue of particular interest to the BLM is whether the requirement for prior BLM approval for royalty-free treatment in the situations covered under § 3178.5 is appropriate. The BLM would like to know whether the incremental royalty accountability offered by prior BLM approval justifies the requirement in § 3178.5.
Finally, the BLM requests comment on ways that the BLM can reduce the waste of gas by incentivizing the capture, reinjection, or beneficial use of the gas. The BLM is interested to learn of best practices that could be incorporated into the final rule that would encourage operators to capture, use, or reinject gas without imposing excessive compliance burdens that could unnecessarily encumber energy production, constrain economic growth, and prevent job creation.
With this proposed rule, the BLM would rescind the following provisions of the 2016 final rule:
In the 2016 final rule, the BLM added a paragraph (j) to 43 CFR 3162.3-1, which requires that when submitting an Application for Permit to Drill (APD) for an oil well, an operator must also submit a waste-minimization plan. Submission of the plan is required for approval of the APD, but the plan is not itself part of the APD, and the terms of the plan are not enforceable against the operator. The purpose of the waste-minimization plan is for the operator to set forth a strategy for how the operator will comply with the requirements of 43 CFR subpart 3179 regarding the control of waste from venting and flaring from oil wells.
The waste-minimization plan must include information regarding: The anticipated completion date(s) of the proposed oil well(s); a description of anticipated production from the well(s); certification that the operator has provided one or more midstream processing companies with information about the operator's production plans, including the anticipated completion dates and gas production rates of the proposed well or wells; and identification of a gas pipeline to which the operator plans to connect.
Additional information is required when an operator cannot identify a gas pipeline with sufficient capacity to accommodate the anticipated production from the proposed well, including: A gas pipeline system location map showing the proposed well(s); the name and location of the gas processing plant(s) closest to the proposed well(s); all existing gas trunklines within 20 miles of the well, and proposed routes for connection to a trunkline; the total volume of produced gas, and percentage of total produced gas, that the operator is currently venting or flaring from wells in the same field and any wells within a 20-mile radius of that field; and a detailed evaluation, including estimates of costs and returns, of potential on-site capture approaches.
The BLM estimates that the administrative burden of the waste-minimization plan requirements would be roughly $1 million per year for the industry and $180,000 per year for the BLM (2016 RIA at 96 and 100).
This proposed rule would completely rescind the waste minimization plan requirement of § 3162.3-1(j). The BLM believes that the waste minimization plan requirement imposes an unnecessary administrative burden on both operators and the BLM. The BLM believes that there will be sufficient information-based safeguards against undue waste even in the absence of the waste minimization plan requirement for the following reasons. First, the BLM has found that comparable gas capture plan requirements in North Dakota and New Mexico will ensure that operators in those States take account of the availability of capture infrastructure when seeking permission to drill a well. Second, State regulations in Utah, Wyoming, and Montana require operators to submit production information similar to that required under § 3162.3-1(j)(2) when operators seek approval for routine flaring. Finally, where flaring is not otherwise authorized, an operator would be required to submit one of the following before it could receive approval for royalty-free flaring of associated gas under proposed § 3179.201(c): (1) A report supported by engineering, geologic, and economic data which demonstrates to the BLM's satisfaction that the expenditures necessary to market or use the gas are not economically justified; or (2) An action plan that will eliminate the flaring within a time period approved by the BLM. These requirements would help to meet the purpose of § 3162.3-1(j), which is to ensure that operators do not waste gas without giving due consideration to the possibility of marketing or using the gas.
In addition, the extensive amount of information that an operator must include in the waste minimization plan makes compliance with the requirement cumbersome for operators. Operators have also expressed concern that the waste minimization plan requirement will slow down APD processing as BLM personnel take time to determine whether the waste minimization plan submitted by an operator is “complete and adequate,” and whether the operator has provided all required pipeline information to the full extent that the operator can obtain it.
In light of the foregoing, the BLM believes that there is limited (if any) benefit to the waste minimization plan requirement of § 3162.3-1(j) and is therefore proposing to rescind it in its entirety.
In the 2016 final rule, the BLM sought to constrain routine flaring through the imposition of a “capture percentage” requirement, requiring operators to capture a certain percentage of the gas they produce, after allowing for a certain volume of flaring per well. The capture percentage requirement (as amended by the 2017 Suspension Rule) would become more stringent over a period of years, beginning with an 85 percent capture requirement (5,400 Mcf per well flaring allowable) in January 2019, and eventually reaching a 98 percent capture requirement (750 Mcf per well flaring allowable) in January
The BLM estimates that this requirement, over 10 years from 2019-2028, would impose costs of $516 million to $1.04 billion and generate cost savings from product recovery of $424 to $564 million (RIA at 41). The annual costs and cost savings would be expected to increase as the requirements increase in stringency.
This proposed rule would completely rescind the 2016 final rule's capture percentage requirements for a number of reasons. The BLM believes these requirements to be overly complex and ultimately ineffective at reducing flaring. In the early years, when capture percentages are not as high and allowable flaring is high, the 2016 final rule allows for large amounts of royalty-free flaring. In the later years, the BLM believes that the 2016 final rule would introduce complexities that would undermine its effectiveness. Because of the common use of horizontal drilling through multiple leaseholds of different ownership, the 2016 final rule's coordination requirements in § 3179.12 (providing for coordination with States and tribes when any requirement would adversely impact production from non-Federal and non-Indian interests) create a high degree of uncertainty over how the capture requirements would be implemented and what their impact would be. Even if the capture percentage requirements were implemented and effective, the BLM is concerned that the prescriptive nature of the approach would allow for unnecessary flaring in some cases while prohibiting necessary flaring in others. For example, even if an operator could feasibly capture all of the gas it produces from a Federal well, the operator could still flare a certain amount of gas without violating § 3179.7's capture percentage requirements. Thus, in situations where the operator faces transmission or processing plant capacity limitations (
In addition, the capture percentage requirement affords less flexibility for smaller operators with fewer operating wells than it does for larger operators with a greater number of operating wells. A small operator with only a few wells in an area with inadequate gas-capture infrastructure would likely be faced with curtailing production or violating § 3179.7's prescriptive limits. On the other hand, a larger operator with many wells would have greater flexibility to average the flaring allowable over its portfolio and avoid curtailing production or other production constraints.
In place of the 2016 final rule's capture percentage requirements, the proposed rule would address the routine flaring of associated gas by deferring to State or tribal regulations where possible and codifying the familiar NTL-4A standard for royalty-free flaring as a backstop where no applicable State or tribal regulation exists. The proposed rule's approach to the routine flaring of associated gas is explained more fully below (see the discussion of revised § 3179.201).
Section 3179.8 allows operators of leases issued before January 17, 2017, to request a lower capture percentage requirement than would otherwise be imposed under § 3179.7. In order to obtain this lower capture requirement, an operator must demonstrate that the applicable capture percentage under § 3179.7 would “impose such costs as to cause the operator to cease production and abandon significant recoverable oil reserves under the lease.” Because the BLM is proposing to rescind the capture requirements of § 3179.7, the BLM is also proposing to rescind the mechanism for obtaining a lower capture requirement. If § 3179.7 is rescinded, there is no need for § 3179.8.
Section 3179.11(a) states that the BLM may exercise its existing authority under applicable laws and regulations, as well as under the terms of applicable permits, orders, leases, and unitization or communitization agreements, to limit production from a new well that is expected to force other wells off of a common pipeline. Section 3179.11(b) states that the BLM may similarly exercise existing authority to delay action on an APD or impose conditions of approval on an APD. Section 3179.11 is not an independent source of authority or obligation on the part of the BLM. Rather, § 3179.11 was intended to clarify how the BLM may exercise existing authorities in addressing the waste of gas. However, the BLM understands that § 3179.11 could easily be misread to indicate that the BLM has plenary authority to curtail production or delay or condition APDs regardless of the circumstances. Because § 3179.11 is unnecessary and is susceptible to misinterpretation, the BLM is proposing to rescind § 3179.11.
Section 3179.12 states that, to the extent an action to enforce 43 CFR subpart 3179 may adversely affect production of oil or gas from non-Federal and non-Indian mineral interests, the BLM will coordinate with the appropriate State regulatory authority. The purpose of this provision is to ensure that due regard is given to the States' interests in regulating the production of non-Federal and non-Indian oil and gas. The BLM is proposing to rescind § 3179.12 because, as explained more fully below, the BLM is proposing to revise subpart 3179 in a manner that defers to State and tribal requirements with respect to the routine flaring of associated gas. In light of this new approach, the BLM believes that there is much less concern that subpart 3179 could be applied in ways that State regulatory agencies find to be inappropriate. The BLM continues to recognize the value of coordinating with State regulatory agencies, but no longer considers it necessary to include a coordination requirement in subpart 3179.
Current § 3179.101(a) requires that gas reaching the surface as a normal part of drilling operations be used or disposed of in one of four ways: (1) Captured and sold; (2) Directed to a flare pit or flare stack; (3) Used in the operations on the lease, unit, or communitized area; or (4) Injected. Section 3179.101(a) also specifies that gas may not be vented, except under the circumstances specified in § 3179.6(b) or when it is technically infeasible to use or dispose of the gas in one of the ways specified above. Section 3179.101(b) states that gas lost as a result of a loss of well control will be classified as avoidably lost if the BLM determines that the loss of well control was due to operator negligence.
The BLM is proposing to rescind § 3179.101 because it would be duplicative under revised subpart 3179. In essence, § 3179.101(a) requires an operator to flare gas lost during well drilling rather than vent it (unless technically infeasible). This same requirement would be contained in proposed § 3179.6(b). Current § 3179.101(b) states that where gas is lost during a loss of well control, the
Current § 3179.102 addresses gas that reaches the surface during well-completion, post-completion, and fluid-recovery operations after a well has been hydraulically fractured or refractured. It requires the gas to be disposed of in one of four ways: (1) Captured and sold; (2) Directed to a flare pit or stack, subject to a volumetric limitation in § 3179.103; (3) Used in the lease operations; or (4) Injected. Section 3179.102 specifies that gas may not be vented, except under the narrow circumstances specified in § 3179.6(b) or when it is technically infeasible to use or dispose of the gas in one of the four ways specified above. Section 3179.102(b) provides that an operator will be deemed to be in compliance with its gas capture and disposition requirements if the operator is in compliance with the requirements for control of gas from well completions established under 40 CFR part 60, subparts OOOO or OOOOa, or if the well is not a “well affected facility” under those regulations. Section 3179.102(c) and (d) would allow the BLM to exempt an operator from the requirements of § 3179.102 where the operator demonstrates that compliance would cause the operator to cease production and abandon significant recoverable oil reserves under the lease.
This proposed rule would rescind current § 3179.102 in its entirety. The EPA finalized regulations in 40 CFR part 60, subpart OOOOa, that are applicable to all of the well completions covered by § 3179.102. See 81 FR 35824 (June 3, 2016); 81 FR 83055-56. In light of the complete overlap with EPA regulations, and the fact that compliance with these regulations satisfies an operator's obligations under § 3179.102, the BLM has concluded that § 3179.102 is duplicative and unnecessary. In the 2016 final rule, the BLM recognized the duplicative nature of § 3179.102, but sought to establish a “backstop” in the “unlikely event” that the analogous EPA regulations ceased to be in effect. See 81 FR 83056. The BLM no longer believes that it is appropriate to insert duplicative regulations into the CFR as insurance against unlikely events. In addition, the BLM questions the appropriateness of issuing regulations that serve as a backstop to the regulations of other Federal agencies, especially when those regulations are promulgated under different authorities. The BLM continues to believe that applicable EPA regulations adequately address the loss of gas associated with unconventional well completions, and therefore proposes to rescind § 3179.102.
