| Page Range | 18727-18911 | |
| FR Document |
| Page and Subject | |
|---|---|
| 83 FR 18737 - Endangered and Threatened Wildlife and Plants; Review of 2017 Final Rule, Greater Yellowstone Ecosystem Grizzly Bears | |
| 83 FR 18768 - Strengthening Transparency in Regulatory Science | |
| 83 FR 18828 - Consumer Advisory Board Subcommittee Meetings | |
| 83 FR 18856 - Final Flood Hazard Determinations | |
| 83 FR 18855 - National Advisory Council; Meeting | |
| 83 FR 18735 - Suspension of Community Eligibility | |
| 83 FR 18727 - Orders: Reporting by Regulated Entities of Stress Testing Results as of December 31, 2017; Summary Instructions and Guidance | |
| 83 FR 18864 - New Postal Products | |
| 83 FR 18847 - Agency Information Collection Activities: Submission for OMB Review; Comment Request | |
| 83 FR 18827 - Agency Information Collection Activities Under OMB Review | |
| 83 FR 18863 - Annual Determination of Average Cost of Incarceration | |
| 83 FR 18869 - 30-Day Notice of Proposed Information Collection: Grant Request Automated Submissions Program (GRASP) | |
| 83 FR 18734 - Notification to UAS Operators Proposing To Engage in Air Transportation | |
| 83 FR 18877 - Agency Information Collection Activity Under OMB Review: Report of General Information, Report of First Notice of Death, Report of Nursing Home or Assisted Living Information, Report of Defense Finance and Accounting Service (DFAS), Report of Non-Receipt of Payment, Report of Incarceration, Report of Month of Death | |
| 83 FR 18878 - Agency Information Collection Activity Under OMB Review: Department of Veterans Affairs (VA) Post-Separation Transition Assistance Program (PSTAP) Assessment Survey | |
| 83 FR 18876 - Agency Information Collection Activity Under OMB Review: Yellow Ribbon Agreement | |
| 83 FR 18875 - Agency Information Collection Activity: Description of Materials | |
| 83 FR 18879 - Agency Information Collection Activity Under OMB Review: Application for Extended Care Services | |
| 83 FR 18878 - Agency Information Collection Activity: Appeal to the Board of Veterans' Appeals | |
| 83 FR 18877 - Agency Information Collection Activity Under OMB Review: Application for Reimbursement of Licensing or Certification Test Fees | |
| 83 FR 18775 - Foreign-Trade Zone (FTZ) 81-Portsmouth, New Hampshire; Notification of Proposed Production Activity; Textiles Coated International Inc. (Polytetrafluoroethylene Products); Manchester and Londonderry, New Hampshire; Correction | |
| 83 FR 18833 - Public Comment Request; Historically Black College and University (HBCU) Capital Financing Program Deferment Request | |
| 83 FR 18776 - Diamond Sawblades and Parts Thereof From the People's Republic of China: Rescission of Antidumping Duty Administrative Review, in Part; 2016-2017 | |
| 83 FR 18775 - Freshwater Crawfish Tail Meat From the People's Republic of China: Initiation of Antidumping Duty New Shipper Review | |
| 83 FR 18870 - Notice and Request for Comments | |
| 83 FR 18838 - Skylar Energy Resources LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization | |
| 83 FR 18834 - Rio Bravo Rocklin, a California Joint Venture; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization | |
| 83 FR 18837 - Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization; Rio Bravo Fresno, A California Joint Venture | |
| 83 FR 18835 - Walnut Ridge Wind, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization | |
| 83 FR 18839 - CED Wistaria Solar, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization | |
| 83 FR 18838 - Combined Notice of Filings | |
| 83 FR 18839 - Combined Notice of Filings #2 | |
| 83 FR 18837 - Combined Notice of Filings #1 | |
| 83 FR 18835 - Dominion Energy Questar Pipeline, LLC; Notice of Application | |
| 83 FR 18836 - Transcontinental Gas Pipe Line Company, LLC; Notice of Application | |
| 83 FR 18834 - State Energy Advisory Board; Notice of Open Teleconference | |
| 83 FR 18802 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Chevron Richmond Refinery Long Wharf Maintenance and Efficiency Project in San Francisco Bay, California | |
| 83 FR 18777 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Parallel Thimble Shoal Tunnel Project in Virginia Beach, Virginia | |
| 83 FR 18829 - Intent To Prepare Draft Supplemental Environmental Impact Statement for the Allatoona Lake Water Supply Storage Reallocation Study and Updates to Weiss and Logan Martin Reservoir Project Water Control Manuals in the Alabama-Coosa-Tallapoosa River Basin | |
| 83 FR 18833 - Application to Export Electric Energy; Viasyn, Inc. | |
| 83 FR 18871 - Proposed Information Collection; Comment Request | |
| 83 FR 18874 - Proposed Collection; Comment Request for Regulation Project | |
| 83 FR 18871 - Proposed Collection; Comment Request for Regulation Project | |
| 83 FR 18872 - Proposed Collection; Comment Request for Form 8835 | |
| 83 FR 18873 - Proposed Collection; Comment Request for TD 8352 and TD 8531 | |
| 83 FR 18873 - Proposed Collection; Comment Request for Form 3468 | |
| 83 FR 18869 - 30-Day Notice of Proposed Information Collection: Advance Notification Form: Tourist and Other Non-Governmental Activities in the Antarctic Treaty Area, 1405-0181 | |
| 83 FR 18868 - Data Collection Available for Public Comments | |
| 83 FR 18846 - Meeting of the Community Preventive Services Task Force (CPSTF) | |
| 83 FR 18882 - Garrett Howard Smith, M.D.; Decision and Order | |
| 83 FR 18859 - Final Environmental Impact Statement, Final Habitat Conservation Plan; Yolo County, California | |
| 83 FR 18743 - Fisheries of the Exclusive Economic Zone Off Alaska; Greenland Turbot in the Aleutian Islands Subarea of the Bering Sea and Aleutian Islands Management Area | |
| 83 FR 18861 - Filing of Plats of Survey: Alaska | |
| 83 FR 18841 - Agency Information Collection Activities: Proposed Collection Renewal; Comment Request | |
| 83 FR 18858 - Agency Information Collection Activities; Revision of a Currently Approved Collection: Application To Extend/Change Nonimmigrant Status | |
| 83 FR 18751 - Airworthiness Directives; Rolls-Royce Corporation Engines | |
| 83 FR 18758 - Airworthiness Directives; Rolls-Royce Deutschland Ltd & Co KG Tay 620-15 Engines | |
| 83 FR 18747 - Airworthiness Directives; General Electric Company Turbofan Engines | |
| 83 FR 18828 - Submission for OMB Review; Comment Request | |
| 83 FR 18831 - Submission for OMB Review; Comment Request | |
| 83 FR 18753 - Airworthiness Directives; Dassault Aviation Airplanes | |
| 83 FR 18756 - Airworthiness Directives; Airbus | |
| 83 FR 18830 - Proposed Collection; Comment Request | |
| 83 FR 18864 - Product Change-Priority Mail and First-Class Package Service Negotiated Service Agreement | |
| 83 FR 18843 - Proposed Agency Information Collection Activities; Comment Request | |
| 83 FR 18862 - Notice of Availability of the Draft Transportation Plan and Environmental Impact Statement for Acadia National Park, Maine | |
| 83 FR 18860 - Proclaiming Certain Lands as Reservation for the Spokane Tribe of the Spokane Reservation | |
| 83 FR 18860 - Proclaiming Certain Lands as Reservation for the Pueblo of Pojoaque, New Mexico | |
| 83 FR 18866 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Extend the Temporary Exception That Permits Aggregate Reporting for Certain ATS Transactions in U.S. Treasury Securities | |
| 83 FR 18839 - Agency Information Collection Activities: Comment Request | |
| 83 FR 18842 - Agency Information Collection Activities: Announcement of Board Approval Under Delegated Authority and Submission to OMB | |
| 83 FR 18744 - National Organic Program; Proposed Amendments to the National List of Allowed and Prohibited Substances for 2017 NOSB Recommendations (Livestock and Handling) | |
| 83 FR 18848 - Division of Behavioral Health, Office of Clinical and Preventive Services Domestic Violence Prevention Initiative | |
| 83 FR 18864 - BMO Exchange Traded Funds, et al. | |
| 83 FR 18855 - National Institute on Minority Health and Health Disparities; Amended Notice of Meeting | |
| 83 FR 18855 - National Center for Advancing Translational Sciences; Notice of Closed Meeting | |
| 83 FR 18855 - National Institute on Aging; Notice of Closed Meeting | |
| 83 FR 18855 - National Institute of Biomedical Imaging and Bioengineering; Notice of Closed Meeting | |
| 83 FR 18875 - Joint Biomedical Laboratory Research and Development and Clinical Science Research and Development Services Scientific Merit Review Board; Notice of Meetings | |
| 83 FR 18874 - Meeting of the Advisory Committee on Cemeteries and Memorials | |
| 83 FR 18766 - Safety Zone; Blazing Paddles 2018 SUP Race; Cuyahoga River, Cleveland, OH | |
| 83 FR 18832 - Meeting of the National Assessment Governing Board | |
| 83 FR 18765 - Proposed Revocation of Class E Airspace; Clarendon, TX | |
| 83 FR 18763 - Proposed Amendment of Class E Airspace; Ionia, MI | |
| 83 FR 18760 - Airworthiness Directives; Dassault Aviation Airplanes | |
| 83 FR 18749 - Airworthiness Directives; Dassault Aviation Airplanes | |
| 83 FR 18727 - Airworthiness Directives; Airbus Airplanes | |
| 83 FR 18730 - Airworthiness Directives; Airbus Airplanes | |
| 83 FR 18732 - Airworthiness Directives; The Boeing Company Airplanes |
Agricultural Marketing Service
Foreign-Trade Zones Board
International Trade Administration
National Oceanic and Atmospheric Administration
Air Force Department
Engineers Corps
Navy Department
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Indian Health Service
National Institutes of Health
Coast Guard
Federal Emergency Management Agency
U.S. Citizenship and Immigration Services
Fish and Wildlife Service
Indian Affairs Bureau
Land Management Bureau
National Park Service
Drug Enforcement Administration
Prisons Bureau
Federal Aviation Administration
National Highway Traffic Safety Administration
Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents electronic mailing list, go to https://public.govdelivery.com/accounts/USGPOOFR/subscriber/new, enter your e-mail address, then follow the instructions to join, leave, or manage your subscription.
Federal Housing Finance Agency.
Orders.
In this document, the Federal Housing Finance Agency (FHFA) provides notice that it issued Orders, dated March 1, 2018, with respect to stress test reporting as of December 31, 2017, under section 165(i)(2) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act). Summary Instructions and Guidance accompanied the Orders to provide testing scenarios.
Effective April 30, 2018. Each Order is applicable March 1, 2018.
John Williams, Manager, Financial Performance Reporting, Enterprise Financial Reporting Section, (202) 649-3159,
FHFA is responsible for ensuring that the regulated entities operate in a safe and sound manner, including the maintenance of adequate capital and internal controls, that their operations and activities foster liquid, efficient, competitive, and resilient national housing finance markets, and that they carry out their public policy missions through authorized activities.
For the convenience of the affected parties and the public, the text of the Orders follows below in its entirety. The Orders and Summary Instructions and Guidance are also available for public inspection and copying at the Federal Housing Finance Agency's Freedom of Information Act (FOIA) Reading Room at
The text of the Orders is as follows:
Each regulated entity shall report to FHFA and to the Board of Governors of the Federal Reserve System the results of the stress testing as required by 12 CFR 1238, in the form and with the content described therein and in the Summary Instructions and Guidance, with Appendices 1 through 12 thereto, accompanying this Order and dated March 1, 2018.
This Order is effective immediately.
Signed at Washington, DC, this 1st day of March, 2018.
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
We are superseding Airworthiness Directive (AD) 2009-11-08, which applied to certain Airbus Model A330-202, -223, -243, -301, -322, and -342 airplanes. AD 2009-11-08 required repetitive special detailed (high frequency eddy current) inspections to detect cracking of the keel beam fitting horizontal flange edge at a certain frame (FR) on the left- and right-hand sides of the fuselage, and repair if necessary. This AD was prompted by a new fatigue and damage tolerance evaluation that concluded the current inspection thresholds and intervals had to be modified. This AD requires contacting the FAA to obtain instructions for addressing the unsafe condition on these products, and doing the actions specified in those instructions. We are issuing this AD to address the unsafe condition on these products.
This AD becomes effective May 15, 2018.
We must receive comments on this AD by June 14, 2018.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
You may examine the AD docket on the internet at
Vladimir Ulyanov, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th Street, Des Moines, WA 98198; telephone and fax: 206-231-3229.
We issued AD 2009-11-08, Amendment 39-15918 (74 FR 25404, May 28, 2009) (“AD 2009-11-08”), which applied to certain Airbus Model A330-202, -223, -243, -301, -322, and -342 airplanes. AD 2009-11-08 was prompted by reports of cracks on the left- and right-hand sides between the crossing area of the keel angle fitting and the front spar of the center wing box. AD 2009-11-08 required a special detailed (high frequency eddy current) inspection to detect cracking of the keel beam fitting horizontal flange edge at FR40 on the left- and right-hand sides of the fuselage, and repair if necessary. We issued AD 2009-11-08 to detect and correct cracking on the left- and right-hand sides, between the crossing area of the keel angle fitting and the front spar of the center wing box, which if not corrected, could affect the structural integrity of the airplane.
Since we issued AD 2009-11-08, a new fatigue and damage tolerance evaluation was conducted by the manufacturer. It was concluded that, due to airplane utilization, the current inspection thresholds and intervals had to be modified.
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2013-0247, dated October 10, 2013 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus Model A330-202, -223, -243, -301, -322, and -342 airplanes. The MCAI states:
During the A330 and A340 aeroplane fatigue test, cracks appeared on the right and left sides between the crossing area of the keel angle fitting and the front spar of the Centre Wing Box (CWB). Several modifications were introduced in the fleet in the area of frame (FR) 40 keel angle assembly in order to prevent these cracks. However, the new design caused interference between one fastener and the keel angle which was corrected by further local reprofiling of the keel angle horizontal flange.
This condition, if not detected and corrected, could result in reduced structural integrity of the area.
Prompted by these findings, EASA issued AD 2008-0213 [which corresponds to FAA AD 2009-11-08] to require accomplishment of repetitive special detailed inspection on the horizontal flange of the keel beam in the area of first fastener hole aft of FR40 and, depending on findings, accomplishment of a repair.
Since that [EASA] AD was issued, a new fatigue and damage tolerance evaluation was conducted by Airbus. It was concluded that, due to aeroplane utilisation, the current inspection thresholds and intervals had to be modified.
For the reason described above, this [EASA] AD retains the requirements of EASA AD 2008-0213, which is superseded, and redefines the thresholds and intervals.
You may examine the MCAI on the internet at
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI. We are issuing this AD because we evaluated all pertinent information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.
Since there are currently no domestic operators of this product, we find good cause that notice and opportunity for prior public comment are unnecessary. In addition, for the reason(s) stated above, we find that good cause exists for making this amendment effective in less than 30 days.
This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
Currently, there are no affected U.S.-registered airplanes. This AD requires contacting the FAA to obtain instructions for addressing the unsafe condition, and doing the actions specified in those instructions. Based on the actions specified in the MCAI AD, we are providing the following cost estimates for an affected airplane that is placed on the U.S. Register in the future:
We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in the MCAI AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes to the Director of the System Oversight Division.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD becomes effective May 15, 2018.
This AD replaces AD 2009-11-08, Amendment 39-15918 (74 FR 25404, May 28, 2009) (“AD 2009-11-08”).
This AD applies to Airbus Model A330-202, -223, -243, -301, -322, and -342 airplanes, certificated in any category, manufacturer serial numbers: 0177, 0181, 0183, 0184, 0188, 0189, 0191, 0195, 0198, 0200, 0203, 0205, 0206, 0209, 0211, 0219, 0222, 0223, 0224, 0226, 0229, 0230, 0231, 0232, 0234, 0238, 0240, 0241, 0244, 0247, 0248, 0249, 0250, 0251, 0253, 0254, and 0255.
Air Transport Association (ATA) of America Code 53, Fuselage.
This AD was prompted by reports of cracks on the left- and right-hand sides between the crossing area of the keel angle fitting and the front spar of the center wing box and by a new fatigue and damage tolerance evaluation that concluded the current inspection thresholds and intervals had to be modified. We are issuing this AD to detect and correct cracking on the left- and right-hand sides between the crossing area of the keel angle fitting and the front spar of the center wing box, which if not corrected, could affect the structural integrity of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Within 30 days after the effective date of this AD, request instructions from the Manager, International Section, Transport Standards Branch, FAA, to address the unsafe condition specified in paragraph (e) of this AD; and accomplish the actions at the times specified in, and in accordance with, those instructions. Guidance can be found in Mandatory Continuing Airworthiness Information (MCAI) European Aviation Safety Agency (EASA) AD 2013-0247, dated October 10, 2013.
The Manager, International Section, Transport Standards Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Section, send it to the attention of the person identified in paragraph (i)(2) of this AD. Information may be emailed to:
(1) Refer to MCAI EASA AD 2013-0247, dated October 10, 2013, for related information. You may examine the MCAI on the internet at
(2) For more information about this AD, contact Vladimir Ulyanov, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th Street, Des Moines, WA 98198; telephone and fax: 206-231-3229.
None.
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
We are superseding Airworthiness Directive (AD) 99-23-16, which applied to certain Airbus Model A330 and A340 series airplanes. AD 99-23-16 required repetitive detailed visual inspections to detect cracking of the vertical flange of the inboardZ-stiffeners of the centerline panel of the fuselage belly fairing; and corrective actions, if necessary. This AD was prompted by a new fatigue and damage tolerance evaluation that concluded that the current inspection thresholds and intervals had to be more restrictive. This AD requires contacting the FAA to obtain instructions for addressing the unsafe condition on these products, and doing the actions specified in those instructions. We are issuing this AD to address the unsafe condition on these products.
This AD becomes effective May 15, 2018.
We must receive comments on this AD by June 14, 2018.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
You may examine the AD docket on the internet at
Vladimir Ulyanov, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th Street, Des Moines, WA 98198; telephone and fax: 206-231-3229.
We issued AD 99-23-16, Amendment 39-11412 (64 FR 61485, November 12, 1999) (“AD 99-23-16”), which applied to certain Airbus Model A330 and A340 series airplanes. AD 99-23-16 was prompted by issuance of mandatory continuing airworthiness information by a foreign civil aviation authority. AD 99-23-16 required repetitive detailed visual inspections to detect cracking of the vertical flange of the inboardZ-stiffeners of the centerline panel of the fuselage belly fairing; and corrective actions, if necessary. We issued AD 99-23-16 to detect and correct fatigue cracking of the vertical flange of the inboard Z-stiffeners of the centerline panel of the fuselage belly fairing, which could result in reduced structural integrity of the belly fairing.
Since we issued AD 99-23-16, a new fatigue and damage tolerance evaluation was conducted by the manufacturer. It was concluded that, due to airplane utilization, the current inspection thresholds and intervals had to be more restrictive.
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2013-0241, dated October 1, 2013 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus Model A330 and A340 series airplanes. The MCAI states:
In order to prevent a damage in the inboard Z profile at the Center Landing Gear (CLG) door fitting location (Frame 49 to 53.2) caused by cracks evidenced during fatigue tests and which could lead to a reduced structural integrity, DGAC France AD 96-056-029(B) and DGAC France AD 96-057-042(B) [which corresponds to FAA AD 99-23-16] were issued to require a repetitive inspection of the inboard Z profile on both Left Hand (LH) and Right Hand (RH) sides.
An optional terminating action of the repetitive inspection of this [EASA] AD exists by modification of the aeroplane in accordance with the instructions of Airbus Service Bulletin (SB) A330-53-3019 or Airbus SB A340-53-4028, as applicable.
Since those [EASA] ADs were issued, in the frame of a new fatigue and damage tolerance evaluation, taking into account the aeroplane utilisation, the threshold and intervals were reassessed. This resulted in the conclusion that, in this specific case, certain thresholds and intervals are more restrictive.
For the reasons described above, this [EASA] AD retains the requirements of both DGAC France AD 96-056-029(B) and DGAC France AD 96-057-042(B), which are superseded, and requires accomplishment of repetitive inspections of the inboard Z profile (LH/RH) within the new thresholds and intervals.
You may examine the MCAI on the internet at
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI. We are issuing this AD because we evaluated all pertinent information and determined the unsafe condition exists and is likely to exist or develop on other products of these same type designs.
Since there are currently no domestic operators of this product, we find good
This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
Currently, there are no affected U.S.-registered airplanes. This AD requires contacting the FAA to obtain instructions for addressing the unsafe condition, and doing the actions specified in those instructions. Based on the actions specified in the MCAI AD, we are providing the following cost estimates for an affected airplane that is placed on the U.S. Register in the future:
We estimate the following costs to do any necessary on-condition modification that would be required based on the results of the required actions:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes to the Director of the System Oversight Division.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD becomes effective May 15, 2018.
This AD replaces AD 99-23-16, Amendment 39-11412 (64 FR 61485, November 12, 1999) (“AD 99-23-16”).
This AD applies to Airbus airplanes, certificated in any category, as specified in paragraphs (c)(1) and (c)(2) of this AD.
(1) Model A330-301, A330-321, A330-322, A330-341 and A330-342 airplanes, all manufacturer serial numbers, except those on which Airbus modification 42605 has been embodied in production.
(2) Model A340-211, A340-212, A340-213, A340-311, A340-312, and A340-313 airplanes, all manufacturer serial numbers, except those on which Airbus modification 42605 has been embodied in production.
Air Transport Association (ATA) of America Code 53, Fuselage.
This AD was prompted by a new fatigue and damage tolerance evaluation that concluded that the current inspection thresholds and intervals had to be more restrictive. We are issuing this AD to detect and correct fatigue cracking of the vertical flange of the inboard Z-stiffeners of the centerline panel of the fuselage belly fairing, which could result in reduced structural integrity of the belly fairing.
Comply with this AD within the compliance times specified, unless already done.
Within 30 days after the effective date of this AD, request instructions from the Manager, International Section, Transport Standards Branch, FAA, to address the unsafe condition specified in paragraph (e) of this AD; and accomplish the actions at the times specified in, and in accordance with, those instructions. Guidance can be found in Mandatory Continuing Airworthiness Information (MCAI) European Aviation Safety Agency (EASA) AD 2013-0241, dated October 1, 2013.
The Manager, International Section, Transport Standards Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Section, send it to the attention of the person identified in paragraph (i)(2) of this AD. Information may be emailed to:
(1) Refer to MCAI EASA AD 2013-0241, dated October 1, 2013, for related information. You may examine the MCAI on the internet at
(2) For more information about this AD, contact Vladimir Ulyanov, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th Street, Des Moines, WA 98198; telephone and fax: 206-231-3229.
None.
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for all The Boeing Company Model 737-100, -200, -200C, -300, -400, and -500 series airplanes. This AD was prompted by reports of cracks found in the main landing gear (MLG) beam forward support fitting. This AD requires repetitive inspections for cracking of the MLG beam forward support fitting, and applicable on-condition actions. We are issuing this AD to address the unsafe condition on these products.
This AD is effective June 4, 2018.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of June 4, 2018.
For service information identified in this final rule, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; internet
You may examine the AD docket on the internet at
Payman Soltani, Aerospace Engineer, Airframe Section, FAA, Los Angeles ACO Branch, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5313; fax: 562-627-5210; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 737-100, -200, -200C, -300, -400, and -500 series airplanes. The NPRM published in the
We are issuing this AD to address cracking of the MLG beam forward support fitting on the inboard side of the wing buttock line (WBL) 157 rib. Undetected cracks could lead to a fuel leak, the inability of a principal structural element to carry limit load, or an MLG collapse that could prevent continued safe flight and landing.
We gave the public the opportunity to participate in developing this final rule. The following presents the comments received on the NPRM and the FAA's response to each comment. The Boeing
Aviation Partners Boeing stated that accomplishing the Supplemental Type Certificate (STC) ST01219SE does not affect the actions specified in the NPRM.
We concur with the commenter. We have redesignated paragraph (c) of the proposed AD as paragraph (c)(1) of this AD and added paragraph (c)(2) to this AD to state that installation of STC ST01219SE does not affect the ability to accomplish the actions required by this AD. Therefore, for airplanes on which STC ST01219SE is installed, a “change in product” alternative method of compliance (AMOC) approval request is not necessary to comply with the requirements of 14 CFR 39.17.
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this final rule with the change described previously and minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM for addressing the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
We also determined that these changes will not increase the economic burden on any operator or increase the scope of this final rule.
We reviewed Boeing Alert Service Bulletin 737-57A1334, dated September 26, 2017. The service information describes procedures for repetitive high frequency eddy current (HFEC) inspections for cracking of the MLG beam forward support fitting around the fastener locations common to the rear spar web, below the upper chord on the inboard side of the WBL 157 rib, and applicable on-condition actions (
We estimate that this AD affects 160 airplanes of U.S. registry. We estimate the following costs to comply with this AD:
We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this AD. Because the number of work-hours can vary widely, depending on the inspection findings, these figures were not included in the service information.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes and associated appliances to the Director of the System Oversight Division.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective June 4, 2018.
None.
(1) This AD applies to all The Boeing Company Model 737-100, -200, -200C, -300, -400, and -500 series airplanes, certificated in any category.
(2) Installation of Supplemental Type Certificate (STC) ST01219SE(
Air Transport Association (ATA) of America Code 57, Wings.
This AD was prompted by the report of a crack indication in the main landing gear (MLG) beam forward support fitting on the inboard side of the wing buttock line (WBL) 157 rib, and multiple reports of similar crack findings on other airplanes. We are issuing this AD to address cracking of the MLG beam forward support fitting on the inboard side of the WBL 157 rib. Undetected cracks could lead to a fuel leak, the inability of a principal structural element to carry limit load, or an MLG collapse that could prevent continued safe flight and landing.
Comply with this AD within the compliance times specified, unless already done.
(1) For Group 1 airplanes identified in Boeing Alert Service Bulletin 737-57A1334, dated September 26, 2017: Within 120 days after the effective date of this AD, inspect the airplane and do all applicable corrective actions using a method approved in accordance with the procedures specified in paragraph (i) of this AD.
(2) For Group 2 airplanes identified in Boeing Alert Service Bulletin 737-57A1334, dated September 26, 2017: Except as required by paragraph (h) of this AD, at the applicable times specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-57A1334, dated September 26, 2017, do all applicable actions identified as “RC” (required for compliance) in, and in accordance with, the Accomplishment Instructions of Boeing Alert Service Bulletin 737-57A1334, dated September 26, 2017.
(1) For purposes of determining compliance with the requirements of this AD: Where Boeing Alert Service Bulletin 737-57A1334, dated September 26, 2017, uses the phrase “the original issue date of this service bulletin,” this AD requires using “the effective date of this AD.”
(2) Where Boeing Alert Service Bulletin 737-57A1334, dated September 26, 2017, specifies contacting Boeing, and specifies that action as RC: This AD requires repair using a method approved in accordance with the procedures specified in paragraph (i) of this AD.
(1) The Manager, Los Angeles ACO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (j) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Los Angeles ACO Branch, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(4) Except as required by paragraph (h)(2) of this AD: For service information that contains steps that are labeled as RC, the provisions of paragraphs (i)(4)(i) and (i)(4)(ii) of this AD apply.
(i) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD. If a step or substep is labeled “RC Exempt,” then the RC requirement is removed from that step or substep. An AMOC is required for any deviations to RC steps, including substeps and identified figures.
(ii) Steps not labeled as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the RC steps, including substeps and identified figures, can still be done as specified, and the airplane can be put back in an airworthy condition.
For more information about this AD, contact Payman Soltani, Aerospace Engineer, Airframe Section, FAA, Los Angeles ACO Branch, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5313; fax: 562-627-5210; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Boeing Alert Service Bulletin 737-57A1334, dated September 26, 2017.
(ii) Reserved.
(3) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; internet
(4) You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Office of the Secretary (OST), Department of Transportation (DOT).
Notification of procedures.
This document sets forth the procedure to seek an air taxi operator exemption to hold economic authority from the Department of Transportation (DOT or Department) for companies proposing to engage in certain air transportation operations with unmanned aircraft systems (UAS).
April 30, 2018.
Lauralyn Remo, Chief, Air Carrier Fitness Division (202) 366-5347, 1200 New Jersey Ave. SE, Washington, DC 20590.
In order to engage directly or indirectly in air transportation,
Companies proposing to operate UAS to engage in air transportation, including the delivery of goods for compensation, must first obtain certificate or exemption authority from the Department prior to engaging in the air transportation. The Department intends to use its existing regulatory procedures for processing UAS operators' requests for economic authority. The Department's regulation in 14 CFR part 298 (part 298) provides an exemption to air taxi operators from the certificate requirements of 49 U.S.C. 41101, provided that, among other things, the air carrier is a citizen of the United States as defined in 49 U.S.C. 40102(a)(15), maintains liability insurance required by part 205 of our rules (14 CFR part 205), and registers with the Department.
To become an air taxi operator, operators must submit a registration application (OST Form 4507) and a current aircraft liability insurance certificate (OST Form 6410).
Federal Emergency Management Agency, DHS.
Final rule.
This rule identifies communities where the sale of flood insurance has been authorized under the National Flood Insurance Program (NFIP) that are scheduled for suspension on the effective dates listed within this rule because of noncompliance with the floodplain management requirements of the program. If the Federal Emergency Management Agency (FEMA) receives documentation that the community has adopted the required floodplain management measures prior to the effective suspension date given in this rule, the suspension will not occur and a notice of this will be provided by publication in the
The effective date of each community's scheduled suspension is the third date (“Susp.”) listed in the third column of the following tables.
If you want to determine whether a particular community was suspended on the suspension date or for further information, contact Adrienne L. Sheldon, PE, CFM, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 400 C Street SW, Washington, DC 20472, (202) 212-3966.
The NFIP enables property owners to purchase Federal flood insurance that is not otherwise generally available from private insurers. In return, communities agree to adopt and administer local floodplain management measures aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits the sale of NFIP flood insurance unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. We recognize that some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue to be eligible for the sale of NFIP flood insurance. A notice withdrawing the suspension of such communities will be published in the
In addition, FEMA publishes a Flood Insurance Rate Map (FIRM) that identifies the Special Flood Hazard Areas (SFHAs) in these communities.
Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days.
Flood insurance, Floodplains.
Accordingly, 44 CFR part 64 is amended as follows:
42 U.S.C. 4001
Fish and Wildlife Service, Interior.
Regulatory review; determination.
We, the U.S. Fish and Wildlife Service (Service), announce our determination that our 2017 final rule to designate the population of grizzly bears in the Greater Yellowstone Ecosystem (GYE) as a distinct population segment and remove that population from the Endangered Species Act's List of Endangered and Threatened Wildlife does not require modification. After considering the best scientific and commercial data available and public comments on this issue received during a regulatory review, we affirm our decision that the GYE population of grizzly bears is recovered and should remain delisted under the Act. Accordingly, the Service does not plan to initiate further regulatory action for the GYE grizzly bear population.
This determination is made April 30, 2018.
Supplementary documents to this determination, including public comments received, can be viewed online at
Hilary Cooley, Grizzly Bear Recovery Coordinator, U.S. Fish and Wildlife Service, University Hall, Room 309, Missoula, MT 59812; by telephone (406) 243-4903. Persons who use a telecommunications device for the deaf may call the Federal Relay Service at (800) 877-8339.
We, the U.S. Fish and Wildlife Service (Service), are issuing this document as a followup to a prior
The referenced court opinion from the United States Circuit Court of Appeals for the D.C. Circuit,
In 1975, the Service listed the grizzly bear (
On August 1, 2017, the Court of Appeals for the District of Columbia Circuit issued a ruling,
The Service's determination to designate the GYE population as a DPS and delist it, while deciding not to revisit the 1975 listing and leaving it in place for the remainder of the population, was consistent with the Act, with Service policies, and with the Department's longstanding legal interpretation. In section 4(a) of the Act, the Service is authorized to identify and evaluate “any species.” (16 U.S.C. 1533(a)(1)). This includes any DPS of any species of vertebrate fish or wildlife. (16 U.S.C. 1532(16)). The Service determines a species' status,
This framework is addressed in detail in a Memorandum Opinion from the Department of the Interior's Office of the Solicitor (M-37018, U.S. Fish and Wildlife Service Authority under Section 4(c)(1) of the Endangered Species Act to Revise Lists of Endangered and Threatened Species to “Reflect Recent Determinations,” December 12, 2008 (M-Opinion)). The M-Opinion explained that, when the Service lists an entire species, the Service may be effectively listing several smaller separately listable entities because, as set forth in Service regulations, listing a particular taxon includes all lower taxonomic units. (M-Opinion, p. 7;
Some commenters on the December 7, 2017,
Nothing in section 4(c)(2) is to the contrary. It requires the “Secretary” to periodically review the species on the List. Thus, at least every 5 years, the lists must be reviewed to determine if a species over which the Secretary has authority should be removed, downlisted from endangered to threatened, or uplisted from threatened to endangered. (16 U.S.C. 1533(c)(2)). This requirement incorporates the listing determination provisions at sections 4(a) and 4(b), and is separate from the requirement to revise the lists in section 4(c)(1). The requirement in section 4(c)(2) that both Secretaries review the species on the lists at least once every 5 years does not limit or add to the section 4(c)(1) requirement for the Secretary of the Interior to revise the lists to reflect recent determinations made by either Secretary. Nothing in the Act requires the Service to undertake a 5-year review of a listed species contemporaneously with taking an action on a lower taxonomic unit within the species. Simply put, sections 4(a)(1) and 4(c)(2) of the Act respectively require both Secretaries to make and periodically review listing determinations with respect to species, subspecies, and DPSs, while section 4(c)(1) creates a separate and independent regulatory obligation for the Secretary of the Interior to revise the lists to reflect listing determinations.
Targeted rulemaking on a DPS, without also reopening prior listing rules or expanding our inquiry to other species, furthers the purposes and objectives of the Act. The approach allows the Service the flexibility to either uplist or downlist a DPS of an already-listed entity without diverting agency resources to determining the overall status of the broader entity. In addition, targeted rulemaking furthers Congress's intent to focus the Act's protections and Service resources on those species that truly qualify as threatened or endangered or that require another change in regulatory status. Focusing on recovered DPSs serves other policy objectives. The principal goal of the Act is to return listed species to a point at which protection under the Act is no longer required. Once a species is recovered, its management should be returned to the States. Our approach furthers that objective. It also creates incentives for Federal-State cooperative efforts to achieve recovery. This approach also avoids needless expenditure of scarce Federal funds on populations that are no longer threatened or endangered.
Following the framework in section 4 of the Act, the Service can determine the status of a DPS consistent with the Service's DPS policy. (61 FR 4722 (February 7, 1996)). We can proceed in different ways when addressing a DPS. For example, we can revisit the listing of a taxonomic species and designate multiple DPSs of that species or we can keep the listing of the taxonomic species in place and reclassify one or more of its DPSs. The latter course is permissible, as a DPS designation identifies a population
In the GYE DPS rulemaking action, the Service designated a valid species, the GYE DPS, that is a segment of the 1975 listed entity, and then applied the five factors to the DPS. The Service determined that the species did not qualify as threatened or endangered. Once the determination regarding the GYE grizzly bear DPS was made, the Secretary had made a decision for purposes of the listing requirements in section 4(c) and he was
By taking regulatory action on the DPS itself and not revisiting the 1975 rulemaking, we did not reopen the lower-48-States listing, which does not now include the GYE DPS. All of the grizzly bears in the lower 48 States remain listed as threatened, except where superseded by the GYE DPS delisting. (82 FR 30503, 30546, 30552, 30623, 30624, 30628, June 30, 2017). We concluded that “it is not an efficient use of our limited resources to initiate a rulemaking process to revise the lower-
The regulatory action in the Final Rule is consistent with our recovery strategy for all grizzly bears in the coterminous lower 48 States. The Final Rule discusses the recovery strategy for lower-48-States grizzly bears, including the Recovery Plan, which provided management goals for six different grizzly bear populations identified by ecosystems. The Recovery Plan identifies unique demographic recovery criteria for each ecosystem population, and states that it is the Service's goal to delist individual populations as they recover. Thus, the Service's action in delisting the GYE DPS is consistent with the Recovery Plan. The GYE population is the first of the six populations to recover. We note, however, that the population in the Northern Continental Divide Ecosystem may be eligible for delisting in the near future. The Service's data indicates that this population has likely met recovery goals. Other populations may be uplisted, downlisted, or delisted based on their overall health and numbers.
In summary, the Service has appropriately considered the impact of the GYE delisting on the lower-48-States population of grizzly bears. The Final Rule properly implemented the recovery strategy by employing discrete rulemaking with respect to the GYE population of grizzly bears. The Service has the discretion under the Act to engage in targeted rulemaking for a DPS—a species as defined under the Act—and to determine its status based on the five factors set forth in section 4(a)(1). While the Service must revise its lists of endangered and threatened species from time to time to reflect new determinations, section 4(c)(2) imposes no corollary obligation to revisit past rules affecting that species at the same time. The Service can designate a DPS from a prior listing and take action on that DPS without reopening the prior listing. Therefore, we disagree with
The Service received more than 3,600 comments on the adequacy of the Final Rule in light of
Commenters responding to the December 7, 2017,
In our Final Rule, we found that the GYE grizzly bear population is discrete from other grizzly bear populations and significant to the remainder of the taxon (
The 1975 final rule listed grizzly bears in the lower 48 States as threatened (40 FR 31734, July 28, 1975). In the Final Rule, we noted that the grizzly bears occurring outside of the boundary of the GYE DPS in the lower 48 States remain threatened and therefore protected by the Act (82 FR 30503, 30546, 30552, 30623, 30624, 30628, June 30, 2017). The Service has the discretion to revisit this determination at a later time, although it is not required now as explained above, and we may do so as we consider other populations within the lower-48-States entity.
As explained above, the Final Rule did not reopen the 1975 listing rule, although it no longer covers the GYE DPS. The 1975 listing remains valid. Although the ESA does not require an analysis of the Final Rule's impact on the 1975 listing, we conduct that analysis here in response to public comments. It is possible that delisting a DPS of an already-listed species could have negative effects on the status of the remaining species. For example, removing the Act's protections from one population could impede recovery of other still-listed populations (82 FR 30556-30557, June 30, 2017). For grizzly bear, delisting the GYE DPS could have implications for the remaining populations that have not yet achieved recovery. One possible implication could be that delisted grizzly bears inside the GYE DPS may be subject to increased mortality, which could reduce grizzly bear dispersal into other recovery zones. A map of grizzly bear recovery areas is available at
The Bitterroot Ecosystem (BE) could be impacted most by changes in dispersal from the GYE DPS because it is within potential dispersal distance (120 km (75mi)) from the GYE DPS (Blanchard and Knight 1991, pp. 54-55; Proctor et al. 2004, p. 1113), as well as the Northern Continental Divide Ecosystem (NCDE) (35 km (21 mi);
Connectivity between the GYE DPS and the NCDE has the greatest potential due to proximity (110 km (68 mi)) of currently occupied range in both ecosystems (Peck
The Selkirk Ecosystem and Cabinet-Yaak Ecosystem are currently occupied and connected to grizzly bear populations in Canada. They, along with the North Cascades Ecosystem, are also beyond any known expected dispersal distance from the GYE. Therefore, any potential increased mortality in the GYE would not impact these populations.
Mortality limits for independent females and males and dependent young in the GYE DMA, adopted into regulation by each State, are in place and will reduce potential for impacts to dispersal. Regulatory mechanisms are in place and adequately address threats in a manner necessary to maintain a recovered population into the foreseeable future (82 FR 30528-30535, June 30, 2017). The mortality limits were calculated as those needed to maintain the population at a stable level, and take into account all sources (human-caused, natural, unknown) of mortality. They are calculated as annual mortality rates on a sliding scale depending on the annual population size estimate. Idaho, Montana, and Wyoming have committed to these mortality limits in the 2016 Conservation Strategy (YES 2016) and in a Memorandum of Agreement (MOA; Wyoming Game and Fish Commission
Mortality limits do not exist for areas outside the DMA within the GYE DPS; however, we do not expect grizzly bears to establish self-sustaining populations there due to a lack of suitable habitat, land ownership patterns, and the lack of traditional, natural grizzly bear foods. Instead, grizzly bears in these peripheral areas will likely always rely on the GYE grizzly bear population inside the DMA as a source population (82 FR 30510-30511, June 30, 2017). The current distribution of grizzly bears within the GYE DPS includes areas outside of the DMA, and, as such, grizzly bears in these areas may be exposed to higher mortality. However, grizzly bears throughout the GYE DPS are classified as a game species by all three affected States and the Eastern Shoshone and Northern Arapaho Tribes of the Wind River Reservation, and, as such, cannot be taken without authorization by State or Tribal wildlife agencies (82 FR 30530, June 30, 2017; W.S. 23-1-101(a)(xii)(A); W.S. 23-3-102(a); MCA 87-2-101(4); MCA 87-1-301; MCA 87-1-304; MCA 87-5-302; IC 36-2-1; IDAPA 13.01.06.100.01(e); IC 36-1101(a); Idaho's Yellowstone Grizzly Bear Delisting Advisory Team 2002, pp. 18-21; MFWP 2013, p. 6; Eastern Shoshone and Northern Arapahoe Tribes 2009, p. 9; WGFD 2016, p. 9; YES 2016a, pp. 104-116).
The primary potential impact of delisting the GYE DPS on the status of the listed species is the potential to limit dispersal from the GYE into other unrecovered ecosystems due to increased mortality within the DPS. However, we do not expect mortalities to increase significantly because the vast majority of suitable habitat inside the GYE DPS is within the DMA where bears are subject to mortality limits. Grizzly bears remain protected by the Act outside the DPS. Additionally, food storage orders on public lands provide measures to limit mortality and promote natural connectivity through a reduction in conflict situations. (82 FR 30536, 30580, June 30, 2017). Despite these protections, successful dispersal events remain rare and play a very minor role in population dynamics because of the large amounts of unsuitable habitat between ecosystems. The probability of successful dispersal is low despite recent expansion of the GYE and NCDE populations (Peck
Finally, we believe there is sufficient evidence that the currently listed species (grizzly bears in the lower 48 States) contains more than one DPS. For example, preliminary data indicates the NCDE population is a DPS; the Service intends to evaluate that population to determine if it qualifies for DPS designation and, if so, consider its status. The Act's protections will continue outside the DPS boundaries until subsequent regulatory action is taken on the 1975 listing rule or specific DPSs within the boundaries of the entity listed in 1975. We believe this is the most precautionary and protective approach to grizzly bear recovery.
The lower-48-States entity that remains listed may have implications for the delisted GYE DPS. Throughout the range of the grizzly bear in the lower 48 States, human-caused mortality is limited and habitat is managed to promote recovery, which may increase the potential for the remaining grizzly bear population to act as a source population for the delisted GYE DPS. The lower 48 States contain several populations that are increasing in number and distribution, and may, at some point, provide dispersers into the GYE DPS. Although connectivity is not necessary for the current genetic health of the GYE grizzly bear population, it would deliver several benefits to the GYE, including increases in genetic diversity and increased long-term viability of the population (82 FR 30535-30536, 30544, 30581, 30610-30611, June 30, 2017). However, while successful dispersal is possible, the likelihood is low due to large areas of unsuitable habitat between populations. Currently, the effective population size and heterozygosity levels in the GYE are adequate to maintain genetic health of the GYE population for at least the next several decades (Miller and Waits 2003, p. 4338; Kamath
When reviewing the current status of a species, we can also evaluate the effects of lost historical range on the species. As noted above, the Final Rule did not revisit the 1975 rule or perform a status review of grizzly bears in the lower 48 States. Therefore, the Final Rule was not required to assess the loss of historical range on the lower-48-States entity. However, in response to public comments suggesting that a historical range analysis for the lower-48-States population is required, we elaborate on the analysis of historical range and the status of the lower-48-States entity as previously addressed in the Final Rule.
Grizzly bears in the lower 48 States experienced immense losses of range primarily due to human persecution and reduction of suitable habitat (82 FR 30508, June 30, 2017). Prior to the arrival of Europeans, the grizzly bear occurred throughout much of the western half of the contiguous United States, central Mexico, western Canada, and most of Alaska (Roosevelt 1907, pp. 27-28; Wright 1909, pp. vii, 3, 185-186; Merriam 1922, p. 1; Storer and Tevis 1955, p. 18; Rausch 1963, p. 35; Herrero 1972, pp. 224-227; Schwartz et al. 2003, pp. 557-558). Pre-settlement population levels for the western contiguous United States are believed to have been in the range of 50,000-100,000 animals (Servheen 1989, pp. 1-2; Servheen 1999, pp. 50-51; USFWS 1993, p. 9). In the 1800s, with European settlement of the American West and government-funded bounty programs aimed at eradication, grizzly bears were shot, poisoned, and trapped wherever they were found (Roosevelt 1907, pp. 27-28; Wright 1909, p. vii; Storer and Tevis 1955, pp. 26-27; Leopold 1967, p. 30; Koford 1969, p. 95; Craighead and Mitchell 1982, p. 516; Servheen 1999, pp. 50-51). Many historical habitats were converted into agricultural land (Woods
The resulting declines in range and population were dramatic. We have estimated that the range and numbers of grizzly bears were reduced to less than 2 percent of their former range in the lower 48 States and numbers by the 1930s, approximately 125 years after first contact with European settlers (USFWS 1993, p. 9; Servheen 1999, p. 51). Of 37 grizzly bear populations present in 1922 within the lower 48 States, 31 were extirpated by the time of listing in 1975, and the estimated population in the lower 48 States was 700-800 animals (Servheen 1999, p. 51).
For the Final Rule and this review, we considered historical range of grizzly bears circa 1850. We determined that this timeframe is appropriate for measuring grizzly bear range because it is a period for which published faunal records document grizzly bear range, descriptions of grizzly bear occurrence, and/or local extirpation events (Mattson and Merrill 2002, p. 1125). It precedes the major distribution changes in response to excessive human-caused mortality and habitat loss (Servheen 1999, p. 51). We define the physical boundaries of the relevant historical range as the lower 48 States, primarily west of the Mississippi River. Approximately 50,000-100,000 grizzly bears were historically distributed in one large contiguous area throughout portions of at least 17 western States (
Significant loss of historical range has resulted in fewer individuals distributed in several small, fragmented, and isolated populations. Today, grizzly
We considered these threats thoroughly in the Final Rule (82 FR 30520-30535, June 30, 2017), along with other vulnerabilities caused by loss of historical range, such as changes in available food sources, carrying capacity, changes in metapopulation structure, and reductions in genetic diversity and gene flow (see discussion below). Aside from informing the current status of and threats to the GYE DPS, the lost historic range within the United States is informative only for future rulemakings or regulatory actions in the lower 48 States, as the Service did not undertake regulatory action for grizzly bears outside the GYE DPS boundaries.
Grizzly bears historically occurred throughout the area of the GYE DPS (Stebler 1972, pp. 297-298), but they were less common in prairie habitats (Rollins 1935, p. 191; Wade 1947, p. 444). Today many of these habitats are no longer biologically suitable for grizzly bears (82 FR 30510-12, 30551, 30558, June 30, 2017). Grizzly bear presence in these drier, grassland habitats was associated with rivers and streams where grizzly bears used bison carcasses as a major food source (Burroughs 1961, pp. 57-60; Herrero 1972, pp. 224-227; Stebler 1972, pp. 297-298; Mattson and Merrill 2002, pp. 1128-1129). Most of the shortgrass prairie on the east side of the Rocky Mountains has been converted into agricultural land (Woods et al. 1999, entire), and high densities of traditional food sources are no longer available due to land conversion and human occupancy of urban and rural lands (82 FR 30510, 30551, 30558, June 30, 2017). Traditional food sources such as bison and elk have been reduced and replaced with domestic livestock such as cattle, sheep, chickens, goats, pigs, and bee hives, which can become anthropogenic sources of prey for grizzly bears (82 FR 30510, 30551, 30558, 30624, June 30, 2017).
Range reduction within the GYE DPS boundary has resulted in potential threats specific to isolated and small populations, including genetic health, changes in food resources, climate change, and catastrophic events (82 FR 30533-44, June 30, 2017). Small and isolated populations are susceptible to declines in genetic diversity, which can result in population-limiting effects such as inbreeding, genetic abnormalities, birth defects, low reproductive and survival rates, and susceptibility to extinction (Frankham 2005, entire). However, current levels of genetic diversity in the GYE DPS are capable of supporting healthy reproductive and survival rates, as evidenced by normal litter size, no evidence of disease, high survivorship, an equal sex ratio, normal body size and physical characteristics, and a relatively constant population size within the GYE (van Manen 2016,
Changes in availability of highly energetic food resources as a result of lost historical range, such as whitebark pine, army cutworm moths, ungulates, and cutthroat trout could influence grizzly bear reproduction, survival, or mortality risk (Mealey 1975, pp. 84-86; Pritchard and Robbins 1990, p. 1647; Craighead et al. 1995, pp. 247-252). Grizzly bears are dietary generalists, consuming more than 266 distinct plant and animal species, and are resilient to changes in food resources (Servheen and Cross 2010, p. 4; Gunther et al. 2014, p. 1). Additionally, whitebark pine loss has not caused a negative population trend or declines in vital rates (IGBST 2012, p. 34; van Manen 2016a, in litt.), and there is no known relationship between mortality risk or reproduction and any other food (Schwartz et al. 2010, p. 662). We concluded in the Final Rule that changes in food resources do not constitute a threat to the GYE DPS (82 FR 30536-40, June 30, 2017).
Climate change may result in a number of changes to grizzly bear habitat, denning times, shifts in the abundance and distribution of natural food sources, and changes in fire regimes. Changes in denning times may increase the potential for conflicts with humans; however, regulatory mechanisms are in place to limit human-caused mortality (see discussion above under
The GYE DPS is vulnerable to various catastrophic and stochastic events, such as fire, volcanic activity, earthquakes, and disease. Most of these types of events are unpredictable and unlikely to occur within the foreseeable future, would likely cause only localized and temporary impacts that would not threaten the GYE DPS (82 FR 30542, June 30, 2017), or have never been documented to affect mortality in grizzly bears (disease: IGBST 2005, pp. 34-35; Craighead et al. 1988, pp. 24-84) (82 FR 30533-30534, June 30, 2017).
While range reduction has reduced both numbers of bears and amount of available habitat, the GYE currently supports a population of grizzly bears that meets our definition of recovered, and does not meet our definition of an endangered or threatened species (82 FR 30514, June 30, 2017). Further, we found that potential threats resulting from lost historical range are manageable through conflict prevention, management of discretionary mortality, and the large amount of suitable, secure habitat within the GYE and are not a threat to the GYE grizzly bear DPS now or likely to become a threat in the foreseeable future (82 FR 30544, June 30, 2017). Our regulatory review therefore confirmed that the Service appropriately analyzed the historic range and current status/threats to the GYE DPS, as required under the Act.
After considering the GYE Final Rule in light of the
A complete list of all reference cited herein is available at
This document is published under the authority of the Endangered Species Act, as amended (16 U.S.C. 1531
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting directed fishing for Greenland turbot in the Aleutian Islands subarea of the Bering Sea and Aleutian Islands management area (BSAI). This action is necessary to prevent exceeding the 2018 Greenland turbot initial total allowable catch (ITAC) in the Aleutian Islands subarea of the BSAI.
Effective 1200 hrs, Alaska local time (A.l.t.), May 1, 2018, through 2400 hrs, A.l.t., December 31, 2018.
Steve Whitney, 907-586-7228.
NMFS manages the groundfish fishery in the BSAI according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The 2018 Greenland turbot ITAC in the Aleutian Islands subarea of the BSAI is 144 metric tons (mt) as established by the final 2018 and 2019 harvest specifications for groundfish in the BSAI (83 FR 8365, February 27, 2018). The Regional Administrator has determined that the 2018 ITAC for Greenland turbot in the Aleutian Islands subarea of the BSAI is necessary to account for the incidental catch of this species in other anticipated groundfish fisheries for the 2018 fishing year. Therefore, in accordance with § 679.20(d)(1)(i), the Regional Administrator establishes the directed fishing allowance for Greenland turbot in the Aleutian Islands subarea of the BSAI as zero mt. Consequently, in accordance with § 679.20(d)(1)(iii), NMFS is prohibiting directed fishing for Greenland turbot in the Aleutian Islands subarea of the BSAI.
After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the directed fishing closure of Greenland turbot in the Aleutian Islands subarea of the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as April 5, 2018.
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
This action is required by § 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Agricultural Marketing Service, USDA.
Proposed rule.
This proposed rule would amend the National List of Allowed and Prohibited Substances (National List) section of the United States Department of Agriculture's (USDA's) organic regulations to implement recommendations submitted to the Secretary of Agriculture (Secretary) by the National Organic Standards Board (NOSB). This rule proposes to: Add elemental sulfur to the National List for use in organic livestock production; and, reclassify potassium acid tartrate from a non-agricultural substance to an agricultural substance and require the organic form of the ingredient when commercially available.
Comments must be received by June 29, 2018.
Interested persons may comment on the proposed rule using the following procedures:
•
•
Robert Pooler, Standards Division, National Organic Program. Telephone: (202) 720-3252.
On December 21, 2000, the Secretary established the National List within part 205 of the USDA organic regulations (7 CFR 205.600 through 205.607). The National List identifies the synthetic substances that may be used and the nonsynthetic (natural) substances that may not be used in organic production. The National List also identifies synthetic, nonsynthetic nonagricultural, and nonorganic agricultural substances that may be used in organic handling.
The Organic Foods Production Act of 1990, as amended, (7 U.S.C. 6501-6522) (OFPA), and § 205.105 of the USDA organic regulations specifically prohibit the use of any synthetic substance in organic production and handling unless the synthetic substance is on the National List. Section 205.105 also requires that any nonorganic agricultural and any nonsynthetic nonagricultural substance used in organic handling be on the National List. Under the authority of OFPA, the National List can be amended by the Secretary based on recommendations presented by the NOSB. Since the final rule establishing the National Organic Program (NOP) became effective on October 21, 2002, USDA's Agricultural Marketing Service (AMS) has published multiple rules amending the National List.
This proposed rule would amend the National List to implement two NOSB recommendations on two amendments to the National List. These recommendations were submitted to the Secretary on November 7, 2017. Table 1 summarizes the proposed changes to the National List based on these NOSB recommendations.
The following provides an overview of the proposed amendments to designated sections of the National List regulations:
§ 205.603 Synthetic substances allowed for use in organic livestock production.
This proposed rule would add one substance to § 205.603, synthetic substances allowed for use in organic livestock production.
The proposed rule would amend the National List to add elemental sulfur for use as a parasiticide to treat livestock and livestock housing. Table 2 illustrates the proposed listing.
On March 1, 2016, AMS received a petition
At its November 2, 2017 public meeting, the NOSB considered the petition to add elemental sulfur to the National List for use in organic livestock production and received public comment. In its review, the NOSB also considered a March 2017 technical evaluation report (technical report) on elemental sulfur
In consideration of the petition, technical report, and public comments, the NOSB determined that the use of elemental sulfur as a topical pesticide for organic livestock satisfies OFPA evaluation criteria for National List substances and recommended adding elemental sulfur to § 205.603 as an external parasiticide in organic livestock production.
This proposed rule would move one substance, currently listed in § 205.605, to § 205.606.
The proposed rule would amend the National List to reclassify potassium acid tartrate from a non-agricultural substance listed in § 205.605(b) to an agricultural substance listed in § 205.606.
Potassium acid tartrate is currently allowed as a synthetic substance for use in organic handling. The U.S. Food and Drug Administration (FDA) allows potassium acid tartrate to be used as a leavening agent, pH control agent, or antimicrobial agent. Other uses that are permitted by the FDA include as an anticaking agent, a formulation aid, a humectant, a stabilizer and thickener, and a surface-active agent (21 CFR 184.1077). Potassium acid tartrate has been on the National List since October 2002. During its November 2017 public meeting, the NOSB considered the proposal to reclassify potassium acid tartrate as an agricultural substance. Specifically, the NOSB considered new information in an updated January 2017 technical report on potassium acid tartrate.
Consistent with the NOSB recommendation, this proposed rule would amend § 205.605 by removing potassium acid tartrate from § 205.605(b) and inserting it in § 205.606.
On May 30, 2017, a Notice was published in the
The OFPA authorizes the Secretary to make amendments to the National List based on recommendations developed by the NOSB. Sections 6518(k) and 6518(n) of the OFPA authorize the NOSB to develop recommendations for submission to the Secretary to amend
This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) has exempted from Executive Order 12866. Additionally, because this proposal does not meet the definition of a significant regulatory action, it does not trigger the requirements contained in Executive Order 13771.
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612) requires agencies to consider the economic impact of each rule on small entities and evaluate alternatives that would accomplish the objectives of the rule without unduly burdening small entities or erecting barriers that would restrict their ability to compete in the market. The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to the action. Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the rulemaking is not expected to have a significant economic impact on a substantial number of small entities.
The Small Business Administration (SBA) sets size criteria for each industry described in the North American Industry Classification System (NAICS), to delineate which operations qualify as small businesses. The SBA has classified small agricultural producers that engage in crop and animal production as those with average annual receipts of less than $750,000. Handlers are involved in a broad spectrum of food production activities and fall into various categories in the NAICS Food Manufacturing sector. The small business thresholds for food manufacturing operations are based on the number of employees and range from 500 to 1,250 employees, depending on the specific type of manufacturing. Certifying agents fall under the NAICS subsector, “All other professional, scientific and technical services.” For this category, the small business threshold is average annual receipts of less than $15 million.
AMS has considered the economic impact of this proposed rulemaking on small agricultural entities. Data collected by the USDA National Agricultural Statistics Service (NASS) and the NOP indicate most of the certified organic production operations in the U.S. would be considered small entities. According to the 2016 Certified Organic NASS Survey, 13,954 certified organic farms in the U.S. reported sales of organic products and total farmgate sales in excess of $7.5 billion.
According to the NOP's Organic Integrity Database there are 9,633 certified handlers in the U.S.
The USDA has 82 accredited certifying agents who provide organic certification services to producers and handlers. The certifying agent that reports the most certified operations, nearly 3,500, would need to charge approximately $4,200 in certification fees in order to exceed the SBA's small business threshold of $15 million. The costs for certification generally range from $500 to $3,500, depending on the complexity of the operation. Therefore, AMS expects that most of the accredited certifying agents would qualify as small entities under the SBA criteria.
The economic impact on entities affected by this rule would not be significant. The effect of this rule, if implemented as final, would be to allow the use of additional substances in organic crop or livestock production and organic handling. This action would increase regulatory flexibility and would give small entities more tools to use in day-to-day operations. AMS concludes that the economic impact of this addition, if any, would be minimal and beneficial to small agricultural service firms. Accordingly, USDA certifies that this rule would not have a significant economic impact on a substantial number of small entities.
Executive Order 12988 instructs each executive agency to adhere to certain requirements in the development of new and revised regulations in order to avoid unduly burdening the court system. This proposed rule is not intended to have a retroactive effect. Accordingly, to prevent duplicative regulation, states and local jurisdictions are preempted under the OFPA from creating programs of accreditation for private persons or state officials who want to become certifying agents of organic farms or handling operations. A governing state official would have to apply to USDA to be accredited as a certifying agent, as described in section 6514(b) of the OFPA. States are also preempted under sections 6503 through 6507 of the OFPA from creating certification programs to certify organic farms or handling operations unless the state programs have been submitted to, and approved by, the Secretary as meeting the requirements of the OFPA.
Pursuant to section 6507(b)(2) of the OFPA, a state organic certification program that has been approved by the Secretary may, under certain circumstances, contain additional requirements for the production and handling of agricultural products organically produced in the state and for the certification of organic farm and handling operations located within the state. Such additional requirements must (a) further the purposes of the OFPA, (b) not be inconsistent with the OFPA, (c) not be discriminatory toward agricultural commodities organically produced in other States, and (d) not be effective until approved by the Secretary.
In addition, pursuant to section 6519(c)(6) of the OFPA, this proposed rule would not supersede or alter the authority of the Secretary under the Federal Meat Inspection Act (21 U.S.C. 601-624), the Poultry Products Inspection Act (21 U.S.C. 451-471), or the Egg Products Inspection Act (21 U.S.C. 1031-1056), concerning meat, poultry, and egg products, respectively, nor any of the authorities of the Secretary of Health and Human Services
No additional collection or recordkeeping requirements are imposed on the public by this proposed rule. Accordingly, OMB clearance is not required by the Paperwork Reduction Act of 1995, 44 U.S.C. 3501, Chapter 35.
This proposed rule has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. The review reveals that this regulation will not have substantial and direct effects on tribal governments and will not have significant tribal implications.
This proposed rule reflects recommendations submitted by the NOSB to the Secretary to add one substance to the National List and to reclassify one substance on the National List. A 60-day period for interested persons to comment on this rule is provided.
Administrative practice and procedure, Agriculture, Animals, Archives and records, Imports, Labeling, Organically produced products, Plants, Reporting and recordkeeping requirements, Seals and insignia, Soil conservation.
For the reasons set forth in the preamble, 7 CFR part 205, subpart G is proposed to be amended as follows:
7 U.S.C. 6501-6522.
(b) * * *
(2) Elemental sulfur—for treatment of livestock and livestock housing.
(o) Potassium acid tartrate.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for all General Electric Company (GE) GEnx-1B engines. This proposed AD was prompted by a report of a center vent tube (CVT) failure leading to a loss of oil pressure and subsequent in-flight engine shutdown. This proposed AD would require removal of the Air/Oil Extension Ducts, part numbers (P/N) 2332M85P01 or 2331M25G03. We are proposing this AD to address the unsafe condition on these products.
We must receive comments on this proposed AD by June 14, 2018.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this NPRM, contact General Electric Company, GE Aviation, Room 285, 1 Neumann Way, Cincinnati, OH 45215; phone: 513-552-3272; email:
You may examine the AD docket on the internet at
Christopher McGuire, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington MA; phone: 781-238-7120; fax: 781-238-7199; email:
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We were prompted to issue this NPRM based upon a report of a CVT failure leading to a loss of oil pressure and subsequent in-flight engine shutdown. During the event, the CVT failed due to oil leaking into the fan mid shaft, resulting in coking on the seal
We reviewed GE GEnx-1B Service Bulletin (SB) 72-0331 R01, dated August 21, 2017. The SB describes procedures for replacing air/oil extension ducts, P/N 2332M85P01 or 2331M25G03, with an extension duct eligible for installation.
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would require removal of an affected extension duct and replacing it with a part eligible for installation.
We estimate that this proposed AD affects 97 engines installed on airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to engines, propellers, and associated appliances to the Manager, Engine and Propeller Standards Branch, Policy and Innovation Division.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by June 14, 2018.
None.
This AD applies to General Electric Company (GE) GEnx-1B64, -1B64/P1, -1B64/P2, -1B67, -1B67/P1, -1B67/P2, -1B70, -1B70/75/P1, -1B70/75/P2, -1B70/P1, -1B70/P2, -1B70C/P1, -1B70C/P2, -1B74/75/P1, -1B74/75/P2 engines with Air/Oil Extension Duct, part number (P/N) 2332M85P01 or 2331M25G03, installed.
Joint Aircraft System Component (JASC) Code 7250, Turbine Section.
This AD was prompted by reports of a center vent tube (CVT) failure. We are issuing this AD to prevent failure of the CVT. The unsafe condition, if not addressed, could result in failure of one or more engines, loss of thrust control, and loss of the airplane.
Comply with this AD within the compliance times specified, unless already done.
At the next engine shop visit after the effective date of this AD, remove air/oil extension ducts, P/N 2332M85P01 or 2331M25G03, and replace with a part eligible for installation.
For the purpose of this AD, an “engine shop visit” is the induction of an engine into the shop for maintenance involving the separation of pairs of major mating engine case flanges, except for the following situations, which do not constitute an engine shop visit:
(1) Separation of engine flanges solely for the purposes of transportation of the engine without subsequent maintenance.
(2) Separation of engine flanges solely for the purpose of replacing the fan or propulsor without subsequent maintenance.
After the effective date of this AD, do not install an Air/Oil Extension Duct, P/N 2332M85P01 or 2331M25G03, into a fan mid shaft Assembly.
(1) The Manager, ECO Branch, FAA, has the authority to approve AMOCs for this AD if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (k)(1) of this AD.
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(1) For more information about this AD, contact Christopher McGuire, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington MA; phone: 781-238-7120; fax: 781-238-7199; email:
(2) For service information identified in this AD, contact General Electric Company, GE Aviation, Room 285, 1 Neumann Way, Cincinnati, OH 45215; phone: 513-552-3272; email:
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for all Dassault Aviation Model FALCON 2000 airplanes. This proposed AD was prompted by the manufacturer revising the airplane maintenance manual (AMM) maintenance requirements and airworthiness limitations. This proposed AD would require revising the maintenance or inspection program, as applicable, to incorporate new maintenance requirements and airworthiness limitations. We are proposing this AD to address the unsafe condition on these products.
We must receive comments on this proposed AD by June 14, 2018.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this NPRM, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201-440-6700; internet
You may examine the AD docket on the internet at
Tom Rodriguez, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3226.
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2017-0236, dated November 30, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Dassault Aviation Model FALCON 2000 airplanes. The MCAI states:
The airworthiness limitations for Dassault Falcon 2000 aeroplanes, which are approved by EASA, are currently defined and published in Aircraft Maintenance Manual (AMM) Airworthiness Limitations Section (ALS) Chapter 5-40. These instructions have been identified as mandatory for continued airworthiness.
Failure to accomplish these instructions could result in an unsafe condition [
EASA previously issued [EASA] AD 2012-0156 [which corresponds to FAA AD 2014-03-12 Amendment 39-17749 (79 FR 11693, March 3, 2014) (“AD 2014-03-12”)], requiring the actions described in Dassault Falcon 2000 AMM Chapter 5-40 (DGT 113876) at Revision 17.
Since that AD was issued, Dassault published Revision 18 of Dassault Falcon 2000 AMM Chapter 5-40 (DGT 113876), containing new and/or more restrictive maintenance tasks and introducing (among other changes) the Corrosion Prevention and Control Programme.
For the reason described above, this [EASA] AD retains the requirements of EASA AD 2012-0156, which is superseded, and requires accomplishment of the actions specified in Dassault Falcon 2000 AMM Chapter 5-40 (DGT 113876) atRevision 18 * * *.
You may examine the MCAI in the AD docket on the internet at
This NPRM would not supersede AD 2014-03-12. Rather, we have determined that a stand-alone AD would be more appropriate to address the changes in the MCAI. This NPRM would require revising the maintenance or inspection program to incorporate the new maintenance requirements and airworthiness limitations. Accomplishment of the proposed actions would then terminate all of the requirements of AD 2014-03-12.
Dassault Aviation has issued Chapter 5-40, Airworthiness Limitations, Revision 19, dated November 2017, of Chapter 5, Maintenance Planning Document, of the Dassault Falcon 2000 Maintenance Manual. This service information describes instructions applicable to airworthiness and safe life limitations. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type designs.
This AD requires revisions to certain operator maintenance documents. Compliance with these revisions are required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by this proposed AD, the operator may not be able to accomplish the actions described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance according to paragraph (j)(1) of this proposed AD. The request should include a description of changes to the required actions that will ensure the continued damage tolerance of the affected structure.
The MCAI specifies that if there are findings from the airworthiness limitations section (ALS) inspection tasks, corrective actions must be accomplished in accordance with Dassault Aviation maintenance documentation. However, this proposed AD does not include that requirement. Operators of U.S.-registered airplanes are required by general airworthiness and operational regulations to perform maintenance using methods that are acceptable to the FAA. We consider those methods to be adequate to address any corrective actions necessitated by the findings of ALS inspections required by this proposed AD.
We estimate that this proposed AD affects 195 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
We have determined that revising the maintenance or inspection program takes an average of 90 work-hours per operator, although this figure may vary from operator to operator. In the past, we have estimated that this action takes 1 work-hour per airplane. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), we have determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, we estimate the total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This proposed AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes to the Director of the System Oversight Division.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by June 14, 2018.
This AD affects AD 2010-26-05, Amendment 39-16544 (75 FR 79952,
This AD applies to all Dassault Aviation Model FALCON 2000 airplanes, certificated in any category, all serial numbers.
Air Transport Association (ATA) of America Code 05, Time limits/maintenance checks.
This AD was prompted by manufacturer revisions to the airplane maintenance manual (AMM) that introduce new or more restrictive maintenance requirements and airworthiness limitations. We are issuing this AD to prevent reduced controllability of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Within 90 days after the effective date of this AD, revise the maintenance or inspection program, as applicable, to incorporate the information specified in Chapter 5-40, Airworthiness Limitations, Revision 19, dated November 2017, of Chapter 5, Maintenance Planning Document, of the Dassault Falcon 2000 Maintenance Manual. The initial compliance times for doing the tasks are at the time specified in Chapter 5-40, Airworthiness Limitations, Revision 19, dated November 2017, of Chapter 5, Maintenance Planning Document, of the Dassault Falcon 2000 Maintenance Manual, or within 90 days after the effective date of this AD, whichever occurs later; except as required by paragraphs (g)(1) through (g)(3) of this AD. The term “LDG” in the “First Inspection” column of any table in Chapter 5-40, Airworthiness Limitations, Revision 19, dated November 2017, means total airplane landings. The term “FH” in the “First Inspection” column of any table in Chapter 5-40, Airworthiness Limitations, Revision 19, dated November 2017, means total flight hours. The term “FC” in the “First Inspection” column of any table in Chapter 5-40, Airworthiness Limitations, Revision 19, dated November 2017, means total flight cycles.
(1) For Task 30-11-09-350-801 identified in the service information specified in the introductory text of paragraph (g) of this AD, the initial compliance time is the later of the times specified in paragraphs (g)(1)(i) and (g)(1)(ii) of this AD.
(i) At the earlier of the times specified in paragraphs (g)(1)(i)(A) and (g)(1)(i)(B) of this AD.
(A) Prior to the accumulation of 2,400 total flight hours or 2,000 total flight cycles, whichever occurs first.
(B) Within 2,400 flight hours or 2,000 flight cycles after April 7, 2014 (the effective date of AD 2014-03-12), whichever occurs first.
(ii) Within 30 days after April 7, 2014 (the effective date of AD 2014-03-12).
(2) For Task 52-20-00-610-801-01 identified in the service information specified in the introductory text of paragraph (g) of this AD, the initial compliance time is within 24 months after April 7, 2014 (the effective date of AD 2014-03-12).
(3) The limited service life of part number F2MA721512100 is 3,750 total flight cycles on the part or 6 years since the manufacturing date of the part, whichever occurs first.
After the maintenance or inspection program has been revised as required by paragraph (g) of this AD, no alternative actions (
(1) Accomplishing the actions required by this AD terminates all of the requirements of AD 2014-03-12.
(2) Accomplishment of the actions required by paragraph (g) of this AD terminates the requirements of paragraph (g) of AD 2010-26-05 for all Dassault Aviation Model FALCON 2000 airplanes.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2017-0236, dated November 30, 2017, for related information. This MCAI may be found in the AD docket on the internet at
(2) For more information about this AD, contact Tom Rodriguez, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3226.
(3) For service information identified in this AD, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201-440-6700; internet
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for Rolls-Royce Corporation (RRC) AE 2100D2A and AE 2100D3 model turboprop engines and AE 3007A2 model turbofan engines. This proposed AD was prompted by the possibility of a low-cycle fatigue failure on certain turbine wheels. This proposed AD would require removing the affected turbine wheels at the next engine shop visit or before reaching the new reduced life limit, whichever occurs first, and replacing them with parts eligible for installation. We are proposing this AD to address the unsafe condition on these products.
We must receive comments on this proposed AD by June 14, 2018.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this NPRM, contact Rolls-Royce Corporation, 450 South Meridian Street, Indianapolis, IN 46225; phone: 317-230-3774. You may view this service information at the FAA, Engine and Propeller Standards Branch, 1200 District Avenue, Burlington, MA 01803. For information on the availability of this material at the FAA, call 781-238-7759.
You may examine the AD docket on the internet at
Kyri Zaroyiannis, Aerospace Engineer, Chicago ACO Branch, FAA, 2300 E Devon Ave., Des Plaines, IL 60018; phone: 847-294-7836; fax: 847-294-7834; email:
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We were prompted to issue this NPRM based upon a report of the discovery of steel inclusion in the production process at an RRC forging supplier. Ultrasonic inspection at the forging supplier revealed steel impurities could be introduced into turbine wheels during forging. Analysis and testing by RRC of these wheels indicated that, because of imperfections, these turbine wheels could not be operated safely up to their published life limits. The affected turbine wheels include 1st-stage gas generator turbine wheels, installed on AE 2100D2A and AE 2100D3 model turboprop engines, and 1st-stage high-pressure turbine (HPT) wheels, installed on AE 3007A2 turbofan engines.
This condition, if not addressed, could result in uncontained turbine wheel release, damage to the engine, and damage to the airplane.
We reviewed RRC Alert Service Bulletin (ASB) AE 2100D2-A-72-090, Revision 1, dated July 11, 2014, and RRC ASB AE 2100D3-A-72-286, Revision 1, dated July 11, 2014 (one document, referred to herein as “RRC ASB AE 2100D2-A-72-090/AE 2100D3-A-72-286”), and RRC ASB AE 3007A-A-72-419, Revision 2, dated December 4, 2017. RRC ASB AE 2100D2-A-72-090/AE 2100D3-A-72-286 provides removal and replacement instructions and a new life limit for the affected 1st-stage gas generator turbine wheels installed on RRC AE 2100D2A and AE 2100D3 model turboprop engines. ASB AE 3007A-A-72-419 provides removal and replacement instructions and a new life limit for 1st-stage HPT wheels installed on RRC AE 3007A2 model turbofan engines. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD requires the removal and replacement of the affected turbine wheels at the next engine shop visit or before reaching their new life limit, whichever occurs first.
We estimate that this proposed AD affects nine engines installed on airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by June 14, 2018.
None.
This AD applies to:
(1) Rolls-Royce Corporation (RRC) AE 2100D2A turboprop engines with 1st-stage gas generator turbine wheels, part number(P/N) 23089692, with serial numbers (S/Ns) MW65898 or MW68310, installed.
(2) RRC AE 2100D3 turboprop engines with 1st-stage gas generator turbine wheels, P/N 23088906, with S/Ns MW65895, MW65896, MW65900, MW65901, MW65903, MW68305, MW68306, MW68307, MW68312, MW68314, MW68316, MW68318, or MW68319 installed.
(3) RRC AE 3007A2 turbofan engines with 1st-stage high-pressure turbine (HPT) wheels, P/N 23088906, with S/Ns MW65894, MW68303, or MW68315 installed.
Joint Aircraft System Component (JASC) Code 7250, Turbine section.
This AD was prompted by the possibility of steel inclusions in the turbine wheel forging. We are proposing this AD to prevent a low-cycle fatigue failure of a 1st-stage gas generator turbine wheel or 1st-stage HPT wheel. The unsafe condition, if not addressed, could result in uncontained turbine wheel release, damage to the engine, and damage to the airplane.
Comply with this AD within the compliance times specified, unless already done.
(1) Remove the affected 1st-stage gas generator turbine wheel and replace with a part eligible for installation at the next engine shop visit or before exceeding the life limit of 4,800 engine cycles, whichever occurs first, in accordance with the Accomplishment Instructions, Paragraph 2, of RRC Alert Service Bulletin (ASB) AE 2100D2-A-72-090, Revision 1, dated July 11, 2014, and RRC ASB AE 2100D3-A-72-286, Revision 1, dated July 11, 2014 (one document).
(2) Remove the affected 1st-stage HPT wheel and replace with a part eligible for installation at the next engine shop visit or before exceeding the life limit of 5,600 engine cycles, whichever occurs first, in accordance with the Accomplishment Instructions, Paragraph 2, of RRC ASB AE 3007A-A-72-419, Revision 2, dated December 4, 2017.
For the purpose of this AD, an “engine shop visit” is the induction of an engine into the shop for maintenance involving the separation of pairs of major mating engine flanges, except that the separation of engine flanges solely for the purposes of transportation without subsequent engine maintenance is not an engine shop visit.
(1) The Manager, Chicago ACO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (j)(1) of this AD.
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(1) For more information about this AD, contact Kyri Zaroyiannis, Aerospace Engineer, Chicago ACO Branch, FAA, 2300 E. Devon Ave., Des Plaines, IL 60018; phone: 847-294-7836; fax: 847-294-7834; email:
(2) For service information identified in this AD, contact Rolls-Royce Corporation, 450 South Meridian Street, Indianapolis, IN 46225; phone: 317-230-3774. You may view this service information at the FAA, Engine and Propeller Standards Branch, 1200 District Avenue, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7759.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for all Dassault Aviation Model MYSTERE-FALCON 900 airplanes. This proposed AD was prompted by a determination that more restrictive maintenance requirements and airworthiness limitations are necessary. This proposed AD would require revising the maintenance or inspection program, as applicable, to incorporate new and more restrictive maintenance requirements and airworthiness limitations. We are proposing this AD to address the unsafe condition on these products.
We must receive comments on this proposed AD by June 14, 2018.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this NPRM, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201-440-6700; internet
You may examine the AD docket on the internet at
Tom Rodriguez, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th Street, Des Moines, WA 98198; telephone and fax 206-231-3226.
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2018-0027, dated January 30, 2018 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Dassault Aviation Model MYSTERE-FALCON 900 airplanes. The MCAI states:
The airworthiness limitations and certification maintenance instructions for the Dassault Mystère-Falcon 900 aeroplanes, which are approved by EASA, are currently defined and published in the Dassault Mystère-Falcon 900 [airplane maintenance manual] AMM chapter 5-40. These instructions have been identified as mandatory for continued airworthiness.
Failure to accomplish these instructions could result in an unsafe condition [
Consequently, EASA issued AD 2016-0127 [which corresponds to FAA AD 2017-19-03 Amendment 39-19033 (82 FR 43166, September 14, 2017) (“AD 2017-19-03”)] to require accomplishment of the maintenance tasks, and implementation of the airworthiness limitations, as specified in Dassault Mystère-Falcon 900 AMM chapter 5-40 Revision 22.
Since that [EASA] AD was issued, Dassault issued Revision 23 of the Dassault Mystère-Falcon 900 AMM chapter 5-40, which introduces new and more restrictive maintenance requirements and/or airworthiness limitations.
For the reason described above, this [EASA] AD retains the requirements of EASA AD 2016-0127, which is superseded, and requires accomplishment of the actions specified in Revision 23 of the Dassault Mystère-Falcon 900 AMM chapter 5-40 * * *.
You may examine the MCAI in the AD docket on the internet at
This NPRM would not supersede AD 2017-19-03. Rather, we have determined that a stand-alone AD would be more appropriate to address the changes in the MCAI. This NPRM would require revising the maintenance or inspection program to incorporate the new maintenance requirements and airworthiness limitations. Accomplishment of the proposed actions would then terminate all requirements of AD 2017-19-03. Accomplishment of the proposed actions would also terminate all requirements of AD 2016-01-16, Amendment 39-18376 (81 FR 3320, January 21, 2016) (“AD 2016-01-16”) and certain requirements of AD 2010-26-05, Amendment 39-16544 (75 FR 79952, December 21, 2010) (“AD 2010-26-05”), for Dassault Aviation Model MYSTERE-FALCON 900 airplanes.
Dassault Aviation has issued Chapter 5-40, Airworthiness Limitations, Revision 23, dated September 2017, of the Dassault Aviation Falcon 900 Maintenance Manual. This service information describes procedures, maintenance tasks, and airworthiness limitations specified in the Airworthiness Limitations Section (ALS) of the AMM. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type designs.
This proposed AD requires revisions to certain operator maintenance documents. Compliance with these revisions are required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by this proposed AD, the operator may not be able to accomplish the actions described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance according to paragraph (j)(1) of this proposed AD. The request should include a description of changes to the required actions that will ensure the continued damage tolerance of the affected structure.
The MCAI specifies that if there are findings from the ALS inspection tasks, corrective actions must be accomplished in accordance with Dassault Aviation maintenance documentation. However, this proposed AD does not include that requirement. Operators of U.S.-
We estimate that this proposed AD affects 65 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
We have determined that revising the maintenance or inspection program takes an average of 90 work-hours per operator, although we recognize that this number may vary from operator to operator. In the past, we have estimated that this action takes 1 work-hour per airplane. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), we have determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, we estimate the total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This proposed AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes to the Director of the System Oversight Division.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by June 14, 2018.
This AD affects AD 2010-26-05, Amendment 39-16544 (75 FR 79952, December 21, 2010) (“AD 2010-26-05”); AD 2016-01-16, Amendment 39-18376 (81 FR 3320, January 21, 2016) (“AD 2016-01-16”); and AD 2017-19-03, Amendment 39-19033 (82 FR 43166, September 14, 2017) (“AD 2017-19-03”).
This AD applies to Dassault Aviation Model MYSTERE-FALCON 900 airplanes, all serial numbers; certificated in any category.
Air Transport Association (ATA) of America Code 05, Time limits/maintenance checks.
This AD was prompted by a determination that more restrictive maintenance requirements and airworthiness limitations are necessary. We are issuing this AD to prevent reduced structural integrity of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Within 90 days after the effective date of this AD, revise the maintenance or inspection program, as applicable, to incorporate the information specified in Chapter 5-40, Airworthiness Limitations, Revision 23, dated September 2017, of the Dassault Aviation Falcon 900 Maintenance Manual. The initial compliance times for doing the tasks are at the time specified in Chapter 5-40, Airworthiness Limitations, Revision 23, dated September 2017, of the Dassault Aviation Falcon 900 Maintenance Manual, or within 90 days after the effective date of this AD, whichever occurs later. The term “LDG” in the “First Inspection” column of any table in the service information specified in this paragraph means total airplane landings. The term “FH” in the “First Inspection” column of any table in the service information specified in this paragraph means total flight hours. The term “FC” in the “First Inspection” column of any table in the service information specified in this paragraph means total flight cycles. The term “M” in the “First Inspection” column of any table in the service information specified in this paragraph means months.
After the maintenance or inspection program has been revised as required by paragraph (g) of this AD, no alternative actions (
(1) Accomplishing the actions required by paragraph (g) of this AD terminates all requirements of AD 2017-19-03 and AD 2016-01-16.
(2) Accomplishing the actions required by paragraph (g) of this AD terminates the requirements of paragraph (g)(1) of AD 2010-26-05, for Dassault Aviation Model MYSTERE-FALCON 900 airplanes.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2018-0027, dated January 30, 2018, for related information. This MCAI may be found in the AD docket on the internet at
(2) For more information about this AD, contact Tom Rodriguez, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th Street, Des Moines, WA 98198; telephone and fax 206-231-3226.
(3) For service information identified in this AD, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201-440-6700; internet
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for all Airbus Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes). This proposed AD was prompted by a determination that more restrictive maintenance requirements and airworthiness limitations are necessary. This proposed AD would require revising the maintenance or inspection program, as applicable, to incorporate new or more restrictive maintenance requirements and airworthiness limitations. We are proposing this AD to address the unsafe condition on these products.
We must receive comments on this proposed AD by June 14, 2018.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this NPRM, contact Airbus SAS, Airworthiness Office—EAW, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
You may examine the AD docket on the internet at
Dan Rodina, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th Street, Des Moines, WA 98198; telephone and fax 206-231-3225.
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2017-0205, dated October 12, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus Model A300-600 series airplanes. The MCAI states:
The airworthiness limitations for the Airbus A300-600 aeroplanes, which are approved by EASA, are currently defined and published in the Airbus A300-600 Airworthiness Limitations Section (ALS) documents. The Damage Tolerant Airworthiness Limitation Items are specified in the A300-600 ALS Part 2. These instructions have been identified as mandatory for continuing airworthiness.
Failure to accomplish these instructions could result in an unsafe condition [
EASA previously issued [EASA] AD 2016-0218 [which corresponds to FAA AD 2018-01-07, Amendment 39-19148 (83 FR 2042, January 16, 2018) (“AD 2018-01-07”)] to require compliance with the maintenance requirements and associated airworthiness limitations defined in Airbus A300-600 ALS Part 2 Revision 01, Variation 1.1 and Variation 1.2.
Since that [EASA] AD was issued, new or more restrictive maintenance requirements and airworthiness limitations were approved by the EASA. Consequently, Airbus published Revision 02 of the A300-600 ALS Part 2, compiling all ALS Part 2 changes approved since previous Revision 01.
For the reason described above, this [EASA] AD retains the requirements of EASA AD 2016-0218, which is superseded, and requires accomplishment of the actions specified in Airbus A300-600 ALS Part 2 Revision 02.
You may examine the MCAI in the AD docket on the internet at
This NPRM would not supersede AD 2018-01-07. Rather, we have determined that a stand-alone AD would be more appropriate to address the changes in the MCAI. This NPRM would require revising the maintenance or inspection program to incorporate the new maintenance requirements and airworthiness limitations. Accomplishment of the proposed actions would then terminate all requirements of AD 2018-01-07.
Airbus has issued Airbus A300-600 Airworthiness Limitations Section (ALS), Part 2, “Damage Tolerant Airworthiness Limitation Items (DT-ALI),” Revision 02, dated August 28, 2017. This service information describes airworthiness limitations applicable to the DT ALIs. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
This proposed AD requires revisions to certain operator maintenance documents to include new actions (
The MCAI specifies that if there are findings from the ALS inspection tasks, corrective actions must be accomplished in accordance with Airbus maintenance documentation. However, this proposed AD does not include that requirement. Operators of U.S.-registered airplanes are required by general airworthiness and operational regulations to perform maintenance using methods that are acceptable to the FAA. We consider those methods to be adequate to address any corrective actions necessitated by the findings of ALS inspections required by this proposed AD.
We estimate that this proposed AD affects 125 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
We have determined that revising the maintenance or inspection program takes an average of 90 work-hours per operator, although we recognize that this number may vary from operator to operator. In the past, we have estimated that this action takes 1 work-hour per airplane. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), we have determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, we estimate the total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This proposed AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes to the Director of the System Oversight Division.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by June 14, 2018.
This AD affects AD 2018-01-07, Amendment 39-19148 (83 FR 2042, January 16, 2018) (“AD 2018-01-07”).
This AD applies to Airbus Model A300 B4-601, B4-603, B4-620, B4-622, B4-605R, B4-622R, F4-605R, F4-622R, and C4-605R Variant F airplanes, certificated in any category, all manufacturer serial numbers.
Air Transport Association (ATA) of America Code 05, Time limits/maintenance checks.
This AD was prompted by a determination that more restrictive maintenance requirements and airworthiness limitations are necessary. We are issuing this AD to prevent fatigue cracking, damage, or corrosion in principal structural elements, which could result in reduced structural integrity of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Within 90 days after the effective date of this AD, revise the maintenance or inspection program, as applicable, to incorporate the information specified in Airbus A300-600 Airworthiness Limitations Section (ALS), Part 2, “Damage Tolerant Airworthiness Limitation Items (DT-ALI),” Revision 02, dated August 28, 2017. The initial compliance times for doing the tasks are at the applicable times specified in Airbus A300-600 ALS, Part 2, “Damage Tolerant Airworthiness Limitation Items (DT-ALI),” Revision 02, dated August 28, 2017, or within 90 days after the effective date of this AD, whichever occurs later.
After the maintenance or inspection program has been revised as required by paragraph (g) of this AD, no alternative actions (
Accomplishing the actions required by this AD terminates all requirements of AD 2018-01-07.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) AD 2017-0205, dated October 12, 2017, for related information. This MCAI may be found in the AD docket on the internet at
(2) For more information about this AD, contact Dan Rodina, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th Street, Des Moines, WA 98198; telephone and fax 206-231-3225.
(3) For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAW, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for Rolls-Royce Deutschland Ltd & Co KG (RRD) Tay 620-15 turbofan engines. This AD limits service life of the low-pressure compressor (LPC) fan blades based on the number of dry-film lubricant (DFL) treatments. The AD was prompted by reports of LPC fan blade retention lug failures. We are proposing this AD to correct the unsafe condition on these products.
We must receive comments on this proposed AD by June 14, 2018.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this NPRM, contact Rolls-Royce Deutschland Ltd & Co KG, Eschenweg 11, Dahlewitz, 15827 Blankenfelde-Mahlow, Germany; phone: +49 (0) 33-7086-1883; fax: +49 (0) 33-7086-3276.
You may examine the AD docket on the internet at
Robert Green, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7754; fax: 781-238-7199; email:
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD 2018-0013, dated January 17, 2018 (referred to after this as the MCAI), to address the unsafe condition on these products. The MCAI states:
Fractures of low pressure compressor (LPC) fan blade retention lugs were reported on engines subjected to a high number of Dry Film Lubrication (DFL) treatments. Subsequent investigation determined that, as a consequence, the retention lugs of the affected LPC (fan) blades had been exposed to excessive high stress cycles.
This condition, if not detected or corrected, could lead to failure of LPC fan blade retention lug(s), high vibration, reduced thrust, or in-flight shut down, possibly resulting in reduced control of the aeroplane.
To address this potential unsafe condition, Rolls Royce Deutschland (RRD) issued Alert Non-Modification Service Bulletin (NMSB) TAY-72-A1834 (hereafter referred to as `the NMSB') to provide identification and replacement instructions.
For the reasons described above, this [EASA] AD requires determination of number of DFL treatments applied to the LPC fan blades and, based on that determination, replacement. This AD also introduces a maximum allowable number of DFL treatments applicable to the LPC fan blades.
You may obtain further information by examining the MCAI in the AD docket on the internet at
We reviewed RRD ALERT Non-Modification Service Bulletin (NMSB) TAY-72-A1834, dated November 17, 2017. The Alert NMSB describes procedures for reviewing the maintenance records and replacing the LPC fan blade with a serviceable part. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We reviewed RRD NMSB TAY-70-1050, Revision 9, dated July 14, 2010. This NMSB defines a basic engine life management program suitable for Tay engines in aircraft that are engaged in non-airline operations.
This product has been approved by EASA and is approved for operation in the United States. Pursuant to our bilateral agreement with the European Community, EASA has notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design. This proposed AD would require reviewing the engine maintenance records and replacing the LPC fan blade with a serviceable part if the DFL treatment limit is exceeded.
This proposed AD would require reviewing the engine maintenance records and replacing the LPC fan blade with a serviceable part if the DFL treatment limit is exceeded.
We estimate that this proposed AD affects 25 engines installed on airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for
This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to engines, propellers, and associated appliances to the Manager, Engine and Propeller Standards Branch, Policy and Innovation Division.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by June 14, 2018.
None.
This AD applies to Rolls-Royce Deutschland Ltd & Co KG (RRD) Tay 620-15 turbofan engines with low-pressure compressor (LPC) fan blades, having part numbers (P/Ns) JR30649, JR31702, JR31983, JR33863, or JR33864, installed.
Joint Aircraft System Component (JASC) Code 7230, Turbine Engine Compressor Section.
This AD was prompted by reports of LPC fan blade retention lug failures. We are issuing this AD to prevent failure of the LPC fan blade retention lug. The unsafe condition, if not addressed, could result in loss of engine thrust control and reduced control of the airplane.
Comply with this AD within the compliance times specified, unless already done.
(1) Within 30 days after the effective date of this AD, determine the number of DFL treatments that were applied to the LPC fan blade by reviewing the maintenance records or using an alternative method in steps C or N, as applicable, of the Accomplishment Instruction, paragraph 3, of RRD ALERT Non-Modification Service Bulletin (NMSB) TAY-72-A1834, dated November 17, 2017.
(2) Depending on the results of the records review, do the following, as applicable:
(i) If the number of DFL treatments is fewer than 13, mark the LPC fan blade dovetail root with a suffix code during the next scheduled LPC fan blade removal using steps H or R, as applicable, of the Accomplishment Instruction, paragraph 3, of RRD ALERT NMSB TAY-72-A1834, dated November 17, 2017.
(ii) If the number of DFL treatments is 13 or more, replace the affected LPC fan blade with a part eligible for installation within 500 flight hours after effective date of this AD.
After the effective date of this AD, do not install an affected LPC fan blade on any engine unless it has been determined that the LPC fan blade has had fewer than 13 DFL treatments and has been marked in accordance with the instructions of RRD ALERT NMSB TAY-72-A1834, dated November 17, 2017.