Section 3179.201 addresses pneumatic controllers that use natural gas produced from a Federal or Indian lease, or from a unit or communitized area that includes a Federal or Indian lease. Section 3179.201 applies to such controllers if the controllers: (1) Have a continuous bleed rate greater than 6 standard cubic feet per hour (scf/hour) (“high-bleed” controllers); and (2) Are not covered by EPA regulations that prohibit the new use of high-bleed pneumatic controllers (40 CFR part 60, subparts OOOO or OOOOa), but would be subject to those regulations if the controllers were new, modified, or reconstructed. Section 3179.201(b) requires the applicable pneumatic controllers to be replaced with controllers (including, but not limited to, continuous or intermittent pneumatic controllers) having a bleed rate of no more than 6 scf/hour, subject to certain exceptions. Section 3179.201(d) (as amended by the 2017 Suspension Rule) requires that this replacement occur no later than January 17, 2019, or within 3 years from the effective date of the 2016 final rule if the well or facility served by the controller has an estimated remaining productive life of 3 years or less. Section 3179.201(b)(4) and (c) would allow the BLM to exempt an operator from the requirements of § 3179.201 where the operator demonstrates that compliance would cause the operator to cease production and abandon significant recoverable oil reserves under the lease.
The BLM estimates that this requirement, over 10 years from 2019-2028, would impose costs of about $12 million to $13 million and generate cost savings from product recovery of $24 million to $30 million (RIA at 41).
This proposed rule would rescind § 3179.201 in its entirety. Low-bleed continuous pneumatic controllers are already very common, representing about 89 percent of the continuous bleed pneumatic controllers in the petroleum and natural gas production sectors.
The BLM believes that these analogous EPA regulations will adequately address the loss of gas from pneumatic controllers on Federal and Indian leases over time, as new facilities come online and more of the existing high-bleed continuous controllers are replaced by low-bleed continuous controllers, pursuant to the EPA regulations. The BLM understands the typical lifespan of a pneumatic controller to be 10 to 15 years.
Furthermore, low-bleed continuous pneumatic controllers are expected to generate revenue for operators when employed at sites from which gas is captured and sold and when the sale price of gas is generally higher than it is now. Thus, we expect many operators to adopt low-bleed pneumatic controllers even in the absence of § 3179.201's requirements.
Finally, as discussed above, the BLM recognizes that the oil and gas exploration and production industry continues to pursue reductions in methane emissions on a voluntary basis, and the BLM expects these efforts to result in a reduction in the number of high-bleed pneumatic devices employed by the industry. For the foregoing reasons, the BLM finds § 3179.201 to be unnecessary and is therefore proposing to rescind it.
Section 3179.202 establishes requirements for operators with pneumatic diaphragm pumps that use natural gas produced from a Federal or Indian lease, or from a unit or communitized area that includes a Federal or Indian lease. It applies to such pumps if they are not covered under EPA regulations at 40 CFR part 60, subpart OOOOa, but would be subject to that subpart if they were a new, modified, or reconstructed source. For covered pneumatic pumps, § 3179.202 requires that the operator either replace the pump with a zero-emissions pump or route the pump exhaust to processing equipment for capture and sale. Alternatively, an operator may route the exhaust to a flare or low-pressure combustion device if the operator makes a determination (and notifies the BLM through a Sundry Notices and Reports on Wells, Form 3160-5) that replacing the pneumatic diaphragm pump with a zero-emissions
This proposed rule would rescind § 3179.202 in its entirety. The BLM is concerned that the costs of compliance with § 3179.202 outweigh the value of its conservation effects. The BLM estimates that § 3179.202, over 10 years from 2019-2028, would impose costs of about $29 million to $30 million, but only generate cost savings from product recovery of $18 million to $22 million (RIA at 41). The BLM also believes that the analogous EPA regulations in 40 CFR part 60, subpart OOOOa, will adequately address the loss of gas from pneumatic diaphragm pumps on Federal and Indian leases as more and more of them are covered by the EPA regulations over time.
Finally, as discussed above, industry is reportedly making ongoing efforts to retire old leak-prone equipment, including pneumatic pumps, on a voluntary basis.
For these reasons, the BLM is proposing to rescind § 3179.202 in its entirety.
Section 3179.203 applies to crude oil, condensate, intermediate hydrocarbon liquid, or produced-water storage vessels that contain production from a Federal or Indian lease, or from a unit or communitized area that includes a Federal or Indian lease, and that are not subject to 40 CFR part 60, subparts OOOO or OOOOa, but would be if they were new, modified, or reconstructed sources. If such storage vessels have the potential for volatile organic compound (VOC) emissions equal to or greater than 6 tons per year (tpy), § 3179.203 requires operators to route all gas vapor from the vessels to a sales line. Alternatively, the operator may route the vapor to a combustion device if it determines that routing the vapor to a sales line is technically infeasible or unduly costly. The operator may also submit a Sundry Notice to the BLM that demonstrates that compliance with the above options would cause the operator to cease production and abandon significant recoverable oil reserves under the lease due to the cost of compliance.
The BLM is proposing to rescind § 3179.203 in its entirety. The BLM is concerned that the costs of compliance with § 3179.203 outweigh the value of its conservation effects. The BLM estimates that § 3179.203, over 10 years from 2019-2028, would impose costs of about $51 million to $56 million while only generating cost savings from product recovery of about $1 million (RIA at 41). The BLM also believes that the analogous EPA regulations in 40 CFR part 60, subparts OOOO and OOOOa, will adequately address the loss of gas from storage vessels on Federal and Indian leases as more and more of them are covered by the EPA regulations over time.
Furthermore, the BLM has always believed that § 3179.203 would have a limited reach, due to the 6 tpy emissions threshold and the carve-out for storage vessels covered by EPA regulations. The BLM estimated in the RIA for the 2016 final rule that § 3179.203 would impact fewer than 300 facilities on Federal and Indian lands.
Sections 3179.301 through 3179.305 establish leak detection, repair, and reporting requirements for: (1) Sites and equipment used to produce, process, treat, store, or measure natural gas from or allocable to a Federal or Indian lease, unit, or communitization agreement; and (2) Sites and equipment used to store, measure, or dispose of produced water on a Federal or Indian lease. Section 3179.302 prescribes the instruments and methods that may be used for leak detection. Section 3179.303 prescribes the frequency for inspections and § 3179.304 prescribes the time frames for repairing leaks found during inspections. Finally, § 3179.305 requires operators to maintain records of their LDAR activities and submit an annual report to the BLM. Pursuant to § 3179.301(f) (as amended by the 2017 Suspension Rule), operators must begin to comply with the LDAR requirements of §§ 3179.301 through 3179.305 before: (1) January 17, 2019, for all existing sites; (2) 60 days after beginning production for sites that begin production after January 17, 2019; and (3) 60 days after a site that was out of service is brought back into service and re-pressurized.
The BLM is proposing to rescind §§ 3179.301 to 3179.305 in their entirety. The BLM is concerned that the costs of compliance with §§ 3179.301 to 3179.305 outweigh the value of their conservation effects. The BLM estimates that these requirements, over 10 years from 2019-2028, would impose costs of about $550 million to $688 million and generate cost savings from product recovery of about $116 million to $148 million (RIA at 41). In addition, the BLM estimates that the administrative burdens associated with the LDAR requirements, at roughly $5 million, represent the bulk of the administrative burdens of the 2016 final rule.
The BLM believes that the analogous EPA regulations in 40 CFR part 60, subpart OOOOa, will adequately address the loss of fugitive gas on Federal and Indian leases over time, as new facilities come online and more and more existing facilities are reconstructed or modified and become covered by the EPA regulations.
Finally, the BLM is concerned that §§ 3179.301 to 3179.305 apply to all wellsites equally. Wellsites that are not connected to deliver gas to market would not achieve any waste reduction because sales from the recovered gas would not be realized. More importantly, the BLM believes that the LDAR requirements are unnecessarily burdensome to operators of marginal wells, particularly marginal oil wells. The BLM does not believe that the potential fugitive gas losses from marginal oil wells (with production rates fewer than 10 bbl per day or 15 bbl per day) would be substantial enough to warrant the costs of maintaining a LDAR program with semi-annual inspection frequencies. As noted previously, the
Section 3179.401 would allow a State or tribe to request a variance from any provisions of subpart 3179 by identifying a State, local, or tribal regulation to be applied in place of those provisions and demonstrating that such State, local, or tribal regulation would perform at least equally well as those provisions in terms of reducing waste of oil and gas, reducing environmental impacts from venting and/or flaring of gas, and ensuring the safe and responsible production of oil and gas.
The BLM is proposing to rescind § 3179.401 because it believes that the variance process established by this section will no longer be necessary in light of the BLM's proposal to codify NTL-4A standards and to defer to State and tribal regulations for the routine flaring of associated gas, as explained in the discussion of proposed § 3179.201.
With this proposed rule, the BLM would revise subpart 3179, as follows:
Section 3179.1 states that the purpose of 43 CFR subpart 3179 is to implement and carry out the purposes of statutes relating to prevention of waste from Federal and Indian leases, the conservation of surface resources, and management of the public lands for multiple use and sustained yield. The BLM is not proposing any revision to existing § 3179.1 as a part of this rulemaking. Section 3179.1 is presented here for context.
This section specifies which leases, agreements, tracts, and facilities are covered by this subpart. The section also states that subpart 3179 applies to Indian Mineral Development Act (IMDA) agreements, unless specifically excluded in the agreement or unless the relevant provisions of this subpart are inconsistent with the agreement, and to agreements for the development of tribal energy resources under a Tribal Energy Resource Agreement entered into with the Secretary of the Interior, unless specifically excluded in the agreement. Existing § 3179.2 remains largely unchanged. However, the BLM is proposing to revise paragraph (a)(5) by using the more-inclusive words “well facilities” instead of the words “wells, tanks, compressors, and other equipment” to describe the onshore equipment that would be subject to this proposed rule. The purpose of the phrase “wells, tanks, compressors, and other equipment” has been to specify components subject to LDAR requirements which, as described above, the BLM is proposing to rescind.
This proposed section would keep, in their entirety, four of the 18 definitions that appear in existing § 3179.3: “Automatic ignition system,” “gas-to-oil ratio,” “liquids unloading,” and “lost oil or lost gas.” The definition for “capture” is retained in this proposed rule, except the word “reinjection” has been changed to “injection” in order to be consistent with references to conservation by injection (as opposed to reinjection) elsewhere in subpart 3179.
A definition for “gas well” is also maintained in this proposed rule, however the second and third sentences in the existing definition would be removed. The second-to-last sentence in the existing definition of “gas well” would be removed because, though a well's designation as a “gas” well or “oil” well is appropriately determined by the relative energy values of the well's products, the 6,000 scf/bbl standard in existing § 3179.3 is not a commonly used standard. The last sentence in the existing definition of “gas well,” which states generally that an oil well will not be reclassified as a gas well when its gas-to-oil ratio (GOR) exceeds the 6,000 scf/bbl threshold, would be removed and replaced with a simpler qualifier making clear that a well's status as a “gas well” is “determined at the time of completion.”