(1) The Manager, ECO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ECO Branch, send it to the attention of the person identified in paragraph (j)(1) of this AD. You may email your request to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(1) For more information about this AD, contact Robert Green, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7754; fax: 781-238-7199; email:
(2) Refer to European Aviation Safety Agency (EASA) AD 2018-0013, dated January 17, 2018, for more information. You may examine the EASA AD in the AD docket on the internet at
(3) For service information identified in this proposed AD, contact Rolls-Royce Deutschland Ltd & Co KG, Eschenweg 11, Dahlewitz, 15827 Blankenfelde-Mahlow, Germany; phone: +49 (0) 33-7086-1883; fax: +49 (0) 33-7086-3276. You may view this referenced service information at the FAA, Engine & Propeller Standards Branch, 1200 District Avenue, Burlington, MA 01803. For information on the availability of this material at the FAA, call 781-238-7759.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain Dassault Aviation Model FALCON 2000EX airplanes. This proposed AD was prompted by the manufacturer revising the airplane maintenance
We must receive comments on this proposed AD by June 14, 2018.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this NPRM, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201-440-6700; internet
You may examine the AD docket on the internet at
Tom Rodriguez, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3226.
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2018-0021, dated January 29, 2018 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Dassault Aviation Model FALCON 2000EX airplanes. The MCAI states:
The airworthiness limitations for Dassault Falcon 2000EX aeroplanes, which are approved by EASA, are currently defined and published in Aircraft Maintenance Manual (AMM) Airworthiness Limitations Section (ALS) Chapter 5-40. These instructions have been identified as mandatory for continued airworthiness.
Failure to accomplish these instructions could result in an unsafe condition [
EASA previously issued [EASA] AD 2012-0157 [which corresponds to FAA AD 2014-16-12 Amendment 39-17936 (79 FR 52187, September 3, 2014) (“AD 2014-16-12”)], requiring the actions described in Dassault Falcon 2000EX AMM Chapter 5-40 (DGT 113877) at Revision 07.
Since that [EASA] AD was issued, Dassault published Revision 11 of Dassault Falcon 2000EX AMM Chapter 5-40 (DGT 113877), containing new and/or more restrictive maintenance tasks and introducing (among other changes) an operational test for Cursor Control Device.
For the reason described above, this [EASA] AD retains the requirements of EASA AD 2012-0157, which is superseded, and requires accomplishment of the actions specified in the Dassault Falcon 2000EX AMM Chapter 5-40 (DGT 113877) at Revision 11 * * *.
You may examine the MCAI in the AD docket on the internet at
This NPRM would not supersede AD 2014-16-12. Rather, we have determined that a stand-alone AD would be more appropriate to address the changes in the MCAI. This NPRM would require revising the maintenance or inspection program to incorporate the new maintenance requirements and airworthiness limitations. Accomplishment of the proposed actions would then terminate all of the requirements of AD 2014-16-12.
Dassault Aviation has issued Chapter 5-40, Airworthiness Limitations, DGT 113877, Revision 11, dated November 2017, of the Dassault Falcon 2000EX Maintenance Manual. This service information describes instructions applicable to airworthiness and safe life limitations. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of these same type designs.
This AD requires revisions to certain operator maintenance documents. Compliance with these revisions is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by this proposed AD, the operator may not be able to accomplish the actions described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance according to paragraph (j)(1) of this proposed AD. The request should include a description of changes to the required actions that will ensure the continued damage tolerance of the affected structure.
The MCAI specifies that if there are findings from the airworthiness limitations section (ALS) inspection tasks, corrective actions must be accomplished in accordance with Dassault Aviation maintenance documentation. However, this proposed AD does not include that requirement. Operators of U.S.-registered airplanes are required by general airworthiness and operational regulations to perform maintenance using methods that are acceptable to the FAA. We consider those methods to be adequate to address any corrective actions necessitated by the findings of ALS inspections required by this proposed AD.
The FAA recently became aware of an issue related to the applicability of ADs that require incorporation of an ALS revision into an operator's maintenance or inspection program.
Typically, when these types of ADs are issued by civil aviation authorities of other countries, they apply to all airplanes covered under an identified type certificate (TC). The corresponding FAA AD typically retains applicability to all of those airplanes.
In addition, U.S. operators must operate their airplanes in an airworthy condition, in accordance with 14 CFR 91.7(a). Included in this obligation is the requirement to perform any maintenance or inspections specified in the ALS, and in accordance with the ALS as specified in 14 CFR 43.16 and 91.403(c), unless an alternative has been approved by the FAA.
When a type certificate is issued for a type design, the specific ALS, including revisions, is a part of that type design, as specified in 14 CFR 21.31(c).
The sum effect of these operational and maintenance requirements is an obligation to comply with the ALS defined in the type design referenced in the manufacturer's conformity statement. This obligation may introduce a conflict with an AD that requires a specific ALS revision if new airplanes are delivered with a later revision as part of their type design.
To address this conflict, the FAA has approved alternative methods of compliance (AMOCs) that allow operators to incorporate the most recent ALS revision into their maintenance/inspection programs, in lieu of the ALS revision required by the AD. This eliminates the conflict and enables the operator to comply with both the AD and the type design.
However, compliance with AMOCs is normally optional, and we recently became aware that some operators choose to retain the AD-mandated ALS revision in their fleet-wide maintenance/inspection programs, including those for new airplanes delivered with later ALS revisions, to help standardize the maintenance of the fleet. To ensure that operators comply with the applicable ALS revision for newly delivered airplanes containing a later revision than that specified in an AD, we plan to limit the applicability of ADs that mandate ALS revisions to those airplanes that are subject to an earlier revision of the ALS, either as part of the type design or as mandated by an earlier AD. This proposed AD therefore would apply to Dassault Aviation Model FALCON 2000EX airplanes with an original certificate of airworthiness or original export certificate of airworthiness that was issued on or before January 15, 2018 (the effective date of the ALS revision identified in this proposed AD). Operators of airplanes with an original certificate of airworthiness or original export certificate of airworthiness issued after that date must comply with the airworthiness limitations specified as part of the approved type design and referenced on the type certificate data sheet.
We estimate that this proposed AD affects 181 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
We have determined that revising the maintenance or inspection program takes an average of 90 work-hours per operator, although we recognize that this number may vary from operator to operator. In the past, we have estimated that this action takes 1 work-hour per airplane. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), we have determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, we estimate the total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This proposed AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes to the Director of the System Oversight Division.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by June 14, 2018.
This AD affects AD 2010-26-05, Amendment 39-16544 (75 FR 79952, December 21, 2010) (“AD 2010-26-05”) and AD 2014-16-12 Amendment 39-17936 (79 FR 52187, September 3, 2014) (“AD 2014-16-12”).
This AD applies to Dassault Aviation Model FALCON 2000EX airplanes, certificated in any category; with an original certificate of airworthiness or original export certificate of airworthiness issued on or before January 15, 2018.
Air Transport Association (ATA) of America Code 05, Time limits/maintenance checks.
This AD was prompted by manufacturer revisions to the airplane maintenance manual (AMM) that introduce new or more restrictive maintenance requirements and airworthiness limitations. We are issuing this AD to prevent reduced structural integrity of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Within 90 days after the effective date of this AD, revise the maintenance or inspection program, as applicable, to incorporate the information specified in Chapter 5-40, Airworthiness Limitations, DGT 113877, Revision 11, dated November 2017, of the Dassault Falcon 2000EX Maintenance Manual. The initial compliance times for doing the tasks are at the time specified in Chapter 5-40, Airworthiness Limitations, DGT 113877, Revision 11, dated November 2017, of the Dassault Falcon 2000EX Maintenance Manual, or within 90 days after the effective date of this AD, whichever occurs later; except for task number 52-20-00-610-801-01, the initial compliance time is within 24 months after October 8, 2014 (the effective date of AD 2014-16-12). The term “LDG” in the “First Inspection” column of any table in Chapter 5-40, Airworthiness Limitations, DGT 113877, Revision 11, dated November 2017, means total airplane landings. The term “FH” in the “First Inspection” column of any table in Chapter 5-40, Airworthiness Limitations, DGT 113877, Revision 11, dated November 2017, means total flight hours. The term “FC” in the “First Inspection” column of any table in Chapter 5-40, Airworthiness Limitations, DGT 113877, Revision 11, dated November 2017, means total flight cycles.
After the maintenance or inspection program has been revised as required by paragraph (g) of this AD, no alternative actions (
(1) Accomplishing the actions required by paragraph (g) of this AD terminates all of the requirements of AD 2014-16-12.
(2) Accomplishing the actions specified in paragraph (g) of this AD terminates the requirements of paragraph (g) of AD 2010-26-05 for Dassault Aviation Model FALCON 2000EX airplanes.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2018-0021, dated January 29, 2018, for related information. This MCAI may be found in the AD docket on the internet at
(2) For more information about this AD, contact Tom Rodriguez, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3226.
(3) For service information identified in this AD, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201-440-6700; internet
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend the Class E airspace extending upward from 700 feet above the surface at Ionia County Airport, Ionia, MI. The FAA is proposing this action as a result of an airspace review due to the decommissioning of the Lansing VHF omnidirectional range (VOR) navigation aid as part of the VOR Minimum Operational Network (MON) Program. The geographic coordinates of the airport would also be updated to coincide with the FAA's aeronautical database.
Comments must be received on or before June 14, 2018.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590; telephone (202) 366-9826, or (800) 647-5527. You must identify FAA Docket No. FAA-2018-0291; Airspace Docket No. 18-AGL-10, at the beginning of your comments. You may also submit comments through the internet at
FAA Order 7400.11B, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
Jeffrey Claypool, Federal Aviation Administration, Operations Support Group, Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone (817) 222-5711.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend Class E airspace extending upward from 700 feet above the surface at Ionia County Airport, Ionia, MI, to support instrument flight rule operations.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2018-0291/Airspace Docket No. 18-AGL-10.” The postcard will be date/time stamped and returned to the commenter.
All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the
This document proposes to amend FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the
The FAA is proposing an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 by amending the Class E airspace extending upward from 700 feet above the surface to within a 6.5-mile radius (decreased from a 7.4-mile radius) at Ionia County Airport, Ionia, MI. The geographic coordinates of the airport would also be updated to coincide with the FAA's aeronautical database.
This action is necessary due to an airspace review caused by the decommissioning of the Lansing VOR as part of the VOR MON Program.
Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of the Ionia County Airport.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to remove Class E airspace extending upward from 700 feet above the surface at Clarendon Municipal Airport, Clarendon, TX. The FAA is proposing this action due to the cancellation of the instrument procedures at the airport making this airspace no longer necessary.
Comments must be received on or before June 14, 2018.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590; telephone (202) 366-9826, or (800) 647-5527. You must identify FAA Docket No. FAA-2018-0310; Airspace Docket No. 18-ASW-7, at the beginning of your comments. You may also submit comments through the internet at
FAA Order 7400.11B, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
Jeffrey Claypool, Federal Aviation Administration, Operations Support Group, Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone (817) 222-5711.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would support the removal Class E airspace extending upward from 700 feet above the surface at Clarendon Municipal Airport, Clarendon, TX, as the airspace is no longer required.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2018-0310/Airspace Docket No. 18-ASW-7.” The postcard will be date/time stamped and returned to the commenter.
All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the
This document proposes to amend FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the
The FAA is proposing an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 by removing the Class E airspace extending upward from 700 feet above the surface at Clarendon Municipal Airport, Clarendon, TX.
The FAA is proposing this action due to the cancellation of the instrument procedures at the airport making the airspace no longer necessary.
Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish a temporary safety zone for certain waters of the Cuyahoga River during the Blazing Paddles Stand Up Paddle Race. This proposed rulemaking would prohibit persons and vessels from being in the safety zone unless authorized by the Captain of the Port Buffalo or a designated representative. We invite your comments on this proposed rulemaking.
Comments and related material must be received by the Coast Guard on or before May 30, 2018.
You may submit comments identified by docket number USCG-2018-0242 using the Federal eRulemaking Portal at
If you have questions about this proposed rulemaking, call or email LT Michael Collet, Chief of Waterways Management, U.S. Coast Guard Sector Buffalo; telephone 716-843-9322, email
On February 20, 2018, Share the River notified the Coast Guard that it would be conducting a 5.8-mile Stand up Paddleboard Race from 9:00 a.m. to 11:00 a.m. on June 23, 2018, in conjunction with the annual Burning River Ramble. The race will begin just downriver from the Cleveland Rowing Foundation docks at position 41°29′36″ N and 081°42′13″ W, and travel 2.9 miles upriver to the turnaround point just the past Jefferson Ave Bridge at position 41°28′52″ N and 081°40′33″ W, and return to the starting point. The Captain of the Port Buffalo (COTP) has determined that potential hazards associated with a Stand up Paddleboard Race would be a safety concern for anyone within a 2.9-mile stretch of the Cuyahoga River.
The purpose of this rulemaking is to ensure the safety of vessels and racers on the navigable waters within the above stated points, before, during, and after the scheduled event. The Coast Guard proposes this rulemaking under authority in 33 U.S.C. 1231.
The COTP proposes to establish a temporary safety zone enforced intermittently, from 8:30 a.m. to 11:30 a.m. on June 23, 2018. The safety zone will cover all navigable waters at the
We developed this proposed rule after considering numerous statutes and Executive Orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive Orders and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. Vessel traffic would not be able to safely transit around this safety zone, which would impact a small designated area of the Cuyahoga River. However, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section IV.A above, this proposed rule would not have a significant economic impact on any vessel owner or operator.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves establishing a safety zone lasting 3 hours that would prohibit entry into the waters contained within a 2.9-mile stretch of the Cuyahoga River. Normally such actions are categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1, of DHS Instruction Manual 023-01-001-01, Rev. 01. A preliminary Record of Environmental Consideration (REC) supporting this determination is available in the docket where indicated under the
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
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments received will be posted without change to
Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(1) In accordance with the general regulations in § 165.23 of this part, entry into, transiting, or anchoring within this safety zone is prohibited unless authorized by the Captain of the Port Buffalo or his designated on-scene representative.
(2) This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port Buffalo or his designated on-scene representative.
(3) The “on-scene representative” of the Captain of the Port Buffalo is any Coast Guard commissioned, warrant or petty officer who has been designated by the Captain of the Port Buffalo to act on his behalf.
(4) Vessel operators desiring to enter or operate within the safety zone must contact the Captain of the Port Buffalo or his on-scene representative to obtain permission to do so. The Captain of the Port Buffalo or his on-scene representative may be contacted via VHF Channel 16. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the Captain of the Port Buffalo, or his on-scene representative.
Environmental Protection Agency (EPA).
Proposed rule.
This document proposes a regulation intended to strengthen the transparency of EPA regulatory science. The proposed regulation provides that when EPA develops regulations, including regulations for which the public is likely to bear the cost of compliance, with regard to those scientific studies that are pivotal to the action being taken, EPA should ensure that the data underlying those are publicly available in a manner sufficient for independent validation. In this notice, EPA solicits comment on this proposal and how it can best be promulgated and implemented in light of existing law and prior Federal policies that already require increasing public access to data and influential scientific information used to inform federal regulation.
Comments must be received on or before May 30, 2018.
Submit your comments, identified by Docket ID No. EPA-HQ-OA-2018-0259, at
Tom Sinks, Office of the Science Advisor, Environmental Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; (202) 564-0221; email address:
Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the
This proposed regulation does not directly regulate any entity outside the federal government. However, any entity interested in EPA's regulations may be interested in this proposal. This proposal may be of particular interest to entities that conduct research and other scientific activity that is likely to be relevant to EPA's regulatory activity.
This notice solicits information and comment from the public on a proposed regulation intended to strengthen the transparency of EPA regulatory science. The proposed regulation provides that, for the science pivotal to its significant regulatory actions, EPA will ensure that the data and models underlying the science is publicly available in a manner sufficient for validation and analysis. In this notice, EPA solicits comment on this proposal and how it can best be implemented in light of existing law and prior statements of policy that have called for increasing public access to data and influential scientific information used to inform federal regulation. EPA has not previously implemented these policies and guidance in a robust and consistent manner. This proposal will help ensure that EPA is pursuing its mission of protecting public health and the environment in a manner that the public can trust and understand.
The Agency proposes to take this action under authority of the statutes it administers, including provisions providing general authority to promulgate regulations necessary to carry out the Agency's functions under these statutes and provisions specifically addressing the Agency's conducting of and reliance on scientific activity to inform those functions, including Clean Air Act sections 103, 301(a), 42 U.S.C. 7403, 7601(a); Clean Water Act sections 104, 501, 33 U.S.C. 1254, 1361; Safe Drinking Water Act sections 1442, 1450(a)(1), 42 U.S.C. 300j-1, 300j-9(a)(1); Resource Conservation and Recovery Act sections 2002(a)(1), 7009, 42 U.S.C. 6912(a)(1), 6979; Comprehensive Environmental Response, Compensation, and Liability Act (as delegated to the Administrator via Executive Order 12580) sections 115, 311, 42 U.S.C. 9616, 9660; Emergency Planning and Community Right-To-Know Act section 328, 42 U.S.C. 11048; Federal Insecticide, Fungicide, and Rodenticide Act sections 25(a)(1), 136r(a), 7 U.S.C. 136r(a), 136w; and Toxic Substances Control Act, as amended, section 10, 15 U.S.C. 2609. This action is also consistent with requirements in the Administrative Procedure Act to ensure public participation in the rulemaking process. As noted in Section III below, EPA solicits comment on whether additional or alternative sources of authority are appropriate bases for this proposed regulation.
The best available science must serve as the foundation of EPA's regulatory actions.
This proposed rule is consistent with the principles underlying the Administrative Procedure Act and programmatic statutes that EPA administers to disclose to the public the bases for agency rules and to rationally execute and adequately explain agency actions.
Today, EPA is proposing to establish a clear policy for the transparency of the scientific information used for significant regulations: Specifically, the dose response data and models that underlie what we are calling “pivotal regulatory science.” “Pivotal regulatory science” is the studies, models, and analyses that drive the magnitude of the benefit-cost calculation, the level of a standard, or point-of-departure from which a reference value is calculated. In other words, they are critical to the calculation of a final regulatory standard or level, or to the quantified costs, benefits, risks and other impacts on which a final regulation is based.
With this notice, EPA is soliciting public comment on a proposed regulation designed to provide a mechanism to increase access to dose response data and models underlying pivotal regulatory science in a manner consistent with statutory requirements for protection of privacy and confidentiality of research participants, protection of proprietary data and confidential business information, and other compelling interests. The proposal takes comment on how to ensure that, over time, more of the data and models underlying the science that informs regulatory decisions (over and above the dose response data and models underlying “pivotal regulatory science”) is available to the public for validation
Regulatory determinations based on science should describe and document any assumptions and methods used, and should address variability and uncertainty. Where available and appropriate, EPA will use peer-reviewed information, standardized test methods, consistent data evaluation procedures, and good laboratory practices to ensure transparent, understandable, and reproducible scientific assessments. EPA's regulatory science should be consistent with the Office of Management and Budget's
In addition, this proposed regulation is designed to increase transparency of the assumptions underlying dose response models. As a case in point, there is growing empirical evidence of non-linearity in the concentration-response function for specific pollutants and health effects. The use of default models, without consideration of alternatives or model uncertainty, can obscure the scientific justification for EPA actions. To be even more transparent about these complex relationships, EPA should give appropriate consideration to high quality studies that explore: A broad class of parametric concentration-response models with a robust set of potential confounding variables; nonparametric models that incorporate fewer assumptions; various threshold models across the exposure range; and spatial heterogeneity. EPA should also incorporate the concept of model uncertainty when needed as a default to optimize low dose risk estimation based on major competing models, including linear, threshold, and U-shaped, J-shaped, and bell-shaped models.
Across EPA programs, much of the science that informs regulatory actions is developed outside the Agency. It is the charge of regulators to ensure that key findings are valid and credible, as required by OMB's Guidelines
EPA believes that concerns about access to confidential or private information can, in many cases, be addressed through the application of solutions commonly in use across some parts of the Federal government.
Considering the breadth of dose response data and models used in the development of significant EPA regulations, the requirements for availability may differ. These mechanisms may range from deposition in public data repositories, consistent with requirements for many scientific journals,
Implementation of this proposed rule will be consistent with the definition of “research data” in Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, exemptions in Public Law 89-487, and other applicable federal laws.
This proposed regulation is intended to apply prospectively to final regulations that are determined to be “significant regulatory actions” pursuant to E.O. 12866. The Agency's offices should be guided by this policy to the maximum extent practicable during ongoing regulatory action, even where such research has already been generated, solicited, or obtained.
EPA solicits comment on all aspects of the proposed regulation and the bases articulated for it above. Specifically, EPA believes that it has identified appropriate sources of statutory authority for this proposed regulation in Section I(c) above, and solicits public comment on whether additional or alternative sources of authority are appropriate bases for this proposed regulation. EPA further believes that a generally applicable regulatory provision of the type proposed here is the appropriate vehicle to establish and implement the policies articulated in Section II above, in the interests of consistency, predictability, and transparency across the functions that EPA performs.
EPA solicits comment on whether alternative or additional regulatory or other policy vehicles are appropriate to establish and implement these policies, and whether further regulatory or other policy vehicles at the programmatic or statutory level would be appropriate as alternative or additional steps the agency may take to further the policies articulated in Section II above.
EPA solicits comment on the effects of this proposed rule on individual EPA programs, including whether certain activities are appropriate to be excepted or if other requirements would affect implementation. EPA also seeks comments on which criteria the Agency should use to base any exceptions, including whether case-by-case exceptions may be appropriate.
Although the proposed regulatory text would impose requirements specifically on final regulations determined to be “significant regulatory actions” under E.O. 12866, EPA solicits comment on whether and to what extent these requirements, or other provisions and policies, should apply to other stages of the rulemaking process, including proposed rules, as well as to other types of agency actions and promulgations, such as guidance. EPA also solicits comment on whether a narrower scope of coverage would be appropriate, such as only final regulations that are determined to be “major” under the Congressional Review Act, or “economically significant” under E.O. 12866. EPA also requests comment on whether certain categories of regulations should be excluded from coverage, such as those that merely reaffirm an existing standard, or some other category. For instance, we request comment on whether the provisions of the proposed rule should apply to individual party adjudications, enforcement activities, or permit proceedings when EPA determines that these provisions are practical and appropriate and that the actions are scientifically or technically novel or likely to have precedent-setting influence on future actions. EPA seeks comment on whether the Agency should apply the provisions of the proposed rule to these actions or to specific types of actions within these categories. The Agency also seeks comment on whether other agency actions, beyond significant final regulatory actions under E.O. 12866, should be included, such as site-specific permitting actions or non-binding regulatory determinations.
EPA solicits comment on the definitions of “
EPA also solicits comment on how to incorporate stronger data and model access requirements into the terms and conditions of cooperative agreements and grants. EPA solicits comments on how it can build upon other federal agencies' policies regarding grantee and cooperator requirements for data access and data sharing. EPA also solicits suggestions for a platform that would enable the Agency to implement the provisions of this proposal related to increasing public access to EPA-funded data. EPA also seeks comment on methodologies and technologies designed to provide protected access to identifiable and sensitive data, such as individual health data, and on commenters experience with the use of such methodologies and technologies and their strengths and limitations. Similarly, EPA seeks comment on how to balance appropriate protection for copyrighted or confidential business information, including where protected by law, with requirements for increased transparency of pivotal regulatory science. EPA also requests comment on whether there are other compelling interests besides privacy, confidentiality, national and homeland
EPA solicits comment on implementation of the proposed regulation, including which parts of the Agency should be responsible for carrying out these requirements. EPA seeks comment on the effective date of a rule as well as on whether the Agency should seek to phase-in the requirements for certain significant regulatory actions or seek to prioritize specific actions. For regulatory programs, like the National Ambient Air Quality Standards program, in which future significant regulatory actions may be based on the administrative record from previous reviews—particularly where the governing statute requires repeated review on a fixed, date-certain cycle—EPA seeks comment on the manner in which this proposed rule should apply to that previous record. EPA also solicits comments on whether and how the proposed rule should apply to dose response data and models underlying pivotal regulatory science if those data and models were developed prior to the effective date. In addition, EPA seeks comment on how the prospective or retrospective application of the provisions for dose response data and models or pivotal regulatory science could inadvertently introduce bias regarding the timeliness and quality of the scientific information available. EPA seeks comment on how to address a circumstance in which EPA has a statutory requirement to make a determination for which scientific information publicly available in a manner sufficient for independent validation does not exist. EPA also seeks comment on any additional implementation challenges not discussed in this notice that commenters may be aware of as well as suggestions for addressing them.
The proposed rule includes a provision allowing the Administrator to exempt significant regulatory decisions on a case-by-case basis if he or she determines that compliance is impracticable because it is not feasible to ensure that all dose response data and models underlying pivotal regulatory science are publicly available in a fashion that is consistent with law, protects privacy and confidentiality, and is sensitive to national and homeland security, or in instances where OMB's Information Quality Bulletin for Peer Review provides for an exemption (Section IX). The agency requests comment on whether these exemptions are appropriate, and on whether there are other situations in which specific significant regulatory actions, or specific categories of significant regulatory actions should be exempted.
EPA also requests comment on whether the disclosure requirements applicable to dose response data and models in the proposed rule should be expanded to cover other types of data and information, such as for example economic and environmental impact data and models that are designed to predict the costs, benefits, market impacts and/or environmental effects of specific regulatory interventions on complex economic or environmental systems.
This action is a significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review. Any changes made in response to OMB recommendations have been documented in the docket.
EPA believes the benefits of this proposed rule justify the costs. The benefits of EPA ensuring that dose response data and models underlying pivotal regulatory science are publicly available in a manner sufficient for independent validation are that it will improve the data and scientific quality of the Agency's actions and facilitate expanded data sharing and exploration of key data sets; this is consistent with the conclusions of the National Academies
By limiting the proposed rule to pivotal regulatory science for final significant regulatory actions pursuant to E.O. 12866, the proposed rule ensures that this standard for transparency affects a smaller subset of regulations which are economically significant, create inconsistency for other federal agencies, alter budgetary impacts, or raise novel legal or policy issues. One recent analysis found that: “Improvements in reproducibility can be thought of as increasing the net benefits of regulation because they would avoid situations in which costs or benefits are wrongly estimated to occur or in which regulatory costs are imposed without corresponding benefits. . . .” They concluded that “an increase in existing net benefits from greater reproducibility, which, if it occurred, would cover the costs of obtaining the data and making the data available.”
This action is not expected to be an Executive Order 13771 regulatory action because it relates to “agency organization, management or personnel.”
This action does not contain any information collection activities and therefore does not impose an information collection burden under the PRA.
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities.
This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector.
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national
This action does not have tribal implications as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this action.
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.
This action is not a “significant energy action” because it is not likely to have a significant adverse effect on the supply, distribution or use of energy.
This rulemaking does not involve technical standards.
The EPA believes that this action is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994) because it does not establish an environmental health or safety standard.
Environmental protection, Administrative practice and procedure, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, EPA proposes to add 40 CFR part 30 as follows:
Clean Air Act sections 103, 301(a), 42 U.S.C. 7403, 7601(a); Clean Water Act sections 104, 501, 33 U.S.C. 1254, 1361; Safe Drinking Water Act sections 1442, 1450(a)(1), 42 U.S.C. 300j-1, 300j-9(a)(1); Resource Conservation and Recovery Act sections 2002(a)(1), 7009, 42 U.S.C. 6912(a)(1), 6979; Comprehensive Environmental Response, Compensation, and Liability Act (as delegated to the Administrator via Executive Order 12580) sections 115, 311, 42 U.S.C. 9616, 9660; Emergency Planning and Community Right-To-Know Act section 328, 42 U.S.C. 11048; Federal Insecticide, Fungicide, and Rodenticide Act sections 25(a)(1), 136r(a), 7 U.S.C. 136r(a), 136w; and Toxic Substances Control Act, as amended, section 10, 15 U.S.C. 2609.
This subpart directs EPA to ensure that the regulatory science underlying its actions is publicly available in a manner sufficient for independent validation.
As used in this subpart, all terms not defined herein shall have the meaning given them in the Act or in subpart A; and the following terms shall have the specific meanings given them.
The provisions of this subpart apply to
EPA shall clearly identify all studies (or other regulatory science) relied upon when it takes any final agency action. EPA should make all such studies available to the public to the extent practicable.
When promulgating significant regulatory actions, the Agency shall ensure that
(a) Data (where necessary, data would be made available subject to access and use restrictions).
(b) Associated protocols necessary to understand, assess, and extend conclusions;
(c) Computer codes and models involved in the creation and analysis of such information;
(d) Recorded factual materials; and
(e) Detailed descriptions of how to access and use such information.
The provisions of this section apply to dose response data and models underlying pivotal regulatory science regardless of who funded or conducted the underlying data, models, or other regulatory science. The agency shall make all reasonable efforts to explore methodologies, technologies, and institutional arrangements for making such data available before it concludes that doing so in a manner consistent with law and protection of privacy, confidentiality, national and homeland security is not possible. Where data is controlled by third parties, EPA shall work with those parties to endeavor to make the data available in a manner that complies with this section.
EPA shall describe and document any assumptions and methods used, and should describe variability and uncertainty. EPA shall evaluate the appropriateness of using default assumptions, including assumptions of a linear, no-threshold dose response, on a case-by-case basis. EPA shall clearly explain the scientific basis for each model assumption used and present analyses showing the sensitivity of the modeled results to alternative assumptions. When available, EPA shall give explicit consideration to high quality studies that explore: A broad class of parametric dose-response or concentration-response models; a robust set of potential confounding variables; nonparametric models that incorporate fewer assumptions; various threshold models across the dose or exposure range; and models that investigate factors that might account for spatial heterogeneity.
EPA shall conduct independent peer review on all
Because transparency in regulatory science includes addressing issues associated with assumptions used in models, EPA shall ask peer reviewers to articulate the strengths and weaknesses of EPA's justification for the assumptions applied and the implications of those assumptions for the results.
EPA shall implement the provisions of this subpart in a manner that minimizes costs.
Yes. The Administrator may grant an exemption to this subpart on a case-by-case basis if he or she determines that compliance is impracticable because:
(a) It is not feasible to ensure that all dose response data and models underlying pivotal regulatory science is publicly available in a manner sufficient for independent validation, in a fashion that is consistent with law, protects privacy, confidentiality, confidential business information, and is sensitive to national and homeland security; or
(b) It is not feasible to conduct independent peer review on all pivotal regulatory science used to justify regulatory decisions for reasons outlined in OMB Final Information Quality Bulletin for Peer Review (70 FR 2664), Section IX.
EPA shall implement the provisions of this section consistent with the definition of “research data” in Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, exemptions in Public Law 89-487, and other applicable federal laws. Where appropriate, data sharing agreements and state-of-the-art data-masking techniques may be employed to facilitate access to information.
The
In the heading of the notice, third line, the correct docket number for the case should read “Docket B-25-2018.”
Enforcement and Compliance, International Trade Administration, Department of Commerce
Applicable April 30, 2018.
The Department of Commerce (Commerce) is initiating a new shipper review (NSR) of the antidumping duty order on freshwater crawfish tail meat from the People's Republic of China (China) with respect to Nanjing Yinxiangchen International Trade Co., Ltd. (Yinxiangchen). We have determined that this request meets the statutory and regulatory requirements for initiation.
Hermes Pinilla, AD/CVD Operations Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; Telephone: (202) 482-3477.
Commerce published the antidumping duty
Pursuant to section 751(a)(2)(B)) of the Act and 19 CFR 351.214(b)(2)(i), Yinxiangchen certified that it did not export subject merchandise to the United States during the period of investigation (POI).
In addition to the certifications described above, pursuant to 19 CFR 351.214(b)(2)(iv), Yinxiangchen submitted documentation establishing the following: (1) The date on which it first shipped subject merchandise for export to the United States; (2) the volume of its first shipment; and (3) the date of its first sale to an unaffiliated customer in the United States.
Pursuant to 19 CFR 351.214(c), an exporter or producer may request a NSR within one year of the date on which its subject merchandise first entered. Further, 19 CFR 351.214(d)(1) states that Commerce will initiate an NSR in the calendar month immediately following the anniversary month or the semiannual anniversary month if the request for review is made during the six-month period ending with the end of the anniversary month or the semi-annual anniversary month, whichever is applicable. In accordance with 19 CFR 351.214(g)(1)(i)(B), the period of review (POR) for an NSR initiated in the month immediately following the semi-annual anniversary month will be the six-month period immediately preceding the semi-annual anniversary month. Yinxiangchen requested an NSR within one year from the date its merchandise first entered. The request was filed in March 2018, the semi-annual anniversary month of the
Pursuant to section 751(a)(2)(B) of the Act and 19 CFR 351.214(b), we find that the request from Yinxiangchen meets the threshold requirements for the initiation of an NSR for shipments of freshwater crawfish tail meat from China produced and exported during the POR by Yinxiangchen.
The Trade Facilitation and Trade Enforcement Act of 2015
Unless extended, Commerce intends to issue the preliminary results of this NSR no later than 180 days from the date of initiation and the final results of the review no later than 90 days after the date the preliminary results are issued.
It is Commerce's usual practice, in cases involving non-market economy countries, to require that a company seeking to establish eligibility for an antidumping duty rate separate from the country-wide rate provide evidence of
Because Yinxiangchen certified that it produced and exported subject merchandise, the sale of which is the basis for its request for an NSR, we will instruct CBP to continue to suspend liquidation of all entries of subject merchandise produced and exported by Yinxiangchen.
To assist in its analysis of the
Interested parties requiring access to proprietary information in the NSR should submit applications for disclosure under administrative protective order, in accordance with 19 CFR 351.305 and 351.306.
This initiation and notice are published in accordance with section 751(a)(2)(B) of the Act and 19 CFR 351.214 and 351.221(c)(1)(i).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) is rescinding the administrative review, in part, on diamond sawblades and parts thereof (diamond sawblades) from the People's Republic of China (China) for the period of review (POR) November 1, 2016, through October 31, 2017.
Applicable April 30, 2018.
Joshua Poole, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-1293.
On November 1, 2017, Commerce published a notice of opportunity to request an administrative review of the antidumping duty order on diamond sawblades from China for the POR November 1, 2016, through October 31, 2017.
Pursuant to 19 CFR 351.213(d)(1), Commerce will rescind an administrative review “in whole or in part, if a party that requested a review withdraws the request within 90 days of the date of publication of notice of initiation of the requested review.” Because the petitioner, Husqvarna, and Danyang NYCL withdrew their requests for review within the 90-day time limit, and because we received no other requests for review of Bosun, Danyang NYCL, and Husqvarna, we are rescinding the administrative review of the order, in part, with respect to Bosun, Danyang NYCL, and Husqvarna.
Commerce will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries. For Bosun, Danyang NYCL, and Husqvarna, for which the review is rescinded, antidumping duties shall be assessed at the rate equal to the cash deposit of estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(1)(i). Commerce intends to issue appropriate assessment instructions to CBP 15 days after publication of this notice in the
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
This notice is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.213(d)(4).
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 Chesapeake Tunnel Joint Venture (CTJV) for authorization to take marine mammals incidental to the Parallel Thimble Shoal Tunnel Project (PTST) in Virginia Beach, Virginia. 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 May 30, 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
Rob Pauline, 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 Categorical Exclusion B4 (incidental harassment authorizations with no anticipated serious injury or mortality) 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
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 January 11, 2018, NMFS received a request from the CTJV for an IHA to take marine mammals incidental to pile driving at the Chesapeake Bay Bridge and Tunnel (CBBT) near Virginia Beach, Virginia. CTJV's request is for take of small numbers of harbor seal (
The PTST project consists of the construction of a two-lane parallel tunnel to the west of the existing Thimble Shoal Tunnel, connecting Portal Island Nos. 1 and 2 (Figure 1 in application). Upon completion, the new tunnel will carry two lanes of southbound traffic and the existing tunnel will remain in operation and carry two lanes of northbound traffic. The PTST project will address existing constraints to regional mobility based on current traffic volume along the Chesapeake Bay Bridge-Tunnel (CBBT) facility; improve safety by minimizing one lane, two-way traffic in the tunnel; improve the ability to conduct necessary maintenance with minimal impact to traffic flow; and ensure a reliable southwest hurricane evacuation route for residents of the eastern shore and/or a northern evacuation route for residents of the eastern shore, Norfolk, and Virginia Beach. The CBBT is a 23 mile fixed link crossing the mouth of the Chesapeake Bay which connects Northampton County on the Delmarva Peninsula with Virginia Beach, which is part of the Hampton Roads metropolitan area.
The new parallel tunnel will be bored under the Thimble Shoal Channel. The 6,525 linear feet (ft) of new tunnel will be constructed with a top of tunnel depth/elevation of 100 ft below Mean Low Water (MLW) within the width of the 1,000-ft-wide navigation channel. Impact pile driving will be used to install steel piles and vibratory pile driving will be utilized to install sheet piles. Sound produced during pile driving activities may result in behavioral harassment or auditory injury to local marine mammals. In-water construction will occur during spring and summer of 2018. This proposed IHA would cover one year of a larger project for which will run through 2022. The larger project, which does not employ pile driving and does not require an IHA, involves tunnel excavation with a tunnel boring machine and construction of a roadway within the tunnel.
In-water construction is planned to begin on June 1, 2018 and run through March 31, 2019. Pile driving, which may be concurrent at times, could occur up to 8 hours per day for up to 202 days.
The PTST project is located between Portal Island Nos. 1 and 2 of the CBBT, and will be bored underneath the Thimble Shoal Channel in the Chesapeake Bay. Water depths within the PTST construction area range from 0 to 60 ft below Mean Lower Low Water (MLLW). The Thimble Shoal Channel is 1,000 ft wide, is authorized to a depth of 55 ft below MLLW, and is maintained at a depth of 50 ft MLLW.
Construction of the tunnel structure will begin on Portal Island No. 1 and move from south to north to Portal Island No. 2. It is anticipated that this project will be constructed without any or minimal effect on the existing tunnel and traffic operations. The only short-term possibility for traffic impact could occur when connecting the existing roadway to the new roadway. The Tunnel Boring Machine (TBM) components will be barged and trucked to Portal Island No. 1. The TBM will be assembled within an entry/launch portal that will be constructed on Portal Island No. 1. The machine will then both excavate material and construct the tunnel as it progresses from Portal Island No. 1 to Portal Island No. 2. Material excavated from within the tunnel will be transported via a conveyor belt system back to Portal Island No 1. Approximately 350,000 cubic yards (cy) (
Precast concrete tunnel segments will be transported to the TBM for installation. The TBM will assemble the tunnel segments in-place as the tunnel is bored. After the TBM reaches Portal Island No. 2, it will be disassembled and the components will be removed via an exit/receiving portal on Portal Island No. 2. After the tunnel structure is completed, final upland work for the PTST project will include installation of the final roadway, lighting, finishes, mechanical systems, and other required internal systems for tunnel use and function. In addition, the existing fishing pier will be repaired and refurbished.
(1) Construction and use of a temporary dock, an integrated temporary conveyor dock, and mooring facilities;
(2) Construction of temporary roadway trestles requiring a limited number of in-water piles and partially extending over water to facilitate safe construction vehicle movements on each portal island. For Portal Island No. 1, the temporary docking will integrate the roadway trestle in the same structure;
(3) Construction of temporary work trestles approximately 850 ft long and 35 ft wide each, and offset west of the tunnel alignment to facilitate construction of the berms;
(4) Temporary subaqueous stockpiling of existing armor stones for re-use;
(5) Construction of two permanent engineered berms (one extending channelward from each of the two portal islands) including installation of steel sheet pile to provide settlement mitigation between the existing tunnel and the new tunnel, handling of existing stone, adding new stone, and limited mechanical dredging at Portal Island No. 1;
(6) Underground (below the sediment-water interface) tunnel boring;
(7) Repair/rehabilitation to the existing fishing pier substructure and trestle substructure (only if deemed necessary based on inspection); and
(8) Construction and use of outfalls on the east side of Portal Island No. 1 to allow for permitted process water discharges from a project-specific wastewater treatment facility, and periodic, intermittent warm water discharges of non-contact cooling water from an on-site cooling system.
Up to 132 hollow steel piles measuring 36 inches in diameter will be installed to support the integrated temporary dock/barge unloading/
Up to 160 hollow steel piles (36-inch in diameter, below MHW) will be installed to support temporary work platforms (trestles) offset to the west of each of the two engineered berms. These trestles will extend 841 ft and 809 ft channelward from Portal Island Nos. 1 and 2, respectively. Up to 12 round piles will be installed on the island above MHW to support a temporary roadway trestle at Portal Island No. 2. Installation for the temporary docks and mooring dolphins will occur over approximately 2 months; commencing in June 2018 as shown in Table 1. Installation of the temporary offset construction trestles will occur over approximately five months. In-water pile driving activities will also include installation of sheet pile for settlement mitigation and as an in-water containment system to facilitate construction of the engineered berms adjacent to Portal Island Nos. 1 and 2. A total of 1,540 linear ft of sheet pile (or 830 individual sheets each 27.56 inches in length) will be installed over approximately eight months.
Prior to initiation of the boring of the tunnel, construction of two engineered in-water berms will be required to provide structural support to the launch/receiving sections of the tunnel that are in closest proximity to the portal islands. Each engineered berm (at its maximum design configuration) will extend from the portal island channelward and will be approximately 1,400 ft long by 260 ft wide (at its widest point). Construction of the engineered berms will require installation of temporary trestles offset to the west of each berm alignment to serve as work platforms. The trestles will be supported by 36-inch diameter round steel piles driven by an impact hammer (with an encased bubble curtain). Construction will also require installation of parallel rows of sheet pile (using a vibratory hammer) approximately 530 linear ft in length by 60 ft in width channelward from MHW along the berm alignment at both Portal Islands.
Mechanical dredging to remove unsuitable berm foundation material (Portal Island No. 1 only) and disposal of dredged material via bottom-dump, or upland placement at an approved site. Note that NMFS does not consider underwater noise levels associated with dredging to occur at a level that could result in harassment of marine mammals. Therefore, dredging operations are not considered further in this analysis.
A number of additional upland construction activities are planned on the Portal Islands as part of the PTST project. Since these activities will not occur in water, they are not included as part of this analysis and are described in detail in section 1.3 in the application.
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 2 lists all species with expected potential for occurrence in near the CBBT and summarizes information
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 United States waters. All managed stocks in this region are assessed in NMFS's United States Atlantic and Gulf of Mexico Marine Mammal Stock Assessments (Hayes
All species that could potentially occur in the proposed survey areas are included in Table 2. However, the occurrence of endangered North Atlantic right whales and endangered fin whales is such that take is not expected to occur, and they are not discussed further beyond the explanation provided here. Between 1998 and 2013, there were no reports of North Atlantic right whale strandings within the Chesapeake Bay and only four reported standings along the coast of Virginia. During this same period, only six fin whale strandings were recorded within the Chesapeake Bay (Barco and Swingle 2014). In 2016, there were no reports of fin whale strandings (Barco
Humpback whales inhabit all major ocean basins from the equator to subpolar latitudes. They generally follow a predictable migratory pattern in both hemispheres, feeding during the summer in the higher latitudes (40 to 70 degrees latitude) and migrating to lower latitudes (10 to 30 degrees latitude) where calving and breeding take place in the winter (Perry
Humpback whales are the whale most likely to occur in the project area and could be found there at any time of the year. NOAA reported that between 2009-2013, three humpback whales were stranded in Virginia in the lower Bay (one off of Northampton County, one near the York River, and one off of Ft. Story), and two were stranded in Maryland near Ocean City (NOAA Fisheries 2015b). All of the whales stranded in Virginia and Maryland had signs of human-caused injury. NOAA's database of mortality and serious injury indicates no human caused serious injuries for humpback whales in the Chesapeake Bay proper between 1999 and 2003. The only reported mortality of a humpback whale during the 1999-2003 time period was at the mouth of the Chesapeake Bay in Virginia as the result of a ship strike. Three other humpback whale mortalities related to ship strikes or entanglement in fishing gear in Virginia waters were reported during the study period. One serious injury to a humpback whale as a result of entanglement in fishing gear occurred near Ocean City, Maryland (Cole
There have been 33 humpback whale strandings recorded in Virginia between 1988 and 2013; 11 had signs of entanglement and 9 had injuries from vessel strikes. Most of these strandings were reported from ocean facing beaches, but 11 were also within the Chesapeake Bay (Barco and Swingle 2014). Strandings occurred in all seasons, but were most common in the spring. In the past 5 years of reported data (2011-2015), there have been five humpback whale strandings in Virginia (Swingle
In winter, whales from the six feeding areas mate and calve primarily in the West Indies where spatial and genetic mixing among these groups occur (Waring
Humpback whales use the mid-Atlantic as a migratory pathway to and from the calving/mating grounds, but it may also be an important winter feeding area for juveniles. Since 1989, observations of juvenile humpbacks in the mid-Atlantic have been increasing during the winter months, peaking from January through March (Swingle
Bottlenose dolphins occur in temperate and tropical oceans throughout the world, ranging in latitudes from 45° N to 45° S (Blaylock 1985). In the western Atlantic Ocean there are two distinct morphotypes of bottlenose dolphins, an offshore type that occurs along the edge of the continental shelf as well as an inshore type. The inshore morphotype can be found along the entire United States coast from New York to the Gulf of Mexico, and typically occurs in waters less than 20 meters deep (NOAA Fisheries 2016a). There is evidence that the inshore bottlenose dolphins may be made up of seven different stock which may be either year-round residents or migratory. Bottlenose dolphins found in Virginia are representative primarily of either the northern migratory coastal stock or southern migratory coastal stock. The northern migratory stock spends the winter along the coast of North Carolina and migrates as far north as Long Island, New York in the summer. They are rarely found north of North Carolina in the winter (NOAA Fisheries 2016a). During October-December, the southern migratory stock occupies waters of southern North Carolina. During January-March, the southern migratory stock appears to move as far south as northern Florida. During April-June, the stock moves north to North Carolina while during July-August, the stock is presumed to occupy coastal waters north of Cape Lookout, North Carolina, to the eastern shore of Virginia. It is possible that these animals also occur inside the Chesapeake Bay and in nearshore coastal waters. There is also evidence that limited numbers of the Northern North Carolina Estuarine System Stock (NNCES) may occur in the Chesapeake Bay in the July-August timeframe.
Bottlenose dolphins are the most abundant marine mammal along the Virginia coast and within the Chesapeake Bay. They are seen annually in Virginia from May through October with around 65 strandings occurring each year (Barco and Swingle 2014). During 2016, 68 bottlenose dolphin strandings were recorded in Virginia (Barco
The inshore variety of bottlenose dolphins often travel in small groups of 2 to 15 individuals. These groups and will travel into bays, estuaries, and rivers to feed, utilizing echolocation to find a variety of prey, including fish, squid, and benthic invertebrates (NOAA Fisheries 2017b).