A new definition for “oil well” is proposed to be added that would define an “oil well” as a “well for which the energy equivalent of the oil produced exceeds the energy equivalent of the gas produced, as determined at the time of completion.” The addition of a definition of “oil well” should help to make clear when proposed § 3179.201's requirements for “oil-well gas” apply.
A definition of “waste of oil or gas” is proposed to be added that would define waste, for the purposes of subpart 3179, to mean any act or failure to act by the operator that is not sanctioned by the authorized officer as necessary for proper development and production, where compliance costs are not greater than the monetary value of the resources they are expected to conserve, and which results in: (1) A reduction in the quantity or quality of oil and gas ultimately producible from a reservoir under prudent and proper operations; or (2) avoidable surface loss of oil or gas. This definition incorporates the familiar definition of “waste of oil or gas” from BLM's operating regulations at 43 CFR 3160.0-5, but adds an important limitation: Waste does not occur where the cost of conserving the oil or gas exceeds the monetary value of that oil or gas. This definition is intended to codify the BLM's policy determination that it is not appropriate for “waste prevention” regulations to impose compliance costs greater than the value of the resources they are expected to conserve. The BLM requests comment and data pertinent to this proposed definition of “waste of oil or gas.”
This proposed section would remove 12 definitions from the existing regulations because they are no longer needed: “Accessible component,” “capture infrastructure,” “compressor station,” “continuous bleed,” “development oil well,” “high pressure flare,” “leak,” “leak component,” “liquid hydrocarbon,” “pneumatic controller,” “storage vessel,” and “volatile organic compounds (VOC).” These definitions pertain to requirements in existing subpart 3179 that the BLM is proposing to rescind.
Proposed § 3179.4 describes the circumstances under which lost oil or gas would be classified as “avoidably lost” or “unavoidably lost.” Under proposed § 3179.5, royalty would be due on all avoidably lost oil or gas, while royalty is not due on unavoidably lost oil or gas. The proposed revision of § 3179.4 includes concepts from both existing § 3179.4 and NTL-4A, Sections II. and III.
Proposed paragraph (a) defines “avoidably lost” production and mirrors the “avoidably lost” definition in NTL-4A Section II.A. Proposed paragraph (a) would define avoidably lost gas as gas that is vented or flared without BLM approval, and produced oil or gas that is lost due to operator negligence, the operator's failure to take all reasonable measures to prevent or control the loss, or the operator's failure to comply fully with applicable lease terms and regulations, appropriate provisions of the approved operating plan, or prior written BLM orders. This paragraph would replace the “avoidably lost” definition that appears in the last paragraph of existing § 3179.4, which primarily defines “avoidably lost” oil or gas as lost oil gas that is not “unavoidably lost” and also expressly includes “excess flared gas” as defined
Proposed paragraph (b) defines “unavoidably lost” production. Proposed paragraph (b)(1) follows language from Section II.C(2) of NTL-4A. It states that oil or gas that is lost due to line failures, equipment malfunctions, blowouts, fires, or other similar circumstances is considered to be unavoidably lost production, unless the BLM determines that the loss resulted from operator negligence, the failure to take all reasonable measures to prevent or control the loss, or the failure of the operator to comply fully with applicable lease terms and regulations, appropriate provisions of the approved operating plan, or prior written orders of the BLM.
Proposed paragraph (b)(2) is substantially similar to the definition of “unavoidably lost” oil or gas that appears in existing § 3179.4(a). This paragraph improves upon NTL-4A by providing clarity to operators and the BLM about which losses of oil or gas should be considered “unavoidably lost.” Paragraph (b)(2) introduces a list of operations or sources from which lost oil or gas would be considered “unavoidably lost,” so long as the operator has not been negligent, has taken all reasonable measures to prevent or control the loss, and has complied fully with applicable laws, lease terms, regulations, provisions of a previously approved operating plan, or other written orders of the BLM.
Except for cross references, proposed § 3179.4(b)(2)(i) through (vi) are the same as paragraphs (a)(1)(i) through (vi) in existing § 3179.4. These paragraphs list the following operations or sources from which lost oil or gas would be considered “unavoidably lost”: Well drilling; well completion and related operations; initial production tests; subsequent well tests; exploratory coalbed methane well dewatering; and emergencies.
This proposed rule would remove normal operating losses from pneumatic controllers and pumps (existing § 3179.4(a)(1)(vii)) from the list of unavoidable losses because the use of gas in pneumatic controllers and pumps is already royalty free under existing § 3178.4(a)(3).
Proposed paragraph (b)(2)(vii) is similar to existing § 3179.4(a)(1)(viii), but has been rephrased to reflect the NTL-4A provisions pertaining to storage tank losses (NTL-4A Section II.C(1)). Under proposed 3179.4(b)(2)(vii), normal gas vapor losses from a storage tank or other low-pressure production vessel would be unavoidably lost, unless the BLM determines that recovery of the vapors is warranted. Changing the phrase “operating losses” (as used in existing § 3179.4(a)(1)(viii)) to “gas vapor losses” makes clear that this provision applies to low pressure gas losses and that the operator should have separated gas from the oil before placing it in the tank.
Proposed § 3179.4(b)(2)(viii) is the same as existing § 3179.4(a)(1)(ix). It states that well venting in the course of downhole well maintenance and/or liquids unloading performed in compliance with § 3179.104 is an operation from which lost gas is considered “unavoidably lost.”
The proposed revision does not retain existing § 3179.4(a)(1)(x), which classifies leaks as unavoidable losses when the operator has complied with the LDAR requirements in existing §§ 3179.301 through 3179.305. The BLM is proposing to rescind these LDAR requirements and so there is no need to reference these requirements as a limitation on losses through leaks. The BLM requests comment on whether regulatory text should be added to § 3179.4(b) to provide clarity to the BLM's position that leaks are considered unavoidably lost.
Proposed § 3179.4(b)(2)(ix) is the same as existing § 3179.4(a)(1)(xi), identifying facility and pipeline maintenance, such as when an operator must blow-down and depressurize equipment to perform maintenance or repairs, as an operation from which lost oil or gas would be considered “unavoidably lost,” so long as the operator has not been negligent and has complied with all appropriate requirements.
The proposed rule does not include existing § 3179.4(a)(1)(xii). This paragraph lists the flaring of gas from which at least 50 percent of natural gas liquids have been removed and captured for market as an unavoidable loss. This provision was included in the 2016 final rule as part of the BLM's effort to adopt a gas capture percentage scheme similar to that of North Dakota. The BLM is proposing to remove this provision because it is proposing to rescind the gas capture percentage requirements contained in the 2016 final rule.
The proposed rule does not include existing § 3179.4(a)(2). Section 3179.4(a)(2) provides that gas that is flared or vented from a well that is not connected to a gas pipeline is unavoidably lost, unless the BLM has determined otherwise. Existing § 3179.4(a)(2) was essentially a blanket approval for royalty-free flaring from wells not connected to a gas pipeline. Flaring from these wells, however, would no longer be royalty free if the operator failed to meet the gas capture requirements imposed by existing § 3179.7 and the flared gas thus became royalty-bearing “excess flared gas.” Because the BLM is proposing to rescind § 3179.7, maintaining existing 3179.4(a)(2) would amount to sanctioning unrestricted flaring from wells not connected to gas pipelines. The routine flaring of oil-well gas from wells not connected to a gas pipeline is addressed by proposed § 3179.201, which is discussed in more detail below.
Proposed § 3179.4(b)(3) states that produced gas that is flared or vented with BLM authorization or approval is unavoidably lost. This provision mirrors proposed § 3179.4(a), which states that gas that is flared or vented without BLM authorization or approval is avoidably lost, and provides clarity to operators about royalty obligations with respect to authorized venting and flaring.
The proposed rule would not change § 3179.5. This section would continue to state that royalty is due on all avoidably lost oil or gas and that royalty is not due on any unavoidably lost oil or gas.
The title of this section in the proposed rule has been changed from “venting prohibitions” to “venting limitations.” The proposed rule would retain most of the provisions in existing § 3179.6. The purpose of both sections is to prohibit flaring and venting from gas wells, with certain exceptions, and to require operators to flare, rather than vent, any uncaptured gas, whether from oil wells or gas wells, with certain exceptions.
Proposed § 3179.6(a) is the same as the existing § 3179.6(a), except the cross reference has been updated. It states that gas-well gas may not be flared or vented, except where it is unavoidably lost, pursuant to § 3179.4(b). This same restriction on the flaring of gas-well gas was included in NTL-4A.
Both proposed and existing § 3179.6(b) state that operators must flare, rather than vent, any gas that is not captured, with the exceptions listed in subsequent paragraphs. Although the text of NTL-4A did not contain a similar requirement that, in general, lost gas should be flared rather than vented, the implementing guidance for NTL-4A in the United States Geological Survey's (USGS) Conservation Division Manual did contain a similar preference for flaring over venting. The flaring of gas is generally preferable to the venting of
The first three flaring exceptions in both the proposed and existing § 3179.6 are identical: Paragraph (b)(1) allows for venting when flaring is technically infeasible; paragraph (b)(2) allows for venting in the case of an emergency, when the loss of gas is uncontrollable, or when venting is necessary for safety; and, paragraph (b)(3) allows for venting when the gas is vented through normal operation of a natural-gas-activated pump or pneumatic controller.
The fourth flaring exception, listed in proposed § 3179.6(b)(4), would allow gas vapors to be vented from a storage tank or other low-pressure production vessel, except when the BLM determines that gas-vapor recovery is warranted. Although this language is somewhat different than what appears in existing § 3179.6(b)(4), it has the same practical effect. It has been changed in this proposed rule in order to align the language with proposed § 3179.4(b)(vii) and to remove the cross-reference to the storage tank requirements in existing § 3179.203, which the BLM is proposing to rescind.
The fifth flaring exception, listed in proposed § 3179.6(b)(5), would apply to gas that is vented during downhole well maintenance or liquids unloading activities. This is similar to existing § 3179.6(b)(5), except that the proposed rule would remove the cross reference to existing § 3179.204. Although the proposed revision of subpart 3179 would retain limitations on royalty-free losses of gas during well maintenance and liquids unloading in proposed § 3179.104, no cross-reference to those restrictions is necessary in this section, which simply addresses whether the gas may be vented or flared, not whether it is royalty-bearing.
The proposed rule would remove the flaring exception listed in existing § 3179.6(b)(6), which applies when gas is vented through a leak, provided that the operator has complied with the LDAR requirements in §§ 3179.301 through 3179.305. The BLM is proposing to rescind these LDAR requirements so there is no need to reference these requirements as a limitation on venting through leaks.
The sixth flaring exception, listed in proposed § 3179.6(b)(6), is identical to the exception listed in existing § 3179.6(b)(7). This exception would allow gas venting that is necessary to allow non-routine facility and pipeline maintenance to be performed.
The seventh flaring exception, listed in proposed § 3179.6(b)(7), is identical to the exception listed in existing § 3179.6(b)(8). This exception would allow venting when a release of gas is unavoidable under § 3179.4, and Federal, State, local, or tribal law, regulation, or enforceable permit terms prohibit flaring.
Proposed § 3179.6(c) is identical to existing § 3179.6(c). Both sections require all flares or combustion devices to be equipped with automatic ignition systems.
Proposed § 3179.101 would establish volume and duration standards which limit the amount of gas that may be flared royalty free during initial production testing. The gas is no longer royalty free after reaching either limit. Proposed § 3179.101 would establish a volume limit of 50 million cubic feet (MMcf) of gas that may be flared royalty free during the initial production test of each completed interval in a well. Additionally, proposed § 3179.101 would limit royalty-free initial production testing to a 30 day period, unless the BLM approves a longer period.
The 2016 final rule also uses volume and duration thresholds to limit royalty-free initial production testing. Existing § 3179.103 provides for up to 20 MMcf of gas to be flared royalty free during well drilling, well completion, and initial production testing operations combined. Under existing § 3179.103, upon receiving a Sundry Notice request from the operator, the BLM may increase the volume of royalty-free flared gas up to an additional 30 MMcf. Under existing § 3179.103, similar to proposed § 3179.101, the BLM allows royalty-free testing for a period of up to 30 days after the start of initial production testing. The BLM may extend, upon request, the initial production testing period by up to an additional 60 days. Further, existing § 3179.103 provides additional time for dewatering and testing exploratory coalbed methane wells. Under existing § 3179.103, such wells have an initial royalty-free period of 90 days (rather than 30 days for all other well types), and the possibility of the BLM approving, upon request, up to two additional 90-day periods.
Under NTL-4A, gas lost during initial production testing was royalty free for a period not to exceed 30 days or the production of 50 MMcf of gas, whichever occurred first, unless a longer test period was authorized by the State and accepted by the BLM.
The volume and duration limits in proposed § 3179.101 are similar to those in existing § 3179.103. Both sections allow 30 days from the start of the test, and both allow for extensions of time. However, existing § 3179.103 limits an extension to no more than 60 days, whereas proposed § 3179.101 does not specify an extension limit. Proposed § 3179.101 would allow for up to 50 MMcf of gas to be flared royalty free, with no express opportunity for an extension. By comparison, existing § 3179.103 allows for 20 MMcf to be flared royalty free, with the possibility of an additional 30 MMcf of gas flared with BLM approval, and no opportunity for an extension beyond the cumulative 50 MMcf of gas. The BLM requests comment on whether royalty-free flaring during initial production testing should be limited to 50 MMcf or 30 days (with the possibility of an extension).
The provision for exploratory coalbed methane wells in existing § 3179.103 is the most notable difference between it and this proposed rule with regard to the initial production testing. Existing § 3179.103 provides for up to 270 cumulative royalty-free production testing days for exploratory coalbed methane wells, whereas the proposed rule contains no special provision for such wells. Exploratory coalbed methane wells are expected to be an exceedingly low percentage of future wells drilled, and so the BLM does not believe that a special provision addressing these wells is necessary. In the future, if an exploratory coalbed methane well requires additional time for initial production testing, this can be handled under proposed § 3179.101(b), which allows an operator to request a longer test period without imposing an outside limit on the length of the additional test period the BLM might approve.
Proposed § 3179.102(a) provides that gas flared during well tests subsequent to the initial production test is royalty free for a period not to exceed 24 hours, unless the BLM approves or requires a longer test period. Proposed § 3179.102(b) provides that the operator may request a longer test period and must submit its request using a Sundry Notice. Proposed § 3179.102 is functionally identical to existing § 3179.104.
NTL-4A included royalty-free provisions for “evaluation tests” and for “routine or special well tests.” Because NTL-4A also contained specific
The provisions for subsequent well tests in proposed § 3179.102 are essentially the same as those in both the 2016 final rule and in NTL-4A. All three provide for a base test period of 24 hours, and all three have a provision for the BLM to approve a longer test period. Proposed § 3179.102 improves upon NTL-4A by making the requirements for subsequent well tests more clear.
Under proposed § 3179.4(b)(2)(vi), royalty is not due on gas that is lost during an emergency. Proposed § 3179.103 describes the conditions that constitute an emergency, and lists circumstances that do not constitute an emergency. As provided in proposed § 3179.103(d), an operator would be required to estimate and report to the BLM on a Sundry Notice the volumes of gas that were flared or vented beyond the timeframe for royalty-free flaring under proposed § 3179.103(a) (
The provisions in proposed § 3179.103 are nearly identical to those in existing § 3179.105. The most notable change from the 2016 final rule is in describing those things that do not constitute an emergency. Where existing § 3179.105(b)(1) specifies that “more than 3 failures of the same component within a single piece of equipment within any 365-day period” is not an emergency, proposed § 3179.103(c)(4) simplifies that concept by including “recurring equipment failures” among the situations caused by operator negligence that do not constitute an emergency. This simplification addresses the practical difficulties involved in tracking the number of times the failure of a specific component of a particular piece of equipment causes emergency venting or flaring, and recognizes that recurring failures of the same equipment, even if involving different “components,” may not constitute a true unavoidable emergency. The BLM requests comment on how to best determine when recurring equipment failures constitute emergencies and whether a certain number of failures of the same equipment should provide a standard for when losses of gas due to equipment failures are royalty-bearing.
The description of “emergencies” in NTL-4A was brief and was subject to varied interpretations. The purpose behind both existing § 3179.105 and proposed § 3179.103 is to improve upon NTL-4A by narrowing the meaning of “emergency,” such that it is uniformly understood and consistently applied.
Under proposed § 3179.4(b)(2)(viii), gas lost in the course of downhole well maintenance and/or liquids unloading performed in compliance with proposed § 3179.104 is royalty free. Proposed § 3179.104(a) states that gas vented or flared during downhole well maintenance and well purging is royalty free for a period not to exceed 24 hours. Proposed § 3179.104(a) also states that gas vented from a plunger lift system and/or an automated well control system is royalty free. Proposed § 3179.104(b) states that the operator must minimize the loss of gas associated with downhole well maintenance and liquids unloading, consistent with safe operations. Proposed § 3179.104(c) states, for wells equipped with a plunger lift system or automated control system, minimizing gas loss under paragraph (b) includes optimizing the operation of the system to minimize gas losses to the extent possible consistent with removing liquids that would inhibit proper function of the well. Proposed § 3179.104(d) provides that the operator must ensure that the person conducting the purging remains present on-site throughout the event in order to end the event as soon as practical, thereby minimizing any venting to the atmosphere. Proposed § 3179.104(e) defines “well purging” as blowing accumulated liquids out of a wellbore by reservoir gas pressure, whether manually or by an automatic control system that relies on real-time pressure or flow, timers, or other well data, where the gas is vented to the atmosphere, and it does not apply to wells equipped with a plunger lift system. Proposed § 3179.104(e) is identical to existing § 3179.204(g).
Existing § 3179.204 requires the operator to “minimize vented gas” in liquids unloading operations, but does not impose volume or duration limits. As with proposed § 3179.104, existing § 3179.204 allows for gas vented or flared during well purging to be royalty free provided that the operator ensures that the person conducting the operation remains on-site throughout the event. Existing § 3179.204 also requires plunger lift and automated control systems to be optimized to minimize gas loss associated with their effective operation. The main difference between existing § 3179.204 and proposed § 3179.104 is that existing § 3179.204(c) requires the operator to file a Sundry Notice with the BLM the first time that each well is manually purged or purged with an automated control system. That Sundry Notice would need to include documentation showing that the operator evaluated the feasibility of using methods of liquids unloading other than well purging and that the operator determined that such methods were either unduly costly or technically infeasible. Although the administrative burden is apparent, filing this Sundry Notice would require the operator to evaluate and analyze other methods of liquids unloading, which is expected to impose costs on the operator. And, the evaluation may lead the operator to identify a more costly alternative that could not be ignored as “unduly costly.” Additionally, under existing § 3179.204, the operator would file a Sundry Notice with the BLM each time a well purging event exceeded either a duration of 24 hours in a month or an estimated gas loss of 75 Mcf in a month. For each manual purging event, the operator would also need to keep a record of the cause, date, time, duration, and estimate of the volume of gas vented. The operator would maintain these records and make them available to the BLM upon request.
With respect to royalty, gas vented during well purging was addressed in NTL-4A as follows: “. . . operators are authorized to vent or flare gas on a short-term basis without incurring a royalty obligation . . . during the unloading or cleaning up of a well during . . . routine purging . . . not exceeding a period of 24 hours.” As used in NTL-4A, it is unclear whether the “24 hours” limit was intended to be 24 hours per month or 24 hours per purging event. Under the latter interpretation, there would be no practical or enforceable limit to the volume of gas vented, or to the time during which purging could occur, because purging could occur in successive events of 24 hours duration.
In terms of minimizing the loss of gas during well purging events, proposed § 3179.104 and existing § 3179.204 are essentially the same. Differences between the two are found in the reporting and recordkeeping requirements imposed by the 2016 final rule. The intent of these recordkeeping requirements, as explained in the 2016 final rule preamble, was to build a
As mentioned above, proposed § 3179.104(d) would require the person conducting manual well purging to remain present on-site throughout the event to end the event as soon as practical. This provision was not a requirement in NTL-4A, and was first established in the 2016 final rule. The BLM is seeking comment on the operational feasibility of this provision or if another measure would be less burdensome, but achieve the same result.
Proposed § 3179.201 would govern the routine flaring of associated gas from oil wells. The requirements of proposed § 3179.201 would replace the “capture percentage” requirements of the 2016 final rule. Short term flaring, such as that experienced during initial production testing, subsequent well testing, emergencies, and downhole well maintenance and liquids unloading, would be governed by proposed §§ 3179.101 through 3179.104.
Proposed § 3179.201(a) would allow operators to vent or flare oil-well gas royalty free when the venting or flaring is done in compliance with applicable rules, regulations, or orders of the State regulatory agency (for Federal gas) or tribe (for Indian gas). This section establishes State or tribal rules, regulations, and orders as the prevailing regulations for the venting and flaring of oil-well gas on BLM-administered leases, unit participating areas (PAs), or communitization agreements (CAs).
Under the 2016 rule, an operator's royalty obligations for venting or flaring are determined by the avoidable/unavoidable loss definitions and the gas capture requirement thresholds. Operator royalty obligations for vented or flared gas from oil wells in NTL-4A was, for the most part, dependent on an “avoidable loss” determination by the BLM. NTL-4A allowed for the BLM to ratify or accept the venting or flaring rules, regulations, or orders of the appropriate State regulatory agency. The proposed rule implements this concept from NTL-4A by deferring to the rules, regulations, or orders of State regulatory agencies or a tribe. This change both simplifies an operator's obligations by aligning Federal and State venting and flaring requirements for oil-well gas and allows for region-specific regulation of oil-well gas that accounts for regional differences in production, markets, and infrastructure. An operator would owe royalty on any oil-well gas flared in violation of applicable State or tribal requirements.
The BLM has analyzed the statutory and regulatory restrictions on venting and flaring in the 10 States constituting the top eight producers of Federal oil and the top eight producers of Federal gas, which collectively produce more than 99 percent of Federal oil and more than 98 percent of Federal gas. The BLM found that each of these States have statutory or regulatory restrictions on venting and flaring that are expected to constrain the waste of associated gas from oil wells. Most of these States require an operator to obtain approval from the State regulatory authority (by justifying the need to flare) in order to engage in the flaring of associated gas.
It is the intent of proposed § 3179.201(a) to defer to State and tribal statutes and regulations, like those described in the Memorandum, that provide a reasonable assurance to the BLM that operators will not be permitted to engage in the flaring of associated gas without limitation and that the waste of associated gas will be controlled. The BLM requests comment on whether the language of proposed § 3179.201(a) achieves that intent.
Proposed § 3179.201(b) exclusively addresses oil-well gas production from an Indian lease. Vented or flared oil-well gas from an Indian lease will be treated as royalty free pursuant to proposed § 3179.201(a) only to the extent it is consistent with the BLM's trust responsibility.