The harbor porpoise is typically found in colder waters in the northern
Harbor porpoise occur seasonally in the winter and spring in small numbers in mid-Atlantic waters. Strandings occur primarily on ocean facing beaches, but they occasionally travel into the Chesapeake Bay to forage and could occur in the project area (Barco and Swingle 2014). Since 1999, stranding incidents have ranged widely from a high of 40 in 1999 to 2 in 2011, 2012, and 2016 (Barco
Harbor seals occur in arctic and temperate coastal waters throughout the northern hemisphere, including on both the east and west coasts of the United States. On the east coast, harbor seals can be found from the Canadian Arctic down to Georgia (Blaylock 1985). Harbor seals occur year-round in Canada and Maine and seasonally (September-May) from southern New England to New Jersey (NOAA Fisheries 2016d). The range of harbor seals appears to be shifting as they are regularly reported further south than they were historically. In recent years, they have established haul out sites in the Chesapeake Bay including on the portal islands of the CBBT (NOAA Fisheries 2016d, Rees
Harbor seals are the most common seal in Virginia (Barco and Swingle 2014). They can be seen resting on the rocks around the portal islands of the CBBT from December through April. Seal observation surveys conducted at the CBBT recorded 112 harbor seals in the 2014/2015 season and 184 harbor seals during the 2015/2016 season (Rees
The harbor seal is a medium-sized seal, reaching about 2 meters in length. They spend a fair amount of time hauled out on land, often in large groups (Rees
Gray seals occur on both coasts of the Northern Atlantic Ocean and are divided into three major populations (NOAA Fisheries 2016b). The western north Atlantic stock occurs in eastern Canada and the northeastern United States, occasionally as far south as North Carolina. Gray seals inhabit rocky coasts and islands, sandbars, ice shelves and icebergs (NOAA Fisheries 2016b). In the United States, gray seals congregate in the summer to give birth at four established colonies in Massachusetts and Maine (NOAA Fisheries 2016b). From September through May, they disperse and can be abundant as far south as New Jersey. The range of gray seals appears to be shifting as they are regularly being reported further south than they were historically (Rees
Gray seals are uncommon in Virginia and the Chesapeake Bay. Only 15 gray seal strandings were documented in Virginia from 1988 through 2013 (Barco and Swingle 2014). They are rarely found resting on the rocks around the portal islands of the CBBT from December through April alongside harbor seals. Seal observation surveys conducted at the CBBT recorded one gray seal in each of the 2014/2015 and 2015/2016 seasons (Rees
Gray seals are a large seal at around 2-3 meters in length, and can dive to depths of 475 meters to capture prey. Like harbor seals, gray seals spend a fair amount of time hauled out on land to rest, thermoregulate, give birth or avoid predators (Rees
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), with best hearing estimated to be from 100 Hz to 8 kHz;
• Mid-frequency cetaceans (larger toothed whales, beaked whales, and most delphinids): generalized hearing is estimated to occur between approximately 150 Hz and 160 kHz;
• High-frequency cetaceans (porpoises, river dolphins, and members of the genera Kogia and Cephalorhynchus; including two members of the genus Lagenorhynchus, on the basis of recent echolocation data and genetic data): generalized hearing is estimated to occur between approximately 275 Hz and 160 kHz.
• Pinnipeds in water; Phocidae (true seals): generalized hearing is estimated to occur between approximately 50 Hz to 86 kHz;
• Pinnipeds in water; Otariidae (eared seals): generalized hearing is estimated to occur between 60 Hz and 39 kHz.
The pinniped functional hearing group was modified from Southall
For more detail concerning these groups and associated frequency ranges, please see NMFS (2016) for a review of available information. Four marine mammal species (two cetacean and two pinniped (two 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, one is classified as a low-frequency cetacean (
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 by Incidental Harassment” 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 by Incidental Harassment” 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 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 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 and attenuate (decrease) more rapidly in shallower water. Amplitude is the height of the sound pressure wave or the `loudness' of a sound and is typically measured using the 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 micro pascal (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 this 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
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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 through the environment. In turn, sound propagation is dependent on the spatially and temporally varying properties of the water column and sea floor, and is frequency-dependent. As a result of the dependence on a large number of varying factors, ambient sound levels can be expected to vary widely over both coarse and fine spatial and temporal scales. Sound levels at a given frequency and location can vary by 10-20 dB from day to day (Richardson
In-water construction activities associated with the project would include impact pile driving, vibratory pile driving and vibratory pile extraction. The sounds produced by these activities fall into one of two general sound types: Pulsed and non-pulsed (defined in the following paragraphs). The distinction between these two sound types is important
Pulsed sound sources (
Non-pulsed sounds can be tonal, narrowband, or broadband, brief or prolonged, and may be either continuous or non-continuous (ANSI, 1995; NIOSH, 1998). Some of these non-pulsed sounds can be transient signals of short duration but 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
Please refer to the information given previously (
When PTS occurs, there is physical damage to the sound receptors in the ear (
Relationships between TTS and PTS thresholds have not been studied in marine mammals—PTS data exists only for a single harbor seal (Kastak
Marine mammal hearing plays a critical role in communication with conspecifics, and 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 (
Under certain circumstances, marine mammals experiencing significant masking could also be impaired from maximizing their performance fitness in survival and reproduction. Therefore, when the coincident (masking) sound is man-made, it may be considered harassment when disrupting or altering critical behaviors. It is important to distinguish TTS and PTS, which persist after the sound exposure, from masking, which occurs during the sound exposure. Because masking (without resulting in TS) is not associated with abnormal physiological function, it is not considered a physiological effect, but rather a potential behavioral effect.
The frequency range of the potentially masking sound is important in determining any potential behavioral impacts. For example, low-frequency signals may have less effect on high-frequency echolocation sounds produced by odontocetes but are more likely to affect detection of mysticete communication calls and other potentially important natural sounds such as those produced by surf and some prey species. The masking of communication signals by anthropogenic noise may be considered as a reduction in the communication space of animals (
Masking affects both senders and receivers of acoustic signals and can potentially have long-term chronic effects on marine mammals at the population level as well as at the individual level. Low-frequency ambient sound levels have increased by as much as 20 dB (more than three times in terms of SPL) in the world's ocean 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 (
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
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 the response (
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
Neuroendocrine stress responses often involve the hypothalamus-pituitary-adrenal system. Virtually all neuroendocrine 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, altered metabolism, reduced immune competence, and behavioral disturbance (
The primary distinction between stress (which is adaptive and does not normally place an animal at risk) and “distress” is the 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 serious fitness consequences. 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 functions. This state of distress will last until the animal replenishes its energetic reserves sufficient to restore normal function.
Relationships between these physiological mechanisms, animal behavior, and the costs of stress responses are well-studied through controlled experiments and for both laboratory and free-ranging animals (
Airborne noise will primarily be an issue for pinnipeds that are swimming or hauled out near the project site within the range of noise levels elevated above the acoustic criteria. We recognize that pinnipeds in the water could be exposed to airborne sound that may result in behavioral harassment when looking with heads above water. Most likely, airborne sound would cause behavioral responses similar to those discussed above in relation to underwater sound. However, these animals would previously have been “taken” as a result of exposure to underwater sound above the behavioral harassment thresholds, which are in all cases larger than those associated with airborne sound. Thus, the behavioral harassment of these animals is already accounted for in these estimates of potential take. Multiple instances of exposure to sound above NMFS' thresholds for behavioral harassment are not believed to result in increased behavioral disturbance, in either nature or intensity of disturbance reaction.
The most likely impact to fish from pile driving activities at the project area would be temporary behavioral avoidance within an undetermined portion of the affected area. The duration of fish avoidance of this area after pile driving stops is unknown, but a rapid return to normal recruitment, distribution and behavior is anticipated. In general, impacts to marine mammal prey species from the proposed project are expected to be minor and temporary due to the relatively short timeframe of pile driving and extraction.
It is important to note that pile driving and removal activities at the project site will not obstruct movements or migration of marine mammals.
In summary, given the relatively short and intermittent nature of sound associated with individual pile driving and extraction events and the relatively small area that would be affected, pile driving activities associated with the proposed action 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 “small numbers” and the negligible impact determination.
Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
Authorized takes would be by Level B harassment, in the form of disruption of behavioral patterns for individual marine mammals resulting from exposure to acoustic sources including impact and vibratory pile driving equipment. There is also some potential for auditory injury (Level A harassment) to result, due to larger predicted auditory injury zones. The proposed mitigation and monitoring measures are expected to minimize the severity of such taking to the extent practicable.
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).
CTJV's proposed activity includes 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 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:
Although CTJV's construction activity includes the use of impulsive (impact pile driving) and non-impulsive (vibratory pile driving and drilling) sources, the shutdown zones set by the applicant are large enough to ensure Level A harassment will be prevented. To assure the largest shutdown zone can be fully monitored, protected species observers (PSOs) will be positioned in the possible best vantage points during all piling/drilling activities to guarantee a shutdown if marine mammals approach or enter the designated shutdown zone. These measures are described in full detail below in the Proposed Mitigation and Proposed Monitoring and Reporting Sections.
Here, we describe operational and environmental parameters of the activity that will feed into identifying the area ensonified above the acoustic thresholds.
Pile driving will generate underwater noise that potentially could result in disturbance to marine mammals swimming by the project area. Transmission loss (TL) underwater is the decrease in acoustic intensity as an acoustic pressure wave propagates out from a source until the source becomes indistinguishable from ambient sound. TL parameters vary with frequency, temperature, sea conditions, current, source and receiver depth, water depth, water chemistry, and bottom composition and topography. A standard sound propagation model, the Practical Spreading Loss model, was used to estimate the range from pile driving activity to various expected SPLs at potential project structures. This model follows a geometric propagation loss based on the distance from the driven pile, resulting in a 4.5 dB reduction in level for each doubling of distance from the source. In this model, the SPL at some distance away from the source (
The degree to which underwater noise propagates away from a noise source is dependent on a variety of factors, most notably by the water bathymetry and presence or absence of reflective or absorptive conditions including the sea surface and sediment type. The TL model described above was used to calculate the expected noise propagation from both impact and vibratory pile driving, using representative source levels to estimate the harassment zone or area exceeding specified noise criteria.
Sound source levels from the PTST project site were not available. Therefore, literature values published for projects similar to the PTST project were used to estimate the amount of sound (RMS SPL) that could potentially be produced. The PTST Project will use round, 36-inch-diameter, hollow steel piles and 28-inch wide sheet piles. Data reported in the Compendium of Pile Driving Sound Data (Caltrans 2015) for similar piles size and types are shown in Table 4. The use of an encased bubble curtain is expected to reduce sound levels by 10 dB (NAVFAC 2014, ICF Jones and Stokes 2009). Using data from previous projects (Caltrans 2015) and the amount of sound reduction expected from each of the sound mitigation methods, we estimated the peak noise level (SPLpeak), the root mean squared sound pressure level (RMS SPL), and the single strike sound exposure level (sSEL) for each pile driving scenario of the PTST project (Table 4).
When NMFS's 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, NMFS's User Spreadsheet predicts the closest distance at which, if a marine mammal remained at that distance the whole duration of the activity, it would not incur PTS. Inputs used in the User Spreadsheet, and the resulting isopleths are reported below.
The Impact Pile Driving (Stationary Source: Impulsive, Intermittent) (Sheet E.1) spreadsheet provided by NOAA Fisheries requires inputs for assorted variables which are shown in Table 4. RMS SPL's for simultaneous pile driving were determined using the rules for dB addition (WSDOT 2017). The expected number of steel piles driven during a 24-hour period would be a maximum of eight for plumb piles and three for battered piles for each portal island. Practical spreading was assumed (15logR) and a pulse duration of 0.1 seconds utilized. The distance from the source where the literature based RMS SPL was 10 meters while the number of strikes per pile was 1,000. Model outputs delineating PTS isopleths are provided in Table 6 assuming impact installation of three battered round steel piles per day and eight plumb round steel piles per day as well as vibratory installation of up to eight sheets per day over eight hours.
The Optional User Spreadsheet for vibratory pile driving (non-impulsive, stationary, continuous) (Sheet A) requires inputs for the sound pressure level of the source (dB RMS SPL), the expected activity duration in hours during per 24-hour period, the propagation of the sound and the distance from the source at which the sound pressure level was measured. Calculations also assumed that the expected activity level duration would be eight hours per Portal Island per 24-hour period. Practical spreading was assumed and the measured distance from the sound source was 10 meters.
The inputs from Table 5 determined isopleths where PTS from underwater sound during impact and vibratory driving as shown in Table 6.
Table 7 shows the radial distance to Level B isopleths and Table 8 shows the areas of ensonified Level B zones associated with each of the planned driving scenarios.
To calculate level B disturbance zones for airborne noise from pile driving, the spherical spreading loss equation (20LogR) was used to determine the Level B zones. The airborne noise threshold for behavioral harassment for all pinnipeds, except harbor seals, is 100 dB RMS re 20 µPa (unweighted) and for harbor seals is 90 dB RMS re 20 µPa (unweighted).
Literature estimates were used to estimate the amount of in-air sound produced from driving a pile above the MHW line (Laughlin 2010a,b). Hollow steel piles that were 30 inches in diameter were used as a close proxy to the 36-inch-diameter hollow steel piles that will be driven at the PTST project. AZ 24-inch sheet pile was used as a proxy for the sheet pile to be driven during the PTST Project (Table 9). Using the spherical spreading loss model with these estimates, Level B isopleths were estimated as shown below in Table 9. Note that the take estimates for pinnipeds were based on surveys which included counts of hauled out animals. Therefore, to avoid double counting, airborne exposures are not evaluated further for purposes of estimating take under the proposed IHA. During any upland pile driving before issuance of the IHA, however, shutdown will occur whenever pinnipeds enter into the Level B zones as depicted below to avoid unauthorized take.
In this section we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculations.
Humpback whales are relatively rare in the Chesapeake Bay but may be found within or near the Chesapeake Bay at any time of the year. Between 1998 and 2014, 11 humpback whale stranding were reported within the Chesapeake Bay (Barco and Swingle 2014). Strandings occurred in all seasons, but were most common in the spring. There is no existing density data for this species within or near the Chesapeake Bay. Populations in the mid-Atlantic have been estimated for humpback whales off the coast of New Jersey with a density of 0.000130 per square kilometer (Whitt
Bottlenose dolphins are abundant along the Virginia coast and within the Chesapeake Bay and can be seen seen annually in Virginia from May through October. Approximately 65 strandings are reported each year (Barco and Swingle 2014). Stranded bottlenose dolphins have been recorded as far north as the Potomac River in the Chesapeake Bay (Blaylock 1985). A 2016 Navy report on the occurrence, distribution, and density of marine mammals near Naval Station Norfolk and Virginia Beach, Virginia provides seasonal densities of bottlenose dolphins for inshore areas in the vicinity of the project area (Engelhaupt
There is little data on the occurrence of harbor porpoises in the Chesapeake Bay. Harbor porpoises are the second most common marine mammal to strand in Virginia waters with 58 reported strandings between 2007 through 2016. Unlike bottlenose dolphins, harbor porpoises are found in Virginia in the cooler months, primarily late winter and early spring, and they strand primarily on ocean facing beaches (Barco
Harbor seals are the most common seal in Virginia (Barco and Swingle 2014). They can be seen resting on the rocks around the portal islands of the CBBT from December through April. They are unlikely to occur in the project area in the summer and early fall. Survey data for in-water and hauled out harbor seals was collected by the United States Navy at the CBBT portal islands from 2014 through 2016 (Rees
Gray seals are uncommon in Virginia and the Chesapeake Bay with only 15 gray seal strandings documented in Virginia from 1988-2013 (Barco and Swingle 2014). They are rarely found resting on the rocks around the portal islands of the CBBT from December through April alongside harbor seals. Observation surveys conducted by the Navy at the CBBT portal islands recorded one gray seal in each of the 2014/2015 and 2015/2016 seasons (Rees
Here we describe how the information provided above is brought together to produce a quantitative take estimate.
The following assumptions are made when estimating potential incidences of take:
• All marine mammal individuals potentially available are assumed to be present within the relevant area, and thus incidentally taken;
• An individual can only be taken once during a 24-h period;
• Exposures to sound levels at or above the relevant thresholds equate to take, as defined by the MMPA.
As noted previously, humpback whales are rare in the Chesapeake Bay, although they do occur. Density off of the coast of New Jersey, and presumably Virginia and Maryland, is extremely low (0.00013 animals/km
Total number of takes for bottlenose dolphin were calculated using the seasonal density described above (individuals/km
Little is known about the abundance of arbor porpoises in the Chesapeake Bay. A recent survey of the Maryland Wind Energy Area found that porpoises occur frequently offshore January to May (Wingfield
The number of harbor seals expected to be present in the PTST project area was estimated using survey data for in-water and hauled out seals collected by the United States Navy at the portal islands from 2014 through 2016 (Rees
The number of gray seals potentially exposed to Level B harassment in the project area was calculated using the same methodology was used to estimate harbor seal exposures. Survey data recording gray seal observations was collected by the U.S. Navy at the portal islands from 2014 through 2016 (Rees
Table 14 provides a summary of proposed authorized Level B takes as well as the percentage of a stock or population proposed for take.
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
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.
The following mitigation measures are proposed in the IHA:
•
•
•
•
•
•
•
• CTJV will establish a shutdown zone of 200 meters for common dolphins and harbor porpoises and 50 meters for harbor and gray seals. The shutdown zones for humpback whales are depicted in Table 16.
• For all impact and vibratory pile driving shutdown and monitoring zones will be established and monitored. Level B zones are shown in Table 15.
• The Level A zones will depend on the number of piles driven and the presence of marine mammals per 24-hour period. Up to 3 battered piles or 8 plumb steel piles will be driven per 24-hour period using the following adaptive monitoring approach. Monitoring will begin each day using the three-pile Level A zone for battered piles (or eight-pile zone for plumb piles). If after the first pile is driven, no marine mammals have been observed in the Level A zone, then the Level A zone will reduce to the two-pile zone. If no marine mammals are observed within the two-pile shutdown zone during the driving of the second pile, then the Level A zone will reduce to the one-pile zone. However, if a mammal is observed approaching or entering the three-pile Level A zone during the driving of the first pile, then the three-pile Level A zone will be monitored for the remainder of pile driving activities for that day. Likewise, if a marine mammal is observed within the two-pile but not the three-pile Level A zone, then the two-pile Level A zone will be monitored for the remainder of pile driving activities for that day. The same protocol will be followed for installation of up to 8 plumb piles per day.
The Level A isopleths for all authorized species are shown in Table 16. Isopeths associated with low-frequency cetaceans will signify shutdown zones.for humpback and fin whales.
Based on our evaluation of the applicant's proposed measures, as well as other measures considered by NMFS, 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 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.
The following visual monitoring measures are proposed in the IHA:
• Pre-activity monitoring shall take place from 30 minutes prior to initiation of pile driving activity and post-activity monitoring shall continue through 30 minutes post-completion of pile driving activity. Pile driving may commence at the end of the 30-minute pre-activity monitoring period, provided observers have determined that the shutdown zone is clear of marine mammals, which includes delaying start of pile driving activities if a marine mammal is sighted in the zone.
• If a marine mammal approaches or enters the shutdown zone during activities or pre-activity monitoring, all pile driving activities at that location shall be halted or delayed, respectively. If pile driving is halted or delayed due to the presence of a marine mammal, the activity may not resume or commence until either the animal has voluntarily left and been visually confirmed beyond the shutdown zone and 15 minutes have passed without re-detection of the animal. Pile driving activities include the time to install or remove a single pile or series of piles, as long as the time elapsed between uses of the pile driving equipment is no more than thirty minutes.
• Monitoring distances, in accordance with the identified shutdown zones, Level A zones and Level B zones, will be determined by using a range finder, scope, hand-held global positioning system (GPS) device or landmarks with known distances from the monitoring positions.
• Monitoring locations will be based on land both at Portal Island No. 1 and Portal Island No. 2 during simultaneous driving. During non-simultaneous a single monitoring location will be identified on the Portal Island with pile driving activity.
• Monitoring will be continuous unless the contractor takes a break longer than 2 hours from active pile and sheet pile driving, in which case, monitoring will be required 30 minutes prior to restarting pile installation.
• If marine mammals are observed, their location within the zones, and their reaction (if any) to pile activities will be documented.
• If weather or sea conditions restrict the observer's ability to observe, or become unsafe, pile installation will be suspended until conditions allow for monitoring to resume.
• For in-water pile driving, under conditions of fog or poor visibility that might obscure the presence of a marine mammal within the shutdown zone, the pile in progress will be completed and then pile driving suspended until visibility conditions improve.
• Monitoring of pile driving shall be conducted by qualified PSOs (see below), who shall have no other assigned tasks during monitoring periods. CVTJV shall adhere to the following conditions when selecting observers:
(1) Independent PSOs shall be used (
(2) At least one PSO must have prior experience working as a marine mammal observer during construction activities.
(3) Other PSOs may substitute education (degree in biological science or related field) or training for experience.
(4) CTJV shall submit PSO CVs for approval by NMFS.
• CTJV will ensure that observers have the following additional qualifications:
(1) Ability to conduct field observations and collect data according to assigned protocols.
(2) Experience or training in the field identification of marine mammals, including the identification of behaviors.
(3) Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations.
(4) Writing skills sufficient to prepare a report of observations including but not limited to the number and species of marine mammals observed; dates and times when in-water construction activities were conducted; dates, times, and reason for implementation of mitigation (or why mitigation was not implemented when required); and marine mammal behavior.
(5) Ability to communicate orally, by radio or in person, with project personnel to provide real-time information on marine mammals observed in the area as necessary.
A draft marine mammal monitoring report would be submitted to NMFS within 90 days after the completion of pile driving and removal activities. It will include an overall description of work completed, a narrative regarding marine mammal sightings, and associated marine mammal observation data sheets. Specifically, the report must include:
• Date and time that monitored activity begins or ends;
• Construction activities occurring during each observation period;
• Deviation from initial proposal in pile numbers, pile types, average driving times, etc.
• Weather parameters (
• Water conditions (
• For each marine mammal sighting:
(1) Species, numbers, and, if possible, sex and age class of marine mammals;
(2) Description of any observable marine mammal behavior patterns, including bearing and direction of travel and distance from pile driving activity;
(3) Location and distance from pile driving activities to marine mammals and distance from the marine mammals to the observation point;
(4) Estimated amount of time that the animals remained in the Level A Level B zone.
• Description of implementation of mitigation measures within each monitoring period (
• Other human activity in the area.
• A summary of the following:
(1) Total number of individuals of each species detected within the Level A and Level B Zone, and estimated as taken if correction factor is applied.
(2) Daily average number of individuals of each species (differentiated by month as appropriate) detected within the Level A and Level B Zone, and estimated as taken, if correction factor is applied.
If no comments are received from NMFS within 30 days, the draft final report will constitute the final report. If comments are received, a final report addressing NMFS comments must be submitted within 30 days after receipt of comments.
In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by the IHA (if issued), such as an injury, serious injury or mortality, CTJV would immediately cease the specified activities and report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, and the New England/Mid-Atlantic Regional Stranding Coordinator. The report would include the following information:
• Description of the incident;
• Environmental conditions (
• Description of all marine mammal observations in the 24 hours preceding the incident;
• Species identification or description of the animal(s) involved;
• Fate of the animal(s); and
• Photographs or video footage of the animal(s) (if equipment is available).
Activities would not resume until NMFS is able to review the circumstances of the prohibited take. NMFS would work with CTJV to determine what is necessary to
In the event that CTJV discovers an injured or dead marine mammal, and the lead PSO determines that the cause of the injury or death is unknown and the death is relatively recent (
In the event that CTJV 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 (
CTJV's planned pile driving activities are highly localized. Only a relatively small portion of the Chesapeake Bay may be affected. The project is not expected to have significant adverse effects on marine mammal habitat. No important feeding and/or reproductive areas for marine mammals are known to be near the project area. Project-related activities may cause some fish to leave the area of disturbance, thus temporarily impacting marine mammals' foraging opportunities in a limited portion of their foraging range, but because of the relatively small impacted area of the habitat range utilized by each species that may be affected, the impacts to marine mammal habitat are not expected to cause significant or long-term negative consequences.
A limited number of animals could experience Level A harassment in the form of PTS if they remain within the Level A harassment zone during certain impact driving scenarios. The sizes of the Level A zones are dependent on the number of steel piles driven in a 24-hour period. Up to 8 steel plumb piles or 3 steel battered piles could be driven in a single day, which would result in a relatively large Level A zones. (If fewer piles are driven per day then the Level A zones would be smaller) . However, an animal would have to be within the Level A zones during the driving of all 8 plumb or 3 battered piles. This is unlikely, as marine mammals tend to move away from sound sources. Furthermore, the degree of injury is expected to be mild and is not likely to affect the reproduction or survival of the individual animals. It is expected that, if hearing impairments occurs, most likely the affected animal would lose a few dB in its hearing sensitivity, which in most cases is not likely to affect its survival and recruitment.
Exposures to elevated sound levels produced during pile driving activities may cause behavioral responses by an animal, but they are expected to be mild and temporary. Effects on individuals that are taken by Level B harassment, on the basis of reports in the literature as well as monitoring from other similar activities, will likely be limited to reactions such as increased swimming speeds, increased surfacing time, or decreased foraging (if such activity were occurring) (
CTJV will employ noise attenuating devices (
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 serious injury or mortality is anticipated;
• The area of potential impacts is highly localized;
• No adverse impacts to marine mammal habitat;
• The absence of any significant habitat within the project area, including rookeries, or known areas or features of special significance for foraging or reproduction;
• Anticipated incidents of Level A harassment would likely be mild;
• Anticipated incidents of Level B harassment consist of, at worst, temporary modifications in behavior; and
• The anticipated efficacy of the required mitigation measures in reducing the effects of the specified activity.
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.
NMFS has preliminary determined that the estimated Level B take of humpback whale is 0.61 percent of the Gulf of Maine stock ; take of harbor seals is 10 percent of the Western North Atlantic stock; and take of gray seals is <0.01 percent of the Western North Atlantic stock. Estimated take of bottlenose dolphins (3,708), with 100 takes accruing to the NNCES stock and no more than half (1,804) of the remaining takes accruing to either of two migratory coastal stocks represents 12 percent of the NCCES stock (population 823), 16 percent of the Western North Atlantic northern migratory coastal stock (pop. 11,548) and 20 percent of the Western North Atlantic southern migratory coastal stock (pop. 9,173). Additionally, some number of the anticipated takes are likely to be repeat sightings of the same individual, lowering the number of
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 CTJV for conducting pile driving and removal activities as part of the PTST project between June 1, 2018 and March 31, 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).
1. This Incidental Harassment Authorization (IHA) is valid from June 1, 2018 through May 31, 2019. This IHA is valid only for pile driving and extraction activities associated with the PTST project.
2. General Conditions.
(a) A copy of this IHA must be in the possession of CTJV, its designees, and work crew personnel operating under the authority of this IHA.
(b) The species authorized for taking are of harbor seal (
(c) The taking, by Level A and Level B harassment, is limited to the species listed in condition 2(b). See Table 14 for number of takes authorized.
(d) The take of any other species not listed in condition 2(b) of marine mammal is prohibited and may result in the modification, suspension, or revocation of this IHA.
(e) CTJV shall conduct briefings between construction supervisors and crews, marine mammal monitoring team, acoustical monitoring team prior to the start of all pile driving activities, and when new personnel join the work, in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures.
3. Mitigation Measures.
The holder of this Authorization is required to implement the following mitigation measures:
(a) Time Restrictions—For all in-water pile driving activities, CTJV shall operate only during daylight hours.
(b) Use of Bubble Curtain.
(i) CTJV shall employ an encased bubble curtain during impact pile driving of plumb steel piles in water depths greater than 3 m (10 ft).
(c) Use of Soft-Start.—CTJV shall use soft start techniques when impact pile driving. Soft start requires contractors to provide an initial set of strikes at reduced energy, followed by a thirty-second waiting period, then two subsequent reduced energy strike sets. Soft start shall be implemented at the start of each day's impact pile driving and at any time following cessation of impact pile driving for a period of thirty minutes or longer.
(d) Use of cushion blocks shall be required during impact installation.
(e) Establishment of Shutdown Zones.
(i) CTJV shall establish a shutdown zone of 200 meters harbor porpoise and common dolphin.
(ii) CTJV shall establish a shutdown zone of 50 meters for harbor seals.
(iii) CTJV shall establish shutdown zones for large whales (
(iv) If a marine mammal comes within or approaches the shutdown zone, pile driving operations shall cease.
(v) Pile driving and removal operations shall restart once the marine mammal is visibly seen leaving the zone or after 15 minutes have passed with no sightings.
(vi) For in-water heavy machinery work (using,
(vii) Shutdown shall occur if a species for which authorization has not been granted or for which the authorized numbers of takes have been met approaches or is observed within the pertinent take zone.
(viii) If a marine mammal approaches or enters the shutdown zone during activities or pre-activity monitoring, all pile driving activities at that location shall be halted or delayed, respectively. If pile driving is halted or delayed due to the presence of a marine mammal, the activity may not resume or commence until either the animal has voluntarily left and been visually confirmed beyond the shutdown zone and 15 minutes have passed without re-detection of the animal. Pile driving activities include the time to install or remove a single pile or series of piles, as long as the time elapsed between uses of the pile driving equipment is no more than thirty minutes.
(ix) If a species for which authorization has not been granted, or a species for which authorization has been granted but the authorized takes are met, is observed approaching or within the designated Level B Isopleth pile driving and removal activities must shut down immediately using delay and shut-down procedures. Activities must not resume until the animal has been confirmed to have left the area or the observation time period, as indicated in 3(e)(v) above, has elapsed.
(f) Establishment of Level A and Level B Harassment Zones.
(i) CTJV shall establish and monitor a level B zone according to values depicted in Table 15 during all driving activities.
(ii) CTJV shall use an adaptive approach to establish Level A zones during impact pile driving.
(1) The number of plumb piles planned for a given day determines initial Level A zone size as shown in Table 16.
(2) If after the first pile is driven, no marine mammals have been observed in the Level A zone, then the Level A zone shall be reduced to the Level A zone associated with the next lowest number of piles driven per day. If no marine mammals are observed within that zone, the Level A zone shall again be reduced to the next lowest number of piles per day. This trend shall continue until an animal is seen approaching or entering a specified shutdown zone.
(3) If Level A take does occur, the Level A zone size in effect during the initial Level A take shall remain in place for the remainder of the day.
(4) Pile driving activities shall not be conducted when weather/observer conditions do not allow for adequate sighting of marine mammals within the monitoring zone (
(5) In the event of conditions that prevent the visual detection of marine mammals, impact pile driving shall be curtailed, but pile in progress shall be completed and then pile driving suspended until visibility conditions improve.
4. Monitoring
The holder of this Authorization is required to conduct visual marine mammal monitoring during pile driving activities.
(a) Visual Marine Mammal Observation—CTJV shall collect sighting data and behavioral responses to pile driving for marine mammal species observed in the region of activity during the period of activity. Visual monitoring shall include the following:
(i) Pre-activity monitoring shall take place from 30 minutes prior to initiation of pile driving activity and post-activity monitoring shall continue through 30 minutes post-completion of pile driving activity. Pile driving may commence at the end of the 30-minute pre-activity monitoring period, provided observers have determined that the shutdown zone is clear of marine mammals, which includes delaying start of pile driving activities if a marine mammal is sighted in the zone.
(ii) Protected Species Observers (PSOs) shall be positioned at the best practicable vantage points, taking into consideration security, safety, and space limitations. The PSOs shall be stationed in a location that shall provide adequate visual coverage for the shutdown zone and monitoring zones.
(iii) Monitoring locations shall be based on land both at Portal Island No. 1 and Portal Island No. 2 during simultaneous driving. During non-simultaneous driving a single monitoring location shall be identified on the Portal Island with pile driving activity.
(iv) Monitoring distances, in accordance with the identified shutdown zones, Level A zones and Level B zones, shall be determined by using a range finder, scope, hand-held global positioning system (GPS) device or landmarks with known distances from the monitoring positions
(v) CTJV shall adhere to the following observer qualifications:
(1) Independent PSOs shall be used (
(2) At least one PSO must have prior experience working as a marine mammal observer during construction activities.
(3) Other PSOs may substitute education (degree in biological science or related field) or training for experience.
(4) CTJV shall submit PSO CVs for approval by NMFS.
(vi) CTJV shall ensure that observers have the following additional qualifications:
(1) Ability to conduct field observations and collect data according to assigned protocols.
(2) Experience or training in the field identification of marine mammals, including the identification of behaviors.
(3) Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations.
(4) Writing skills sufficient to prepare a report of observations including but not limited to the number and species of marine mammals observed; dates and times when in-water construction activities were conducted; dates, times, and reason for implementation of mitigation (or why mitigation was not implemented when required); and marine mammal behavior.
(5) Ability to communicate orally, by radio or in person, with project personnel to provide real-time information on marine mammals observed in the area as necessary.
5. Reporting
(a) A draft marine mammal monitoring report shall be submitted to NMFS within 90 days after the completion of pile driving and removal activities or a minimum of 60 days prior to any subsequent IHAs. A final report shall be prepared and submitted to the
(b) The report shall include an overall description of work completed, a narrative regarding marine mammal sightings, and associated marine mammal observation data sheets. Specifically, the report must include:
(i) Date and time that monitored activity begins or ends;
(ii) Construction activities occurring during each observation period;
(iii) Weather parameters (
(iv) Water conditions (
(v) Total number of individuals of each species detected within the Level A and Level B Zone, and estimated taken if a correction factor is used;
(vi) Daily average number of individuals of each species (differentiated by month as appropriate) detected within the Level A and Level B Zone, and estimated as taken if correction factor is used;
(vii) Each marine mammal sighting shall include the following:
(1) Species, numbers, and, if possible, sex and age class of marine mammals;
(2) Description of any observable marine mammal behavior patterns, including bearing and direction of travel and distance from pile driving activity;
(3) Location and distance from pile driving activities to marine mammals and distance from the marine mammals to the observation point;
(4) Estimated amount of time that the animals remained in the Level A and/or Level B zone;
(5) Description of implementation of mitigation measures within each monitoring period (
(6) Other human activity in the area.
(c) In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by the IHA (if issued), such as an injury, serious injury or mortality, CTJV would immediately cease the specified activities and report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, and the New England/Mid-Atlantic Regional Stranding Coordinator. The report would include the following information:
(i) Description of the incident;
(ii) Environmental conditions (
(iii) Description of all marine mammal observations in the 24 hours preceding the incident;
(iv) Species identification or description of the animal(s) involved;
(v) Fate of the animal(s); and
(vi) Photographs or video footage of the animal(s) (if equipment is available).
Activities would not resume until NMFS is able to review the circumstances of the prohibited take. NMFS would work with CTJV to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. CTJV would not be able to resume their activities until notified by NMFS via letter, email, or telephone.
(d) In the event that CTJV 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 (
(e) In the event that CTJV 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 (
6. 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 PTST 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; proposed incidental harassment authorization; request for comments.
NMFS has received a request from Chevron for authorization to take marine mammals incidental to incidental to pile driving and removal associated with the Long Wharf Maintenance and Efficiency Project (WMEP) in San Francisco Bay, California. 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 May 30, 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
Rob Pauline, 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 Categorical Exclusion B4 (incidental harassment authorizations with no anticipated serious injury or mortality) 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 February 1, 2018, NMFS received a request from Chevron for an IHA to take marine mammals incidental to pile driving and pile removal associated with the WMEP in San Francisco Bay, California. Chevron's request is for take of seven species by Level B and Level A harassment. Neither Chevron nor NMFS expects serious injury or mortality to result from this activity and, therefore, an IHA is appropriate.
NMFS previously issued an IHA to Chevron for similar work (82 FR 27240; June 17, 2017). However, the construction schedule and scope was revised and no work was conducted under that IHA. The revised schedule includes the use of piles that were not planned for use under the existing IHA. Therefore, a new IHA is required. This proposed IHA would cover one year of a larger project for which Chevron intends to request additional take authorizations for subsequent facets of the project.
Chevron's Richmond Refinery Long Wharf (Long Wharf) located in San Francisco Bay, is the largest marine oil terminal in California. The Long Wharf has existed in its current location since
Impact and vibratory pile driving and removal will be employed during the proposed construction project. These actions could produce underwater sound at levels that could result in the injury or behavioral harassment of marine mammal species. Underwater construction activities would occur between June 1, 2018 and November 30, 2018.
Construction activities would start in 2018, and be complete by the fourth quarter 2022. Pile driving activities would be timed to occur within the standard NMFS work windows for Endangered Species Act (ESA)-listed fish species (June 1 through November 30) over multiple years. An estimated 28 days of pile driving activity are planned for 2018. Additional work in the future will require subsequent IHAs. The IHA would be effective from June 1, 2018 through May 31, 2019.
The Long Wharf is located in San Francisco Bay (the Bay) just south of the eastern terminus of the Richmond-San Rafael Bridge (RSRB) in Contra Costa County. The wharf is located in the northern portion of the central bay, which is generally defined as the area between the RSRB, Golden Gate Bridge, and San Francisco-Oakland Bay Bridge (SFOBB).
The proposed project would involve modifications at four berths (Berths 1, 2, 3, and 4). Modifications to the Long Wharf include replacing gangways and cranes, adding new mooring hooks and standoff fenders, adding new dolphins and catwalks, and modifying the fire water system at Berths 1, 2, 3 and/or 4, as well as the seismic retrofit to the Berth 4 loading platform. The type and numbers of piles to be installed, as well as those that will be removed during the 2018-2022 period are summarized in Table 1. This work would be covered under multiple IHAs.
The combined modifications to Berths 1 to 4 would require the installation of 141 new concrete piles to support new and replacement equipment and their associated structures. The Berth 4 loading platform would add eight, 60-inch diameter steel piles as part of the seismic retrofit. The project would also add four clusters of 13 composite piles each (52 total) as markers and protection of the new batter (driven at an angle) piles on the east side of the Berth 4 retrofit. The project would remove 106 existing timber piles, two existing 18‐inch and two existing 24‐inch concrete piles. A total of 12 temporary piles would also be installed and removed during the seismic retrofit of Berth 4.
Completion of the modifications will require cutting holes in the concrete decking of the Wharf to allow piles to be driven. The removal of structures and portion of concrete decking may involve the use of jackhammers to break up concrete, torches to cut metal, and various cutting and grinding power tools. This work will occur at various times throughout the construction schedule. When there is potential for construction debris to fall into the water below the Wharf, temporary work platforms will be used to capture debris. A typical debris catchment system that has been previously used at the Wharf consists of a platform suspended beneath the deck or in some cases a smaller platform immediately below the work area, and a second larger platform beneath that. Debris that falls on the platform is collected and disposed of in an appropriate manner.
Planned modifications at Berth 1 include replacing a gangway to accommodate barges and add a new raised fire monitor; constructing a new 24foot (ft) x 20ft mooring dolphin and hook to accommodate barges and; constructing a new 24ft x 25ft breasting dolphin and 13ft x 26ft breasting point with standoff fenders to accommodate barges. The new breasting dolphin will require removal of an existing catwalk and two piles and replacing with a new catwalk at a slightly different location, and adding a short catwalk to provide access to the breasting dolphin. A portion of the existing gangway will be removed. The remaining portion is used for other existing services located on its structure. Much of this work will be above the water or on the Wharf deck. The mooring dolphin and hook, breasting dolphin, and new gangway will require installation of 42 new 24-inch square concrete piles using impact driving methods.
Planned modifications at Berth 2 include installing a new gangway to replace portable gangway and add a new elevated fire monitor; replacing one bollard with a new hook; installing four new standoff fenders (to replace timber fender pile system); replacing existing auxiliary and hose cranes and vapor recovery crane to accommodate the new standoff fenders, and; removing the
Three (3) existing brace piles (22-inch square concrete jacketed timber piles) would be removed by cutting below the mud line if possible. These modifications will require the installation of 51 new 24-inch square concrete piles, using impact driving methods, to support the gangway, standoff fenders, hose crane, and auxiliary crane. To keep Berth 2 operational during construction, four temporary “Yokohama” fenders will be installed, supported by 36 temporary 14-inch H-piles driven using vibratory methods. It is expected that the H-piles would largely sink under their own weight and would require very little driving. The H-piles and temporary fenders will be removed once the permanent standoff fenders are complete. The auxiliary and hose cranes are being replaced with cranes with longer reach to accommodate the additional distance of the new standoff fenders. The new vapor recovery crane would be mounted on an existing pedestal and not require in‐water work.
Planned modifications at Berth 3 include installing new fixed gangway to replace portable gangway and add a new raised fire monitor. The gangway would be supported by four, 24-inch square concrete piles. This would be the only in-water work for modifications at Berth 3.
Planned modifications at Berth 4 include installing two new 36ft x 20ft dolphins with standoff fenders (two per dolphin) and two catwalks as well as seismically retrofitting the Berth 4 loading platform including bolstering and relocation of piping and electrical facilities. The new fenders would add 44 new 24-inch square concrete piles. The seismic retrofit would structurally stiffen the Berth 4 Loading Platform under seismic loads. This will require cutting holes in the concrete decking and driving eight, 60-inch diameter hollow steel batter (angled) piles, using impact pile driving. To accommodate the new retrofit, an existing sump will be replaced with a new sump and two, 24-inch square concrete piles will be removed or cut to the mudline. To drive the 60-inch batter piles, eight temporary steel piles, 36 inches in diameter, will be needed to support templates for the batter piles during driving. Two templates are required, each 24ft by 4ft and supported by up to four 36-inch steel pipe piles. The templates will be above water.
The proposed project would also add 4 clusters of 13 composite piles each (52 total composite piles) as markers and protection of the new batter piles on the east side of the retrofit.
Note that the proposed IHA will only cover pile driving and removal that will occur during the 2018 work season, as provided in Table 2.
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 the Bay near the project 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 (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. Pacific Marine Mammal Stock Assessments: 2016 (Carretta
All species that could potentially occur in the proposed survey areas are included in Table 3. However, the temporal and/or spatial occurrence of humpback whales and Steller sea lions is such that take is not expected to occur, and they are not discussed further beyond the explanation provided here.
Although 35 species of marine mammals can be found off the coast of California, few species venture into San Francisco Bay, and only Pacific harbor seals, California sea lions, and harbor porpoises, make the Bay a permanent home. Small numbers of gray whales are regularly sighted in the Bay during their yearly migration, though most sightings tend to occur in the Central Bay near the Golden Gate Bridge. Bottlenose dolphins may also occasionally occur within San Francisco Bay.
Humpback whales are rare, though well-publicized, visitors to the interior of San Francisco Bay. A humpback whale journeyed through the Bay and up the Sacramento River in 1985 and re-entered the Bay in the fall of 1990, stranding on mudflats near Candlestick Park (Fimrite 2005). In May 2007, a humpback whale mother and calf spent just over two weeks in San Francisco Bay and the Sacramento River before finding their way back out to sea. Although it is possible that a humpback whale will enter the Bay and find its way into the project area during construction activities, their occurrence is unlikely. Similarly, the Steller sea lions are rare visitors to San Francisco Bay and is not expected to occur in the project area during construction. As a result, this species is not considered further.
The Pacific harbor seal is one of five subspecies of
The haulout sites at Mowry Slough (~55 kilometers (km) distant from project site), in the South Bay, Corte Madera Marsh (~8 km distant) and Castro Rocks (~650 m distant), in the northern portion of the Central Bay, and Yerba Buena Island (~12 km distant) in the Central Bay, support the largest concentrations of harbor seals within the San Francisco Bay. The California Department of Transportation (Caltrans) conducted marine mammal surveys before and during seismic retrofit work
Although births of harbor seals have not been observed at Corte Madera Marsh and Yerba Buena Island, a few pups have been seen at these sites. The main pupping areas in the San Francisco Bay are at Mowry Slough and Castro Rocks (Caltrans 2012). Seals haul out year-round on Castro Rocks during medium to low tides; few low tide sites are available within San Francisco Bay. The seals at Castro Rocks are habituated, to a degree, to some sources of human disturbance such as large tanker traffic and the noise from vehicle traffic on the bridge, but often flush into the water when small boats maneuver close by or when people work on the bridge (Kopec and Harvey 1995). Long-term monitoring studies have been conducted at the largest harbor seal colonies in Point Reyes National Seashore (~45 km west of the project site on Pacific coast) and Golden Gate National Recreation Area (~15 km southwest of the project site) since 1976. Castro Rocks and other haul-outs in San Francisco Bay are part of the regional survey area for this study and have been included in annual survey efforts. Between 2007 and 2012, the average number of adults observed at Castro Rocks ranged from 126 to 166 during the breeding season (March through May) and from 92 to 129 during the molting season (June through July) (Truchinski
The California sea lion belongs to the family Otariidae or “eared seals,” referring to the external ear flaps not shared by other pinniped families. While California sea lions forage and conduct many activities within the water, they also use haulouts. California sea lions breed in Southern California and along the Channel Islands during the spring.
In the Bay, sea lions haul out primarily on floating docks at Pier 39 in the Fisherman's Wharf area of the San Francisco Marina, approximately 12.5 km southwest of the project site. The California sea lions usually arrive at Pier 39 in August after returning from the Channel Islands (Caltrans 2013). In addition to the Pier 39 haulout, California sea lions haulout on buoys and similar structures throughout the Bay. They are seen swimming off mainly the San Francisco and Marin County shorelines within the Bay but may occasionally enter the project area to forage. Over the monitoring period for the RSRB, monitors sighted California sea lions on 90 occasions in the northern portion of the Central Bay and at least 57 times in the Central Bay. No pupping activity has been observed at this site or at other locations within the San Francisco Bay (Caltrans 2012).
Although there is little information regarding the foraging behavior of the California sea lion in the San Francisco Bay, they have been observed foraging on a regular basis in the shipping channel south of Yerba Buena Island. Because California sea lions forage over a wide range in San Francisco Bay, it is possible that a limited number of individuals would be incidentally harassed during construction.
The harbor porpoise is a member of the Phocoenidae family. They generally occur in groups of two to five individuals, and are considered to be shy, relatively nonsocial animals.