In the event a State regulatory agency or tribe does not currently have rules, regulations or orders governing venting or flaring of oil-well gas, the BLM is proposing to codify the NTL-4A approach as a backstop, providing a way for operators to obtain BLM approval to vent or flare oil-well gas royalty free by submitting an application with sufficient justification as described in proposed § 3179.201(c). Applications for royalty-free venting or flaring of oil-well gas must include either: (1) An evaluation report supported by engineering, geologic, and economic data demonstrating that capturing or using the gas is not economical; or (2) An action plan showing how the operator will minimize the venting or flaring of the gas within 1 year of the application. If an operator vents or flares oil-well gas in excess of 10 MMcf per well during any month, the BLM may determine the gas to be avoidably lost and subject to royalty assessment. The BLM notes that there was no similar provision in NTL-4A allowing for the BLM to impose royalties where flaring under an action plan exceeds 10 MMcf per well per month. However, this provision is based on guidance in the Conservation Division Manual
As under NTL-4A, the evaluation report required under proposed § 3179.201(c)(1) would be required to demonstrate to the BLM's satisfaction that the expenditures necessary to market or beneficially use the gas are not economically justified. Under proposed § 3179.201(d)(1), the evaluation report would be required to include estimates of the volumes of oil and gas that would be produced to the economic limit if the application to vent or flare were approved, and estimates of
From the information contained in the evaluation report, the BLM will determine whether the operator can economically operate the lease if it is required to market or use the gas, taking into consideration both oil and gas production, as well as the economics of a field-wide plan. Under proposed § 3179.201(d)(2), the BLM would be able to require operators to provide updated evaluation reports as additional development occurs or economic conditions improve, but no more than once a year. NTL-4A did not contain a similar provision allowing the BLM to require an operator to update its evaluation report based on changing circumstances. Proposed § 3179.201(d)(2) thus represents a change from NTL-4A. The BLM requests comment on methods for determining whether the operator can economically operate the lease. The BLM also requests comment on the once-a-year limitation on the BLM's authority to require an updated report.
An action plan submitted under proposed § 3179.201(c)(2) would be required to show how the operator will minimize the venting or flaring of the oil-well gas within 1 year. An operator may apply for an approval of an extension of the 1-year time limit. In the event the operator fails to implement the action plan, the entire volume of gas vented or flared during the time covered by the action plan would be subject to royalty.
Proposed § 3179.201(e) provides for grandfathering of prior approvals to flare royalty free. These approvals would continue in effect until no longer necessary because the venting or flaring is authorized by the rules, regulations, or orders of an appropriate State regulatory agency or tribe under proposed § 3179.201(a), or the BLM requires an updated evaluation report and determines to amend or revoke its approval. Existing § 3179.10 of the 2016 rule (as amended by the 2017 Suspension Rule) allows approvals to flare royalty free to continue in effect until January 17, 2019. The BLM specifically requests comment on whether the grandfathering scheme outlined in proposed § 3179.201(e) is appropriate and whether any possible improvements can be made in order to ensure a smooth transition for operators, including whether it is appropriate to phase-out or require the BLM to provide affirmative determinations (
Proposed § 3179.301(a) would require operators to estimate or measure all volumes of lost oil and gas, whether avoidably or unavoidably lost, from wells, facilities, and equipment on a lease, unit PA, or CA and report those volumes under applicable Office of Natural Resources Revenue (ONRR) reporting requirements. Under proposed § 3179.301(b), the operator could: (1) Estimate or measure the vented or flared gas in accordance with applicable rules, regulations, or orders of the appropriate State or tribal regulatory agency; (2) Estimate the volume of the vented or flared gas based on the results of a regularly performed GOR test and measured values for the volume of oil production and gas sales, to allow BLM to independently verify the volume, rate, and heating value of the flared gas; or (3) Measure the volume of the flared gas. The BLM requests comment on any other potential means of estimating these volumes that would reduce burden and maintain accuracy.
Under proposed § 3179.301(c), the BLM would be able to require the installation of additional measurement equipment whenever it determines that the existing methods are inadequate to meet the purposes of subpart 3179. NTL-4A contained essentially the same provision. Based on past experience in implementing NTL-4A, the BLM believes that proposed § 3179.301(c) would help to ensure accuracy and accountability in situations in which high volumes of royalty-bearing gas are being flared.
Proposed § 3179.301(d) would allow the operator to combine gas from multiple leases, unit PAs, or CAs for the purpose of flaring or venting at a common point, but the operator would be required to use a BLM-approved method to allocate the quantities of the vented or flared gas to each lease, unit PA, or CA. Commingling to a single flare is allowed because the BLM recognizes that the additional costs of requiring individual flaring measurement and meter facilities for each lease, unit PA, or communitized area are not necessarily justified by the incremental royalty accountability afforded by the separate meters and flares.
Proposed § 3179.301 is essentially the same as existing § 3179.9. The main difference between the two is that existing § 3179.9 requires measurement or calculation under a particular protocol when the volume of flared gas exceeds 50 Mcf per day.
The BLM reviewed the proposed rule and conducted an RIA and Environmental Assessment (EA) that examine the impacts of the proposed requirements. The draft RIA and draft EA that the BLM prepared have been posted in the docket for the proposed rule on the
The BLM's proposed rule would remove almost all of the requirements in the 2016 final rule that we previously estimated would pose a compliance burden to operators and generate benefits of gas savings or reductions in methane emissions. The proposed rule would replace the 2016 final rule's requirements with requirements largely similar to those that were in NTL-4A. Also, for the most part, the proposed rule would remove the administrative burdens associated with the 2016 final rule's subpart 3179.
The baseline for the analysis of this proposed rule accounts for the BLM's 2017 Suspension Rule that has suspended or delayed certain requirements of the 2016 final rule until January 17, 2019. 82 FR 58050 (Dec. 8, 2017). The effect of the 2017 Suspension Rule is to shift the impacts of the affected requirements into the near future. The BLM also revisited the underlying assumptions used in the RIA for the 2016 final rule. Specifically, the BLM revisited the underlying assumptions pertaining to LDAR, administrative burdens, and climate benefits (see sections 3.2, 3.3, and 7 of the RIA).
For this proposed rule, we track the impacts over the first 10 years of implementation against the baseline. The period of analysis in the RIA prepared for the 2016 final rule was 10 years and the period of analysis in the RIA prepared for the 2017 Suspension Rule was 10 years after the suspension or delay. Results are provided using the net present value (NPV) of costs and benefits estimated over the evaluation period, calculated using 7 percent and 3 percent discount rates.
First, we examined the reductions in compliance costs, excluding the savings that would have been realized from product recovery. The proposed rule would reduce compliance costs from the baseline. Over the 10-year evaluation period (2019-2028), we estimate a total reduction in compliance costs of $1.32 billion to 1.60 billion (NPV using a 7 percent discount rate) or $1.66 billion to 2.03 billion (NPV using a 3 percent discount rate). We expect very few compliance costs associated with the proposed rule, including the remaining administrative burdens.
The proposed rule would reduce benefits from the baseline, since estimated cost savings that would have come from product recovery would be forgone and the emissions reductions would also be forgone. The proposed rule would result in forgone cost savings from natural gas recovery. Over the 10-year evaluation period (2019-2028), we estimate total forgone cost savings from natural gas recovery (from the baseline) of $629 million (NPV using a 7 percent discount rate) or $824 million (NPV using a 3 percent discount rate). The proposed rule also expected to result in forgone methane emissions reductions. Over the 10-year evaluation period (2019-2028), we estimate total forgone methane emissions reductions from the baseline valued at $66 million (NPV and interim domestic SC-CH4 using a 7 percent discount rate) or $259 million (NPV and interim domestic SC-CH4 using a 3 percent discount rate).
The proposed rule is estimated to result in positive net benefits relative to the baseline. More specifically, we estimate that the reduction of compliance costs would exceed the forgone cost savings from recovered natural gas and the value of the forgone methane emissions reductions. Over the 10-year evaluation period (2019-2028), we estimate total net benefits from the baseline of $625-900 million (NPV and interim domestic SC-CH
The proposed rule is expected to influence the production of natural gas, natural gas liquids, and crude oil from onshore Federal and Indian oil and gas leases. However, since the relative changes in production are expected to be small, we do not expect that the proposed rule would significantly impact the price, supply, or distribution of energy.
The proposed rule would reverse the estimated incremental changes in crude oil and natural gas production associated with the 2016 final rule. Over the 10-year evaluation period (2019-2028), we estimate that 18.4 million barrels of crude oil production and 22.7 Bcf of natural gas production would no longer be deferred (as it would have been under the 2016 final rule). However, we also estimate that there would be 299 Bcf of forgone natural gas production (that would have been produced and sold under the 2016 final rule).
For context, we note the share of the total U.S. production in 2015 that the incremental changes in production would represent. The per-year average of the estimated crude oil volume that would no longer be deferred represents 0.058 percent of the total U.S. crude oil production in 2015. The per-year average of the estimated natural gas volume that would no longer be deferred represents 0.008 percent of the total U.S. natural gas production in 2015. The per-year average of the estimated forgone natural gas production represents 0.109 percent of the total U.S. natural gas production in 2015.
The 2016 final rule, when implemented, would be expected to impact the production of crude oil and natural gas from Federal and Indian oil and gas leases. In the RIA for the 2016 final rule, the BLM estimated that the rule's requirements would generate additional natural gas production, but that substantial volumes of crude oil production would be deferred or shifted to the future. The BLM concluded that the 2016 final rule would generate overall additional royalty, with the royalty gains from the additional natural gas produced outweighing the value of the royalty losses from crude oil production (and some associated gas) being deferred into the future.
The proposed rule, which reverses most of the 2016 final rule's provisions, is expected to reverse the estimated royalty impacts of the 2016 final rule. This formulation does not account for the potential countervailing impacts of the reduction in compliance burdens, which might spur additional production on Federal and Indian lands and therefore have a positive impact on royalties.
We note that royalty impacts are presented separately from the costs, benefits, and net benefits. Royalty payments are recurring income to Federal or tribal governments and costs to the operator or lessee. As such, they are transfer payments that do not affect the total resources available to society. An important but sometimes difficult problem in cost estimation is to distinguish between real costs and transfer payments. While transfers should not be included in the economic analysis estimates of the benefits and costs of a regulation, they may be important for describing the distributional effects of a regulation.
The proposed rule is expected to result in forgone royalty payments to the Federal Government, tribal governments, States, and private landowners. Over the 10-year evaluation period (2019-2028), we estimate total forgone royalty payments (from the baseline) of $26.4 million (NPV using a 7 percent discount rate) or $32.7 million (NPV using a 3 percent discount rate).
E.O. 13563 reaffirms the principles of E.O. 12866 and requires that agencies, among other things, “identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public.”
The 2016 final rule established requirements and direct regulation on operators. If the proposed rule were finalized, then the BLM would remove the requirements of the 2016 final rule that impose the most substantial direct regulatory burdens on operators. Also, with the proposed rule, the BLM would remove the duplicative operational and equipment requirements and paperwork and administrative burdens.
In developing this proposed rule, the BLM considered scenarios for retaining certain requirements currently in subpart 3179. For example, we examined the impacts of retaining subpart 3179 in its entirety (essentially taking no action). We also examined the impacts of retaining the gas capture requirements of the 2016 final rule (§§ 3179.7-3179.8) and the measurement/metering requirements (§ 3179.9) while rescinding the operational and equipment requirements addressing venting from leaks, pneumatic equipment, and storage tanks. The results of these alternative scenarios are presented in Section 4 of the RIA.