In prior years, harbor porpoises were observed primarily outside of San Francisco Bay. The few harbor porpoises that entered did not venture far into the Bay. No harbor porpoises were observed during marine mammal monitoring conducted before and during seismic retrofit work on the RSRB. In recent years, there have been increasingly common observations of harbor porpoises within San Francisco Bay. According to observations by the Golden Gate Cetacean Research team, as part of their multi-year assessment, approximately 650 harbor porpoises have been observed in the San Francisco Bay, and up to 100 may occur on a single day (Golden Gate Cetacean Research 2017). In San Francisco Bay, harbor porpoises are concentrated in the vicinity of the Golden Gate Bridge (approximately 12 km southwest of the project site) and Angel Island (5.5 km southwest), with lesser numbers sighted in the vicinity of Alcatraz (11 km south) and west of Treasure Island (10 km southeast) (Keener 2011). Because this species may venture into the Bay east of Angel Island, there is a slight chance that a small number of individuals could occur in the vicinity of the proposed project.
Gray whales are large baleen whales. They are one of the most frequently seen whales along the California coast, easily recognized by their mottled gray color and lack of dorsal fin. They feed in northern waters primarily off the Bering, Chukchi, and western Beaufort seas during the summer, before heading south to the breeding and calving grounds off Mexico over the winter. Between December and January, late-stage pregnant females, adult males, and immature females and males will migrate southward. The northward migration peaks between February and March. During this time, recently pregnant females, adult males, immature females, and females with calves move north to the feeding grounds (NOAA 2003). A few individuals will enter into the San Francisco Bay during their northward migration.
RSRB project monitors recorded 12 living and 2 dead gray whales, all in either the Central Bay or San Pablo Bay, and all but 2 sightings occurred during the months of April and May (Winning 2008). One gray whale was sighted in June and one in October (the specific years were unreported). The Oceanic Society has tracked gray whale sightings since they began returning to the Bay regularly in the late 1990s. The Oceanic Society data show that all age classes of gray whales are entering the Bay and that they enter as singles or in groups of up to five individuals. However, the data do not distinguish between sightings of gray whales and number of individual whales (Winning 2008). It is possible that a small number of gray whales enter the Bay in any given year, typically from March to May. However, this is outside of the June to November window when pile driving would occur.
The range of the bottlenose dolphin has expanded northward along the Pacific Coast since the 1982-1983 El Niño (Carretta
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 kHz.
• Pinnipeds in water; Otariidae (eared seals): Generalized hearing is estimated to occur between 60 Hz and 39 kHz.
The pinniped functional hearing group was modified from Southall
For more detail concerning these groups and associated frequency ranges, please see NMFS (2016) for a review of available information. Seven marine mammal species (three cetacean and four pinniped (two otariid and two phocid) species) have the reasonable potential to co-occur with the proposed activities. Please refer to Table 3. Of the cetacean species that may be present, one is 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 by Incidental Harassment” 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 by Incidental Harassment” 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 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 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 and attenuate (decrease) more rapidly in shallower water. Amplitude is the height of the sound pressure wave or the `loudness' of a sound and is typically measured using the 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 micro pascal (μPa). One pascal is the pressure resulting from a force of one newton exerted over an area of one square meter (m
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
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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 through the environment. In turn, sound propagation is dependent on the spatially and temporally varying properties of the water column and sea floor, and is frequency-dependent. As a result of the dependence on a large number of varying factors, ambient sound levels can be expected to vary widely over both coarse and fine spatial and temporal scales. Sound levels at a given frequency and location can vary by 10-20 dB from day to day (Richardson
In-water construction activities associated with the project would include impact pile driving, vibratory pile driving and vibratory pile extraction. The sounds produced by these activities fall into one of two general sound types: Pulsed and non-pulsed (defined in the following paragraphs). 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 either continuous or non-continuous (ANSI, 1995; NIOSH, 1998). Some of these non-pulsed sounds can be transient signals of short duration but 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
Please refer to the information given previously (
When PTS occurs, there is physical damage to the sound receptors in the ear (
Relationships between TTS and PTS thresholds have not been studied in marine mammals—PTS data exists only for a single harbor seal (Kastak
Marine mammal hearing plays a critical role in communication with conspecifics, and 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 (
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 the response (
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
Neuroendocrine stress responses often involve the hypothalamus-pituitary-adrenal system. Virtually all neuroendocrine 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, altered metabolism, reduced immune competence, and behavioral disturbance (
The primary distinction between stress (which is adaptive and does not normally place an animal at risk) and “distress” is the 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 serious fitness consequences. 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 functions. This state of distress will last until the animal replenishes its energetic reserves sufficient to restore normal function.
Relationships between these physiological mechanisms, animal behavior, and the costs of stress responses are well-studied through controlled experiments and for both laboratory and free-ranging animals (
Under certain circumstances, marine mammals experiencing significant masking could also be impaired from maximizing their performance fitness in survival and reproduction. Therefore, when the coincident (masking) sound is man-made, it may be considered harassment when disrupting or altering critical behaviors. It is important to distinguish TTS and PTS, which persist after the sound exposure, from masking, which occurs during the sound exposure. Because masking (without resulting in TS) is not associated with abnormal physiological function, it is not considered a physiological effect, but rather a potential behavioral effect.
The frequency range of the potentially masking sound is important in determining any potential behavioral impacts. For example, low-frequency signals may have less effect on high-frequency echolocation sounds produced by odontocetes but are more likely to affect detection of mysticete communication calls and other potentially important natural sounds such as those produced by surf and some prey species. The masking of communication signals by anthropogenic noise may be considered as a reduction in the communication space of animals (
Masking affects both senders and receivers of acoustic signals and can potentially have long-term chronic effects on marine mammals at the population level as well as at the individual level. Low-frequency ambient sound levels have increased by as much as 20 dB (more than three times in terms of SPL) in the world's ocean 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 (
Airborne noise will primarily be an issue for pinnipeds that are swimming or hauled out near the project site within the range of noise levels elevated above the acoustic criteria. We recognize that pinnipeds in the water could be exposed to airborne sound that may result in behavioral harassment when looking with heads above water. Most likely, airborne sound would cause behavioral responses similar to those discussed above in relation to underwater sound. However, these animals would previously have been “taken” as a result of exposure to underwater sound above the behavioral harassment thresholds, which are in all cases larger than those associated with airborne sound. Thus, the behavioral harassment of these animals is already accounted for in these estimates of potential take. Multiple instances of exposure to sound above NMFS' thresholds for behavioral harassment are not believed to result in increased behavioral disturbance, in either nature or intensity of disturbance reaction.
The most likely impact to fish from pile driving activities at the project area would be temporary behavioral avoidance within an undetermined portion of the affected area. The duration of fish avoidance of this area after pile driving stops is unknown, but a rapid return to normal recruitment, distribution and behavior is anticipated. In general, impacts to marine mammal prey species from the proposed project are expected to be minor and temporary due to the relatively short and intermittent timeframe (up to 28 driving days over 6 months) of pile driving and extraction.
It is important to note that pile driving and removal activities at the project site will not obstruct movements or migration of marine mammals.
In summary, given the relatively short (28 days) and intermittent nature of sound associated with individual pile driving and extraction events and the relatively small area that would be affected, pile driving activities associated with the proposed action 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 “small numbers” and the negligible impact determination.
Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
Authorized takes would primarily be by Level B harassment, as use of the acoustic source (
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).
Level B Harassment for non-explosive sources—Though significantly driven by received level, the onset of behavioral disturbance from anthropogenic noise exposure is also informed to varying degrees by other factors related to the source (
Chevron's proposed activity includes the use of continuous (vibratory driving) and impulsive (impact driving) sources, and therefore the 120 and160 dB re 1 μPa (rms) are applicable.
Level A harassment for non-explosive sources—NMFS' Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (Technical Guidance, 2016) identifies dual criteria to assess auditory injury (Level A harassment) to five different marine mammal groups (based on hearing sensitivity) as a result of exposure to noise from two different types of sources (impulsive or non-impulsive). Applicant's proposed activity includes the use of impulsive (impact driving) and non-impulsive (vibratory driving) sources.
These thresholds are provided in Table 4. 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.
Pile driving will generate underwater noise that potentially could result in disturbance to marine mammals swimming by the project area. Transmission loss (TL) underwater is the decrease in acoustic intensity as an acoustic pressure wave propagates out from a source until the source becomes indistinguishable from ambient sound. TL parameters vary with frequency, temperature, sea conditions, current, source and receiver depth, water depth, water chemistry, and bottom composition and topography. A standard sound propagation model, the Practical Spreading Loss model, was used to estimate the range from pile driving activity to various expected SPLs at potential project structures. This model follows a geometric propagation loss based on the distance from the driven pile, resulting in a 4.5 dB reduction in level for each doubling of distance from the source. In this model, the SPL at some distance away from the source (
The degree to which underwater noise propagates away from a noise source is dependent on a variety of factors, most notably by the water bathymetry and presence or absence of reflective or absorptive conditions including the sea surface and sediment type. The TL model described above was used to calculate the expected noise propagation from both impact and vibratory pile driving, using representative source levels to estimate the zone of influence (ZOI) or area exceeding specified noise criteria.
Sound source levels from the Chevron site were not available. Therefore, literature values published for projects similar to the Chevron project were used to estimate source levels that could potentially be produced. Results are shown in Table 5.
Modifications at the four berths require the placement of new 24-inch diameter square concrete piles. Approximately one to two of these piles would be installed in one workday, using impact driving methods. Based on measured blow counts for 24-inch concrete piles driven at the Long Wharf Berth 4 in 2011, installation for each pile could require up to approximately 300 blows and 1.5 second per blow average over a duration of approximately 20 minutes per pile, with 40 minutes of pile driving time per day if two piles are installed. To estimate the noise effects of the 24-inch square concrete piles, the general values provided by Caltrans (2015a) are shown in Table 5.
To estimate the noise effects of impact driving of 14-inch steel H piles, the values provided by Caltrans were also utilized. These source values are 208 dB peak, 187 RMS, and 177 dB SEL(single strike). Based on these levels, impact driving of the 14-inch steel H piles is expected to produce underwater sound exceeded the Level B 160 dB RMS threshold over a distance of 631 meters.
During construction, temporary fendering would be installed at Berth 2 which will be supported by thirty-six steel 14-inch steel H piles. It is estimated that each pile could be driven in five (5) minutes. Two (2) to four (4) piles would be installed in any single workday for a total of approximately 12 days of installation. For the purposes of calculating the distance to Level A thresholds, four piles per day is assumed. The piles would be removed after the permanent fenders are in place. A vibratory hammer would be used to vibrate the piles to facilitate pulling them from the mud. The best match for estimated source levels is the Port of Anchorage pile driving test project. During vibratory pile driving associated with the Anchorage project, peak noise levels ranged from 165 to 175 dB, and the RMS ranged between 152 and 168 dB, both measured at approximately 15 meters (50 ft) (Caltrans 2015a).
The source levels for vibratory installation of 36-inch temporary steel piles were from the Explosive Handling Wharf-2 (EHW-2) project located at the Naval Base Kitsap in Bangor, Washington as stated in Caltrans (2015a). During vibratory pile driving measured peak noise levels were approximately 180 dB, and the RMS was approximately 169 dB at a 10 meter (33ft) distance. These temporary piles would require a drive time per pile of approximately 10 minutes. Up to four (4) of these piles could be installed in any single workday for a total of 40 minutes.
The most applicable source values for wooden pile removal were derived from measurements taken at the Port Townsend dolphin pile removal in Washington. During vibratory pile extraction associated with this project, which occurred under similar circumstances, measured peak noise levels were approximately 164 dB, and the RMS was approximately 150 dB (WSDOT 2011). Applicable sound values for the removal of concrete piles could not be located, but they are expected to be similar to the levels produced by wooden piles described above, as they are similarly sized, non-metallic, and will be removed using the same methods.
During construction, 106 16-inch timber piles, and seven 18 to 24-inch square concrete piles would be removed. Up to twelve of these piles could be extracted in one workday. Extraction time needed for each pile may vary greatly, but could require approximately 400 seconds (approximately 7 minutes).
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 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
Table 6 shows the inputs that were used in the User Spreadsheet to determine cumulative PTS Thresholds. Table 7 shows the Level A Isopleths as determined utilizing inputs from Table 6. Level B isopleths for impact and vibratory driving and extraction are shown in Table 8.
In this section we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculations.
San Francisco Bay has five known harbor seal haul out sites that include Alcatraz Island, Castro Rocks, Yerba Buena Island, Newark Slough, and Mowry Slough. Yerba Buena Island, Alcatraz and Castro Rocks are within or near the areas within ensonified Level B zones. Castro Rocks is the largest harbor seal haul out site in the northern part of San Francisco Bay and is the second largest pupping site in the Bay (Green
California sea lions haul out primarily on floating docks at Pier 39 in the Fisherman's Wharf area of the San Francisco Marina, approximately 12.5 km (7.8 miles) southwest of the project area. Based on counts done in 1997 and 1998, the number of California sea lions that haul out at Pier 39 fluctuates with the highest occurrences in August and the lowest in June. In addition to the Pier 39 haulout, California sea lions haul out on buoys and similar structures throughout the Bay. They are seen swimming off mainly the San Francisco and Marin shorelines within the Bay but may occasionally enter the project area to forage. Over the monitoring period for the RSRB, monitors sighted at least 90 California sea lions in the North Bay and at least 57 in the Central Bay (Caltrans 2012). During monitoring for the San Francisco-Oakland Bay Bridge (SFOBB) Project in the central Bay, 69 California sea lions were observed in the vicinity of the bridge over a 17-year period from 2000-2017 (Caltrans 2018), and from these observations, an estimated density of 0.161 animals per square kilometer (km
A small but growing population of harbor porpoises utilizes San Francisco Bay. Harbor porpoises are typically spotted in the vicinity of Angel Island and the Golden Gate (6 and 12 km southwest respectively) with lesser numbers sighted in the vicinity of Alcatraz and around Treasure Island (Keener 2011). Porpoises but may utilize other areas in the Central Bay in low numbers, including the proposed project area. However, harbor porpoise are naturally inclined to remain near the shoreline areas and downstream of large landmasses as they are constantly foraging. For this reason, the project area would present a less than likely area to observe harbor porpoise as they would either need to traverse the perimeter of the Bay to arrive there, or would have to swim through the open Bay. Both scenarios are possible, but would represent uncmmon behavior. Based on monitoring conducted for the SFOBB project, between 2000-2017 an in-water density of 0.031 animals per km
Small numbers of northern elephant seals haul out or strand on coastline within the Central Bay. Monitoring of marine mammals in the vicinity of the SFOBB has been ongoing for 15 years; from those data, Caltrans has produced an estimated at-sea density for northern elephant seal of 0.06 animal per km
The incidence of northern fur seal in San Francisco Bay depends largely on oceanic conditions, with animals more likely to strand during El Niño events. The likelihood of El Niño conditions occurring in 2018 is currently low, with La Niña or neutral conditions expected to develop (NOAA, 2018).
The range of the bottlenose dolphin has expanded northward along the Pacific Coast since the 1982-1983 El Niño (Carretta
Gray whales occasionally enter the Bay during their northward migration period, and are most often sighted in the Bay between February and May. Most venture only about 2 to 3 km (about 1-2 miles) past the Golden Gate, but gray whales have occasionally been sighted as far north as San Pablo Bay. Pile driving is not expected to occur during this time, and gray whales are not likely to be present at other times of year.
Here we describe how the information provided above is brought together to produce a quantitative take estimate.
The following assumptions are made when estimating potential incidences of take:
• All marine mammal individuals potentially available are assumed to be present within the relevant area, and thus incidentally taken;
• An individual can only be taken once during a 24-h period;
• Exposures to sound levels at or above the relevant thresholds equate to take, as defined by the MMPA.
Limited density data is available for marine mammal species in San Francisco Bay. Estimates here are determined using data taken during marine mammal monitoring associated with RSRB retrofit project, the San Francisco-Oakland Bay Bridge replacement project, and other marine mammal observations for San Francisco Bay. For Pacific harbor seal, data was also derived from recent annual surveys of haul outs in the Bay conducted by the National Park Service (Codde, S. and S. Allen. 2013, 2015, and 2017).
As noted above, take estimates are based on the highest mean plus the standard error of harbor seals observed by NPS at Castro Rocks which equals 176 animals. (Codde, S. and S. Allen. 2013, 2015, and 2017) Since pile driving would occur intermittently during the day, varying sets of animals may be hauled out or in the water. For simplicity, this analysis assumes that since harbor seals haul out for around 7 hours when not pupping/molting, 7/24 or 29 percent of the harbor seals would not be in the water during pile driving and would not be exposed. Thus, it is estimated that 71 percent of the 176 individuals (125 individuals) will be in the water at some point during each work day, and potentially exposed to underwater noise from pile driving. Of these 125 seals, the proportion that may enter the areas over which the Level B harassment
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In order to account for other individuals that may be foraging in the more distant part of the Level B harassment zone, additional take of harbor seal has been estimated based on other harbor seal populations in the Central Bay. Using the same data set (Codde, S. and S. Allen. 2013, 2015, and 2017) that was used for Castro Rocks, a population for the Central Bay of 167 harbor seals was established based on other Central Bay haulouts at Alcatraz and Yerba Buena Island. The area of the Central Bay (bound by the Golden Gate, Richmond Bridge, SFOBB, and adjoining coastline) is approximately 134 km
For impact pile driving of the 14-inch steel H piles, the PTS Zone is large enough to warrant a smaller exclusion zone and the authorization of some Level A harassment for harbor seal so that pile driving can be completed on schedule. A 35 meter shutdown zone (smaller than the Level A Zone) for this species would be established, but individuals that place themselves in the Level A zone but outside of the shut-down zone may experience Level A harassment, if they reside in that area for a long enough duration.
The estimated California seal lion density of 0.16 animals per km
Based on monitoring conducted for the SFOBB project described previously, an in-water density of 0.17 animals per km
For impact pile driving of the 14-inch H piles, the Level A Zone is large enough to warrant the authorization of some Level A. A 250 meter shutdown zone for this species would be established, but individuals that place themselves in the Level A zone but outside of the shut-down zone may experience Level A harassment, if they reside in that area for a long enough duration.
Monitoring of marine mammals in the vicinity of the SFOBB has been ongoing for produced an estimated density for northern elephant seal of 0.06 animal per km
As noted previously, the incidence of northern fur seal in San Francisco Bay depends largely on oceanic conditions, with animals more likely to strand during El Niño events. The likelihood of El Niño conditions occurring in 2018 is currently low, with La Niña or neutral conditions expected to develop (NOAA, 2018). Given the low probability that fur seals would enter into the Bay and project area in 2018, Chevron has conservatively requested and NMFS is proposing authorization of 10 fur seals takes by Level B harassment. Level A harassment of this species is not anticipated or authorized by NMFS.
When this species is present in San Francisco Bay, it is more typically found close to the Golden Gate. Recently, beginning in 2015, two individuals have been observed frequently in the vicinity of Oyster Point (GGCR, 2016; GGCR 2017; Perlman, 2017). The average reported group size for bottlenose dolphins is five. Reports show that a group normally comes into San Francisco Bay near Yerba Buena Island once per week for approximately 2-week stints and then leaves the Bay (NMFS, 2017b). Chevron assumed groups of five individuals may enter San Francisco Bay and the ensonified area three times during separate two-week spans. Therefore, groups of 5 animals would potentially be exposed at a rate of once per week over six weeks, resulting in up
Gray whales are the only whale species that travels far into San Francisco Bay with any regularity. They occasionally enter the Bay during their northward migration period, and are most often sighted in the Bay between February and May. Most venture only about 2 to 3 kilometers (about 1-2 miles) past the Golden Gate, but gray whales have occasionally been sighted as far north as San Pablo Bay. Pile driving is not anticipated to occur during the February through May timeframe and gray whales are not likely to be present at other times of year. In the very unlikely event that a gray whale or pair of gray whales makes its way close to the project area while pile driving activities are under way, Chevron has requested take by Level B harassment of up to two (2) gray whales per year. NMFS agrees and proposes the take of 2 gray whales by Level B harassment. No Level A take is proposed.
Tables 12 and 13 summarize the estimate of Level B and Level A harassment, respectively, for each species by pile driving activity for the 2018 construction season. For harbor seals, sea lions, harbor porpoise and elephant seals, the Level B harassment estimates are based on the number of individuals assumed to be exposed per day, the number of days of pile driving expected based on an average installation rate. The Level A harassment estimates are derived from the Level B harassment estimates by taking the Level B harassment and multiplying it by the fractional ratio of the area of the Level A zone to the Level B zone.
Table 14 provides a summary of proposed authorized Level A and Level B takes as well as the percentage of a stock or population proposed for take.
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.
The following measures would apply to Chevron's mitigation requirements:
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• If a marine mammal approaches or enters the shutdown zone during activities or pre-activity monitoring, all pile driving activities at that location shall be halted or delayed, respectively. If pile driving is halted or delayed due to the presence of a marine mammal, the activity may not resume or commence until either the animal has voluntarily left and been visually confirmed beyond the shutdown zone and 15 minutes have passed without re-detection of the animal. Pile driving activities include the time to install or remove a single pile or series of piles, as long as the time elapsed between uses of the pile driving equipment is no more than thirty minutes.
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Based on our evaluation of the applicant's proposed measures, as well as other measures considered by NMFS, NMFS has preliminarily determined that the proposed mitigation measures provide the means effecting the least
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.
The following visual monitoring measures are proposed in the IHA.
• Biological monitoring would occur within one week before the Project's start date, to establish baseline observations.
• Monitoring distances, in accordance with the identified shutdown, Level A, and Level B zones, will be determined by using a range finder, scope, hand-held global positioning system (GPS) device or landmarks with known distances from the monitoring positions.
• Monitoring locations will be established at locations offering best views of the monitoring zone.
• Monitoring will be continuous unless the contractor takes a break longer than 2 hours from active pile and sheet pile driving, in which case, monitoring will be required 30 minutes prior to restarting pile installation.
• For in-water pile driving, under conditions of fog or poor visibility that might obscure the presence of a marine mammal within the shutdown zone, the pile in progress will be completed and then pile driving suspended until visibility conditions improve.
• At least two PSOs will be actively scanning the monitoring zone during all pile driving activities.
• Monitoring of pile driving shall be conducted by qualified PSOs (see below), who shall have no other assigned tasks during monitoring periods. Chevron shall adhere to the following conditions when selecting observers:
(1) Independent PSOs shall be used (
(2) At least one PSO must have prior experience working as a marine mammal observer during construction activities;
(3) Other PSOs may substitute education (degree in biological science or related field) or training for experience; and
(4) Chevron shall submit PSO CVs for approval by NMFS.
• Chevron will ensure that observers have the following additional qualifications:
(1) Ability to conduct field observations and collect data according to assigned protocols.
(2) Experience or training in the field identification of marine mammals, including the identification of behaviors;
(3) Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations;
(4) Writing skills sufficient to prepare a report of observations including but not limited to the number and species of marine mammals observed; dates and times when in-water construction activities were conducted; dates, times, and reason for implementation of mitigation (or why mitigation was not implemented when required); and marine mammal behavior; and
(5) Ability to communicate orally, by radio or in person, with project personnel to provide real-time information on marine mammals observed in the area as necessary.
A draft marine mammal monitoring report would be submitted to NMFS within 90 days after the completion of pile driving and removal activities. It will include an overall description of work completed, a narrative regarding marine mammal sightings, and associated marine mammal observation data sheets. Specifically, the report must include:
• Date and time that monitored activity begins or ends;
• Construction activities occurring during each observation period;
• Deviation from initial proposal in pile numbers, pile types, average driving times, etc.
• Weather parameters (
• Water conditions (
• For each marine mammal sighting the following must be recorded:
(1) Species, numbers, and, if possible, sex and age class of marine mammals;
(2) Description of any observable marine mammal behavior patterns, including bearing and direction of travel and distance from pile driving activity;
(3) Location and distance from pile driving activities to marine mammals and distance from the marine mammals to the observation point;
(4) Estimated amount of time that the animals remained in the Level B zone
• Description of implementation of mitigation measures within each monitoring period (
• Other human activity in the area.
• A summary of the following must be included in the report.
(1) Total number of individuals of each species detected within the Level A and Level B Zones, and estimated take extrapolated across entire Level B zone; and
(2) Daily average number of individuals of each species (differentiated by month as appropriate) detected within the Level B Zone, and estimated take extrapolated across entire Level B zone.
If no comments are received from NMFS within 30 days, the draft final report will constitute the final report. If
In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by the IHA (if issued), such as an injury, serious injury or mortality, Chevron would immediately cease the specified activities and report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, and the West Coast Regional Stranding Coordinator. The report would include the following information:
• Description of the incident;
• Environmental conditions (
• Description of all marine mammal observations in the 24 hours preceding the incident;
• Species identification or description of the animal(s) involved;
• Fate of the animal(s); and
• Photographs or video footage of the animal(s) (if equipment is available).
Activities would not resume until NMFS is able to review the circumstances of the prohibited take. NMFS would work with Chevron to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. Chevron would not be able to resume their activities until notified by NMFS via letter, email, or telephone.
In the event that Chevron discovers an injured or dead marine mammal, and the lead PSO determines that the cause of the injury or death is unknown and the death is relatively recent (
In the event that Chevron 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 (
Sound Source Verification (SSV) testing of would be conducted under this IHA. The purpose of the proposed acoustic monitoring plan is to collect underwater sound-level information at both near and distant locations during vibratory pile extraction and installation and impact pile installation. The plan provides a protocol for hydroacoustic measurements during pile driving operations. Acoustic monitoring would be conducted on a minimum of two of each pile type. Since little data exist for source levels associated with installation of 24-inch square concrete piles (including data on single strike sound exposure level metrics) Chevron would conduct in-situ measurements during installation of eight piles. The SSV testing would be conducted by an acoustical firm with prior experience conducting SSV testing. Final results would be sent to NMFS. Findings may be used to establish Level A and Level B isopleths during impact and vibratory driving. Any alterations to the shutdown or harassment zones based on testing data must be approved by NMFS. The Hydroacoustic Monitoring Plan is contained on the following NMFS website
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 (
Pile driving and extraction associated with Chevron's WMEP project as outlined previously have the potential to injure, disturb or displace marine mammals. Specifically, the specified activities may result in Level B harassment (behavioral disturbance) for seven marine mammal species authorized for take from underwater sound generated during pile driving operations. Level A harassment in the form of PTS may also occur to limited numbers of two species. No marine mammal stocks for which incidental take authorization are listed as threatened or endangered under the ESA or determined to be strategic or depleted under the MMPA. No serious injuries or mortalities are anticipated to occur as a result of Chevron's pile driving activities.
A limited number of animals (29 harbor seals and 2 harbor porpoises) could experience Level A harassment in the form of PTS if they stay within the Level A harassment zone during impact driving of 24-inch steel H-piles. Installation of these piles would occur over eight days and impact driving will not be the primary method of installation. The piles will mainly be installed only through vibratory driving. Impact driving will only be used if the vibrated pile encounters an obstruction such as an old sunken pile. It is unlikely that this would occur for all four piles projected to be installed each driving day. An assumption of four piles per day was used to calculate Level A zone sizes. If four piles did require impact installation on a single day it is unlikely that the same individual marine mammal would be within the relatively small Level A zone during the installation of every pile. In most instances impact driving will not be required at all. Furthermore, the degree of injury is expected to be mild and is not likely to affect the reproduction or survival of the individual animals. It is expected that, if hearing impairments
The Level B takes that are anticipated and authorized are expected to be limited to short-term behavioral harassment. Marine mammals present near the action area and taken by Level B harassment would most likely show overt brief disturbance
The project is not expected to have significant adverse effects on affected marine mammal habitat. The activities may cause fish to leave the area temporarily. This could impact marine mammals' foraging opportunities in a limited portion of the foraging range; but, because of the short duration of the activities and the relatively small area of affected habitat, the impacts to marine mammal habitat are not expected to cause significant or long-term negative consequences.
The likelihood that marine mammals will be detected by trained observers is high under the environmental conditions described for the project. The employment of the soft-start mitigation measure would also allow marine mammals in or near the shutdown and Level A zone zones to move away from the impact driving sound source. Therefore, the mitigation and monitoring measures are expected to reduce the potential for injury and reduce the amount and intensity of behavioral harassment. Furthermore, the pile driving activities analyzed here are similar to, or less impactful than, numerous construction activities conducted in other similar locations which have taken place with no reported injuries or mortality to marine mammals, and no known long-term adverse consequences from behavioral harassment.
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;
• Anticipated incidences of Level A harassment would be in the form of a small degree of PTS to a limited number of animals;
• Anticipated incidents of Level B harassment consist of, at worst, temporary modifications in behavior;
• The relatively short and intermittent duration of in-water construction activities
• The small percentage of the stock that may be affected by project activities (< 17 percent for all stocks); and
• Efficacy of mitigation measures is expected to minimize the likelihood and severity of the level of harassment.
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.
Table 14 depicts the number of animals that could be exposed to Level A and Level B harassment from work associated with Chevron's project. The analysis provided indicates that authorized takes account for no more than 17.4 percent of the populations of the stocks that could be affected. These are small numbers of marine mammals relative to the sizes of the affected stocks.
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 Chevron for conducting pile driving activities in San Francisco Bay from June 1, 2018 through May 31, 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).
1. This Incidental Harassment Authorization (IHA) is valid from June 1, 2018 through May 31, 2019. This IHA is valid only for pile driving and extraction activities associated with Chevron's WMEP project.
2. General Conditions.
(a) A copy of this IHA must be in the possession of Chevron, its designees, and work crew personnel operating under the authority of this IHA.
(b) The species authorized for taking are of gray whale
(c) The taking, by Level A and Level B harassment, is limited to the species listed in condition 2(b). See Table 14 for number of takes authorized.
(d) The take of any other species not listed in condition 2(b) of marine mammal is prohibited and may result in the modification, suspension, or revocation of this IHA.
(e) Chevron shall conduct briefings between construction supervisors and crews, marine mammal monitoring team, acoustical monitoring team prior to the start of all pile driving activities, and when new personnel join the work, in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures.
3. Mitigation Measures.
The holder of this Authorization is required to implement the following mitigation measures:
(a) Time Restrictions—For all in-water pile driving activities, Chevron shall operate only during daylight hours (7:00 a.m. to 7:00 p.m.)
(b) Seasonal Restriction—To minimize impacts to listed fish species, pile-driving activities shall occur between June 1 and November 30.
(c) Establishment of Shutdown Zone—For all pile driving/removal and drilling activities, Chevron shall establish a shutdown zone. The shutdown isopleths for pinnipeds (harbor seals, California sea lion, Northern elephant seal, northern fur seal) and mid-frequency cetaceans (common dolphins) shall be set at 35 meters; for high-frequency cetaceans (harbor porpoises) at 250 meters; and for low-frequency cetaceans (gray whales) at 350 meters.
(d) 10-Meter Shutdown Zone—During the in-water operation of heavy machinery (
(e) Establishment of Monitoring Zones for Level A and Level B—Chevron shall establish and monitor Level A harassment zones during impact driving for harbor seal extending to 183 meters and harbor porpoise extending to 408 meters. Chevron shall also establish and monitor Level B harassment zones as depicted in Table 8.
(f) Soft Start—Chevron shall use soft start techniques when impact pile driving. Soft start requires contractors to provide an initial set of strikes at reduced energy, followed by a thirty-second waiting period, then two subsequent reduced energy strike sets. Soft start shall be implemented at the start of each day's impact pile driving and at any time following cessation of impact pile driving for a period of thirty minutes or longer.
(g) Pre-Activity Monitoring—Pre-activity monitoring shall take place from 30 minutes prior to initiation of pile driving activity and post-activity monitoring shall continue through 30 minutes post-completion of pile driving activity. Pile driving may commence at the end of the 30-minute pre-activity monitoring period, provided observers have determined that the shutdown zone is clear of marine mammals, which includes delaying start of pile driving activities if a marine mammal is sighted in the zone, as described below.
(h) If a marine mammal approaches or enters the shutdown zone during activities or pre-activity monitoring, all pile driving activities at that location shall be halted or delayed, respectively. If pile driving is halted or delayed due to the presence of a marine mammal, the activity may not resume or commence until either the animal has voluntarily left and been visually confirmed beyond the shutdown zone and 15 minutes have passed without re-detection of the animal. Pile driving activities include the time to install or remove a single pile or series of piles, as long as the time elapsed between uses of the pile driving equipment is no more than thirty minutes.
(i) Non-authorized Take Prohibited—If a species for which authorization has not been granted or a species for which authorization has been granted but the authorized takes are met, is observed approaching or within the monitoring zone, pile driving and removal activities must shut down immediately using delay and shut-down procedures. Activities must not resume until the animal has been confirmed to have left the area or an observation time period of 15 minutes has elapsed.
4. Monitoring.
The holder of this Authorization is required to conduct visual marine mammal monitoring during pile driving activities:
(a) Visual Marine Mammal Observation—The following visual monitoring measures shall be implemented.
(i) Biological monitoring shall occur within one (1) week before the project's start date.
(ii) Monitoring distances, in accordance with the identified shutdown zones, Level A and Level B zones, shall be determined by using a range finder, scope, hand-held global positioning system (GPS) device or landmarks with known distances from the monitoring positions.
(iii) Monitoring locations shall be established at locations offering best views of the monitoring zone.
(iv) At least two PSOs shall be actively scanning the monitoring zone during all pile driving activities.
(v) Monitoring shall be continuous unless the contractor takes a break longer than 2 hours from active pile and sheet pile driving, in which case, monitoring shall be required 30 minutes prior to restarting pile installation.
(vi) For in-water pile driving, under conditions of fog or poor visibility that might obscure the presence of a marine mammal within the shutdown zone or Level A zone, the pile in progress shall be completed and then pile driving suspended until visibility conditions improve.
(vii) Monitoring of pile driving shall be conducted by qualified PSOs, who shall have no other assigned tasks during monitoring periods. Chevron shall adhere to the following conditions when selecting observers:
(1) Independent PSOs shall be used (
(2) At least one PSO must have prior experience working as a marine mammal observer during construction activities;
(3) Other PSOs may substitute education (degree in biological science or related field) or training for experience; and
(4) Chevron shall submit PSO CVs for approval by NMFS.
(viii) Chevron shall ensure that observers have the following additional qualifications:
(1) Ability to conduct field observations and collect data according to assigned protocols;
(2) Experience or training in the field identification of marine mammals, including the identification of behaviors;
(3) Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations;
(4) Writing skills sufficient to prepare a report of observations including but not limited to the number and species of marine mammals observed; dates and times when in-water construction activities were conducted; dates, times, and reason for implementation of mitigation (or why mitigation was not implemented when required); and marine mammal behavior; and
(5) Ability to communicate orally, by radio or in person, with project personnel to provide real-time
(b) Hydroacoustic Monitoring.
(i) Sound Source Verification (SSV) testing shall be conducted as stipulated in the Hydroacoustic Monitoring Plan.
(ii) Acoustic monitoring shall be conducted on a minimum of two of each pile type, except for 24-in square concrete piles shall require monitoring of 8 piles.
(iii) Testing shall be conducted by an acoustical firm with prior experience conducting SSV testing.
(iv) Final results shall be sent to NMFS and may be used to establish shutdown and monitoring isopleths.
(v) Any alterations to the shutdown or monitoring zones based on testing data must be approved by NMFS.
5. Reporting.
(a) A draft marine mammal monitoring report shall be submitted to NMFS within 90 days after the completion of pile driving and removal activities or a minimum of 60 days prior to any subsequent IHAs. A final report shall be prepared and submitted to the NMFS within 30 days following receipt of comments on the draft report from the NMFS.
(b) The report shall include an overall description of work completed, a narrative regarding marine mammal sightings, and associated marine mammal observation data sheets. Specifically, the report must include:
(i) Date and time that monitored activity begins or ends;
(ii) Construction activities occurring during each observation period;
(iii) Weather parameters (
(iv) Water conditions (
(v) Deviation from initial proposal in pile numbers, pile types, average driving times, etc.
(vi) For each marine mammal sighting the following must be recorded:
(1) Species, numbers, and, if possible, sex and age class of marine mammals;
(2) Description of any observable marine mammal behavior patterns, including bearing and direction of travel and distance from pile driving activity;
(3) Location and distance from pile driving activities to marine mammals and distance from the marine mammals to the observation point;
(4) Estimated amount of time that the animals remained in the Level A and B zones
(vii) Description of implementation of mitigation measures within each monitoring period (
(viii) Other human activity in the area.
(ix) The report must contain a summary of the following:
(1) Total number of individuals of each species detected within the Level A and Level B Zones,
(2) Estimated take extrapolated across entire Level B zone; and
(3) Daily average number of individuals of each species (differentiated by month as appropriate) detected within the Level B Zone, and estimated take extrapolated across entire Level B zone.
(x) If no comments are received from NMFS within 30 days, the draft final report shall constitute the final report. If comments are received, a final report addressing NMFS comments must be submitted within 30 days after receipt of comments.
(c) In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by the IHA (if issued), such as an injury, serious injury or mortality, Chevron would immediately cease the specified activities and report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, and the West Coast Regional Stranding Coordinator. The report must include the following:
(i) Description of the incident;
(ii) Environmental conditions (
(iii) Description of all marine mammal observations in the 24 hours preceding the incident;
(iv) Species identification or description of the animal(s) involved;
(v) Fate of the animal(s); and
(vi) Photographs or video footage of the animal(s) (if equipment is available).
(vii) Activities would not resume until NMFS is able to review the circumstances of the prohibited take. NMFS would work with Chevron to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. Chevron would not be able to resume their activities until notified by NMFS via letter, email, or telephone.
(b) In the event that Chevron 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 (
(c) In the event that Chevron 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 (
6. 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 Chevron WMEP project. 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.
Commodity Futures Trading Commission.
Notice.
In compliance with the Paperwork Reduction Act of 1995 (PRA), this notice announces that the Information Collection Request (ICR) abstracted below has been forwarded to the Office of Management and Budget (OMB) for review and comment. The ICR describes the nature of the information collection and its expected costs and burden.
Comments must be submitted on or before May 30, 2018.
Comments regarding the burden estimate or any other aspect of the information collection, including suggestions for reducing the burden, may be submitted directly to the Office of Information and Regulatory Affairs (OIRA) in OMB within 30 days of this notice's publication by either of the following methods. Please identify the comments by “OMB Control No. 3038-0095.”
•
•
A copy of all comments submitted to OIRA should be sent to the Commodity Futures Trading Commission (the “Commission”) by either of the following methods. The copies should refer to “OMB Control No. 3038-0095.”
•
• By Hand Delivery/Courier to the same address; or
• Through the Commission's website at
All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to
Owen J. Kopon, Special Counsel, Division of Market Oversight, Commodity Futures Trading Commission, (202) 418-5360; email:
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. On February 9, 2018, the Commission published in the
Bureau of Consumer Financial Protection.
Notice of public subcommittee meetings.
This notice sets forth the announcement of two public subcommittee meetings of the Consumer Advisory Board (CAB or Board) of the Bureau of Consumer Financial Protection (Bureau). The notice also describes the functions of the Board its subcommittees.
The Consumer Advisory Board Mortgages and Small Business Lending Markets subcommittee meeting will take place on Thursday, May 10, 2018 from approximately 1:00 p.m. to 2:00 p.m. eastern standard time via conference call. The Consumer Advisory Board Card, Payment, and Deposits Markets Subcommittee meeting will take place on Tuesday, May 22, 2018 from approximately 3:00 p.m. to 4:30 p.m. eastern standard time via conference call.
Crystal Dully, Outreach and Engagement Associate, 202-435-9588,
Section 3 of the Charter of the Consumer Advisory Board states that: The purpose of the Board is outlined in section 1014(a) of the Dodd-Frank Act, which states that the Board shall “advise and consult with the Bureau in the exercise of its functions under the Federal consumer financial laws” and “provide information on emerging practices in the consumer financial products or services industry, including regional trends, concerns, and other relevant information.”
To carry out the Board's purpose, the scope of its activities shall include providing information, analysis, and recommendations to the Bureau. The Board will generally serve as a vehicle for market intelligence and expertise for the Bureau. Its objectives will include identifying and assessing the impact on consumers and other market participants of new, emerging, and changing products, practices, or services.
Typically, the subcommittees meet during the in person advisory group meetings as well as in between via conference calls. Each subcommittee has an advisory group member who serves as the chair and staff from the CFPB's Advisory Board and Councils Office to assist the chair in conducting the meeting.
The CAB Mortgages and Small Business Lending Markets subcommittee will discuss two of the Bureau's Requests for Information (RFI) related to the Call for Evidence initiative by Acting Director Mulvaney. The CAB Card, Payment, and Deposits Markets subcommittee will discuss will lessons learned on designing financial products and features to meet the needs of specific targeted vulnerable populations. Additionally, the subcommittee will also discuss one of the Bureau's Request for Information (RFI) related to the Call for Evidence initiative by Acting Director Mulvaney.
Written comments will be accepted from interested members of the public and should be sent to
Individuals who wish to join the Consumer Advisory Board Mortgages and Small Business Lending Markets Subcommittee meeting must RSVP via this link
A summary of these meetings will be available after the meeting on the Bureau's website
Department of the Air Force, DoD.
30-Day information collection notice.
The Department of Defense has submitted to OMB for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by May 30, 2018.
Comments and recommendations on the proposed information collection should be emailed to Ms. Jasmeet Seehra, DoD Desk Officer, at
Fred Licari, 571-372-0493, or
You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:
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Written requests for copies of the information collection proposal should be sent to Mr. Licari at
U.S. Army Corps of Engineers, DoD.
Notice of intent.
The U.S. Army Corps of Engineers (USACE), Mobile District, intends to prepare a Supplemental Environmental Impact Statement (SEIS) to evaluate potential changes to the Water Control Manuals (WCMs) for three reservoirs in the Alabama-Coosa-Tallapoosa (ACT) River Basin and to the Master WCM for the ACT River Basin. The USACE intends to conduct a water supply storage reallocation study to evaluate a March 30, 2018 request by Georgia and Cobb County-Marietta Water Authority (CCMWA) for increased water supply usage at Allatoona Lake and changed storage accounting methodology. The Draft SEIS will be prepared as an integrated document with the reallocation study. The reallocation study with the integrated Draft SEIS will address the water supply storage request and updated operating criteria and guidelines for managing the water storage and release actions of Federal water managers and will evaluate the associated environmental impacts of the proposed federal action, pursuant to the National Environmental Policy Act (NEPA). The USACE also intends to update the WCMs for the Alabama Power Company's Weiss and Logan Martin Reservoirs in the ACT River Basin.
Environment and Resources Branch, Planning and Environmental Division, U.S. Army Engineer District-Mobile, Post Office Box 2288, Mobile, AL 36628-0001.
Questions about the NEPA process should be directed to: Mr. Mike Malsom, Inland Environment Team, Environment and Resources Branch, Planning and Environmental Division, U.S. Army Engineer District-Mobile, Post Office Box 2288, Mobile, AL 36628-0001; Telephone (251) 690-2023; delivered by electronic facsimile at (251) 694-3815; or by electronic mail:
In May 2015, the USACE completed a long-term effort to update the Master WCM for the ACT River Basin, including updated WCMs for all five USACE projects (Allatoona Dam and Lake, Carters Dam and Lake, Robert F. Henry Lock and Dam, Millers Ferry Lock and Dam and Claiborne Lock and Dam) and two of four Alabama Power Company (APC) projects with navigation or flood control storage (H. Neely Henry Dam and Lake and R.L. Harris Dam and Lake). WCMs for the other two APC projects with navigation and flood control storage, Logan Martin Dam and Lake (Reservoir) and Weiss Dam and Lake (Reservoir), were not updated at that time. A pending request by the State of Georgia for additional water supply storage and changes to storage accounting practices at Allatoona Lake was also not included within the scope of the 2015 WCM update and EIS.
In January 2018, the U.S. District Court for the Northern District of Georgia issued a judgment in
The USACE did not include updates to the WCMs for the Weiss and Logan Martin Reservoirs in the 2015 ACT River Basin Master WCM because further study of flood risk management issues at both projects was required. The USACE intends to update the WCMs for two APC reservoir projects in the ACT River Basin, including evaluation of APC's proposal to raise the winter level for recreation and at the same time to lower the upper limit of the induced surcharge operation at the Weiss Dam and Lake (Reservoir) and the Logan Martin Dam and Lake (Reservoir). These projects will be evaluated for flood impacts. Current Water Control Plans for the Weiss and Logan Martin Reservoirs, originally issued in the 1960s, contain surcharge curves with elevations higher than the respective flood easements acquired by APC. The easement at the Weiss Reservoir is 572 feet mean sea level (msl) and the surcharge curve indicates flood control storage to 574 feet msl. At the Logan Martin Reservoir, the easement elevation is 473.5 feet msl and the surcharge curve indicates flood control storage to 477 feet msl. Due to the flood risk management operational responsibilities of the USACE, the APC proposals would be evaluated along with other alternatives in the FR/SEIS and those manuals may be updated.
Because the USACE is simultaneously considering proposals to modify operations and update WCMs at three different ACT River Basin projects, the USACE intends to evaluate the effects of these proposals through a single EIS, which would supplement the Final EIS for the ACT River Basin completed in May 2015. As part of this analysis, the USACE will consider the effects of the proposed changes on operations of the ACT system of projects for all purposes, and would revise the ACT Master WCM to incorporate the updated Allatoona Lake, Weiss Reservoir, and Logan Martin Reservoir WCMs and to reflect changes, if any, in overall system operations.
WCMs are guidance documents that assist Federal water managers in the operation of individual and multiple interdependent Federal reservoirs on the same river system. The manuals provide technical, historical, hydrological, geographic, demographic, policy and other information that guide the proper management of reservoirs during times of high water, low water, and normal conditions. The manuals also contain drought plans and zones to assist Federal water managers in knowing when to reduce or increase reservoir releases, and how to ensure the safety of dams during extreme conditions. The authority and guidance for the USACE to prepare and update these manuals may be found, inter alia, in Section 7 of the 1944 Flood Control Act, the Federal Power Act, Section 9 of Public Law 436-83, and the following USACE Engineering Regulations (ER): ER 1110-2-240, ER 1110-2-241, ER 1110-2-1941 and ER 1110-2-8156.
The evaluations of the proposed water supply storage reallocation at the Allatoona Lake and the flood impacts at several APC projects in the Coosa Basin may require updates to the current WCMs. The updated WCMs would be provided as appendices to the SEIS.
Public participation throughout the water supply storage reallocation and flood pool evaluation process is essential. The USACE invites full public participation at all stages to promote open communication and better decision making. All persons, stakeholders, and organizations that have an interest in water-related resources in the ACT Basin, including minority, low-income, disadvantaged and Native American groups, are urged to participate in this NEPA analysis process. Assistance will be provided upon request to anyone having difficulty understanding how to participate. Dates and locations for public scoping meetings will be announced by future publication in the
Department of the Navy, DoD.
Information collection notice.
In compliance with the
Consideration will be given to all comments received by June 29, 2018.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Naval Sea Systems Command (SEA 05C), 1333 Isaac Hull Avenue SE, STOP 1340, Washington Navy Yard, Washington, DC 20376-1340, or call (202) 781-5069.
Respondents are businesses involved in shipbuilding and/or ship repair who provide NAVSEA and MARAD with information and a list of facilities available for the construction or repair of ships that is utilized in a database for assessing the production capacity of the individual shipyards.
Department of the Navy, DoD.
30-Day information collection notice.
The Department of Defense has submitted to OMB for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by May 30, 2018.
Comments and recommendations on the proposed information collection should be emailed to Ms. Jasmeet Seehra, DoD Desk Officer, at
Fred Licari, 571-372-0493, or
You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:
•
Requests for copies of the information collection proposal should be sent to Mr. Licari at
Department of the Navy, DoD.
30-Day information collection notice.
The Department of Defense has submitted to OMB for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by May 30, 2018.
Comments and recommendations on the proposed information collection should be emailed to Ms. Jasmeet Seehra, DoD Desk Officer, at
Fred Licari, 571-372-0493, or
You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:
•
Requests for copies of the information collection proposal should be sent to Mr. Licari at
National Assessment Governing Board, U.S. Department of Education.
Announcement of closed teleconference meeting.
This notice sets forth the agenda for the April 25, 2018 closed teleconference meeting of the National Assessment Governing Board's (Governing Board) Nominations Committee, which has been delegated by the Governing Board to take action on behalf of the Board. This notice provides information to members of the public who may be interested in providing written comments related to the work of the Governing Board. Notice of this meeting is required under § 10(a)(2) of the Federal Advisory Committee Act (FACA).
Munira Mwalimu, Executive Officer/Designated Federal Official for the Governing Board, 800 North Capitol Street NW, Suite 825, Washington, DC 20002, telephone: (202) 357-6938, fax: (202) 357-6945, email:
The Governing Board is established to formulate policy for the National Assessment of Educational Progress (NAEP). The Governing Board's responsibilities include selecting subject areas to be assessed, developing assessment frameworks and specifications, developing appropriate student achievement levels for each grade and subject tested, improving the form and use of NAEP, developing guidelines for reporting and disseminating results, and releasing initial NAEP results to the public.
The Governing Board's Nominations Committee fulfills the responsibility of making recommendations for potential candidates to fill Governing Board vacancies for terms of service established by law in various Governing Board categories. Following the Nominations Committee recommendations and Governing Board action, the final slate of candidates is submitted to the Secretary of Education for consideration and appointment to serve on the Governing Board, as defined in Section 302, Public Law 107-279; see
During the March 3, 2018 Governing Board meeting, the Governing Board delegated authority to the Nominations Committee to receive, review, and take action on the final slate of recommended candidates for the position of Chief State School Officer. This delegation of authority allows the timely submission of candidates to the Secretary of Education for consideration and action to meet the October 1, 2018 appointment of a Chief State School Officer. On January 11, 2018, the Nominations Committee held a closed teleconference meeting to discuss nominees for the position of Chief State School Officer to complete the term of service (term expires on September 30, 2018) of the former incumbent, Massachusetts Commissioner of Education, Mitchell Chester. Notice of that meeting was provided in the
On April 25, 2018, the Nominations Committee will meet via teleconference in closed session from 5:30 p.m. to 6:00 p.m. EST. The Committee will discuss nominees for the position of Chief State School Officer, whose term will begin October 1, 2018. The Nominations Committee's discussions pertain solely to internal personnel rules and practices of an agency and information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy. As such, the discussions are protected by exemptions 2 and 6 of § 552b(c) of Title 5 of the United States Code.
Public Law 107-279, Title III—National Assessment of Educational Progress § 301.
Office of Postsecondary Education (OPE), Department of Education (ED).
Notice.
ED is requesting public comment on a proposed instrument.
Interested persons are invited to submit comments on or before May 9, 2018.
To access and review the document related to the information collection listed in this notice, please use
For specific questions, please contact Donald Watson, Executive Director, Historically Black College and University (HBCU) Capital Financing Program, U.S. Department of Education, 400 Maryland Avenue SW, Room 278-02, Washington, DC 20202; telephone: (202) 453-6166; email:
The Department of Education is seeking feedback from the public on a proposed Deferment Request for the HBCU Capital Financing Program. The Department of Education is especially interested in public comment addressing how the Department might enhance the quality, utility, and clarity of the information to be collected. This collection of information does not require OMB review and approval because the proposed instrument will not collect data from ten or more entities. Please note that written comments received in response to this notice will be considered public records.
Office of Electricity Delivery and Energy Reliability, DOE.
Notice of application.
Viasyn, Inc. (Applicant) has applied for authority to transmit electric energy from the United States to Mexico pursuant to the Federal Power Act.
Comments, protests, or motions to intervene must be submitted on or before May 30, 2018.
Comments, protests, motions to intervene, or requests for more information should be addressed to: Office of Electricity Delivery and Energy Reliability, Mail Code: OE-20, U.S. Department of Energy, 1000 Independence Avenue SW, Washington, DC 20585-0350. Because of delays in handling conventional mail, it is recommended that documents be transmitted by overnight mail, by electronic mail to
Exports of electricity from the United States to a foreign country are regulated by the Department of Energy (DOE) pursuant to sections 301(b) and 402(f) of the Department of Energy Organization Act (42 U.S.C. 7151(b), 7172(f)) and require authorization under section 202(e) of the Federal Power Act (16 U.S.C. 824a(e)).
On March 30, 2018, DOE received an application from the Applicant for authority to transmit electric energy from the United States to Mexico as a power marketer for a five-year term using existing international transmission facilities. Viasyn intends to apply for market-based rate authority with the Federal Energy Regulatory Commission's (FERC), however, it has not made that application at this point in time.
In its application, the Applicant states that it does not own or control any electric generation or transmission facilities, and it does not have a franchised service area. The electric energy that the Applicant proposes to export to Mexico would be surplus energy purchased from third parties such as electric utilities and Federal power marketing agencies pursuant to voluntary agreements. The existing international transmission facilities to be utilized by the Applicant have previously been authorized by Presidential Permits issued pursuant to Executive Order 10485, as amended, and are appropriate for open access transmission by third parties.
Comments and other filings concerning the Applicant's application to export electric energy to Mexico should be clearly marked with OE Docket No. EA-451. An additional copy is to be provided to RJ Schembs, Viasyn, Inc., 2440 Camino Ramon, Suite 299, San Ramon, CA 94583.
A final decision will be made on this application after the environmental impacts have been evaluated pursuant to DOE's National Environmental Policy Act Implementing Procedures (10 CFR part 1021) and after a determination is made by DOE that the proposed action will not have an adverse impact on the sufficiency of supply or reliability of the U.S. electric power supply system.
Copies of this application will be made available, upon request, for public inspection and copying at the address provided above, by accessing the program website at
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of open teleconference.
This notice announces a teleconference call of the State Energy Advisory Board (STEAB). The Federal Advisory Committee Act requires that public notice of these meetings be announced in the
Friday, May 18, 2018 from 12:00 p.m. to 2:00 p.m. (EDT). To receive the call-in number and passcode, please contact the Board's Designated Federal Officer at the address or phone number listed below.
Michael Li, Designated Federal Officer, Office of Energy Efficiency and Renewable Energy, U.S. Department of Energy, 1000 Independence Ave. SW, Washington, DC 20585. Phone number 202-287-5718, and email:
This is a supplemental notice in the above-referenced proceeding Rio Bravo Rocklin, A California Joint Venture's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is May 14, 2018.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the website that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
This is a supplemental notice in the above-referenced proceeding Walnut Ridge Wind, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is May 14, 2018.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the website that enables subscribers, to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
Take notice that on April 10, 2018, Dominion Energy Questar Pipeline, LLC (DEQP) 333 South State Street, Salt Lake City, Utah 84111, filed in Docket No. CP18-192-000, an application pursuant to section 7(c) of the Natural Gas Act and Part 157 of the Commission's regulations to amend a certificate parameter of the Chalk Creek Aquifer Storage Facility (Chalk Creek), located in Summit County, Utah. The proposed amendment will eliminate operating parameter 3 and enable DEQP's customer to inject gas into Chalk Creek sooner to prepare for peak storage needs, 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 regarding this application should be directed to L. Bradley Burton, Director-Regulatory, Certificates & Tariffs, Dominion Energy Services, Inc., 333 South State Street, P.O. Box 45360, Salt Lake City, Utah 84145-0360, by phone (801) 324-2459, or
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.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below, file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 7 copies of filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commentors will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commentors will not be
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the eFiling link at
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 on April 11, 2018, Transcontinental Gas Pipe Line Company, LLC (Transco), Post Office Box 1396, Houston, Texas, filed an application under sections 7(b) and 7(c) of the Natural Gas Act (NGA) and Part 157 of the Commission's regulations for a certificate of public convenience and necessity authorizing Transco's Southeastern Trail Project (Southern Trail). This system expansion project would enable Transco to provide an additional 296,375 dekatherms per day (Dt/d) of firm transportation service to five shippers, and to abandon certain compression facilities, all as more fully set forth in the application which is on file with the Commission and open to public inspection.
Southern Trail comprises the construction and operation of approximately 7.72 miles of new natural gas pipeline loop located along Transco's existing mainline; approximately 60,720 horsepower of additional compression at three existing facilities in Virginia (Compressor Station 185, Compressor Station 175, and Compressor Station 165), reversal and/or deodorization modifications at eight existing Mainline Facilities in South Carolina, Georgia, and Louisiana, and modifications at 13 existing Mainline Valve Sites in South Carolina and Georgia. The Project also includes the retirement and abandonment of 10 compressor units and related buildings and ancillary equipment at Transco's existing Compressor Station 165 in Pittsylvania County, Virginia.
Questions regarding this filing may be directed Andre Pereira, at (713) 215-4362, P.O. Box 1396, Houston, Texas 77251. In addition, Transco has established a toll-free telephone number, (713) 215-2264 so that parties can call with questions about Southern Trail, as well as an email support address (
This filing is available for review at the Commission's Washington, DC offices, or may be viewed on the Commission's website at
There are two ways to become involved in the Commission's review of this Project. First, any person wishing to obtain legal status by becoming a party to the proceeding for this project should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure, 18 CFR 385.214, 385.211 (2016), by the comment date below. A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission, and will receive copies of all documents filed by the applicant and by all other parties. A party must submit filings made with the Commission by mail, hand delivery, or internet, in accordance with Rule 2001 of the Commission's Rules of Practice and Procedure, id. 385.2001. A copy must be served on every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Protests and interventions may be filed electronically via the internet in lieu of paper; see 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's website under the e-filing link. The Commission strongly encourages electronic filings.
As of the February 27, 2018 date of the Commission's order in Docket No. CP16-4-001, the Commission will apply its revised practice concerning out-of-time motions to intervene in any new Natural Gas Act section 3 or section 7 proceeding.
If the Commission decides to set the application for a formal hearing before an Administrative Law Judge, the Commission will issue another notice describing that process. At the end of the Commission's review process, a final Commission order approving or denying the requested authorizations will be issued.
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
This is a supplemental notice in the above-referenced proceeding Rio Bravo Fresno, A California Joint Venture's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is May 14, 2018.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the website that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
This is a supplemental notice in the above-referenced proceeding Skylar Energy Resources LLCs application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is May 14, 2018.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the website that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities 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:
This is a supplemental notice in the above-referenced proceeding CED Wistaria Solar, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is May 14, 2018.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the website that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
Equal Employment Opportunity Commission.
Final 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 that it has submitted the information described below to the Office of Management and Budget (OMB) for a three-year extension without change.
Written comments on this final notice must be submitted on or before May 30, 2018.
Comments on this final notice must be submitted to Joseph B. Nye, Policy Analyst, Office of Information and Regulatory Affairs,
All comments received, including any personal information provided, also will be available for public inspection during normal business hours by appointment only at the EEOC Headquarters' Library, 131 M Street NE, Washington, DC 20507. Upon request, individuals who require assistance viewing comments will be provided appropriate aids such as readers or print magnifiers. To schedule an appointment, contact EEOC Library staff at (202) 663-4630 (voice) or (202) 663-4641 (TTY). (These are not toll-free numbers.)
Kathleen Oram, Assistant Legal Counsel, at (202) 663-4681 (voice) or (202) 663-7026 (TDD).
On February 22, 2018, the Commission published a 60-Day Notice informing the public of its intent to request an extension without change of the information collection requirements from the Office of Management and Budget. 83 FR 7720 (February 22, 2018). No comments were received.
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);
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 resulting UGESP burden hours 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 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 Deposit Insurance Corporation (FDIC).
Notice and request for comment.
The FDIC, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on the renewal of an existing information collection, as required by the Paperwork Reduction Act of 1995 (PRA). Currently, the FDIC is soliciting comment on renewal of the information collection described below.
Comments must be submitted on or before June 29, 2018.
Interested parties are invited to submit written comments to the FDIC by any of the following methods:
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All comments should refer to OMB control number 3064-0109. A copy of the comments may also be submitted to the OMB desk officer for the FDIC: Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Washington, DC 20503.
Manny Cabeza, Counsel, 202-898-3767,
Board of Governors of the Federal Reserve System.
The Board of Governors of the Federal Reserve System (Board) is adopting a proposal to extend for three years, without revision, the Recordkeeping Requirements Associated with Limitations on Interbank Liabilities (Regulation F; OMB No. 7100-0331).
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.
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.
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. Board-approved collections of information are incorporated into the official OMB inventory of currently approved collections of information. Copies of the Paperwork Reduction Act Submission, supporting statements and approved collection of information instrument(s) are placed into OMB's public docket files. The Federal Reserve may not conduct or sponsor, and the respondent is not required to respond to, an information collection that has been extended, revised, or implemented on or after October 1, 1995, unless it displays a currently valid OMB control number.
The Board has updated its burden estimate for this information collection to account for all depository institutions insured by the Federal Deposit Insurance Corporation (FDIC), all of which are potential respondents. The Board's previous burden estimate accounted only for state member banks. The increase in burden reflects the update to correct the number of potential respondents, and is not due to a change in burden for individual institutions.
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, with revision, the Financial Statements for Holding Companies (FR Y-9 family of reports) (OMB No. 7100-0128).
Comments must be submitted on or before June 29, 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, if 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 directed to take every reasonable step to solicit comment. In determining whether to approve a collection of information, the Board will consider all comments received from the public and other agencies.
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.
The Board is proposing a number of revisions to the FR Y-9C requirements, most of which are consistent with proposed changes to the Federal Financial Institutions Examination Council (FFIEC) Consolidated Reports of Condition and Income (Call Reports) (FFIEC 031, FFIEC 041, and FFIEC 051; OMB No. 7100-0036). The proposed revisions to the FR Y-9C include deleting certain data items, consolidating existing data items into new data items, and adding new or raising existing reporting thresholds for certain data items to reduce reporting burden. As discussed below, all of the proposed changes resulted from an extensive analysis of the uses of Call Report data which is generally aggregated on the FR Y-9C report, to include a series of nine surveys conducted over a 19-month period that began in mid-July 2015 and ended in mid-February 2017. Based on the results of the user surveys, the Board identified data items to be considered for removal and new or revised reporting thresholds to reduce burden. The Board believes that consistent changes should be made to the FR Y-9C to ensure burden reductions are fully realized. Additional detail on specific line items that will be revised are discussed below. The proposed revisions would be effective beginning with the reports reflecting the June 30, 2018, report date. The proposed changes include:
• Combining certain data items into new or existing data items pertaining to
(1) Interest-only strips on Schedule HC-F—Other Assets;
(2) Certain 1-4 family residential mortgage banking activities on Schedule HC-P;
(3) Loans measured at fair value and the unpaid principal balances of such loans on HC-Q—Memoranda;
(4) Certain types of credit exposures, ownership interests, credit exposures to securitization facilities sponsored by HCs, and transactions involving small business obligations on Schedule HC-S; and
(5) Certain detail on Schedule HC-V—Variable Interest Entities (VIEs), on consolidated VIEs used as asset-backed commercial paper (ABCP) conduits and certain detail on other VIEs;
• Deleting certain data items on Schedules HC-N—Past Due and Nonaccrual Loans, Leases, and Other Assets; HC-P—1-4 Family Residential Mortgage Banking Activities in Domestic Offices; HC-Q—Assets and Liabilities Measured at Fair Value on a Recurring Basis-Memoranda; and Schedule HC-S—Servicing, Securitization, and Asset Sale Activities; and
• Adding new and revising existing reporting thresholds for certain data items on Schedule HC-P, HC-Q, and HC-S.
The Board proposes to combine the reporting of interest-only strips receivable on Schedule HC-F, which are currently reported in data items 3(a) for those on mortgage loans and 3(b) for those on other financial assets, into a single new item 3, Interest-only strips receivable.
The Board proposes to delete Schedule HC-N, Memoranda, data items 5(b)(1) and 5(b)(2), columns A through C pertaining to past due and nonaccrual status of the fair value and unpaid principal balance of held-for-investment loans measured at fair value. Memorandum item 5(a), “Loans and leases held for sale,” would be renumbered as item 5 for columns A through C.
The Board proposes to modify the reporting criteria for Schedule HC-P by removing the current $1 billion asset-sized threshold and applying only the Schedule's existing activity-based threshold. As proposed, Schedule HC-P would be completed by HCs where any of the following residential mortgage banking activities (in domestic offices) exceeds $10 million for two consecutive quarters:
• Closed-end and open-end first lien and junior lien 1-4 family residential mortgage loan originations and purchases for resale from all sources during a calendar quarter;
• Closed-end and open-end first lien and junior lien 1-4 family residential mortgage loan sales during a calendar quarter; or
• Closed-end and open-end first lien and junior lien 1-4 family residential mortgage loans held for sale or trading at calendar quarter-end.
The Board also proposes to combine a number of data items pertaining to 1-4 family residential mortgage banking activity detail collected in this schedule for closed-end loans and commitments under open-end loans for retail originations (item 1), wholesale originations and purchases (item 2), mortgage loans sold (item 3), mortgage loans held for sale or trading (item 4), and repurchases and indemnifications of mortgage loans (item 6). Specifically, the Board proposes to:
• Combine 1(a), 1(b), and 1(c)(1) into new data item 1;
• Combine 2(a), 2(b), and 2(c)(1) into new data item 2;
• Combine 3(a), 3(b), and 3(c)(1) into new data item 3;
• Combine 4(a), 4(b), and 4(c)(1) into new data item 4; and
• Combine 6(a), 6(b), and 6(c)(1) into new item 6.
The Board also proposes to combine data items 5(a) and 5(b) pertaining to noninterest income from the sale, securitization, and servicing of closed-end and open-end 1-4 family residential mortgage loans into new data item 5. In addition, the Board proposes to remove data items 1(c)(2), 2(c)(2), 3(c)(2), 4(c)(2), and 6(c)(2) pertaining to the principal amount funded for open-end loans extended under lines of credit for each of the above listed categories.
The Board proposes to modify the reporting criteria for Schedule HC-Q by applying an activity threshold. Schedule HC-Q would be completed only by HCs that (1) have elected to report financial instruments or servicing assets and liabilities at fair value under a fair value option with changes in fair value recognized in earnings, or (2) are required to complete Schedule HC-D, Trading Assets and Labilities. HCs that do not meet either of these criteria would no longer need to complete this schedule, regardless of asset size.
The Board also proposes to delete column B (domestic offices) on Schedule HC-Q, for the fair value and the unpaid principal balance of such loans currently collected in Memorandum items 3 and 4, respectively. The Board proposes to combine certain existing loan categories in Memorandum items 3 and 4 for fair value option loans secured by
• Delete existing Memoranda items 3(a) and 4(a), column A, on the fair value and the unpaid principal balance of consolidated loans secured by real estate;
• Combine existing Memorandum items 3(a)(3)(a), 3(a)(3)(b)(i), and 3(a)(3)(b)(ii), column B, into new Memorandum item 3(a)(1) for the fair value of consolidated loans secured by 1-4 family residential properties measured at fair value;
• Combine existing Memorandum items 3(a)(1), 3(a)(2), 3(a)(4), and 3(a)(5), column B, into new Memorandum item 3(a)(2) for the fair value of all other loans secured by real estate measured at fair value;
• Combine existing Memorandum items 3(c)(1) through 3(c)(4) into new Memorandum item 3(c) pertaining to the fair value of all consumer loans measured at fair value;
• Combine existing Memorandum items 4(a)(3)(a), 4(a)(3)(b)(i), and 4(a)(3)(b)(ii), column B, into new Memorandum item 4(a)(1) pertaining to the unpaid principal balance of consolidated loans secured by 1-4 family residential properties that are measured at fair value;
• Combine existing Memorandum items 4(a)(1), 4(a)(2), 4(a)(4), and 4(a)(5), column B, into new Memorandum item 4(a)(2) pertaining to the unpaid principal balance of all other loans secured by real estate measured at fair value for the consolidated HC; and
• Combine existing Memorandum items 4(c)(1) through 4(c)(4) into new Memorandum item 4(c) pertaining to the unpaid principal balance of all consumer loans measured at fair value.
The Board proposes the following revisions to Schedule HC-S:
• Combine data items 2(a), 2(b), and 2(c) into new item 2, columns A through G, pertaining to the maximum amount of credit exposure arising from recourse or other seller-provided credit enhancements in the form of retained interest-only strips, subordinated securities and other residual interests, and standby letters of credit and other enhancements;
• Add a reporting threshold of $100 billion or more in total assets before HCs must complete Schedule HC-S, data item 3, which is used for reporting unused commitments to provide liquidity to structures reported in item 1 involving assets sold and securitized by the reporting HC with servicing retained or with recourse or other seller-provided credit enhancements;
• Combine data items 6(a) and 6(b) pertaining to ownership (or seller's) interests carried as securities or loans into new data item 6. The Board also proposes to add a reporting threshold of $10 billion or more in total consolidated assets before HCs must complete data item 6;
• Delete data items 7(a) and 7(b) pertaining to loan amounts included in ownership (or seller's) interests carried as securities that are 30-89 days past due and 90 days or more past due, respectively;
• Delete data items 8(a) and 8(b) pertaining to charge-offs and recoveries, respectively, on loan amounts included in the ownership (or seller's) interests carried as securities that are currently reported in 6(a);
• Combine data item 9, columns B (home equity lines) and C (credit card receivables), pertaining to the maximum amount of credit exposures arising from credit enhancements in the form standby letters of credit, purchased subordinated securities, and other enhancements provided by the reporting HC to other institutions' securitization structures, into existing column G, All other loans, all leases, and all other assets;
• Add a reporting threshold of $10 billion or more in total assets for reporting unused commitments to provide liquidity to other institutions' securitization structures in item 10. The Board also proposes to combine data item 10, columns B (home equity lines) and C (credit card receivables), pertaining to a reporting institution's unused commitments to provide liquidity to other institutions' securitization structures, respectively, into existing column G;
• Combine data item 11, columns B through F, pertaining to assets sold with recourse or other seller-provided credit enhancements and not securitized, into existing column G. The activities reported in columns B through F pertain to home equity lines, credit card receivables, auto loans, other consumer loans, and commercial and industrial loans, respectively;
• Combine data item 12, columns B through F, pertaining to the maximum amount of credit exposure arising from recourse or other seller-provided credit enhancements on assets sold with recourse or other seller-provided credit enhancements and not securitized, into existing column G;
• Delete Memorandum items 1(a) and 1(b) pertaining to the outstanding principal balance and the amount of retained recourse, respectively, on small business obligations transferred with recourse under Section 208 of the Riegle Community Development and Regulatory Improvement Act of 1994, and include the amounts previously reported in these two memorandum items in either items 1 or 2 (column F) or items 11 and 12 (column G), depending on whether the obligations were securitized or not securitized, respectively; and
• Add a reporting threshold of $10 billion or more in total assets for reporting the detail on ABCP conduits in Memorandum items 3(a)(1) through 3(b)(2), and the amount of outstanding credit card fees and finance charges included in credit card receivables sold and securitized with servicing retained or with recourse or other seller-provided credit enhancements in Memorandum item 4. To complete Memorandum item 4, a HC with $10 billion or more in total assets would also need to meet one of the existing criteria for reporting this information,
The Board proposes to consolidate information collected on consolidated VIEs used as ABCP conduits (column B)
• Combine data items 1(b) and 1(c), pertaining to held-to-maturity and available-for-sale securities, into a single new item 1(b), Securities not held for trading;
• Combine data items 1(e) through 1(g), pertaining to loans and leases held for sale, loans and leases held for investment, and the allowance for loan and lease losses, into a single new item 1(c), Loans and leases held for investment, net of allowance, and held for sale;
• Combine data items 2(c) and 2(d), pertaining to commercial paper and other borrowed money, into a single new item 2(a), Other borrowed money;
• Delete data items 1(d), 1(h), and 1(i), pertaining to securities purchased under agreements to resell, trading assets (other than derivatives), and derivative trading assets. The data currently reported in these items would be included in existing data item 1(k), Other assets, which would be renumbered as data item 1(e). Existing data item 1(j) Other real estate owned would be renumbered 1(d); and
• Delete VIE detail on data items 2(a) and 2(b), pertaining to securities sold under agreements to repurchase and derivative trading liabilities. The data currently reported in these items would be included in existing data item 2(e), Other liabilities, which would be renumbered as data item 2(b).
With respect to the FR Y-9LP, FR Y-9SP, FR Y-9ES, FR Y-9CS, as well as most items on the FR Y-9C, the information collected would generally not be accorded confidential treatment. If confidential treatment is requested by a respondent, the Board will review the request to determine if confidential treatment is appropriate.
With respect to the FR Y-9C, Schedule HI's item 7(g) “FDIC deposit insurance assessments,” Schedule HC-P's item 7(a) “Representation and warranty reserves for 1-4 family residential mortgage loans sold to U.S. government agencies and government sponsored agencies,” and Schedule HC-P's item 7(b) “Representation and warranty reserves for 1-4 family residential mortgage loans sold to other parties” are considered confidential. Such treatment is appropriate because the data is not publicly available and could cause substantial harm to the competitive position of the respondent. The public release of this confidential data may impair the Board's future ability to collect similarly confidential data. Thus, this information may be kept confidential under exemptions (b)(4) of the Freedom of Information Act, which exempts from disclosure “trade secrets and commercial or financial information obtained from a person and privileged or confidential” (5 U.S.C. 552(b)(4)), and (b)(8) of the Freedom of Information Act, which exempts from disclosure information related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions (5 U.S.C. 552(b)(8)). If confidential treatment is requested by a respondent for other items in the FR Y-9C, the Board will review the request to determine if confidential treatment is appropriate.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice of meeting.
The Centers for Disease Control and Prevention (CDC) within the Department of Health and Human Services announces the next meeting of the Community Preventive Services Task Force (CPSTF) on June 13-14, 2018, in Atlanta, Georgia.
The meeting will be held on Wednesday, June 13, 2018, from 8:30 a.m. to 6:00 p.m. EDT and Thursday, June 14, 2018, from 8:30 a.m. to 1:00 p.m. EDT.
The CPSTF Meeting will be held at the CDC Edward R. Roybal Campus, Centers for Disease Control and Prevention Headquarters (Building 19), 1600 Clifton Road NE, Atlanta, GA 30329. You should be aware that the meeting location is in a Federal government building; therefore, Federal security measures are applicable. For additional information, please see Roybal Campus Security Guidelines under
Onslow Smith, Center for Surveillance, Epidemiology and Laboratory Services; Centers for Disease Control and Prevention, 1600 Clifton Road NE, MS-E-69, Atlanta, GA 30329, phone: (404) 498-6778, email:
Those unable to attend the meeting in person are able to do so via webcast. CDC will send the webcast URL to registrants upon receipt of their registration. All meeting attendees must
All meeting attendees must register by the dates outlined under
Centers for Medicare & Medicaid Services, HHS.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (PRA), federal agencies are required to publish notice in the
Comments on the collection(s) of information must be received by the OMB desk officer by May 30, 2018.
When commenting on the proposed information collections, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be received by the OMB desk officer via one of the following transmissions: OMB, Office of Information and Regulatory Affairs, Attention: CMS Desk Officer, Fax Number: (202) 395-5806
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' website address at website address at
1. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
2. Call the Reports Clearance Office at (410) 786-1326.
Reports Clearance Office at (410) 786-1326.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C.
1.
2.
The Indian Health Service (IHS) Office of Clinical and Preventive Services (OCPS), Division of Behavioral Health (DBH), is accepting an application for a single source grant with the Oglala Sioux Tribe (OST) to continue the expansion of advocacy and shelter services for domestic and sexual violence on the Pine Ridge Reservation under the Domestic Violence Prevention Program Initiative (DVPI). The DVPI was first established by the Omnibus Appropriations Act of 2009, Public Law 111-8, 123 Stat. 524, 735, and continued in the annual appropriations acts since that time. This program is authorized under the authority of 25 U.S.C. 13, the Snyder Act, and the Indian Health Care Improvement Act, at 25 U.S.C. 1665a and 1665m. This program is described in the Catalog of Federal Domestic Assistance under 93.933.
The DBH serves as the primary source of national advocacy, policy development, management and administration of behavioral health, alcohol and substance abuse, and family violence prevention programs. The DVPI promotes the development of evidence-based and practice-based models that represent culturally appropriate prevention and treatment approaches to domestic and sexual violence from a community-driven context. IHS proposes to enter into a single source grant with the OST based on prior collaboration between the IHS and the OST during the DVPI pilot project years 2010-2015 to expand advocacy services to victims of domestic and sexual violence (DSV) including shelter, and emergency housing.
The purpose of this Single Source grant is to provide funding to assist victims of DSV on the Pine Ridge Reservation. Specifically, IHS is requesting an application that will enhance or expand the OST's crisis response efforts, shelter and emergency housing services, and/or training and technical assistance opportunities. Examples of grant activities may include:
• Purchase of modular buildings to expand shelter services.
• Emergency travel and transportation costs to surrounding shelters.
• Training for staff and/or individuals delivering DSV services.
• Technical assistance.
The OST is identified as the single source for this grant based on funding allocated by the IHS to benefit the OST from the 2010-2015 DVPI. The OST exceeded expectations as a partner during the DVPI pilot in responding to the needs of victims of DSV in the servicing area of the OST and is the best resource to continue expansion on the proposed services in this announcement.
Grant.
The total amount of funding identified for this project is approximately $920,000. Submitted application should not exceed the total amount of available funding and should be divided over two years in the budget portion of the application. The IHS is under no obligation to make awards that are selected for funding under this announcement.
One application will be accepted under this announcement for OST and only one award will be issued.
The period of performance is for two years and will run consecutively from July 15, 2018, to July 14, 2020.
The award is offered as a single source grant to the OST.
The IHS does not require matching funds or cost sharing for grants or cooperative agreements.
Funding for year one should focus on program planning and development and the year two focus should be on program implementation. If the application budget exceeds the highest dollar amount outlined under the Estimated Funds Available section within this funding announcement, the application will be considered ineligible and will not be reviewed for further consideration. If deemed ineligible, IHS will not return the application. The applicant will be notified by email by the Division of Grants Management (DGM) of this decision.
An official signed Tribal resolution from the OST must be received by the DGM prior to a Notice of Award (NoA) being issued to the applicant for funding. However, if an official signed Tribal resolution cannot be submitted with the electronic application submission prior to the official application deadline date, a draft Tribal resolution must be submitted by the deadline in order for the application to be considered complete and eligible for review. The draft Tribal resolution is not in lieu of the required signed resolution, but is acceptable until a signed resolution is received. If an official signed Tribal resolution is not received by DGM when funding decisions are made, then a NoA will not be issued to the applicant and they will not receive any IHS funds until such time as they have submitted a signed resolution to the Grants Management Specialist listed in this funding announcement.
If the OST is claiming non-profit status they must submit proof. A copy of the 501(c)(3) Certificate must be received with the application submission by the Application Deadline Date listed under the Key Dates section on page one of this announcement.
The applicant submitting any of the above additional documentation after the initial application submission due date is required to ensure the information was received by the IHS DGM by obtaining documentation confirming delivery (
The application package and detailed instructions for this announcement can be found at
Questions regarding the electronic application process may be directed to Mr. Paul Gettys at (301) 443-2114 or (301) 443-5204.
The applicant must include the project narrative as an attachment to the application package. Mandatory documents for all applicants include:
All Federal-wide public policies apply to IHS grants and cooperative agreements with exception of the Discrimination Policy.
Be sure to succinctly answer all questions listed under the evaluation criteria (refer to Section V.1, Evaluation criteria in this announcement) and place all responses and required information in the correct section (noted below), or they will not be considered or scored. These narratives will assist the Objective Review Committee (ORC) in becoming familiar with the applicant's activities and accomplishments prior to this possible grant award. If the narrative exceeds the page limit, only the first 15 pages will be reviewed. The narrative does not include the work plan, standard forms, Tribal resolutions, table of contents, categorical budget and budget justification, and/or other appendix items.
There are four parts to the narrative: Part A—Goals and Objectives; Part B—Project Activities; Part C—Timeline Chart; and Part D—Organizational Capacity, Staffing/Administration.
Below are additional details about what must be included in the narrative and the page limitations for each narrative and budget submitted.
• Describe the purpose of the proposed project that includes a clear statement of goals.
• Outline the goals and objectives for the grant project.
• Clearly outline all project activities that align with the applicant's goals and objectives.
• Describe anticipated barriers to progress of the project and how the barriers will be addressed.
• Identify any other programs, agencies, or organizations that will participate in the proposed project. Describe their roles, responsibilities, and demonstrate their commitment to the project. Include a list of these organizations as an attachment to the application. In the attached list, indicate the organizations that the Tribe has worked with or currently works with. [Note: The attachment will not count as part of the 15-page maximum.]
Provide a timeline chart for two years depicting a realistic timeline for the period of performance showing key activities, milestones, and responsible staff. [Note: The timeline chart should be included as part of the project narrative as specified here. It should not be placed as an attachment.]
• Describe the management capability and experience of the OST in administering similar grants and projects.
• Discuss the OSTs experience and capacity to provide culturally appropriate/competent services to victims of DSV.
• Describe the resources available for the proposed project (
• Describe how project continuity will be maintained if/when there is a change in the operational environment (
• Provide a complete list of staff positions for the project, including the project director, project coordinator, and other key personnel, showing the role of each and their level of effort and qualifications.
• Include position descriptions as attachments to the project proposal/application for the project director, project coordinator, and all key personnel. Position descriptions should not exceed one page each. [Note: Attachments will not count against the 15 page maximum.]
• For individuals that are identified and currently on staff, include a biographical sketch for the project director, project coordinator, and other key positions as attachments to the project proposal/application. Each biographical sketch should not exceed one page. [Note: Attachments will not count against the 15 page maximum.] Do not include Personally Identifiable Information, Resumes, or Curriculum Vitae.
This narrative must include a line item budget with a narrative justification for all expenditures identifying reasonable allowable, allocable costs necessary to accomplish the goals and objectives as outlined in the project narrative. Budget should match the scope of work described in the project narrative and should not exceed 5 pages. [Note: The categorical budget and budget justification does not count against the project narrative page maximum of 15 pages.]
The application must be submitted electronically through
If technical challenges arise and assistance is required with the electronic application process, contact
Executive Order 12372 requiring intergovernmental review is not applicable to this program.
• Pre-award costs are not allowable.
• The available funds are inclusive of direct and appropriate indirect costs.
• Only one grant will be awarded to the applicant.
• IHS will not acknowledge receipt of application.
• It is acceptable to include administrative costs for planning.
The application must be submitted electronically. Please use the following website,
If the applicant needs to submit a paper application instead of submitting electronically through
Once the waiver request has been approved, the applicant will receive a confirmation of approval email containing submission instructions and the mailing address to submit the application. A copy of the written approval must be submitted along with the hardcopy of the application that is mailed to DGM. The paper application that are submitted without a copy of the signed waiver from the Director of the DGM will not be reviewed or considered for funding. The applicant will be notified via email of this decision by the Grants Management Officer of the DGM. The paper application must be received by the DGM no later than 5:00 p.m. EDT on the Application Deadline Date listed in the Key Dates section on page one of this announcement. A late application
Please be aware of the following:
• Please search for the application package in
• If you experience technical challenges while submitting your application electronically, please contact
• Upon contacting
• Applicants are strongly encouraged not to wait until the deadline date to begin the application process through
• Please use the optional attachment feature in
• All applicants must comply with any page limitation requirements described in this funding announcement.
• After electronically submitting the application, the applicant will receive an automatic acknowledgment from
• An emailed application will not be accepted under this announcement.
All IHS applicants and grantee organizations are required to obtain a DUNS number and maintain an active registration in the SAM database. The DUNS number is a unique 9-digit identification number provided by D&B which uniquely identifies each entity. The DUNS number is site specific; therefore, each distinct performance site may be assigned a DUNS number. Obtaining a DUNS number is easy, and there is no charge. To obtain a DUNS number, you may access it through
All HHS recipients are required by the Federal Funding Accountability and Transparency Act of 2006, as amended (“Transparency Act”), to report information on sub-awards. Accordingly, all IHS grantees must notify potential first-tier sub-recipients that no entity may receive a first-tier sub-award unless the entity has provided its DUNS number to the prime grantee organization. This requirement ensures the use of a universal identifier to enhance the quality of information available to the public pursuant to the Transparency Act.
Organizations that were not registered with Central Contractor Registration and have not registered with SAM will need to obtain a DUNS number first and then access the SAM online registration through the SAM home page at
Additional information on implementing the Transparency Act, including the specific requirements for DUNS and SAM, can be found on the IHS Grants Management, Grants Policy website:
The instructions for preparing the application narrative also constitute the evaluation criteria for reviewing and scoring the application. Weights assigned to each section are noted in parentheses. The 15 page narrative should include only the first year of activities; information for multi-year projects should be included as an appendix. See “Multi-year Project Requirements” at the end of this section for more information. The narrative section should be written in a manner that is clear to outside reviewers unfamiliar with prior related activities of the applicant. It should be well organized, succinct, and contain all information necessary for reviewers to understand the project fully. Points will be assigned to each evaluation criteria adding up to a total of 100 points. A minimum score of 60 points is required for funding. Points are assigned as follows:
Your application will be reviewed and scored according to the quality of responses to the required application components in Sections A-E:
Part A—Introductions and Need for Assistance.
Part B—Project Objective(s), Work Plan and Approach.
Part C—Program Evaluation.
Part D—Organizational Capacity, Staffing/Administration.
Part E—Categorical Budget and Budget Justification.
This section should demonstrate knowledge of concerns and issues regarding DSV specific to the OST. Identify the proposed catchment area and provide demographic information on the population to receive services. Describe the stakeholders and resources in the catchment area providing services to victims of DSV.
• Describe the need to increase the capacity to implement, sustain, and improve effective DSV services including shelter and emergency housing consistent with the purpose of the program.
• Describe the existing service gaps, barriers, and other systemic challenges related to the need for planning and capacity building and coordination of DSV services.
This section should demonstrate a sound and effective annual work plan that will support accomplishment of deliverables and milestones of the project. The work plan should be designed to:
• Describe the purpose of the proposed project.
• Affirm the goals of the project are consistent with priorities of the Tribal government and support of this application.
• Describe how project activities will increase the capacity to serve victims of DSV.
• Describe potential project partners and community resources in the catchment area that can participate in
• Describe anticipated barriers to progress of the project and how these barriers will be addressed.
• Provide a timeline chart depicting a realistic timeline for the entire period of performance showing key activities, milestones, and responsible staff. [
• Define the criteria to be used to evaluate planning activities.
• Clearly describe the methodologies and parameters that will be used to determine if the needs identified are being met and if the outcomes identified are being achieved.
• Ensure the goals and objectives are measurable and consistent with the purpose of the program and meet the needs of the people to be served.
• Ensure the measurement includes activities that will lead to sustainability.
• Describe the management capability and experience of the OST in administering similar grants and projects.
• Identify the department/division that will administer this project. Include a description of this entity, its function, and its placement within the organization.
• Describe how project continuity will be maintained if/when there is a change in the operational environment (
• Provide a list of staff positions for the project.
• Include position descriptions as attachments to the application for the behavioral health staff, project director, project coordinator, and all key personnel. Position descriptions should not exceed one page each.
• For individuals that are currently on staff, include a biographical sketch for each individual that will be listed as the behavioral health staff, project director, project coordinator, and other key positions. Describe the experience of identified staff in domestic violence and sexual assault work in the community/communities. Include each biographical sketch as attachments to the project proposal/application. Biographical sketches should not exceed one page per staff member. Reviewers will not consider information past page one. Do not include Personally Identifiable Information, Resumes, or Curriculum Vitae.
• Include a line item budget for all expenditures identifying reasonable and allowable costs necessary to accomplish the goals and objectives as outlined in the project narrative for both budget years. The budget should match the scope of work described in the project narrative for the first budget year expenses only.
• The applicant must provide a budget narrative justification of the items included in the proposed line item budget.
• Applicants should ensure that the budget and budget narrative are aligned with the project narrative. The categorical budget and budget justification the applicant provides will be considered by reviewers in assessing the applicant's submission, along with the material in the project narrative.
• The categorical budget and budget justification must detail the grantee's estimated first year budget for project planning and activities and second year budget for program implementation not to exceed the total award amount of $920,000.
• The categorical budget and budget justification must not exceed 5 single-spaced pages. [Note: The categorical budget and budget justification does not count against the project narrative page maximum of 15 pages.]
• Work plan and time line for proposed objectives.
• Position descriptions for key staff.
• Resumes of key staff that reflect current duties.
• Consultant or contractor proposed scope of work and letter of commitment (if applicable).
• Current Indirect Cost Agreement.
• Organizational chart.
• Map of area identifying project location(s).
• Additional documents to support narrative (
Each application will be prescreened by the DGM staff for eligibility and completeness as outlined in the funding announcement. An application that meets the eligibility criteria will be reviewed for merit by the ORC based on evaluation criteria in this funding announcement. The ORC could be composed of both Tribal and Federal reviewers appointed by the IHS Program to review and make recommendations on your application. The technical review process ensures selection of quality projects in a national competition for limited funding. An incomplete application that is non-responsive to the eligibility criteria will not be referred to the ORC. The applicant will be notified via email of this decision by the Grants Management Officer of the DGM. Applicants will be notified by DGM, via email, to outline minor missing components (
To obtain a minimum score for funding by the ORC, applicants must address all program requirements and provide all required documentation.
The NoA is a legally binding document signed by the Grants Management Officer and serves as the official notification of the grant award. The NoA will be initiated by the DGM in our grant system, GrantSolutions (
Applicants who received a score less than the recommended funding level for approval, 60 and were deemed to be disapproved by the ORC, will receive an Executive Summary Statement from the IHS program office within 30 days of the conclusion of the ORC outlining the strengths and weaknesses of their application. The summary statement will be sent to the Authorized Organizational Representative that is identified on the face page (SF-424) of the application. The IHS program office will also provide additional contact information as needed to address questions and concerns as well as provide technical assistance if desired.
An approved but unfunded applicant that meets the minimum scoring range and was deemed by the ORC to be “Approved”, but was not funded due to a lack of funds, will have their application held by DGM for a period of one year. If additional funding becomes available during the course of FY 2018 the approved but unfunded application may be re-considered by the awarding program office for possible funding. The applicant will also receive an Executive Summary Statement from the IHS program office within 30 days of the conclusion of the ORC.
Any correspondence other than the official NoA signed by an IHS grants management official announcing to the project director that an award has been made to their organization is not an authorization to implement their program on behalf of IHS.
Grants are administered in accordance with the following regulations and policies:
A. The criteria as outlined in this program announcement.
B. Administrative Regulations for Grants:
• Uniform Administrative Requirements for HHS Awards, located at 45 CFR part 75.
C. Grants Policy:
• HHS Grants Policy Statement, Revised 01/07.
D. Cost Principles:
• Uniform Administrative Requirements for HHS Awards, “Cost Principles,” located at 45 CFR part 75, subpart E.
E. Audit Requirements:
• Uniform Administrative Requirements for HHS Awards, “Audit Requirements,” located at 45 CFR part 75, subpart F.
This section applies to all grant recipients that request reimbursement of indirect costs (IDC) in their grant application. In accordance with HHS Grants Policy Statement, Part II-27, IHS requires applicants to obtain a current IDC rate agreement prior to award. The rate agreement must be prepared in accordance with the applicable cost principles and guidance as provided by the cognizant agency or office. A current rate covers the applicable grant activities under the current award's budget period. If the current rate is not on file with the DGM at the time of award, the IDC portion of the budget will be restricted. The restrictions remain in place until the current rate is provided to the DGM.
Generally, IDC rates for IHS grantees are negotiated with the Division of Cost Allocation (DCA)
The grantee must submit required reports consistent with the applicable deadlines. Failure to submit required reports within the time allowed may result in suspension or termination of an active grant, withholding of additional awards for the project, or other enforcement actions such as withholding of payments or converting to the reimbursement method of payment. Continued failure to submit required reports may result in one or both of the following: 1) the imposition of special award provisions; and 2) the non-funding or non-award of other eligible projects or activities. This requirement applies whether the delinquency is attributable to the failure of the grantee organization or the individual responsible for preparation of the reports. Per DGM policy, all reports are required to be submitted electronically by attaching them as a “Grant Note” in GrantSolutions. Personnel responsible for submitting reports will be required to obtain a login and password for GrantSolutions. Please see the Agency Contacts list in section VII for the systems contact information.
The reporting requirements for this program are noted below.
Program progress reports are required annually, within 30 days after the budget period ends. These reports must include a brief comparison of actual accomplishments to the goals established for the period, a summary of progress to date or, if applicable, provide sound justification for the lack of progress, and other pertinent information as required. A final report must be submitted within 90 days of expiration of the period of performance.
Federal Financial Report (FFR or SF-425), Cash Transaction Reports are due 30 days after the close of every calendar quarter to the Payment Management Services, HHS at
Grantees are responsible and accountable for accurate information being reported on all required reports: the Progress Reports and Federal Financial Report.
This award may be subject to the Transparency Act sub-award and executive compensation reporting requirements of 2 CFR part 170.