E.O. 13563 reaffirms the principles established in E.O. 12866, but calls for additional consideration of the regulatory impact on employment. E.O. 13563 states, “Our regulatory system must protect public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation.” An analysis of employment impacts is a standalone analysis and the impacts should not be included in the estimation of benefits and costs.
This proposed rule would remove or replace requirements of the BLM's 2016 final rule on waste prevention and is a deregulatory action. As such, we estimate that it would result in a reduction of compliance costs for operators of oil and gas leases on Federal and Indian lands. Therefore, it is likely that the impact, if any, on employment would be positive.
In the RIA for the 2016 final rule, the BLM concluded that the requirements were not expected to impact the employment within the oil and gas extraction, drilling oil and gas wells, and support activities industries, in any material way. This determination was based on several reasons. First, the estimated incremental gas production represented only a small fraction of the U.S. natural gas production volumes. Second, the estimated compliance costs represented only a small fraction of the annual net incomes of companies likely to be impacted. Third, for those operations that would have been impacted, the 2016 final rule had provisions that would exempt these operations from compliance to the extent that the compliance costs would force the operator to shut in production. Based on these factors, the BLM determined that the 2016 final rule would not alter the investment or employment decisions of firms or significantly adversely impact employment. The RIA also noted that the requirements would necessitate the one-time installation or replacement of equipment and the ongoing implementation of an LDAR program, both of which would require labor.
We do not believe that the proposed rule would substantially alter the investment or employment decisions of firms. By removing or revising the requirements of the 2016 final rule, the BLM would alleviate the associated compliance burdens on operators. The investment and labor necessary to comply with the 2016 rule would not be needed. We do not believe that the cost savings in themselves would be substantial enough to substantially alter the investment or employment decisions of firms. We also recognize that there may be a small positive impact on investment and employment due to the reduction in compliance burdens if the output effects dominate. The magnitude of the reductions would be relatively small but could carry competitiveness impacts, specifically on marginal wells on Federal lands, deterring investment. In sum, the effect on investment and employment of this rule remains unknown.
The BLM reviewed the Small Business Administration (SBA) size standards for small businesses and the number of entities fitting those size standards as reported by the U.S. Census Bureau. We conclude that small entities represent the majority of entities operating in the onshore crude oil and natural gas extraction industry and, therefore, the proposed rule would impact a substantial number of small entities. To examine the economic impact of the rule on small entities, the BLM performed a screening analysis on a sample of potentially affected small entities, comparing the reduction of compliance costs to entity profit margins. This screening analysis showed that the estimated per-entity reduction in compliance costs would result in an average increase in profit margin of 0.19 percentage points (based on the 2014 company data).
The BLM also notes that most of the emissions-based requirements in the 2016 final rule (including LDAR, pneumatic controllers, pneumatic pumps, and liquids unloading requirements) would impose a particular burden on marginal or low-producing wells.
The proposed rule would apply to oil and gas operations on both Federal and Indian leases. In the RIA, the BLM estimates the impacts associated with operations on Indian leases, as well as royalty implications for tribal governments. We estimate these impacts by scaling down the total impacts by the share of oil wells on Indian lands and the share of gas wells on Indian Lands. Please reference the RIA at section 4.4.5 for a full explanation of the estimated impacts.
Executive Order 12866 provides that the Office of Information and Regulatory Affairs within the Office of Management and Budget (OMB) will review all significant rules. The Office of Information and Regulatory Affairs has determined that this proposed rule is economically significant. Executive Order 13563 reaffirms the principles of Executive Order 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. Executive Order 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.
This proposed rule would rescind or revise portions of the BLM's 2016 final rule. We have developed this proposed rule in a manner consistent with the requirements in Executive Order 12866 and Executive Order 13563. The BLM reviewed the requirements of the
This proposed rule is expected to be an E.O. 13771 deregulatory action. Details on the estimated cost savings of this proposed rule can be found in the rule's RIA.
The Regulatory Flexibility Act (5 U.S.C. 601
The BLM reviewed the SBA size standards for small businesses and the number of entities fitting those size standards as reported by the U.S. Census Bureau in the Economic Census. The BLM concludes that the vast majority of entities operating in the relevant sectors are small businesses as defined by the SBA. As such, the proposed rule would likely affect a substantial number of small entities.
The BLM reviewed the proposed rule and estimates that it would generate cost savings of about $69,000 per entity per year. These estimated cost savings would provide relief to small operators which, the BLM notes, represent the overwhelming majority of operators of Federal and Indian leases.
For the purpose of carrying out its review pursuant to the RFA, the BLM believes that the proposed rule would not have a “significant economic impact on a substantial number of small entities,” as that phrase is used in 5 U.S.C. 605. An initial regulatory flexibility analysis is therefore not required. In making a “significant” determination under the RFA, BLM used an estimated per-entity cost savings to conduct a screening analysis. The analysis shows that the average reduction in compliance costs associated with this proposed rule are a small enough percentage of the profit margin for small entities, so as not be considered “significant” under the RFA.
Details on this determination can be found in the RIA for the proposed rule.
This proposed rule is a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This proposed rule:
(a) Would have an annual effect on the economy of $100 million or more.
(b) Would not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.
(c) Would not have a significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.
This proposed rule would not impose an unfunded mandate on State, local, or tribal governments, or the private sector of $100 million or more per year. The proposed rule would not have a significant or unique effect on State, local, or tribal governments or the private sector. The proposed rule contains no requirements that would apply to State, local, or tribal governments. It would rescind or revise requirements that would otherwise apply to the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1531
This proposed rule would not affect a taking of private property or otherwise have taking implications under Executive Order 12630. A takings implication assessment is not required. The proposed rule would rescind or revise many of the requirements placed on operators by the 2016 final rule. Operators would not have to undertake the associated compliance activities, either operational or administrative. Therefore, the proposed rule would impact some operational and administrative requirements on Federal and Indian lands. All such operations are subject to lease terms which expressly require that subsequent lease activities be conducted in compliance with subsequently adopted Federal laws and regulations. This proposed rule conforms to the terms of those leases and applicable statutes and, as such, the rule is not a government action capable of interfering with constitutionally protected property rights. Therefore, the BLM has determined that the rule would not cause a taking of private property or require further discussion of takings implications under Executive Order 12630.
Under the criteria in section 1 of Executive Order 13132, this proposed rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. A federalism impact statement is not required.
The proposed rule would not have a substantial direct effect on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the levels of government. It would not apply to States or local governments or State or local governmental entities. The rule would affect the relationship between operators, lessees, and the BLM, but it does not directly impact the States. Therefore, in accordance with Executive Order 13132, the BLM has determined that this proposed rule does not have sufficient federalism implications to warrant preparation of a Federalism Assessment.
This proposed rule complies with the requirements of Executive Order 12988. More specifically, this proposed rule meets the criteria of section 3(a), which requires agencies to review all
The Department strives to strengthen its government-to-government relationship with Indian tribes through a commitment to consultation with Indian tribes and recognition of their right to self-governance and tribal sovereignty. We have evaluated this proposed rule under the Department's consultation policy and under the criteria in Executive Order 13175 and have identified substantial direct effects on federally recognized Indian tribes that would result from this proposed rule. Under this proposed rule, oil and gas operations on tribal and allotted lands would no longer be subject to many of the requirements placed on operators by the 2016 final rule.
The BLM believes that revising the requirements of subpart 3179 would prevent Indian lands from being viewed as less attractive to oil and gas operators than non-Indian lands due to unnecessary and burdensome compliance costs, thereby preventing economic harm to tribes and allottees. The BLM is conducting tribal outreach which it believes is appropriate given that the proposed rule would remove many of the compliance burdens of the 2016 final rule, defer to tribal laws, regulations, rules, and orders, with respect to oil-well gas flaring from Indian leases, and otherwise revise subpart 3179 in a manner that aligns it with NTL-4A. The BLM notified tribes of the action and requested feedback and comment through the respective BLM State Office Directors. Future tribal consultation may occur on an ongoing basis.
The Paperwork Reduction Act (PRA) (44 U.S.C. 3501-3521) provides that an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information, unless it displays a currently valid control number. 44 U.S.C. 3512. Collections of information include requests and requirements that an individual, partnership, or corporation obtain information, and report it to a Federal agency. 44 U.S.C. 3502(3); 5 CFR 1320.3(c) and (k).
OMB approved 24 information collection activities in a final rule pertaining to waste prevention and assigned control number 1004-0211 to those activities. See “Waste Prevention, Production Subject to Royalties, and Resource Conservation,” Final Rule, 81 FR 83008 (Nov. 18, 2016). In the Notice of Action approving the 24 information collection activities in the 2016 final rule, OMB announced that the control number will expire on January 31, 2018. The Notice of Action also included terms of clearance.
On October 5, 2017, the BLM proposed a rule that would suspend or delay several regulations in the 2016 final rule. In that proposed rule, the BLM requested the extension of control number 1004-0211 until January 31, 2019, including the 24 information collection activities in the 2016 final rule. The BLM invited public comment on the proposed extension of control no. 1004-0211. The BLM also submitted the information collection request for this proposed rule to OMB for review in accordance with the PRA.
The BLM finalized that rule on December 8, 2017. See 82 FR 58050. OMB approved the information collection activities in the rule with an expiration date of December 31, 2020, and with a Term of Clearance that maintains the effectiveness of the Terms of Clearance associated with the 2016 final rule. That Term of Clearance requires the BLM to submit to the Office of Information and Regulatory Affairs draft guidance to implement the collection of information requirements of the 2016 final rule no later than 3 months after January 17, 2019.
This proposed rule would not modify any regulations in 43 CFR subpart 3178. Accordingly, the BLM requests continuation of the information collection activity at 43 CFR 3178.5, 3178.7, 3178.8, and 3178.9 (“Request for Approval for Royalty-Free Uses On-Lease or Off-Lease”).
The proposed rule would remove the information collection activity at 43 CFR 3162.3-1(j) (“Plan to Minimize Waste of Natural Gas”). The proposed rule also would remove or revise many regulations and information collection activities in 43 CFR subpart 3179. As a result, the BLM now requests revision of control number 1004-0211 to include:
• The information collection activities in this proposed rule; and
• The information collection activity entitled “Request for Approval for Royalty-Free Uses On-Lease or Off-Lease.”
The BLM requests comments on the following subjects:
• Whether the collection of information is necessary for the proper functioning of the BLM, including whether the information will have practical utility;
• The accuracy of the BLM's estimate of the burden of collecting the information, including the validity of the methodology and assumptions used;
• The quality, utility, and clarity of the information to be collected; and
• How to minimize the information collection burden on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other forms of information technology.
If you want to comment on the information collection requirements of this proposed rule, please send your comments directly to OMB, with a copy to the BLM, as directed in the
A. The BLM requests that OMB control number 1004-0211 continue to include the following information collection activity that was included at 43 CFR subpart 3178 of the 2016 final rule:
Section 3178.5 requires submission of a Sundry Notice (Form 3160-5) to request prior written BLM approval for use of gas royalty free for the following operations and production purposes on the lease, unit or communitized area:
• Using oil or gas that an operator removes from the pipeline at a location downstream of the facility measurement point (FMP);
• Removal of gas initially from a lease, unit PA, or communitized area for treatment or processing because of particular physical characteristics of the gas, prior to use on the lease, unit PA or communitized area; and
• Any other type of use of produced oil or gas for operations and production purposes pursuant to § 3178.3 that is not identified in § 3178.4.