The Transparency Act requires the OMB to establish a single searchable database, accessible to the public, with information on financial assistance awards made by Federal agencies. The Transparency Act also includes a requirement for recipients of Federal grants to report information about first-tier sub-awards and executive compensation under Federal assistance awards.
IHS has implemented a Term of Award into all IHS Standard Terms and Conditions, NoAs and funding announcements regarding the FSRS reporting requirement. This IHS Term of Award is applicable to all IHS grant and cooperative agreements issued on or after October 1, 2010, with a $25,000 sub-award obligation dollar threshold met for any specific reporting period. Additionally, all new (discretionary) IHS awards (where the period of performance is made up of more than one budget period) and where: 1) the period of performance start date was October 1, 2010, or after, and 2) the primary awardee will have a $25,000 sub-award obligation dollar threshold during any specific reporting period will be required to address the FSRS reporting.
For the full IHS award term implementing this requirement and additional award applicability information, visit the DGM Grants Policy website at
Recipients of federal financial assistance (FFA) from HHS must administer their programs in compliance with federal civil rights law. This means that recipients of HHS funds must ensure equal access to their programs without regard to a person's race, color, national origin, disability, age and, in some circumstances, sex and religion. This includes ensuring your
The HHS Office for Civil Rights (OCR) also provides guidance on complying with civil rights laws enforced by HHS. Please see
Pursuant to 45 CFR 80.3(d), an individual shall not be deemed subjected to discrimination by reason of his/her exclusion from benefits limited by federal law to individuals eligible for benefits and services from the IHS.
Recipients will be required to sign the HHS-690 Assurance of Compliance form which can be obtained from the following website:
The IHS is required to review and consider any information about the applicant that is in the Federal Awardee Performance and Integrity Information System (FAPIIS) at
As required by 45 CFR part 75 Appendix XII of the Uniform Guidance, non-federal entities (NFEs) are required to disclose in FAPIIS any information about criminal, civil, and administrative proceedings, and/or affirm that there is no new information to provide. This applies to NFEs that receive federal awards (currently active grants, cooperative agreements, and procurement contracts) greater than $10,000,000 for any period of time during the period of performance of an award/project.
As required by 2 CFR part 200 of the Uniform Guidance, and the HHS implementing regulations at 45 CFR part 75, effective January 1, 2016, the IHS must require a non-federal entity or an applicant for a federal award to disclose, in a timely manner, in writing to the IHS or pass-through entity all violations of federal criminal law involving fraud, bribery, or gratuity violations potentially affecting the federal award.
Submission is required for all applicants and recipients, in writing, to the IHS and to the HHS Office of Inspector General all information related to violations of federal criminal law involving fraud, bribery, or gratuity violations potentially affecting the federal award. 45 CFR 75.113.
Disclosures must be sent in writing to: U.S. Department of Health and Human Services, Indian Health Service, Division of Grants Management, ATTN: Robert Tarwater, Director, 5600 Fishers Lane, Mail Stop: 09E70, Rockville, MD 20857, (Include “Mandatory Grant Disclosures” in subject line), Office: (301) 443-5204, Fax: (301) 594-0899, Email:
U.S. Department of Health and Human Services, Office of Inspector General, ATTN: Mandatory Grant Disclosures, Intake Coordinator, 330 Independence Avenue SW, Cohen Building, Room 5527, Washington, DC 20201.
URL:
Failure to make required disclosures can result in any of the remedies described in 45 CFR 75.371 Remedies for noncompliance, including suspension or debarment (See 2 CFR parts 180 & 376 and 31 U.S.C. 3321).
1. Questions on the programmatic issues may be directed to: Selina T. Keryte, Public Health Analyst, DVPI National Coordinator, Division of Behavioral Health, 5600 Fishers Lane, Mail Stop: 08N34, Rockville, MD 20857, Phone: (301) 443-7064, Fax: (301) 594-6213, Email:
2. Questions on grants management and fiscal matters may be directed to: Andrew Diggs, Grants Management Specialist, 5600 Fishers Lane, Mail Stop: 09E70, Rockville, MD 20857, Phone: (301) 443-2241, Fax: (301) 594-0899, Email:
3. Questions on systems matters may be directed to: Paul Gettys, Grant Systems Coordinator, 5600 Fishers Lane, Mail Stop: 09E70, Rockville, MD 20857, Phone: (301) 443-2114, DGM main line: (301) 443-5204, Fax: (301) 594-0899, Email:
The Public Health Service strongly encourages all cooperative agreement and contract recipients to provide a smoke-free workplace and promote the non-use of all tobacco products. In addition, Public Law 103-227, the Pro-Children Act of 1994, prohibits smoking in certain facilities (or in some cases, any portion of the facility) in which regular or routine education, library, day care, health care, or early childhood development services are provided to children. This is consistent with the HHS mission to protect and advance the physical and mental health of the American people.
Dated: April 9, 2018.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Notice is hereby given of a change in the meeting of the National Advisory Council on Minority Health and Health Disparities on May 11, 2018, 8:00 a.m. to adjournment, Neuroscience Center Building, Conference Rooms C, D, and E, Bethesda, MD 20892, which was published in the
The notice is being amended to include an addendum to the agenda of the National Advisory Council on Minority Health and Health Disparities. During the Open session on May 11, 2018, the NIMHD Reorganization Update will be presented from 12:10 p.m.-12:30 p.m. The meeting location remains the same. This meeting is partially closed to the public.
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.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Federal Emergency Management Agency, DHS.
Committee Management; Notice of Open Federal Advisory Committee Meeting.
The Federal Emergency Management Agency (FEMA) National Advisory Council (NAC) will meet in person on May 22-24, 2018, in San Diego, CA. The meeting will be open to the public.
The NAC will meet Tuesday, May 22, 2018, from 8:00 a.m. to 5:00 p.m., Wednesday, May 23, 2018, from 8:00 a.m. to 5:00 p.m., and Thursday, May 24, 2018, from 8:30 a.m. to 1:00 p.m. Pacific Daylight Time (PDT). Please note that the meeting may close early if the NAC has completed its business.
The meeting will be held at The Hyatt Regency Mission Bay (
For information on facilities or services for people with disabilities and others with access and functional needs (including people who use mobility aids, require medication or portable medical equipment, use service animals, need information in alternate formats, or rely on personal assistance services), or to request assistance at the meeting, contact the person listed in the
To facilitate public participation, members of the public are invited to provide written comments on the issues to be considered by the NAC. The “Agenda” section below outlines these issues. The full agenda and any related documents for this meeting will be posted by Friday, May 18, 2018, on the NAC website at
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A public comment period will be held on Wednesday, May 23, 2018, from 1:00 p.m. to 1:15 p.m. PDT. All speakers must limit their comments to 5 minutes. Comments should be addressed to the NAC. Any comments not related to the agenda topics will not be considered by the NAC. To register to make remarks during the public comment period, contact the individual listed in the
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, Fax (540) 504-2331, and email
Notice of this meeting is given under the Federal Advisory Committee Act, 5 U.S.C. Appendix.
The NAC advises the FEMA Administrator on all aspects of emergency management. The NAC incorporates input from State, local, and Tribal governments, and the private sector in the development and revision of FEMA plans and strategies. The NAC includes a cross-section of officials, emergency managers, and emergency response providers from State, local, and Tribal governments, the private sector, and nongovernmental organizations.
On Wednesday, May 23, 2018, the NAC will hear an update on flood insurance and mitigation and a separate update on strategic priorities from the FEMA Administrator. The three permanent and one ad-hoc NAC subcommittees (Federal Insurance and Mitigation Subcommittee, Preparedness and Protection Subcommittee, Response and Recovery Subcommittee, and Tribal Subcommittee) will discuss and deliberate on their potential recommendations and, if appropriate, vote on recommendations for the FEMA Administrator. Potential recommendation topics include (1) building a culture of preparedness, (2) simplifying recovery programs, and (3) promoting pre-disaster mitigation.
On Thursday, May 24, 2018, the NAC will review potential topics for research before the next in-person meeting, discuss recent disasters, review agreed upon recommendations, and confirm charges for the subcommittees.
The full agenda and any related documents for this meeting will be posted by Friday, May 18, 2018, on the NAC website 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 have been made final for the communities listed in the table below.
The FIRM and FIS report are the basis of the floodplain management measures that a community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the Federal Emergency Management Agency's (FEMA's) National Flood Insurance Program (NFIP). In addition, the FIRM
The date of August 16, 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
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 May 30, 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,
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Fish and Wildlife Service, Interior.
Notice of availability of final environmental impact statement and final habitat conservation plan.
We, the U.S. Fish and Wildlife Service, announce the availability of a joint final environmental impact statement and final environmental impact report (final EIS/EIR) under the National Environmental Policy Act of 1967, as amended. We also announce the availability of the final habitat conservation plan (HCP) and California natural community conservation plan. These documents were prepared in support of a permit application submitted to us under the Endangered Species Act of 1973, as amended. We will use these documents to inform our decision regarding issuance of the permit.
A record of decision will be signed no sooner than 30 days after the publication of this notice of availability in the
Electronic copies of the HCP and final EIS/EIR are available at
Address any questions to Mike Thomas, Chief, Conservation Planning Division, Sacramento Fish and Wildlife Office, (916) 414-6600,
The County of Yolo; the Cities of Davis, West Sacramento, Winters, and Woodland; and the Yolo Habitat Conservancy (collectively, the applicants) have applied for a 50-year incidental take permit (ITP) under the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531
Section 9 of the ESA (16 U.S.C. 1531
The Service would issue an ITP to the applicants for a period of 50 years for certain covered activities. The applicants have requested an ITP for 12 covered species.
The HCP includes all lands within Yolo County, approximately 653,549 acres, and 1,174 acres in Solano County for a total combined area of 654,723 acres.
The applicants are requesting incidental take authorization for 12 covered species that could be affected by covered activities identified in the HCP. The HCP covers the following five general categories of covered activities (collectively, Covered Activities):
1. Urban projects and activities, which include general urban development, urban public services, infrastructure, and utilities, and urban projects in rural areas.
2. Rural projects and activities, which include general rural development, rural public services, infrastructure, and utilities, agricultural economic development, aggregate mining, and open space.
3. Public and private operations and maintenance activities.
4. Conservation strategy implementation, which includes habitat restoration, management, and enhancement activities throughout the reserve system.
5. Neighboring landowner agreements.
Twelve species are included in the HCP as Covered Species. They include ESA-listed and non-ESA-listed species.
The final EIS/EIR was prepared to analyze the impacts of issuing an ITP based on the HCP and to inform the public of the proposed action, alternatives, and associated impacts and to disclose any irreversible commitments of resources. The final EIS/EIR analyzes three alternatives in addition to the proposed action described above. The other alternatives include a no-action (
The Service published a notice of intent to prepare a joint environmental impact statement and environmental impact report in the
Issuance of an ITP is a Federal proposed action subject to compliance with NEPA. We will evaluate the application, associated documents, and the public comments we received to determine whether the requirements of NEPA regulations and section 10(a) of the ESA have been met. If we determine that those requirements are met, we will issue a Record of Decision no sooner than 30 days after the EPA publishes notice of the final EIS in the
We publish this notice under the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321-4347
Bureau of Indian Affairs, Interior.
Notice.
This notice informs the public that the Principal Deputy Assistant Secretary—Indian Affairs, exercising the authority of the Assistant Secretary—Indian Affairs, proclaimed approximately 145 acres, more or less, an addition to the reservation of the Spokane Tribe of the Spokane Reservation on March 12, 2018.
Ms. Sharlene M. Round Face, Bureau of Indian Affairs, Division of Real Estate Services, 1849 C Street NW, MS-4642-MIB, Washington, DC 20240, telephone (202) 208-3615.
This notice is published in the exercise of authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs by part 209 of the Departmental Manual.
A proclamation was issued according to the Act of June 18, 1934 (48 Stat. 984; 25 U.S.C. 5110) for the lands described below. These lands were proclaimed to be part of the reservation for the Spokane Tribe of the Spokane Reservation in Spokane County, Washington.
The Southeast Quarter of Section 22, Township 25 North, Range 41 East, W.M., in Spokane County, Washington EXCEPT that portion conveyed to the State of Washington by deed dated June 19, 1929, recorded under Recording No. 997235 and dated July 25, 1942, recorded under Recording No. 557182A; ALSO except that portion conveyed to Spokane County for Craig Road by deed recorded June 7, 1906, under Recording No. 146192; ALSO except the east 830 feet of the South 497.5 feet of the Southeast Quarter of said Section 22, containing 145 acres, more or less after all exceptions.
The above described lands contain a total of 145 acres, more or less, which are subject to all valid rights, reservations, rights-of-way, and easements of record.
This proclamation does not affect title to the lands described above, nor does it affect any valid existing easements for public roads, highways, public utilities, railroads and pipelines, or any other valid easements or rights-of-way or reservations of record.
Bureau of Indian Affairs, Interior.
Notice.
This notice informs the public that the Principal Deputy Assistant Secretary—Indian Affairs, exercising the authority of the Assistant Secretary—Indian Affairs, proclaimed approximately 323.763 acres, more or less, an addition to the reservation of the Pueblo of Pojoaque, New Mexico on March 12, 2018.
Ms. Sharlene M. Round Face, Bureau of Indian Affairs, Division of Real Estate Services, 1849 C Street NW, MS-4642-MIB, Washington, DC 20240, telephone (202) 208-3615.
This notice is published in the exercise of authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs by part 209 of the Departmental Manual. A proclamation was issued according to the Act of June 18, 1934 (48 Stat. 986; 25 U.S.C. 5110) for the lands described below. The land was proclaimed to be the Pueblo of Pojoaque, New Mexico Reservation for the Pueblo of Pojoaque, New Mexico, Santa Fe County and State of New Mexico.
A tract of land lying, being and situate within Sections 26 and 27, Township 16 North, Range 8 East, N.M.P.M., Santa Fe County, New Mexico, being more particularly described as follows:
Beginning at the Northeast corner of the herein described tract of land, from which point, the corner common to Sections 22, 23, 26 and 27, Township 16 North, Range 8 East, N.M.P.M., bears North 89 deg. 54′34″ East, 832.50 feet; thence from said point and place of beginning, South 00 deg. 37′41″ East, 471.87 feet; thence South 62 deg. 29′08″ East, 166.31 feet to the beginning of circular non-tangent curve concave to the Southwest (Delta = 27 deg. 44′18″; Radius = 1,966.52 feet; Chord = South 48 deg. 36′59″ East 942.77 feet); thence along said curve, an arc length of 952.04 feet; thence South 34 deg. 43′18″ East, 558.41 feet to the beginning of a circular non-tangent curve concave to the Northeast (Delta = 23 deg. 04′48″; Radius = 1,048.02 feet; Chord = South 46 deg. 15′48″ East—419.32 feet); thence along said curve, an arc length of 422.16 feet; thence South 57 deg. 39′00″ East, 39.40 feet to the beginning of a circular non-tangent circular curve concave to the Southwest (Delta = 10 deg. 22′05″; Radius = 3,646.82 feet; Chord = South 52 deg. 41′23″ East—659.02 feet); thence along said curve, an arc length of 659.92 feet; thence South 47 deg. 51′53″ East, 251.32 feet to the Southeast corner of said Tract, said corner also being a point on the North right-of-way line of Interstate Highway 25 Frontage Road; thence along said right-of-way, South 50 deg. 51′48″ West, 678.64 feet; thence South 50 deg. 53′51″ West, 699.82 feet; thence South 50 deg. 54′15″ West, 1,176.41 feet; thence South 51 deg. 41′57″ West, 1,161.88 feet to the Southwest corner of said tract, said corner also being the point of divergence from said right-of-way line of Interstate Highway 25 Frontage Road; thence North 38 deg. 48′03″ West, 1,199.26 feet; thence South 89 deg. 22′35″ West, 590.28 feet; thence North 00 deg. 15′21″ West, 1,237.00 feet; thence South 89 deg. 23′41″ West, 1,126.03 feet; thence North 00 deg. 12′57″ West, 1,328.60 feet; thence North 89 deg. 03′15″ East, 1,296.20 feet; thence North 00 deg. 15′37″ West, 1,335.46 feet to the Northwest corner of said tract; thence North 89 deg. 54′34″ East, 1,857.64 feet to the point and place of beginning.
Excepting the following described landfill area:
Beginning at the most Northerly corner of the herein described tract of land, from which point, the corner common to Sections 22, 23, 26 and 27, Township 16 North, Range 8 East, N.M.P.M., bears North 58 deg. 24′00″ East, 3,758.16 feet; thence from said point and place of beginning, South 44 deg. 49′47″ East, 370.35 feet to the most Easterly corner of said tract; thence South 46 deg. 15′56″ West, 420.10 feet to the most Southerly corner of said tract; thence North 67 deg. 52′16″ West, 397.46 feet to the most Westerly corner of said tract; thence North 45 deg. 30′42″ East, 575.60 feet to the point and place of beginning.
All as shown on plat of survey by Landmark Surveys as Job No. L-374, dated September 3, 1993 and Field Inspection May 10, 1994, which was filed in the Office of the County Clerk, Santa Fe County, New Mexico on May 13, 1994 in Plat Book 274, page 017, as Document No. 862,670.
The above-described lands contain a total of 323.763 acres, more or less, which are subject to all valid rights, reservations, rights-of-way, and easements of record.
This proclamation does not affect title to the lands described above, nor does it affect any valid existing easements for public roads and highways, public utilities, railroads, and pipelines or any other valid easements or rights-of-way or reservations of record.
Bureau of Land Management, Interior.
Notice of Official Filing.
The plats of survey of lands described in this notice are scheduled to be officially filed in the Bureau of Land Management (BLM), Alaska State Office, Anchorage, Alaska. The surveys, which were executed at the request of the BLM, are necessary for the management of these lands.
Protests must be received by the BLM by May 30, 2018.
A copy of the plats may be obtained from the Alaska Public Information Center at the BLM Alaska State Office, 222 W. 7th Avenue, Anchorage, Alaska 99513, upon required payment. The plats may be viewed at this location at no cost. Please use this address when filing written protests.
Douglas N. Haywood, Chief, Branch of Cadastral Survey, Bureau of Land Management, Alaska State Office, 222 W. 7th Avenue, Anchorage, Alaska 99513; 1-907-271-5481;
The lands surveyed are:
A person or party who wishes to protest one or more plats of survey identified above must file a written notice of protest with the State Director for Alaska, BLM. The notice of protest must identify the plat(s) of survey that the person or party wishes to protest. The notice of protest must be filed before the scheduled date of official filing for the plat(s) of survey being protested. Any notice of protest filed after the scheduled date of official filing will not be considered. A notice of protest is considered filed on the date it is received by the State Director for Alaska during regular business hours; if received after regular business hours, a notice of protest will be considered filed the next business day. A written statement of reasons in support of a protest, if not filed with the notice of protest, must be filed with the State Director for Alaska within 30 calendar days after the notice of protest is filed. If a notice of protest against a plat of survey is received prior to the scheduled date of official filing, the official filing of the plat of survey identified in the notice of protest will be stayed pending consideration of the protest. A plat of survey will not be officially filed until the dismissal or resolution of all protests of the plat. Before including your address, phone number, email address, or other personal identifying information in a notice of protest or statement of reasons, you should be aware that the documents you submit, including your personal identifying information, may be made publicly available in their entirety at any time. While you can ask us to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
43 U.S.C. Chap. 3.
National Park Service, Interior.
Notice of availability.
The National Park Service (NPS) announces the availability of the Draft Transportation Plan and Environmental Impact Statement (Draft Plan/EIS) for Acadia National Park. The purpose of the Transportation Plan is to determine how best to provide safe and efficient transportation and a variety of high quality experiences to visitors within Acadia National Park while ensuring the protection of park resources and values. The Draft Plan/EIS describes four alternatives for consideration, including a no-action alternative.
Comments will be accepted for a period of 60 days following publication of the Environmental Protection Agency's (EPA) Notice of Availability of the Draft Plan/EIS in the
The Draft Plan/EIS will be available electronically on the NPS PEPC website at
John Kelly, Management Assistant, Acadia National Park, P.O. Box 177, Bar Harbor, ME 04609, (207) 288-8703,
The National Park Service (NPS) is preparing a transportation plan for Acadia National Park to determine ways to provide safe and efficient transportation for visitors while ensuring the protection of park resources and values. Transportation issues at Acadia National Park are diverse and complex. Visitors travel to and within the park by private vehicle, tour bus, bicycle, ferry, Island Explorer bus, and other modes. In 2016, park visitation reached a record 3.3 million visitors, which is an increase of 58 percent from 2006.
High volumes of visitors accessing popular visitor destinations during peak times is causing gridlock, visitor conflicts, crowding, emergency response delays, and resource trampling. Concentrated volumes and mixture of traffic, particularly on the Park Loop Road and Cadillac Mountain Road, create critical visitor safety issues, severe crowding and congestion, impacts on the road systems, and challenges to the park's operational efficiency and sustainability. Further, the interdependent relationship between Acadia National Park and diverse gateway communities increases the complexity of managing visitor use and access, especially given the importance of the park to the local economy. The transportation plan will determine ways to improve safety, reduce congestion and crowding, avoid impacts to park resources, and provide visitors with a high-quality experience through a variety of mechanisms such as visitor management strategies, enhancements to alternative transportation services, restrictions on vehicle size, and expanded access to parking.
The Draft Plan/EIS evaluates four alternatives:
Under all of the action alternatives (alternatives B, C, and D), vehicle size limits would be phased in for all commercial and noncommercial vehicles on the Park Loop Road to improve safety and maintain the historic character of the road. Also common to these alternatives, the number of oversize commercial vehicles (vehicles that do not fit within a standard parking space such as a bus) allowed at key locations at one time would be managed to ensure desired conditions are maintained and visitor capacities at the parks primary attractions are not exceeded.
The NPS will accept comments on the Draft Plan/EIS for a period of 60 days following publication of the Environmental Protection Agency's (EPA) Notice of Availability of the Draft Plan/EIS in the
If you wish to comment, you may submit your comments by any one of several methods. The preferred method of commenting is to enter comments electronically through the PEPC website at
Before including your address, phone number, email address, or other personal identifying information in any comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Bureau of Prisons, Justice.
Notice.
This Notice publishes the annual determination of average cost of incarceration for the Fiscal Years (FY) 2016 and 2017. The fee to cover the average cost of incarceration for Federal inmates was $34,704.12 ($94.82 per day) in FY 2016 and $36,299.25 ($99.45 per day) in FY 2017. The average annual cost to confine an inmate in a Residential Re-entry Center was $29,166.54 ($79.69 per day) for FY 2016 and $32,309.80 ($88.52 per day) for FY 2017.
Applicable Date: April 30, 2018.
Office of General Counsel, Federal Bureau of Prisons, 320 First St. NW, Washington, DC 20534.
Sarah Qureshi, (202) 353-8248.
Title 28 of the Code of Federal Regulations, part 505, allows for assessment and collection of a fee to cover the average cost of incarceration for Federal inmates. Under § 505.2, this fee is calculated by dividing the number representing Bureau of Prisons (Bureau) facilities' monetary obligation (excluding activation costs) by the number of inmate-days incurred for the preceding fiscal year, and then by multiplying the quotient by the number of days in the fiscal year.
Based on FY 2016 and FY 2017 data, the fee to cover the average cost of incarceration for Federal inmates was $34,704.12 ($94.82 per day) in FY 2016 and $36,299.25 ($99.45 per day) in FY 2017. The average annual cost to confine an inmate in a Residential Re-entry Center was $29,166.54 ($79.69 per day) for FY 2016 and $32,309.80 ($88.52 per day) for FY 2017. (
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing for the Commission's consideration concerning negotiated service agreements. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
The Commission gives notice that the Postal Service filed request(s) for the Commission to consider matters related to negotiated service agreement(s). The request(s) may propose the addition or removal of a negotiated service agreement from the market dominant or the competitive product list, or the modification of an existing product currently appearing on the market dominant or the competitive product list.
Section II identifies the docket number(s) associated with each Postal Service request, the title of each Postal Service request, the request's acceptance date, and the authority cited by the Postal Service for each request. For each request, the Commission appoints an officer of the Commission to represent the interests of the general public in the proceeding, pursuant to 39 U.S.C. 505 (Public Representative). Section II also establishes comment deadline(s) pertaining to each request.
The public portions of the Postal Service's request(s) can be accessed via the Commission's website (
The Commission invites comments on whether the Postal Service's request(s) in the captioned docket(s) are consistent with the policies of title 39. For request(s) that the Postal Service states concern market dominant product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3622, 39 U.S.C. 3642, 39 CFR part 3010, and 39 CFR part 3020, subpart B. For request(s) that the Postal Service states concern competitive product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3632, 39 U.S.C. 3633, 39 U.S.C. 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comment deadline(s) for each request appear in section II.
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This Notice will be published in the
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Elizabeth Reed, 202-268-3179.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on April 24, 2018, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Elizabeth Reed, 202-268-3179.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on April 24, 2018, it filed with the Postal Regulatory Commission a
Securities and Exchange Commission (“Commission”).
Notice.
Notice of an application for an order under section 6(c) of the Investment Company Act of 1940 (the “Act”) for an exemption from sections 2(a)(32), 5(a)(1), 22(d), and 22(e) of the Act and rule 22c-1 under the Act, under sections 6(c) and 17(b) of the Act for an exemption from sections 17(a)(1) and 17(a)(2) of the Act, and under section 12(d)(1)(J) for an exemption from sections 12(d)(1)(A) and 12(d)(1)(B) of the Act. The requested order would permit (a) index-based series of certain open-end management investment companies (“Funds”) to issue shares redeemable in large aggregations only (“Creation Units”); (b) secondary market transactions in Fund shares to occur at negotiated market prices rather than at net asset value (“NAV”); (c) certain Funds to pay redemption proceeds, under certain circumstances, more than seven days after the tender of shares for redemption; (d) certain affiliated persons of a Fund to deposit securities into, and receive securities from, the Fund in connection with the purchase and redemption of Creation Units; and (e) certain registered management investment companies and unit investment trusts outside of the same group of investment companies as the Funds (“Funds of Funds”) to acquire shares of the Funds.
BMO Asset Management Corp. (the “Initial Adviser”), a Delaware corporation that is registered as an investment adviser under the Investment Advisers Act of 1940, BMO Exchange Traded Funds (the “Trust”), a Delaware statutory trust that will be registered under the Act as an open-end management investment company with multiple series, and BMO Investment Distributors, LLC (the “Distributor”), a Wisconsin limited liability company that will be a broker-dealer registered under the Securities Exchange Act of 1934 (“Exchange Act”).
The application was filed on July 24, 2015 and amended on November 27, 2017, March 30, 2018, and April 17, 2018.
An order granting the requested relief will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on May 18, 2018 and should be accompanied by proof of service on applicants, in the form of an affidavit, or for lawyers, a certificate of service. Pursuant to rule 0-5 under the Act, hearing requests should state the nature of the writer's interest, any facts bearing upon the desirability of a hearing on the matter, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090; Applicants: 111 East Kilbourn Avenue, Milwaukee, WI 53202.
Bruce R. MacNeil, Senior Counsel, at (202) 551-6817, or Kaitlin C. Bottock, Branch Chief, at (202) 551-6825 (Division of Investment Management, Chief Counsel's Office).
The following is a summary of the application. The complete application may be obtained via the Commission's website by searching for the file number, or for an applicant using the Company name box, at
1. Applicants request an order that would allow Funds to operate as index exchange-traded funds (“ETFs”).
2. Each Fund will hold investment positions selected to correspond generally to the performance of an Underlying Index. In the case of Self-Indexing Funds, an affiliated person, as defined in section 2(a)(3) of the Act (“Affiliated Person”), or an affiliated person of an Affiliated Person (“Second-Tier Affiliate”), of the Trust or a Fund, of the Adviser, of any sub-adviser to or promoter of a Fund, or of the Distributor will compile, create, sponsor or maintain the Underlying Index.
3. Shares will be purchased and redeemed in Creation Units and generally on an in-kind basis. Except where the purchase or redemption will include cash under the limited circumstances specified in the application, purchasers will be required to purchase Creation Units by depositing specified instruments (“Deposit Instruments”), and shareholders redeeming their shares will receive specified instruments (“Redemption Instruments”). The Deposit Instruments and the Redemption Instruments will each correspond pro rata to the positions in the Fund's portfolio (including cash positions) except as specified in the application.
4. Because shares will not be individually redeemable, applicants request an exemption from section 5(a)(1) and section 2(a)(32) of the Act that would permit the Funds to register as open-end management investment companies and issue shares that are redeemable in Creation Units only.
5. Applicants also request an exemption from section 22(d) of the Act and rule 22c-1 under the Act as secondary market trading in shares will take place at negotiated prices, not at a current offering price described in a Fund's prospectus, and not at a price based on NAV. Applicants state that (a) secondary market trading in shares does not involve a Fund as a party and will not result in dilution of an investment in shares, and (b) to the extent different prices exist during a given trading day, or from day to day, such variances occur as a result of third-party market forces, such as supply and demand. Therefore, applicants assert that secondary market transactions in shares will not lead to discrimination or preferential treatment among purchasers. Finally, applicants represent that share market prices will be disciplined by arbitrage opportunities, which should prevent shares from trading at a material discount or premium from NAV.
6. With respect to Funds that effect creations and redemptions of Creation
7. Applicants request an exemption to permit Funds of Funds to acquire Fund shares beyond the limits of section 12(d)(1)(A) of the Act; and the Funds, and any principal underwriter for the Funds, and/or any broker or dealer registered under the Exchange Act, to sell shares to Funds of Funds beyond the limits of section 12(d)(1)(B) of the Act. The application's terms and conditions are designed to, among other things, help prevent any potential (i) undue influence over a Fund through control or voting power, or in connection with certain services, transactions, and underwritings, (ii) excessive layering of fees, and (iii) overly complex fund structures, which are the concerns underlying the limits in sections 12(d)(1)(A) and (B) of the Act.
8. Applicants request an exemption from sections 17(a)(1) and 17(a)(2) of the Act to permit persons that are Affiliated Persons, or Second-Tier Affiliates, of the Funds, solely by virtue of certain ownership interests, to effectuate purchases and redemptions in-kind. The deposit procedures for in-kind purchases of Creation Units and the redemption procedures for in-kind redemptions of Creation Units will be the same for all purchases and redemptions and Deposit Instruments and Redemption Instruments will be valued in the same manner as those investment positions currently held by the Funds. Applicants also seek relief from the prohibitions on affiliated transactions in section 17(a) to permit a Fund to sell its shares to and redeem its shares from a Fund of Funds, and to engage in the accompanying in-kind transactions with the Fund of Funds.
9. Section 6(c) of the Act permits the Commission to exempt any persons or transactions from any provision of the Act if such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act. Section 12(d)(1)(J) of the Act provides that the Commission may exempt any person, security, or transaction, or any class or classes of persons, securities, or transactions, from any provision of section 12(d)(1) if the exemption is consistent with the public interest and the protection of investors. Section 17(b) of the Act authorizes the Commission to grant an order permitting a transaction otherwise prohibited by section 17(a) if it finds that (a) the terms of the proposed transaction are fair and reasonable and do not involve overreaching on the part of any person concerned; (b) the proposed transaction is consistent with the policies of each registered investment company involved; and (c) the proposed transaction is consistent with the general purposes of the Act.
For the Commission, by the Division of Investment Management, under delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA is proposing to amend FINRA Rule 6730 (Transaction Reporting) to provide an extension of the temporary exception to permit member alternative trading systems (“ATSs”) and member subscribers to report aggregate trade information to TRACE for certain transactions in U.S. Treasury Securities.
The text of the proposed rule change is available on FINRA's website at
In its filing with the Commission, FINRA included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
FINRA Rule 6730 sets forth a member's trade reporting obligations with regard to transactions in TRACE-Eligible Securities,
Rule 6710(p) defines a “U.S. Treasury Security” as “a security, other than a savings bond, issued by the U.S. Department of the Treasury to fund the operations of the federal government or to retire such outstanding securities.” The term “U.S. Treasury Security” also includes separate principal and interest components of a U.S. Treasury Security that has been separated pursuant to the Separate Trading of Registered Interest and Principal of
On June 23, 2017, FINRA filed a proposed rule change to, on a temporary basis, adopt Supplementary Material .06 (Temporary Exception for Aggregate Transaction Reporting of U.S. Treasury Securities Executed in ATS Trading Sessions) to permit members to report trades that occurred in a U.S. Treasury Security executed within discrete ATS trading sessions
The Aggregation Exception provides relief to members with respect to the number of transactions required to be reported, the price reported, as well as the Time of Execution
FINRA understands from discussions with multiple member ATSs that are active in the market for U.S. Treasury Securities that the systems changes necessary to comply with Rule 6730 will require substantial development and testing to complete and that, further, the systems changes required by subscriber members also are significant and cannot be completed by July 10, 2018. While we understand that member ATSs have begun the development work necessary to report individual execution information, additional time is necessary, including to develop an additional data feed to deliver execution level information to subscribers and vendors. We also understand that member subscribers require additional time to update their systems to consume the new execution information to be provided by the ATSs and to systematically incorporate this information in their TRACE reporting to FINRA. FINRA believes it is important that both member ATSs and member subscribers perform the programming and testing necessary to accurately and consistently report individual executions and the time of execution to TRACE to avoid inconsistencies in the audit trail. Thus, FINRA is proposing a nine-month extension of the temporary exception, until April 12, 2019. As a condition to the exception, a member ATS availing itself of this exception would continue to be required to provide individual transaction information for each trade in a U.S. Treasury Security occurring in a trading session to FINRA upon request. In addition, FINRA expects that necessary testing of new required functionality will commence well in advance of the extended deadline of April 12, 2019, but at a minimum, no later than January 12, 2019.
FINRA has filed the proposed rule change for immediate effectiveness. The operative date of the proposed rule change will be July 10, 2018 and it will sunset on April 12, 2019, which FINRA believes will provide members with the additional time required to complete necessary systems changes to comply with Rule 6730 and result in a more accurate and complete TRACE audit trail for U.S. Treasury Securities.
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
FINRA does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The proposed rule change should benefit members whose trades are executed on member ATSs as part of a
The proposed temporary relief is not expected to undermine the potential benefits of Rule 6730, as the transaction information reflecting the aggregate size and average price of such transactions should still assist the regulators to conduct monitoring and surveillance of the U.S. Treasury Securities markets, in order to detect potential disruptive trading practices and risks to market stability.
Written comments were neither solicited nor received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to 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.
60-Day notice and request for comments.
The Small Business Administration (SBA) intends to request approval, from the Office of Management and Budget (OMB) for the collection of information described below. The Paperwork Reduction Act (PRA) of 1995 requires federal agencies to publish a notice in the
Submit comments on or before June 29, 2018.
Send all comments to Gina Beyer, Program Analyst, Office of Disaster Assistance, Small Business Administration, 409 3rd Street, 6th Floor, Washington, DC 20416.
Gina Beyer, Program Analyst, Disaster Assistance,
Small Business Administration Form 700 provides a record of interviews conducted by SBA personnel with small business owners, homeowners and renters (disaster victims) who seek financial assistance to help in the recovery from physical or economic disasters. The basic information collected helps the Agency to make preliminary eligibility assessment.
SBA is requesting comments on (a) Whether the collection of information is necessary for the agency to properly perform its functions; (b) whether the burden estimates are accurate; (c) whether there are ways to minimize the burden, including through the use of
Notice of request for public comment and submission to OMB of proposed collection of information.
The Department of State has submitted the information collection described below to the Office of Management and Budget (OMB) for approval. In accordance with the Paperwork Reduction Act of 1995 we are requesting comments on this collection from all interested individuals and organizations. The purpose of this Notice is to allow 30 days for public comment.
Submit comments directly to the Office of Management and Budget (OMB) up to May 30, 2018.
Direct comments to the Department of State Desk Officer in the Office of Information and Regulatory Affairs at the Office of Management and Budget (OMB). You may submit comments by the following methods:
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Direct requests for additional information regarding the collection listed in this notice, including requests for copies of the proposed collection instrument and supporting documents, to Thomas Shearer, Office of Overseas Schools, U.S. Department of State, Room H328, 2301 C Street NW, Washington, DC 20522-0132, who may be reached on 202-261-8201 or at
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We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.
• Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Please note that comments submitted in response to this Notice are public record. Before including any detailed personal information, you should be aware that your comments as submitted, including your personal information, will be available for public review.
In accordance with the Consolidated Overseas Schools Program as outlined in 2 FAM 610, the Office of Overseas Schools of the Department of State (A/OPR/OS) is responsible for determining that adequate educational opportunities exist at Foreign Service posts for dependents of U.S. Government personnel stationed abroad and for assisting American-sponsored overseas schools to demonstrate U.S. educational philosophy and practice. The information gathered enables A/OPR/OS to advise the Department and other foreign affairs agencies regarding current and constantly changing conditions, and enables A/OPR/OS to make judgments regarding assistance to school or the improvement of educational opportunities.
The legal requirements that authorize the function of A/OPR/OS and thereby authorize the collection of information are the Foreign Assistance Act of 1961 (as amended), and the Mutual Educational and Cultural Affairs Act of 1961 (as amended), and the Department of State Basic Authorities Act of 1956, as amended by the Foreign Service Act of 1980, Public Law 96-465.
Information is collected via electronic media.
Notice of request for public comment and submission to OMB of proposed collection of information.
The Department of State has submitted the information collection described below to the Office of Management and Budget (OMB) for approval. In accordance with the Paperwork Reduction Act of 1995 we are requesting comments on this collection from all interested individuals and organizations. The purpose of this Notice is to allow 30 days for public comment.
Submit comments directly to the Office of Management and Budget (OMB) up to May 30, 2018.
Direct comments to the Department of State Desk Officer in the Office of Information and Regulatory Affairs at the Office of Management and Budget (OMB). You may submit comments by the following methods:
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Direct requests for additional
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We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.
• Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Information solicited on the Advance Notification Form (DS-4131) provides the U.S. Government with information on tourist and other non-governmental expeditions to the Antarctic Treaty area. The U.S. Government needs this information to comply with Article VII(5)(a) of the Antarctic Treaty and associated documents.
Information will be submitted by U.S. organizers of tourist and other non-governmental expeditions to Antarctica. Copies should be submitted via email, although signed originals are also valid.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation.
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995, this notice announces that the Information Collection Request (ICR) abstracted below is being forwarded to the Office of Management and Budget (OMB) for review and comments. A
Comments must be submitted on or before May 30, 2018.
Send comments regarding the burden estimate, including suggestions for reducing the burden, to the Office of Management and Budget, Attention: Desk Officer for the Office of the Secretary of Transportation, 725 17th Street NW, Washington, DC 20503.
Randolph R. Reid, Office of Defects Investigation (NEF-100) 202-366-4383, National Highway Traffic Safety Administration, W48-311, Department of Transportation, 1200 New Jersey Avenue SE, West Building W12-140, Washington, DC 20590, between 9 a.m. and 5 p.m. Monday through Friday, except Federal holidays.
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR 1:48.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. Currently, the IRS is soliciting comments concerning the Tip Rate Determination Agreement (Gaming Industry).
Written comments should be received on or before June 29, 2018 to be assured of consideration.
Direct all written comments to Laurie Brimmer, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224.
Requests for additional information or copies of the revenue procedure should be directed to LaNita Van Dyke at (202) 317-6009, or at Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet, at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments should be received on or before June 29, 2018 to be assured of consideration.
Direct all written comments to L. Brimmer, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224. Please send separate comments for each specific information collection listed below. You must reference the information collection's title, form number, reporting or record-keeping requirement number, and OMB number (if any) in your comment.
Requests for additional information, or copies of the information collection and instructions, or copies of any comments received, contact Elaine Christophe, at (202) 317-5745, or at Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet, at
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An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. Currently, the IRS is soliciting comments concerning Form 8835, Renewable Electricity Production Credit.
Written comments should be received on or before June 29, 2018 to be assured of consideration.
Direct all written comments to Laurie Brimmer, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to LaNita Van Dyke at (202) 317-6009, at Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. Currently, the IRS is soliciting comments concerning Form 3468, Investment Credit.
Written comments should be received on or before June 29, 2018 to be assured of consideration.
Direct all written comments to Laurie Brimmer, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to LaNita Van Dyke at (202) 317-6009, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. Currently, the IRS is soliciting comments concerning TD 8352 (temp & final) Final Regulations Under Sections 382 and 383 of the Internal Revenue Code of 1986; Pre-change Attributes; TD 8531—Final Regulations Under Section 382.
Written comments should be received on or before June 29, 2018 to be assured of consideration.
Direct all written comments to Laurie Brimmer, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to LaNita Van Dyke at (202) 317-6009, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. Currently, the IRS is soliciting comments concerning the assumptions of partner liabilities.
Written comments should be received on or before June 29, 2018 to be assured of consideration.
Direct all written comments to Laurie Brimmer, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224.
Requests for additional information or copies of the regulation should be directed to LaNita Van Dyke at (202) 317-6009, or at Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number.
Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
The Department of Veterans Affairs (VA) gives notice under the Federal Advisory Committee Act that a meeting of the Advisory Committee on Cemeteries and Memorials will be held on May 15-May 16, 2018. The meeting sessions will take place at the Veterans of Foreign Wars Memorial Building, 200 Maryland Avenue NE, Washington, DC 20002. Sessions are open to the public, except when the Committee is conducting tours of VA facilities, participating in off-site events, participating in workgroup sessions, and conducting official Administrative business.
The purpose of the Committee is to advise the Secretary of Veterans Affairs on the administration of national cemeteries, soldiers' lots and plots, the selection of new national cemetery sites, the erection of appropriate memorials, and the adequacy of Federal burial benefits. The Committee will make
On the morning of Tuesday, May 15, 2018, the Committee will convene with an open session at the Veterans of Foreign Wars, Memorial Building, 200 Maryland Avenue NE, Washington, DC 20002 from 8:30 a.m. to 4:00 p.m. eastern time. The agenda will include Ethics refresher training, introductions of new member appointments, and status updates on NCA's Long Range Plan, status updates from Ex-Officios, and the divesture of military cemeteries.
On May 16, 2018, the meeting will convene an open session at the Veterans of Foreign Wars Memorial Building, 200 Maryland Avenue NE, Washington, DC 20002 from 8:30 a.m.-4:00 p.m. During the morning session, the agenda will include status updates on the 2017 Recommendation for Digital Memorialization and the National Cemetery Scheduling Office. The Committee will also conduct a tour of the Congressional Cemetery, which will be closed to the Public. During the afternoon session, the agenda will include status updates on the remaining 2017 Recommendations, state and Tribal Veterans Cemeteries; and discussions on any new charges and next steps.
Any member of the public wishing to attend the meeting should contact Ms. Christine Hamilton, Designated Federal Officer, at (202) 461-5681. The Committee will also accept written comments. Comments may be transmitted electronically to the Committee at
Loan Guaranty Service, Department of Veterans Affairs.
Notice.
Loan Guaranty Service, Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before June 29, 2018.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Nancy J. Kessinger at (202) 632-8924 or FAX (202) 632-8925.
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(c)(2)(A) 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.
The Department of Veterans Affairs (VA) gives notice under Federal Advisory Committee Act that the subcommittees of the Joint Biomedical Laboratory Research and Development and Clinical Science Research and Development Services Scientific Merit Review Board (JBL/CS SMRB) will meet from 8 a.m. to 5 p.m. on the dates indicated below (unless otherwise listed):
The purpose of the subcommittees is to provide advice on the scientific quality, budget, safety and mission relevance of investigator-initiated research proposals submitted for VA merit review evaluation. Proposals submitted for review include various medical specialties within the general areas of biomedical, behavioral and clinical science research.
These subcommittee meetings will be closed to the public for the review, discussion, and evaluation of initial and renewal research proposals, which involve reference to staff and consultant critiques of research proposals. Discussions will deal with scientific merit of each proposal and qualifications of personnel conducting the studies, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. Additionally, premature disclosure of research information could significantly obstruct implementation of proposed agency action regarding the research proposals. As provided by subsection 10(d) of Public Law 92-463, as amended by Public Law 94-409, closing the subcommittee meetings is in accordance with Title 5 U.S.C. 552b(c) (6) and (9)(B).
Those who would like to obtain a copy of the minutes from the closed subcommittee meetings and rosters of the subcommittee members should contact Holly Krull, Ph.D., Manager, Merit Review Program (10P9B), Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, at (202) 632-8522 or email at
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 May 30, 2018.
Submit written comments on the collection of information through
Cynthia D. Harvey-Pryor, Department Clearance Officer—OI&T (005R1B), Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
By direction of the Secretary.
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 May 30, 2018.
Submit written comments on the collection of information through
Cynthia D. Harvey-Pryor, Office of Quality, Privacy and Risk (OQPR), Department of Veterans Affairs , 810 Vermont Avenue NW, Washington, DC 20420, (202) 461-5870 or email
Please refer to “OMB Control No. 2900-0695” in any correspondence.
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
By direction of the Secretary.
Veterans Benefits Administration (VBA), Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995, this notice announces that the Veterans Benefits Administration, 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 and it includes the actual data collection instrument.
Comments must be submitted on or before May 30, 2018.
Submit written comments on the collection of information through
Cynthia D. Harvey-Pryor, Enterprise Records Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (202) 461-5870 or email
By direction of the Secretary.
Board of Veterans' Appeals, Department of Veterans Affairs.
Notice.
The Board of Veterans' Appeals, Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before June 29, 2018.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Sue Hamlin at (202) 632-5100.
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, BVA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of BVA's functions, including whether the information will have practical utility; (2) the accuracy of BVA'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.
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, 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 and it includes the actual data collection instrument.
Comments must be submitted on or before May 30, 2018.
Submit written comments on the collection of information through
Cynthia D. Harvey-Pryor, Enterprise Records Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (202) 461-5870 or email
By direction of the Secretary.
Veterans Health Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995, this notice announces that the Veterans Health Administration, 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 and it includes the actual data collection instrument.
Comments must be submitted on or before May 30, 2018.
Submit written comments on the collection of information through
Cynthia Harvey-Pryor, Office of Quality, Privacy and Risk (OQPR), Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (202) 461-5870 or email
VA Form 10-10EC, Application for Extended Care Services, is used to collect financial information necessary to determine a Veteran's copayment obligation for extended care services, also known as long term care (LTC).
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
By direction of the Secretary.
On June 13, 2016, the Deputy Assistant Administrator, of the then Office of Diversion Control, issued an Order to Show Cause to Garrett Howard Smith, M.D. (hereinafter, Respondent), of Southfield, Michigan. ALJ Ex. 1, at 1. The Show Cause Order proposed the revocation of Respondent's Certificate of Registration, the denial of any pending applications to renew or modify his registration, and the denial of any applications for any other registration, on the ground that his “registration is inconsistent with the public interest.”