Section 3178.7 requires submission of a Sundry Notice (Form 3160-5) to request prior written BLM approval for off-lease royalty-free uses in the following circumstances:
• The equipment or facility in which the operation is conducted is located off the lease, unit, or communitized area for engineering, economic, resource-protection, or physical-accessibility reasons; and
• The operations are conducted upstream of the FMP.
Section 3178.8 requires that an operator measure or estimate the volume of royalty-free gas used in operations upstream of the FMP. In general, the operator is free to choose whether to measure or estimate, with the exception that the operator must in all cases measure the following volumes:
• Royalty-free gas removed downstream of the FMP and used pursuant to §§ 3178.4 through 3178.7; and
• Royalty-free oil used pursuant to §§ 3178.4 through 3178.7.
If oil is used on the lease, unit or communitized area, it is most likely to be removed from a storage tank on the lease, unit or communitized area. Thus, this regulation also requires the operator to document the removal of the oil from the tank or pipeline.
Section 3178.8(e) requires that operators use best available information to estimate gas volumes, where estimation is allowed. For both oil and gas, the operator must report the volumes measured or estimated, as applicable, under ONRR reporting requirements. As revisions to Onshore Oil and Gas Orders No. 4 and 5 have now been finalized as 43 CFR subparts 3174 and 3175, respectively, the final rule text now references § 3173.12, as well as § 3178.4 through § 3178.7 to clarify that royalty-free use must adhere to the provisions in those sections.
Section 3178.9 requires the following additional information in a request for prior approval of royalty-free use under § 3178.5, or for prior approval of off-lease royalty-free use under § 3178.7:
• A complete description of the operation to be conducted, including the location of all facilities and equipment involved in the operation and the location of the FMP;
• The volume of oil or gas that the operator expects will be used in the operation and the method of measuring or estimating that volume;
• If the volume expected to be used will be estimated, the basis for the estimate (
• The proposed disposition of the oil or gas used (
B. The BLM requests the revision of the following information collection activities in accordance with this proposed rule:
A regulation in the 2016 final rule, 43 CFR 3179.103, allows gas to be flared royalty free during initial production testing. The regulation lists specific volume and time limits for such testing. An operator may seek an extension of those limits on royalty-free flaring by submitting a Sundry Notice (Form 3160-5) to the BLM.
A regulation in this proposed rule, 43 CFR 3179.101, would be similar to the 2016 final rule in addressing the royalty-free treatment of gas volumes flared during initial production testing. 43 CFR 3179.101 in this proposed rule would provide that gas flared during the initial production test of each completed interval in a well is royalty free until one of the following occurs:
• The operator determines that it has obtained adequate reservoir information;
• 30 days have passed since the beginning of the production test, unless the BLM approves a longer test period; or
• The operator has flared 50 MMcf of gas.
Section 3179.101 of this proposed rule would also provide that an operator may request a longer test period by submitting a Sundry Notice.
A regulation in the 2016 final rule, 43 CFR 3179.104, allows gas to be flared royalty free for no more than 24 hours during well tests subsequent to the initial production test. That regulation allows an operator to seek authorization to flare royalty free for a longer period by submitting a Sundry Notice (Form 3160-5) to the BLM.
A regulation in this proposed rule, 43 CFR 3179.102, is substantively identical to 43 CFR 3179.104 in the 2016 final rule. Accordingly, the BLM requests that the information collection activity at 43 CFR 3179.102 of this proposed rule replace the activity at 43 CFR 3179.104 of the 2016 final rule.
A regulation in the 2016 final rule, 43 CFR 3179.105, allows an operator to flare gas royalty free during a temporary, short-term, infrequent, and unavoidable emergency. A regulation in this proposed rule, at 43 CFR 3179.103, is almost identical to 43 CFR 3179.105 of the 2016 final rule. The BLM thus requests that the information collection activity entitled, “Reporting of Venting or Flaring (43 CFR 3179.105)” be re-named “Emergencies (43 CFR 3179.103).”
As provided at 43 CFR 3179.103(a) of this proposed rule, gas flared or vented during an emergency would be royalty free for a period not to exceed 24 hours, unless the BLM determines that emergency conditions exist necessitating venting or flaring for a longer period. Section 3179.103(d) of this proposed rule would require the operator to report to the BLM on a Sundry Notice, within 45 days of the start of an emergency, the estimated volumes flared or vented beyond the timeframe specified in paragraph (a).
As defined at 43 CFR 3179.103(b) of this proposed rule, an “emergency” for purposes of 43 CFR subpart 3179 would be a temporary, infrequent and unavoidable situation in which the loss of gas or oil is uncontrollable or necessary to avoid risk of an immediate
As provided at 43 CFR 3179.103(c) of this proposed rule, the following events would not constitute emergencies for the purposes of royalty assessment:
• The operator's failure to install appropriate equipment of a sufficient capacity to accommodate the production conditions;
• Failure to limit production when the production rate exceeds the capacity of the related equipment, pipeline, or gas plant, or exceeds sales contract volumes of oil or gas;
• Scheduled maintenance;
• A situation caused by operator negligence, including recurring equipment failures; or
• A situation on a lease, unit, or communitized area that has already experienced 3 or more emergencies within the past 30 days, unless the BLM determines that the occurrence of more than 3 emergencies within the 30 day period could not have been anticipated and was beyond the operator's control.
C. The BLM requests the removal of the following information collection activities in accordance with this proposed rule:
1. “Plan to Minimize Waste of Natural Gas”;
2. “Notification of Choice to Comply on County- or State-wide Basis”;
3. “Request for Approval of Alternative Capture Requirement”;
4. “Request for Exemption from Well Completion Requirements”;
5. “Notification of Functional Needs for a Pneumatic Controller”;
6. “Showing that Cost of Compliance Would Cause Cessation of Production and Abandonment of Oil Reserves (Pneumatic Controller)”;
7. “Showing in Support of Replacement of Pneumatic Controller within 3 Years”;
8. “Showing that a Pneumatic Diaphragm Pump was Operated on Fewer than 90 Individual Days in the Prior Calendar Year”;
9. “Notification of Functional Needs for a Pneumatic Diaphragm Pump”;
10. “Showing that Cost of Compliance Would Cause Cessation of Production and Abandonment of Oil Reserves (Pneumatic Diaphragm Pump)”;
11. “Showing in Support of Replacement of Pneumatic Diaphragm Pump within 3 Years”;
12. “Storage Vessels”;
13. “Downhole Well Maintenance and Liquids Unloading—Documentation and Reporting”;
14. “Downhole Well Maintenance and Liquids Unloading—Notification of Excessive Duration or Volume”;
15. “Leak Detection—Compliance with EPA Regulations”;
16. “Leak Detection—Request to Use an Alternative Monitoring Device and Protocol”;
17. “Leak Detection—Operator Request to Use an Alternative Leak Detection Program”;
18. “Leak Detection—Operator Request for Exemption Allowing Use of an Alternative Leak-Detection Program that Does Not Meet Specified Criteria”;
19. “Leak Detection—Notification of Delay in Repairing Leaks”;
20. “Leak Detection—Inspection Recordkeeping and Reporting”; and
21. “Leak Detection—Annual Reporting of Inspections.”
D. The BLM requests the addition of following information collection activity, in accordance with this proposed rule:
A regulation in this proposed rule, 43 CFR 3179.201, would provide that, except as otherwise provided in 43 CFR subpart 3179, oil-well gas may not be vented or flared royalty free unless BLM approves such action in writing. The BLM would be authorized to approve an application for royalty-free venting or flaring of oil-well gas upon determining that royalty-free venting or flaring is justified by the operator's submission of either:
(1) An evaluation report supported by engineering, geologic, and economic data that demonstrates to the BLM's satisfaction that the expenditures necessary to market or beneficially use such gas are not economically justified; or
(2) An action plan showing how the operator will minimize the venting or flaring of the gas within 1 year or within a greater amount of time if the operator justifies an extended deadline. If the operator fails to implement the action plan, the gas vented or flared during the time covered by the action plan would be subject to royalty.
The data in the evaluation report that is mentioned above would need to include:
• The applicant's estimates of the volumes of oil and gas that would be produced to the economic limit if the application to vent or flare were approved; and
• The volumes of the oil and gas that would be produced if the applicant were required to market or use the gas.
The BLM would be authorized to require the operator to provide an updated evaluation report as additional development occurs or economic conditions improve. In addition, the BLM would be authorized to determine that gas is avoidably lost and therefore subject to royalty if flaring exceeds 10 MMcf per well during any month.
This proposed rule would result in the following adjustments in hour or cost burden that result from the review of the proposed rule under Executive Order 12866:
1. The hours per response for Request for Approval for Royalty-Free Uses On-Lease or Off-Lease would be increased from 4 to 8.
2. The number of responses for “Request for Extension of Royalty-Free Flaring During Initial Well Testing” would be increased from 500 to 750.
Program changes in this proposed rule would result in 62,125 fewer responses than in the 2016 final rule (1,075 responses minus 63,200 responses) and 78,160 fewer burden hours than in the 2016 final rule (4,010 responses minus 82,170 responses. The program changes and their reasons are itemized in Tables 15-1 and 15-2 of the supporting statement.
The following table details the annual estimated hour burdens for the information activities described above:
The BLM has prepared a draft environmental assessment (EA) to determine whether this proposed rule would have a significant impact on the quality of the human environment under the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321
The draft EA has been placed in the file for the BLM's Administrative Record for the rule at the address specified in the
This proposed rule is not a significant energy action under the definition in Executive Order 13211. A statement of Energy Effects is not required.
Section 4(b) of Executive Order 13211 defines a “significant energy action” as “any action by an agency (normally published in the
The rule would rescind or revise certain requirements in the 2016 final rule and would reduce compliance burdens. The BLM determined that the 2016 final rule would not have impacted the supply, distribution, or use of energy. It stands to reason that a revision in a manner that conforms 43 CFR subpart 3179 with the policies governing venting and flaring prior to the 2016 final rule will likewise not have an impact on the supply, distribution, or use of energy. As such, we do not consider the proposed rule to be a “significant energy action” as defined in Executive Order 13211.
We are required by Executive Orders 12866 (section 1(b)(12)), 12988 (section 3(b)(1)(B)), and 13563 (section 1(a)), and by the Presidential Memorandum of June 1, 1988, to write all rules in plain language. This means that each rule must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use common, everyday words and clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) 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 the
The principal authors of this proposed rule are: James Tichenor and Michael Riches of the BLM Washington Office; Rebecca Hunt of the BLM New Mexico State Office, Eric Jones of the BLM Moab, Utah Field Office; David Mankiewicz of the BLM Farmington, New Mexico Field Office; and Beth Poindexter of the BLM Dickinson, North Dakota Field Office; assisted by Faith Bremner of the BLM's Division of Regulatory Affairs and by the Department of the Interior's Office of the Solicitor.
Administrative practice and procedure; Government contracts; Indians—lands; Mineral royalties; Oil and gas exploration; Penalties; Public lands—mineral resources; Reporting and recordkeeping requirements.
Administrative practice and procedure; Flaring; Government contracts; Incorporation by reference; Indians—lands; Mineral royalties; Immediate assessments; Oil and gas exploration; Oil and gas measurement; Public lands—mineral resources; Reporting and record keeping requirements; Royalty-free use; Venting.
For the reasons set out in the preamble, the Bureau of Land Management proposes to amend 43 CFR parts 3160 and 3179 as follows:
25 U.S.C. 396d and 2107; 30 U.S.C. 189, 306, 359, and 1751; and 43 U.S.C. 1732(b), 1733, and 1740; and Sec. 107, Pub. L. 114-74, 129 Stat. 599, unless otherwise noted.
25 U.S.C. 396d and 2107; 30 U.S.C. 189, 306, 359, and 1751; and 43 U.S.C. 1732(b), 1733, and 1740.
The purpose of this subpart is to implement and carry out the purposes of statutes relating to prevention of waste from Federal and Indian (other than Osage Tribe) leases, conservation of surface resources, and management of the public lands for multiple use and sustained yield. This subpart supersedes those portions of Notice to Lessees and Operators of Onshore Federal and Indian Oil and Gas Leases, Royalty or Compensation for Oil and Gas Lost (NTL-4A), pertaining to, among other things, flaring and venting of produced gas, unavoidably and avoidably lost gas, and waste prevention.
(a) This subpart applies to:
(1) All onshore Federal and Indian (other than Osage Tribe) oil and gas leases, units, and communitized areas, except as otherwise provided in this subpart;
(2) IMDA oil and gas agreements, unless specifically excluded in the agreement or unless the relevant provisions of this subpart are inconsistent with the agreement;
(3) Leases and other business agreements and contracts for the development of tribal energy resources under a Tribal Energy Resource Agreement entered into with the Secretary, unless specifically excluded in the lease, other business agreement, or Tribal Energy Resource Agreement;
(4) Committed State or private tracts in a federally approved unit or communitization agreement defined by or established under 43 CFR subpart 3105 or 43 CFR part 3180; and
(5) All onshore well facilities located on a Federal or Indian lease or a federally approved unit or communitized area.
(b) For purposes of this subpart, the term “lease” also includes IMDA agreements.
As used in this subpart, the term:
For purposes of this subpart:
(a)
(1) Gas that is vented or flared without the authorization or approval of the BLM; or
(2) Produced oil or gas that is lost when the BLM determines that such loss occurred as a result of:
(i) Negligence on the part of the operator;
(ii) The failure of the operator to take all reasonable measures to prevent or control the loss; or
(iii) The failure of the operator to comply fully with the applicable lease terms and regulations, appropriate provisions of the approved operating plan, or prior written orders of the BLM.
(b)
(1) Oil or gas that is lost because of line failures, equipment malfunctions, blowouts, fires, or other similar circumstances, except where the BLM determines that the loss was avoidable pursuant to § 3179.4(a)(2);
(2) Oil or gas that is lost from the following operations or sources, except where the BLM determines that the loss was avoidable pursuant to § 3179.4(a)(2):
(i) Well drilling;
(ii) Well completion and related operations;
(iii) Initial production tests, subject to the limitations in § 3179.101;
(iv) Subsequent well tests, subject to the limitations in § 3179.102;
(v) Exploratory coalbed methane well dewatering;
(vi) Emergencies, subject to the limitations in § 3179.103;
(vii) Normal gas vapor losses from a storage tank or other low pressure production vessel, unless the BLM determines that recovery of the gas vapors is warranted;
(viii) Well venting in the course of downhole well maintenance and/or liquids unloading performed in compliance with § 3179.104; or
(ix) Facility and pipeline maintenance, such as when an operator must blow-down and depressurize equipment to perform maintenance or repairs; or
(3) Produced gas that is flared or vented with BLM authorization or approval.
(a) Royalty is due on all avoidably lost oil or gas.
(b) Royalty is not due on any unavoidably lost oil or gas.
(a) Gas well gas may not be flared or vented, except where it is unavoidably lost pursuant to § 3179.4(b).
(b) The operator must flare, rather than vent, any gas that is not captured, except:
(1) When flaring the gas is technically infeasible, such as when the gas is not readily combustible or the volumes are too small to flare;
(2) Under emergency conditions, as defined in § 3179.105, when the loss of gas is uncontrollable or venting is necessary for safety;
(3) When the gas is vented through normal operation of a natural gas-activated pneumatic controller or pump;
(4) When gas vapor is vented from a storage tank or other low pressure production vessel, unless the BLM determines that recovery of the gas vapors is warranted;
(5) When the gas is vented during downhole well maintenance or liquids unloading activities;
(6) When the gas venting is necessary to allow non-routine facility and pipeline maintenance to be performed, such as when an operator must, upon occasion, blow-down and depressurize equipment to perform maintenance or repairs; or
(7) When a release of gas is unavoidable under § 3179.4 and flaring is prohibited by Federal, State, local or tribal law, regulation, or enforceable permit term.
(c) For purposes of this subpart, all flares or combustion devices must be equipped with an automatic ignition system.
(a) Gas flared during the initial production test of each completed interval in a well is royalty free until one of the following occurs:
(1) The operator determines that it has obtained adequate reservoir information;
(2) 30 days have passed since the beginning of the production test, unless the BLM approves a longer test period; or
(3) The operator has flared 50 million cubic feet (MMcf) of gas.
(b) The operator may request a longer test period and must submit its request using a Sundry Notice.
(a) Gas flared during well tests subsequent to the initial production test is royalty free for a period not to exceed 24 hours, unless the BLM approves or requires a longer test period.
(b) The operator may request a longer test period and must submit its request using a Sundry Notice.
(a) Gas flared or vented during an emergency is royalty free for a period not to exceed 24 hours, unless the BLM determines that emergency conditions exist necessitating venting or flaring for a longer period.
(b) For purposes of this subpart, an “emergency” is a temporary, infrequent and unavoidable situation in which the loss of gas or oil is uncontrollable or necessary to avoid risk of an immediate and substantial adverse impact on safety, public health, or the environment, and is not due to operator negligence.
(c) The following do not constitute emergencies for the purposes of royalty assessment:
(1) The operator's failure to install appropriate equipment of a sufficient capacity to accommodate the production conditions;
(2) Failure to limit production when the production rate exceeds the capacity of the related equipment, pipeline, or gas plant, or exceeds sales contract volumes of oil or gas;
(3) Scheduled maintenance;
(4) A situation caused by operator negligence, including recurring equipment failures; or
(5) A situation on a lease, unit, or communitized area that has already experienced 3 or more emergencies within the past 30 days, unless the BLM determines that the occurrence of more than 3 emergencies within the 30 day period could not have been anticipated and was beyond the operator's control.
(d) Within 45 days of the start of the emergency, the operator must estimate and report to the BLM on a Sundry Notice the volumes flared or vented beyond the timeframe specified in paragraph (a) of this section.
(a) Gas vented or flared during downhole well maintenance and well purging is royalty free for a period not to exceed 24 hours, provided that the requirements of paragraphs (b) through (d) of this section are met. Gas vented or flared from a plunger lift system and/or an automated well control system is royalty free, provided the requirements of paragraphs (b) and (c) of this section are met.
(b) The operator must minimize the loss of gas associated with downhole well maintenance and liquids unloading, consistent with safe operations.
(c) For wells equipped with a plunger lift system and/or an automated well control system, minimizing gas loss under paragraph (b) of this section includes optimizing the operation of the system to minimize gas losses to the extent possible consistent with removing liquids that would inhibit proper function of the well.
(d) For any liquids unloading by manual well purging, the operator must ensure that the person conducting the well purging remains present on-site throughout the event to end the event as soon as practical, thereby minimizing to the maximum extent practicable any venting to the atmosphere;
(e) For purposes of this section, “well purging” means blowing accumulated liquids out of a wellbore by reservoir gas pressure, whether manually or by an automatic control system that relies on real-time pressure or flow, timers, or other well data, where the gas is vented to the atmosphere, and it does not apply to wells equipped with a plunger lift system.
(a) Except as provided in §§ 3179.101, 3179.102, 3179.103, and 3179.104 of this subpart, vented or flared oil-well gas is royalty free if it is vented or flared pursuant to applicable rules, regulations, or orders of the appropriate State regulatory agency or tribe.
(b) With respect to production from Indian leases, vented or flared oil-well gas will be treated as royalty free pursuant to paragraph (a) of this section only to the extent it is consistent with the BLM's trust responsibility.
(c) Except as otherwise provided in this subpart, oil-well gas may not be vented or flared royalty free unless BLM approves it in writing. The BLM may approve an application for royalty-free venting or flaring of oil-well gas if it determines that it is justified by the operator's submission of either:
(1) An evaluation report supported by engineering, geologic, and economic data that demonstrates to the BLM's satisfaction that the expenditures necessary to market or beneficially use such gas are not economically justified. If flaring exceeds 10 MMcf per well during any month, the BLM may determine that the gas is avoidably lost and therefore subject to royalty; or
(2) An action plan showing how the operator will minimize the venting or flaring of the oil-well gas within 1 year. An operator may apply for approval of an extension of the 1-year time limit, if justified. If the operator fails to implement the action plan, the gas vented or flared during the time covered by the action plan will be subject to royalty. If flaring exceeds 10 MMcf per well during any month, the BLM may determine that the gas is avoidably lost and therefore subject to royalty.
(d) The evaluation report in paragraph (c)(1) of this section:
(1) Must include all appropriate engineering, geologic, and economic data to support the applicant's determination that marketing or using the gas is not economically viable. The information provided must include the applicant's estimates of the volumes of oil and gas that would be produced to the economic limit if the application to vent or flare were approved and the volumes of the oil and gas that would be produced if the applicant was required to market or use the gas. When evaluating the feasibility of marketing or using of the gas, the BLM will determine whether the operator can economically operate the lease if it is required to market or use the gas, considering the total leasehold production, including both oil and gas, as well as the economics of a field-wide plan; and
(2) The BLM may require the operator to provide an updated evaluation report as additional development occurs or economic conditions improve, but no more than once a year.
(e) An approval to flare royalty free, which is in effect as of the effective date of this rule, will continue in effect unless:
(1) The approval is no longer necessary because the venting or flaring is authorized by the applicable rules, regulations, or orders of an appropriate State regulatory agency or tribe, as provided in paragraph (a) of this section; or
(2) The BLM requires an updated evaluation report under paragraph (d)(2) of this section and determines to amend or revoke its approval.
(a) The operator must estimate or measure all volumes of lost oil and gas, whether avoidably or unavoidably lost, from wells, facilities and equipment on a lease, unit PA, or communitized area and report those volumes under applicable ONRR reporting requirements.
(b) The operator may:
(1) Estimate or measure vented or flared gas in accordance with applicable rules, regulations, or orders of the appropriate State or tribal regulatory agency;
(2) Estimate the volume of the vented or flared gas based on the results of a regularly performed GOR test and measured values for the volumes of oil production and gas sales, to allow BLM to independently verify the volume, rate, and heating value of the flared gas; or
(3) Measure the volume of the flared gas.
(c) The BLM may require the installation of additional measurement equipment whenever it is determined that the existing methods are inadequate to meet the purposes of this subpart.
(d) The operator may combine gas from multiple leases, unit PAs, or communitized areas for the purpose of flaring or venting at a common point, but must use a method approved by the BLM to allocate the quantities of the vented or flared gas to each lease, unit PA, or communitized area.
Category | Regulatory Information | |
Collection | Federal Register | |
sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
Publisher | Office of the Federal Register, National Archives and Records Administration |