With respect to the Agency's jurisdiction, the Show Cause Order alleged that Respondent is registered as a practitioner in schedules II through V, pursuant to Certificate of Registration No. FS2592005, at the registered address of 29193 Northwestern Highway, Suite 571, Southfield, Michigan.
As to the substantive grounds for the proceeding, the Show Cause Order alleged that Respondent “failed to comply with Federal and state laws relating to the prescribing of controlled substances by issuing purported `prescriptions' outside the usual course of professional practice or for other than a legitimate medical purpose.”
As to the first such instance, the Show Cause Order alleged that on February 19, 2015, Respondent prescribed to BCI 1, 65 dosage units of Norco 7.5/325 mg (hydrocodone), a schedule II controlled substance, as well as 60 Xanax .5 mg (alprazolam) and 30 Soma 350 mg (carisoprodol), the latter two drugs being schedule IV controlled substances.
As to the second instance, the Show Cause Order alleged that on March 19, 2015, BCI 1 returned to Respondent's office “for a follow-up visit” and that Respondent again provided him with prescriptions for 65 dosage units of Norco 7.5/325 mg, 60 Xanax .5 mg, and 30 Soma 350 mg.
As to the third instance, the Show Cause Order alleged that on March 19, 2015, BCI 2 “presented for an office visit at” Respondent's office and “asked for refills of . . . prescriptions for Norco and Soma previously issued by another physician at the clinic . . . on February 20, 2015.”
The Show Cause Order notified Respondent of his right to request a hearing on the allegations or to submit a written statement of position while waiving his right to a hearing, the procedure for electing either option, and the consequence of failing to elect either option.
On July 13, 2016, Respondent, through his counsel, requested a hearing on the allegations. ALJ Ex. 2. The matter was placed on the docket of the Office of Administrative Law Judges and assigned to Chief Administrative Law Judge John J. Mulrooney, II (hereinafter, CALJ), who conducted pre-hearing procedures. ALJ Ex. 3. Following pre-hearing procedures, the CALJ conducted an evidentiary hearing on November 29-30, 2016 in Detroit, Michigan, after which both parties submitted briefs containing their proposed findings of fact and conclusions of law. Recommended Decision, at 2. Moreover, while the matter was pending the issuance of the Recommended Decision, the Government notified the CALJ that, on December 16, 2016, the Director of the Michigan Department of Licensing and Regulatory Affairs Bureau of Professional Licensing temporarily suspended his medical license thus rendering him without authority to handle controlled substances in the State of Michigan.
On February 8, 2017, the CALJ issued his Recommended Decision. Therein, the CALJ found proved the allegations that all of the prescriptions issued to both undercover investigators “were issued outside of the usual course of professional practice, for no legitimate medical purpose, and outside the professional standards of a Michigan controlled substance prescriber.”
The CALJ also found proved the allegations that Respondent failed to include the patient's addresses on each of the eight prescriptions he issued to the two undercover investigators.
Finally, the CALJ found that “the parties have stipulated that the Respondent's Michigan medical license is currently suspended.”
The CALJ also addressed whether Respondent's prescribing of controlled substances supported a sanction. Noting that “the Government has met its
The CALJ then concluded that “the issue of [specific] deterrence favors revocation of the Respondent's [registration] because he still remains committed to the concept that he acted within the bounds of his responsibilities as a registrant.”
With respect to the Agency's interest in general deterrence, the CALJ concluded that “[t]o impose a sanction short of revocation on these facts would send a message to the regulated community that the plausible deniability that comes from walking into a practice as a
The CALJ also concluded that Respondent's misconduct “does not present a picture of a lack of due care borne of a harried physician keeping up with the demands of practice, or an isolated blunder that has its genesis in lack of training; but rather, . . . measured, calculated decisions to issue powerful controlled substances backed up by little more than incomplete charts, vague answers, and casual banter and made in the face of talk of trading drugs and the street value of the medications.”
Neither party filed exceptions to the CALJ's Recommended Decision. Thereafter, the CALJ forwarded the record to my Office for Final Agency Action.
Having considered the record in its entirety, I adopt the CALJ's factual findings including his credibility determinations, his conclusions of law, and his recommendation that I revoke Respondent's registration and deny any pending application to renew his registration. I make the following factual findings.
Respondent is a medical doctor licensed by the Michigan Board of Medicine. While on December 13, 2016, the Board summarily suspended Respondent's medical license, on February 16, 2017 (eight days after the CALJ issued his Recommended Decision and well before the record was forward to my Office), the Board's Disciplinary Subcommittee and the Board entered into a Consent Order and Stipulation with Respondent.
As a consequence, the Board placed Respondent on probation for a period of two years from the effective date of the Order.
Respondent also previously held DEA Certificate of Registration No. FS2592005, pursuant to which he was authorized to dispense controlled substances in schedules II through V, at the registered address of 29193 Northwestern Hwy., Suite 571, Southfield, Michigan. R.D. 3 (Stipulation of Fact No. 1). The expiration date of this registration was February 28, 2017.
This investigation arose out of the investigation of another physician (Dr. Vora), who, the Chief of Police of Gladwin, Michigan suspected was issuing prescriptions that lacked a legitimate medical purpose. Tr. 37. Because the physicians in the town knew local police officers
Using the name of James Howard, on November 10, 2014, BCI 1 made his first visit to the clinic. There, he completed an authorization for the release of his records from one Dr. Lindsay, a “Controlled Substances Management Agreement,” a Medical History Form (on which he did not check any of the symptoms but did list Xanax as a medication he was currently taking), as well as other forms including one on which he noted that the reason for his visit was “refills.” GX 10, at 14, 16-17, 19-20.
At this visit, BCI I saw Dr. Vora. GX 10, at 5-6. Dr. Vora created a visit note which documented BCI 1's chief complaints as including anxiety, back pain, and back stiffness; the note also listed vital signs, a history, a review of systems and various physical examination findings.
As the treatment plan, Dr. Vora simply noted “Follow Up” and “After 1 month(s).”
On December 15, 2014, BCI 1 again saw Dr. Vora, who noted that the former's “[p]roblem [l]ist” included both back pain and anxiety (both with an onset date of “12/15/2014”), as well as generalized anxiety disorder and lumbar paraspinal muscle spasm.
In the physical examination section, Dr. Vora documented findings of “lumbar spine point tenderness,” “TTP L/S spine, pain with flexion/extension[,] Negative SLR [straight leg raise], No weakness with Toe/Heel walk b/l).”
On January 12, 2015, BCI 1 again saw Dr. Vora.
On February 19, 2015, BCI 1 returned to the clinic where he finally saw Respondent. After checking in and waiting for two hours, BCI 1 was required to provide a urine sample for drug testing after which he was taken to an exam room where a medical assistant took his blood pressure and told him to wait for Respondent. Tr. 66, 69.
Respondent entered the exam room and after he and BCI 1 exchanged pleasantries, Respondent asked: “what brings you here? What hurts you?” to which BCI 1 replied that he had come back for refills” and had “been seeing Dr. Vora here.” GX 3, at 5. Respondent then asked BCI 1 what he was “getting the medication for?”
Respondent asked BCI 1 when his other doctor was “going to be here,” to which the latter stated that he didn't know.
BCI 1 then asked Respondent if he was taking over for Dr. Vora.
After determining the Investigator's age (44), Respondent asked BCI 1 how long he had had back pain; the latter answered: “probably ten years. Mostly just stiff.”
After a discussion about Respondent's being left-handed, Respondent asked the Investigator: “[d]o you ever have to walk with a limp because your pain gets so bad?”
Respondent then asked BCI 1 to stand up, turn around, and “point to one spot in your back that hurts the most?”
BCI 1 testified that when this occurred he was wearing outdoor winter clothing which he did not take off.
Respondent asked if the pain “shot anywhere” or “is it just localized?” GX 3, at 9. BCI 1 stated that “[i]t's localized.”
Next, Respondent asked BCI 1 if he was a social drinker.
Respondent asked BCI 1 what he did on the weekends “[a]round here?” BCI 1 replied: “Yeah. I go—I leave. I go to East Lansing with you and kick it at the club. Nah. There's not a lot going on. I like outdoors stuff myself.”
Respondent told BCI 1 that he was going to prescribe an “additional medication for [his] muscle spasm[,] Soma,” prompting the latter to say “[p]erfect.”
After a lengthy discussion of the recent Super Bowl, the conversation turned to whether Respondent had any other offices and worked for himself.
Continuing, Respondent added that “I'd imagine these scripts right here that you are going to get would be like 6 or 7 hundred dollars. You know the pharmaceutical company are [sic] making bank.”
BCI 1 replied “Right[,] Yeah,” and Respondent added: “Its not cut or anything like that. That's one reason.”
BCI 1 then told Respondent that “[a] couple of time I ran out of pills” and had to “trade with my neighbor.”
Respondent replied: “Yeah. I mean they can fill it. He probably should have maybe said 65,” prompting BCI 1 to say “Oh.”
Respondent stated “okay” and added: “So what I did is I re-wrote your Xanax, your Norco and your—and Soma.”
In the progress note for this visit, Respondent wrote in the “subjective” section that BCI 1 had “DDD [degenerative disc disease] for approximately 10 years. Pt does have associated muscle spasm.” GX 10, at 31. Respondent also noted physical exam findings which included: “Slight limp that favors RLE [Right Lower Extremity],” “Moderate point tenderness to low back that is localized,” “Good muscle tone, “5/5 Muscle Strength,” “CN IV—XII intact,” and “Oriented x 3.”
The visit note lists three prescriptions: (1) 65 dosage units of Norco (hydrocodone and acetaminophen) 7.5/325 mg; (2) 60 dosage units of Xanax 0.5 mg; and (3) 30 dosage units of Soma (carisoprodol) 350 mg.
The patient file also includes the lab report for the urine sample provided by BCI 1 at this visit.
On March 19, 2015, BCI 1 returned to the clinic and again saw Respondent. Tr. 81. After completing various forms and providing another urine sample, BCI 1 was taken to an exam room.
Upon Respondent's entering the room, he and BCI 1 greeted each other, engaged in a short discussion of the
Respondent directed BCI 1 to “just walk back and forth for me” and told him to “just point to where it hurts in your back.”
Respondent had BCI 1 hold out his arms and had BCI 1 push up and down.
Respondent then told BCI 1 that he was “going to just refill [his] prescriptions” to which BCI 1 replied: “Ok that is perfect. Straight. I am good then.”
Respondent wrote in the subjective section of the visit note that BCI 1 had “DDD For approximately 10 yrs” and that “Pt has associated muscle spasm [with] lbp” or lower back pain.
As for his diagnoses, Respondent noted: “DDD—Lumbar,” “Etoh,” “Anxiety,” and “Muscle Spasm.”
Using the name Noelle Garcia, the second BC Investigator also made several visits to Dr. Vora's clinic. At her first visit (January 21, 2015), BCI 2 completed various forms including a medical history form on which she did not check any symptoms or conditions but listed Norco, Ambien and Xanax as medications she was currently taking. GX 11, at 10. Her file also includes a Michigan Automated Prescription System report (dated “1/12/2015”), which shows that Noelle Garcia, whose residence was reported as being in Grand Rapids, had last obtained controlled substance prescriptions eight months earlier on May 13, 2014 from a Nurse Practitioner in Flint.
At the visit, BCI 2 saw Dr. Vora, who documented in the visit note that she:
In the visit note, Dr. Vora documented negative findings for every item, including lower back pain.
First, with respect to BCI 2's “[h]istory of chronic lumbar pain,” he documented: States in the past was prescribed Norco for pain by a provider in Flint. Has not been prescribed medication in over four months and has been “borrowing from a friend.” Referral to Pain Clinic for treatment of chronic pain. Referral to physical therapy. 7 days of 800 mg Motrin prescribed.
Two days later, BCI 2 was seen by the Pain Clinic (which shared the building or adjoined Dr. Vora's clinic) and completed additional forms including a Pain Clinic History Questionnaire and a Narcotic Agreement.
According to the visit note, BCI 2 was seen by Dr. R., who documented that she complained of “[p]ain in the lumbar spine.”
Dr. R. also documented that she performed a physical exam. In her findings as to the “musculoskeletal” portion, Dr. R. noted “tenderness in lumbar spine, no pain on ROM [range of motion] of lumbar spine, pinprick intact b/l lower extremities, 4/5 strength b/l lower extremities, [D]TR 2+ lower extremities.”
On February 20, 2015, BCI 2 returned to the Pain Clinic and again saw Dr. R. In the visit note, Dr. R. documented that “[p]atient is having good pain control on Norco. Did not get MRI.”
BCI 2's patient file contains copies of two prescriptions issued this date: one for 120 du of Soma 350 mg, the other for five du of Norco 5/325.
BCI 2's patient file also includes a lab report which shows that BCI 2 provided a urine sample at her February 20, 2015 visit.
On March 19, 2015, BCI 2 returned to the clinic and saw Respondent. Tr. 191-92. After providing a urine sample, BCI 2 was taken to an exam room, and after a short wait, Respondent entered the room.
Respondent then asked BCI 2: “[t]ell me how you, you been doing?”
Respondent then asked: “what's going on. Now where is it hurting you the most?”
Respondent acknowledged the location to which BCI 2 had pointed and asked “does it shoot to like your hip or like your leg?”
Respondent had BCI 2 “[w]alk towards the wall and back,” after which he asked if she was “a smoker.”
BCI 2 then said: “And umm. Actually everything was fine though and I wasn't sure but I had the MRI but there was . . . there is nothing wrong, nothing broken, X-rays and all that stuff.”
Respondent asked BCI 2 “do you get `muscle spasms?”; BCI 2 said “nope.”
Respondent asked if she had “lost any flexibility or anything like that?”
Respondent then asked BCI 2 if she had any allergies.
In the subjective section of the visit note, Respondent wrote; “LBP x 10 yrs [secondary] to falling off a horse.” GX 11, at 35. As for his physical exam findings, he documented: “[p]oint tenderness to [right] lower back, shoots to left hip,” “Full ROM,” “slight limp,” “5/5 Muscle strength,” “Good Muscle tone,” “CN II-XII intact,” “2+ pulses throughout,” “oriented x 3,” and “2/2 reflexes.”
The Government called Carl W. Christensen, M.D. and Ph.D., as an
Dr. Christensen holds a Bachelor of Arts in Biology from Wayne State University (W.S.U.), which he obtained in 1977, as well as both a Doctor of Medicine and Doctor of Biochemistry from the W.S.U. School of Medicine, which he obtained in 1979 and 1985, respectively. GX 12, at 1-2. While much of his initial professional experience was in the specialty of obstetrics and gynecology, in 2002, Dr. Christensen began working with another physician who specialized in treating pregnant heroin addicts and became Board Certified in Addiction Medicine; he also testified that he has been practicing chronic pain medicine “since.” Tr. 350;
Dr. Christensen testified that his practice primarily involves treating patients who are already taking controlled substances and who have been referred to him because the medication is no longer effective, the patient's physician suspects the patient is misusing or abusing the medication, or the patient needs to be prepared for surgery.
On
Also, on cross-examination, Dr. Christensen acknowledged that he had previously testified in court in two pain-related cases for the government.
Dr. Christensen testified that as a general matter, the standard of care requires that a patient present a complaint, after which “the first thing [a] physician should do is take a history,”
In taking the history of a pain patient, Dr. Christensen testified that he uses and teaches medical students to use a mnemonic called “OLD CARTS.”
With respect to a chronic pain patient, who would be a patient “who has had pain for more than four to six months,” Dr. Christensen would be concerned about the patient's psychiatric history as anxiety or depression “can dramatically affect [a patient's] pain level.”
Dr. Christensen explained that once a physician makes a diagnosis of chronic pain and determines the patient's underlying condition, a treatment plan is offered to the patient.
Yet on cross-examination, Dr. Christensen answered “no” when asked: “[t]here's no absolute standard of care requirement to go through these five As, right?” Tr. 506.
Asked on cross-examination whether his OLD CARTS + “sets the minimum standard of care,” Dr. Christensen testified that “[t]his applies to [the] history of present illness, which depending upon the level of the visit requires a certain number of elements depending on the visit.”
The Government also asked Dr. Christensen whether the standard of care is different when “a physician is acting as a
Turning to BCI I's first visit with Respondent (February 19, 2015), Dr. Christensen testified that the former's statement that “I just came back for refills” raised a red flag that he was just seeking medication “and has no other complaint.”
With respect to BCI 1's seeking Xanax, Dr. Christensen testified that “a reasonable practitioner . . . would want to know” if there had been a diagnosis of anxiety disorder, who “made the diagnosis,” and what treatments had been tried.
Dr. Christensen also testified that the combination of drugs that BCI 1 claimed to be taking,
Next, Dr. Christensen testified that BCI I's statement that his back was “[m]ostly just stiff” is “not an indication for prescribing Norco” (hydrocodone).
Asked what the standard of care required of Respondent after he had BCI 1 point to where his pain was, Dr Christensen acknowledged that this was “a return visit for this patient.”
As for the scope of an appropriate physical exam for evaluating lower back pain, Dr. Christensen testified that “at a minimum” a reasonable practitioner “would check for flexion and extension,”
Dr. Christensen again testified that on a return visit, a physical exam is not required and the physician can rely on the history and the medical decision-making.
As for BCI 1's statement that his back was “mostly just stiff,” Dr. Christensen acknowledged that there could be “multiple reasons for it” such as “joint disease,” “deconditioning,” “central pain syndrome,” or an “underlying medical condition.”
Addressing BCI 1's statement that he took Xanax “[b]ecause when I do that it keeps me from drinking too much moonshine on the weekends,” Dr. Christensen noted that drinking and taking Xanax is “a potentially lethal combination. And if you add [h]ydrocodone, it's even more dangerous.”
Asked by the CALJ if this was his personal standard or the standard of care in Michigan, Dr. Christensen explained that because the FDA warning label strongly recommends against the use of alcohol when taking this medication, if the physician believes the patient is “going to continue drinking,” “the standard of care is not to prescribe the medication.”
Dr. Christensen also found concerning Respondent's prescribing of Soma (carisoprodol) to BCI 1.
With respect to Respondent`s statement that he was prescribing carisoprodol for BCI I's muscle spasms, GX 3, at 12, Dr. Christensen testified that he “didn't see any diagnosis of muscle spasms” and that a physician would diagnose a patient as suffering from spasms by palpating the patient's back. Tr. 399. According to Dr. Christensen, Respondent did not do this.
Turning to the colloquy between Respondent and BCI 1 regarding the value of the drugs on the street,
Next, the Government asked Dr. Christensen whether concerns were raised by the colloquy during which BCI 1 stated that “a couple of times” he had “r[un] out of pills” and had to “trade” with his neighbor, Respondent asked if it was “an equal trade,” and BCI I added that he had asked Dr. Vora “for a couple [of] extra” pills” and that Dr. Vora had given him a couple of extra pills which he had given back to his neighbor. Tr. 402-03; GX 3, at 15. Dr. Christensen testified that the patient “is admitting to diversion” and that a physician must explain to the patient that this is illegal and that the patient “ha[d] signed an opioid agreement” and that “according to the . . . agreement . . . if this occurs [the patient] will not be able to receive controlled substances.”
Turning to BCI 1's patient file, Dr. Christensen testified that the November 10, 2014 medical history form was largely “blank, including [the section pertinent to] muscle, joint and bone.”
As found above, BCI 1's file also contained a MAPS report. GX 10, at 23. Dr. Christensen found it notable that the report showed that BCI 1 had gotten four different prescriptions for Xanax and one prescription for amphetamines and that some of the providers, those whose offices were in Detroit and Marquette, were “400 miles apart.”
Turning to Respondent's progress note for the visit, Dr. Christensen noted that while it documented a complaint of “associated muscle spasm,” BCI 1 had “complained of stiffness,” which “is a symptom.”
As for the other exam findings in this visit note, Dr. Christensen testified that he “didn't see documentation of [a] complaint of point tenderness.”
After noting Respondent's diagnoses of degenerative disc disease, positive ETOH, and anxiety, and the three prescriptions (Norco 7.5/325, SOMA 350, and Xanax .5), Dr. Christensen then opined that based on his review of the video, the transcript and the medical file, Respondent's prescription for Norco was inappropriate as “[t]here was no documentation of moderate to moderately severe pain.”
Dr. Christensen opined that the Xanax prescription was “not appropriate” because the drug is “contraindicated in somebody who is actively drinking.”
Dr. Christensen also opined that the Soma prescription was “not appropriate.”
Turning to BCI 1's second visit (Mar. 19, 2015), Dr. Christensen noted that when Respondent asked BCI 1 about his pain, the latter responded that “everything is cool,” and that “there's no pain level.”
Dr. Christensen opined that this “was a negative evaluation for moderate to moderately severe pain.”
As noted above, the subjective section of the visit note repeats nearly verbatim the subjective notes written in the February 19 visit note in that it states: “44 y/o WM c DDD For approximately 10 yrs. Pt has associate muscle spasm c LBP.” GX 10, at 32;
Dr. Christensen further testified that neither the video nor the transcript provide evidence that Respondent performed the tests necessary to make several of the findings he documented in the note's physical exam section. Dr. Christensen specifically identified the findings of “moderate point tenderness to low back,” “cranial nerves 2 through 12 intact,” “2+ pulses throughout,”
Noting the prescriptions for Norco and Xanax that were issued by Dr. Vora at BCI 1's January 12, 2015 visit, the Government asked Dr. Christensen whether the results of the urine drug screen administered on February 19, 2015, which were negative for these drugs, were aberrational. Tr. 439-441. Dr. Christensen noted, however, that the prescriptions were for a one-month supply and the drug screen was administered five weeks after the prescriptions were issued. Dr. Christensen testified that while it is possible the drugs should still show up in the urine screen even if BCI 1 has stopped taking the drugs one week earlier, “[t]here's no definite answer that I can give” because these results may have been caused by “run[ning] out of medications, which is legitimate.”
With respect to each of the three prescriptions (65 Norco 7.5/325 mg, 60 Xanax 0.5 mg, and 30 Soma 350 mg) issued by Respondent to BCI 1 at this visit, Dr. Christensen opined that the prescriptions lacked a legitimate medical purpose. Tr. 448.
Dr. Christensen also testified about BCI 2's March 19, 2015 visit with Respondent. As found above, after an exchange of pleasantries, BCI 2 stated that she was “[j]ust here for refills” and answered his question “how are you feeling,” stating: “I feel great today.” Tr. 449. When further asked by Respondent to “tell me how you have been doing,” BCI 2 replied: “actually, I've been doing really good. I have no complaints.”
With respect to this exchange, Dr. Christensen testified that BCI 2's statement that she had “no complaints . . . by itself does not mean anything.”
Dr. Christensen testified that a practitioner acting under the standard of care would follow up this exchange by “ask[ing] if [the patient has] been taking the medications, . . . then ask[ing] about pain level, activity level, side effects, and mak[ing] inquiries about are they [sic] having any problem with aberrant behavior, are they [sic] running out early.”
Addressing the portion of the colloquy in which Respondent asked BCI 2 “where is it hurting the most” and BCI 2 replied “[r]ight, lower right but . . . no, we are good,” Dr. Christensen testified that while BCI 2 “identifie[d] a location . . . again, there's no direct answer.”
As found above, after BCI 2 denied that she got muscle spasms, Respondent asked “when does it hurt most,” and BCI 2 replied that “sometimes,” when she was asleep, she would “twist to shut [her] alarm off” and “screw[ ] it up,” but this had not “happen[ed] in a very long time” and she had “been really doing well.” GX 7, at 4. Regarding this exchange, Dr. Christensen testified that “[t]here's no documentation of a moderate or higher pain level other than being stiff in the morning when you wake up. There's no discussion of whether or not this is due to her pain medications.” Tr. 454. Dr. Christensen then opined that a reasonable practitioner would ask a patient who said she was not having any pain if she was taking her pain medications and then evaluate based on the answer.
Dr. Christensen further noted that nothing was checked on the medical history form filled in by BCI 2 with respect to any symptoms of muscle, joint or bone pain even though she presented with “potential complaints of back pain” and that this should have prompted a discussion between Respondent and her.
As for the drugs (Norco, Ambien, and Xanax) which BCI 2 listed on the medical history form as her current medications,
Turning to the family history form (GX 11, at 12) on which BCI 2 noted that the reason for her visit was “Refills—Norco, Ambien[,] Xanax,” Dr. Christensen testified that this explanation is not one that he would typically expect a patient to provide at a first visit,
As for the Pain Clinic History Questionnaire completed by BCI 2, Dr. Christensen noted that there was no “description circled for the pain,” and nothing was “circled for what” increased the pain” and for how the pain made her feel.
Turning to the next page of the form, Dr. Christensen noted that while BCI 2 had indicated that she used alcohol, there was no discussion as to “how much [she was] drinking,” because depending upon “the amount and the frequency, it will put [the patient] at risk of increased side effects and risks from the combination of medications they're currently taking.”
Addressing the note Respondent wrote for this visit, Dr. Christensen took issue with the adequacy of the subjective section, observing that it contained no notations about BCI 2's “pain level, [her] medications, any side effects, [and] any problems with medications.”
With respect to his finding of point tenderness to BCI 2's right lower back, Dr. Christensen noted that “the investigator said she was good and she was great and there was no problem.”
Dr. Christensen reiterated his earlier testimony that on a repeat visit, the standard of care does not require a physical examination. Tr. 366. However, he further testified that a physical exam for a complaint of back pain would involve “check[ing] for spasm in the lower back by palpation,” checking both flexion and extension of the lower back, “check[ing] the gait,” and “check[ing] the strength and reflexes in the lower extremities.”
Dr. Christensen further observed that BCI 2's March 19, 2015 drug test produced several aberrational results. These included that she tested positive for THC and tested negative for Ambien and Xanax which had been prescribed with four refills at BCI 2's January 23, 2015 visit.
Dr. Christensen then opined that the Norco and Soma prescriptions issued to BCI 2 on March 19, 2015 were not issued for a legitimate medical purpose.
On cross-examination, Dr. Christensen admitted that on the morning of his testimony, he had prescribed methadone to one of his pain management patients electronically and without either speaking with or seeing the patient. Tr. 475-76, 478. Dr. Christensen testified, however, that this patient has severe lumbar stenosis, that he has been on the same drug for eight years, that he sees the patient every 60 days, and that in between visits, the patient provides a urine drug screen two weeks before his prescription is reissued and a MAPS report is run on the day his prescription is due for renewal.
Dr. Christensen subsequently acknowledged that performing two of the three items (of history, physical examination, and medical decisionmaking) is not strictly required to prescribe controlled substances each month under the standard of care and that determining the past diagnosis and whether “the patient is well managed on the medication . . . are two of the requirements” of the standard of care.
After Dr. Christensen reiterated that a physician “need[s] to make sure that it [the prescription] is for a legitimate medical purpose,” Respondent's counsel asked him “[w]here is that standard that you've said is the standard of care enumerated?”
So it says that the prescribing is done . . . in the regular course of professional treatment by an individual who is under treatment by the practitioner for a condition other than the individual's physical or psychological dependence upon an addiction to a controlled substance.
So I need to confirm, I believe the standard of care is you need to confirm that this is not an addictive disorder when you are seeing this combination of controlled substances being prescribed.
Then asked “where it is enumerated that the standard requires you to not trust the diagnosis of an initial physician when you're conducting a follow-up visit,” Dr. Christensen answered that the Michigan pain guidelines “state that an examination shall be performed” and that when he “reviewed Dr. Vora's records, I did not see any musculoskeletal examination except for noting edema.”
Dr. Christensen acknowledged that there was a plus mark next to both lower back pain and endocrinology anxiety in the review of systems section of the note created by Dr. Vora for BCI 1's December 15, 2014 visit.
While Dr. Christensen testified that a finding of lumbar spine tenderness would “assist with a determination of back pain,” he added that back pain is a symptom even though it has its own billing code and that it is not a real diagnosis which would involve determining the cause of the pain.
Dr. Christensen also acknowledged that a patient's complaint of pain is an important indicator of whether he/she has pain and that this “should be taken as part of the history.”
Turning to the undercover visits, Respondent's counsel questioned Dr. Christensen regarding Respondent's engaging in the various steps set forth by the OLD CARTS mnemonic. Dr. Christensen acknowledged that Respondent asked both BCIs to identify the location of their pain (the L in OLDCARTS) at their initial visits with him.
Turning to the character of the pain (the C in OLD CARTS), while Dr. Christensen acknowledged that Respondent's question (“Is the pain shooting or localized”) was designed to question whether one type of pain existed, he did “not necessarily” agree that Respondent satisfied this element, explaining that if BCI 1 had “complained of only shooting pain, then it would.”
As for the aggravating or associated factors (the A in OLD CARTS), Respondent's counsel asked Dr. Christensen if he saw “an indication in this visit that the patient made a statement about what makes [his] pain worse?”
Then asked if the questions embodied in the OLD CARTS mnemonic are “enumerated in the Michigan guidelines . . . for the use of controlled substance for the treatment of pain,” Dr. Christensen initially testified to his belief that “if you go through the entire document,” those questions “are in there.”
Turning to BCI 1's statement at his first visit with Respondent (“I take Norco for my back and Xanax on the weekends”), Dr. Christensen adhered to his earlier testimony that the combination of Norco and Xanax was concerning, as was his statement that he took Xanax on the weekends.
As for BCI 1's statement that he took Xanax because it kept him “from drinking too much moonshine on the weekends,” GX 3, at 9, Dr. Christensen acknowledged that Dr. Vora's January 12, 2015 visit note (GX 10, at 2) lists anxiety as a diagnosis. Tr. 516. Dr. Christensen also acknowledged that it is “okay to trust medical documentation of a physician if . . . the elements of a diagnosis are met.”
Asked whether it is “ever appropriate to simply cut . . . off” a person who has been “on Xanax for a long period of time,” Dr. Christensen testified that it does not depend on the time the patient has been on the drug, but rather, “[i]t depends on the situation.”
Referring to BCI 1's statement that a couple of times he had run out of pills and traded with his neighbor, Dr. Christensen did not agree that this statement “indicate[d] that the patient was consistently using the Xanax in a manner that he actually ran out of his pills prior to the end of the prescription,” noting that BCI 1 did not “specify which medication he's talking about.”
Still later on cross-examination, Dr. Christensen testified with respect to BCI 1's acknowledgment of having traded pills, that a patient's admission of diversion is “not an automatic reason to discharge” the patient and that “you have to review the opioid agreement, let [the patient] know that this will not be tolerated, and monitor [the patient] more closely.”
On further questioning as to the significance of BCI 1's statement about running out and trading pills, Respondent's counsel asked Dr. Christensen if this conduct could be explained by pseudo-addiction, which Respondent's counsel explained involved a patient engaging in aberrant behaviors because of under-treatment of this condition and not necessarily because of abuse or addiction.
Turning to the physical exam Respondent performed on BCI 1, Dr. Christensen testified that the arm adduction and abduction tests do “not determine pain” but “determine normal function” in the upper spine and neck areas.
After recounting Dr. Christensen's testimony that the straight leg raise test is used to diagnose pain in the lower back, Respondent's counsel asked him if he was “saying that you can't use a test like that to determine back pain in the upper extremities.”
Dr. Christensen also rejected the suggestion of Respondent's counsel that the abduction test on BCI 1's arms would have shown an inconsistency with his complaint of only lower back pain if BCI 1 had given up resisting and complained of pain.
Respondent's counsel asked Dr. Christensen what the standard of care requires for a physical exam of a patient who complains of localized lower back pain.
Respondent's counsel then revisited his earlier questioning regarding the physical examination documented by Dr. Vora in his December 15, 2014 visit note, with Dr. Christensen again acknowledging that the note documented that the various elements of an appropriate physical exam had been performed.
Dr. Christensen acknowledged that based on his review of the case, he did not know whether Respondent actually saw the urinalysis results.
Dr. Christensen also acknowledged that the documentation by Dr. R. of her January 23, 2015 examination of BCI 2 reflected an “appropriate” musculoskeletal examination in that it involved identifying if there were spasms, checking for tenderness, and testing the range of motion of the lumbar spine.
Dr. Christensen agreed that Dr. R.'s decision to order an MRI was a reasonable step to confirm her diagnosis of lower back pain and that patients “occasionally” do not get their MRI done before their next visit.
While Respondent's counsel then suggested that based on the MAPS report and Dr. R.'s February 20 note, Respondent “would have no indication that [BCI 2] had an outstanding prescription for Xanax at [the] time” of her March 19 visit with him, Dr. Christensen testified that Respondent would know without running another MAPS report if “the prescriptions were in the chart” or if “he asked the patient.”
Asked by Respondent's counsel whether, based on “a review of her history and her MAPS report,” BCI 2 “appeared to be a doctor shopper,” Dr. Christensen testified: “she [did] not appear to have legitimate pain complaints and [was] seeking Norco and Xanax and Ambien.”
Observing that in the note for BCI 2's January 21, 2015 visit, Dr. Vora had written that his treatment plan included a referral for a mental health evaluation (GX11, at 14), Respondent's counsel asked Dr. Christensen if “a referral like that would be for the purpose of treating potential addiction?”
Dr. Christensen agreed that both Norco 5 mg and 7.5 mg are indicated for moderate to severe pain, and that on a pain scale, moderate pain is pain above 4.
Noting that BCI 2's pain history questionnaire indicated that her present pain was at the “0” level and that her pain was decreased by “medication,” Dr. Christensen disagreed that it would “be fair to assume” that Norco was the reason for her experiencing “0 pain.”
As for BCI 2's response (“Uh, just here for refills”) to Respondent's question (“so tell me what's going on?”), GX 7, at 2, Dr. Christensen acknowledged that BCI 2's answer could potentially be “an indication that she is taking her medication and needs refills.”
Asked how often a physical exam is required of a patient the same age as BCI 2 (41) who complains of back pain and was receiving Norco and “the more dangerous things have been ruled out,” Dr. Christensen testified that DEA regulations require a visit “every 90 days for a schedule II medication” such as Norco.
Asked by the CALJ if there is “a different standard that prevails in Michigan than the one that's in the DEA regulations in regards to the requirement of a visit,” Dr. Christensen testified that he believed “the DEA prescriber manual . . . does give the 90-day interval as a requirement but also recommends that the visit be more frequent.”
Respondent's counsel then asked if it would have been “okay for [Respondent] to prescribe controlled substances for a patient such as [BCI 2], assuming all the information you know about her, and not see her for 90 days?”
On cross-examination, Respondent's counsel also questioned Dr. Christensen regarding his direct testimony questioning Respondent's notation in the visit note that “[p]ain shoots to left hip.”
Respondent's counsel then asked: “this statement here, shoots to left hip, if somebody's complaining of back pain, but when they're asked where it hurts and it manifests itself on the hip side, would that appear to you that the pain is shooting from one area to another area?”
On re-direct, Dr. Christensen testified that Respondent's prescribing of 60 Norco and 60 Soma to BCI 2 was a departure from Dr. R.'s treatment plan which she instituted at the February visit, and that while there was some discussion as to why Respondent reduced the Soma prescription, there was “no discussion” as to why he increased the Norco prescription.
While on re-cross, Dr. Christensen agreed that Respondent's decreasing of the Soma prescription was reasonable and this drug has an analgesic effect “in short-term treatment,” he testified that increasing BCI 2's Norco prescription “to maintain the analgesic effect” was not “a rational therapeutic choice.”
Respondent testified on his own behalf and called two other witnesses. The first of these was Dr. Carla Scott, a physician who is the medical director for the Wayne County Juvenile Detention Facility. Tr. 592. Dr. Scott, who did residencies in both internal medicine and pediatrics and is board certified in pediatrics, testified that her duties involve overseeing the facility's Health Services Department, including its Mental Health Department, and that the facility has a psychiatrist, two psychologists, three social workers, and two contractor physicians.
Dr. Scott testified that when she first moved back to Detroit she had worked at an outpatient public health clinic for “[a]bout nine or 10 months, ”
Dr. Scott testified that she went to medical school with Respondent and that they “were pretty good friends” until their residencies led them to go their “separate ways.”
Respondent told Dr. Scott “that he had opened up his own private pain clinic,” which sent Dr. Scott's “antennas up . . . because [she] ha[s] an issue about narcotics.”
While Dr. Scott also reviewed hundreds of charts maintained by Respondent in the course of his employment at the detention center, she acknowledged that “not a lot of these” involve patients on controlled substances as “we give out little to no narcotics at the . . . detention facility.”
Dr. Scott testified that she “did not have any problems with the” the 10 charts she reviewed from Respondent's private pain clinic.
Asked what she was looking for in reviewing Respondent's charts, Dr. Scott testified:
So you, as a physician, you're going to have to try to figure out how, you know, this person's saying they're in pain . . . so what are the best steps in terms of getting them out of pain . . . . and what kind, what other kinds of things can you do besides give them pills. And that's what I wanted to see.
Next, Respondent called Ms. Tyanna Clemmons.
Ms. Clemmons testified that her duties involved “scheduling patients, collecting documentation for patients,” and managing the patient files.
Ms. Clemmons testified that the patients would undergo monthly urinalysis testing, that Respondent reviewed each drug test result, and that there was one patient, who tested positive for cocaine and was discharged by Respondent.
Ms. Clemmons testified that Respondent would see “about 10” patients a day and that he would spend “[r]oughly about 30 minutes” with the patients, although the amount of time per visit varied and was “[s]ometimes maybe 15 minutes, sometime maybe 45 minutes.”
Finally, Respondent testified on his own behalf.
Subsequently, Respondent testified that prescribing narcotics was “[p]art of the training in each of [his] fellowships . . . because that's pain management.”
Respondent testified that notwithstanding the earlier sanctions that were imposed on his medical licenses, all of his licenses are now “free and clear” with “no restrictions.”
Moving on to the allegations of the Show Cause Order, Respondent testified that in January 2015, he started doing
Respondent testified that he understood his work at Dr. Vora's office would involve “just see[ing] patients and that I'd be doing procedures since I have been fellowship trained.”
Respondent testified that his first day at Dr. Vora's practice was February 19, 2015, the day he saw BCI 1.
Respondent denied that he had access to the urine drug screen, stating that he did not “have access through the EMR” (the electronic medical records), because “something was going on with [the office's] computer system.”
However, later during cross-examination, Respondent testified that “for every patient I got [a] MAPS” and “[b]efore I saw any patient I was able to get the MAPS” without specifying that he got MAPS reports only on March 19, 2015.
Asked whether he had “any discussions with Dr. Vora prior to walking in for [his] first patient,” Respondent initially testified: “[z]ero . . . [o]ther than that he introduced
Oh, yeah. He said that all the patients that I was receiving he had seen, he had established a patient management plan, and that he would, because they were his patients, that he would prefer that if there was [sic] any drastic changes that I'd discuss them with him.
As for why he did not refuse to see the patients until he could see their urine drug screen results, Respondent explained:
Well, initially, number one, they're established patients. Number two is that it's not necessarily a requirement to have urine drug screens every time you see the patient. Therefore . . . you can have . . . you have judgment. It's up to me to decide whether okay, I'll see this patient, or it is definitely a . . . requirement for me to have the urine screens.
As for how he knew that the patients were established patients, Respondent testified that the office manager gave him “printouts of the patient's prior history . . . what he had decided to treat.”
Addressing BCI 1's first visit, Respondent testified that he “definitely” recalled the visit and that “[i]t was very memorable” as “the language that he was using was inappropriate. . . . I don't think that anybody talks to their physician, yeah, brother, yeah, you know, in a hot month he's going to be back. I think that no one talks like that, number one.”
Asked by the CALJ what he meant by that, Respondent testified: “I mean there are no African-American people there, period.”
Asked by his counsel what he was “feeling about some of the statements he made and whether . . . he was cooperating as a patient with” him, Respondent testified that the “main thing” was “to try to connect [with the patient] on a human level.”
Addressing some of the dialogue at BCI 1's first visit with him, Respondent was asked to explain “[w]hat [was] going through [his] mind when” BCI 1 said that “I take Norco for my back and I take Xanax on the weekends.”
Multiple things. You know, I'm thinking that he was taking the Norco for his back pain. The Xanax is, which was for anxiety which was previously diagnosed from Dr. Vora's records, and that's my impression of that. I would think, . . . anybody would—I don't think it's unreasonable to say that when he says I'm taking Norco for my back that it's for back pain. I don't think that's unreasonable.
As for his subsequent question to BCI 1 (“Okay, so you have back pain, some anxiety?”), Respondent explained that, in his mind, he viewed BCI 1's answer of “I guess,” “as an affirmative answer” to his question, and that BCI 1was confirming the diagnoses of back pain and anxiety which were documented in the patient record.
On questioning by the CALJ, Respondent testified that he knew “[z]ero” about Dr. Vora before going to the clinic and “[t]hat's the way locums works.”
At that time, I went specifically to Dr. Vora and I said this is not really what I had signed up for, was just to see pain patients. You know, however, as a matter of professional courtesy, I said okay, you know, I'll do this, but this is not what I signed up for. I want to do something else. This is not for me per se.
Suggesting that Respondent “almost want[ed] to have it both ways” in that “[o]n the one hand,” he was claiming that he “didn't understand anything about this and . . . didn't know what to look for and . . . didn't have . . . access to the records[,] [b]ut on the other hand . . . talked about [his] extensive training . . . in the science of pain management,” the CALJ asked “which one is it?”
After Respondent acknowledged that as an interventional radiologist he would not perform a procedure (such as an epidural) in a complex case without the necessary tools, the CALJ again asked Respondent to explain why, given his training on prescribing opioids, he was willing to prescribe pain medication without “more access” to the medical records.
. . . This is the way it works. With pain management, first, you have to go conservative . . . . You can go three months and you can see a patient and not perform a procedure. So that's not unreasonable. It's not unreasonable for a physician to see a patient for three months, and then after that three months, if they're just getting medication, you have to ask them if they want or if they are amenable to a procedure.
So it's not like you—because that's not the way medicine works. You first start out conservatively. Then after you start out conservatively, if the pain is not being controlled, it's over three to four months,
Returning to the dialog of BCI 1's first visit, Respondent testified that when he asked how long BCI 1 had his lower back pain and BCI 1 said “Uh, probably 10 years,” he believed that BCI 1 “has chronic back pain, degenerative disc disease,” that this is “the most common low back pain diagnosis,” and that he took BCI 1's statement “as an affirmative.”
The thing when you're evaluating a patient, and again, this patient, he's stating that he's having difficulty reading. You do not want patients coming in using medical terminology. You want them to describe it. If they start using medical terminology during the office visit, you can get suspicious that they're either Googling it or they're trying to, you know, skew their answers to make it seem like they have these certain illnesses.
As for his questioning BCI 1 as to whether he had “any muscle spasms with the pain” and BCI 1's response to the effect that “[i]t gets tight . . . so I don't know . . . I don't know what the word is for that. Stiff,” Respondent testified that “[t]o me, when you say tight . . . that it would be indicative of muscle spasm.”
As for his asking BCI 1 if he “ever ha[s] to walk with a limp because [his] pain gets so bad,” Respondent explained that “you want to know the degree of pain, if it's causing him a lifestyle type of change. You're trying to measure how severe the pain is.”
Addressing his asking BCI 1 if he had ever fallen and BCI 1's response (“I'm a grown-ass man. Yeah, I've fallen.”), Respondent testified that “it's very difficult to determine what he's trying to say. However, when someone says that they have fallen, to me, that means muscle weakness.”
Asked by the CALJ what he meant by his use of the term “overcompensate,” Respondent testified: “Like I don't think that he's used to seeing somebody like myself . . . evaluate him.”
Respondent did not, however, assert that either BCI 1 or BCI 2 acted in this fashion. While Respondent further testified that this had an effect on how he interacted with patients, he then explained that this led him to “want to . . . instill trust in the patients that I know what I'm doing and that I'm there to help them.”
As for the portion of BCI 1's first visit when Respondent asked the former to stand up and point to the part of his back that hurts the most, Respondent asserted that “he had his coat on his arm” and that he did not “believe” that BCI 1's testimony that he was wearing a coat during the physical exam “to be credible.”
As found above, as BCI 1 pointed to his back, he stated “[m]ostly just stiff.” GX 3, at 9. Respondent testified that he took this statement “as pain.” Tr. 659. Respondent then explained that he asked BCI 1 if his pain shot anywhere or was localized because he “wanted to see if [BCI 1] had any nerve symptoms” which would indicate “[t]hat he ha[d] radiculopathy” or “degenerative disc disease.”
As also found above, BCI 1 said that his pain was localized. GX 3, at 9. Respondent testified that this statement “could mean a lot of things,” including “that he had a herniated disc,” that “it could be a degenerative disc, or it could be a narrowing of his neuroforamina.” Tr. 660. Respondent then testified that “[y]ou can feel a herniated disc” but not degenerative disc disease with your finger.
Respondent further testified that BCI 1's “prior medical records” showed that he had been referred to radiology.
As for the abduction/adduction test he performed, Respondent explained that his purpose was to determine muscle strength and referred pain, which he explained that “many times, if you lift up your arms, you also have to contract your low back, and sometimes that can lead to referred pain.”
Respondent testified that he asked Respondent if he smoked because “many times cigarette smokers . . . can have a problem with healing” and “if you're planning on doing a procedure, you want them to cease smoking.”
Next, Respondent explained that he asked BCI 1 about his drinking because BCI 1 said “he's on Xanax and he does it on the weekends, and he relates it to his drinking.”
However, on cross-examination, Respondent testified that he did not create a plan to address BCI 1's drinking, because “in [his] opinion, the plan was already enacted by Dr. Vora” and that plan “was giving the Xanax for both the possibility of DTs and the anxiety that that was documented in [the] prior notes.”
As for why he prescribed carisoprodol to BCI 1, Respondent testified that “in his prior medical records, he was getting Baclofen . . . a muscle relaxant. That's the reason why I had given him the Soma.”
Next, Respondent offered his explanation regarding BCI 1's statement that “[t]hey're worth a lot of money on the street” and his response of “[t]hat's the whole point. They're pure. You know there is nothing cut down about them. So when you're selling them—its like you know—the person buying—legit.”
As for what action Respondent felt was necessary after BCI 1's subsequent admission that he had traded drugs with his neighbor, Respondent testified that “number one, you want to treat them, you want to give them a chance to be able to rectify their behavior as far as that goes. And if he continued with that, I would have just discharged him.”
The CALJ then asked Respondent why he discussed the street value of the drugs that he was prescribing to BCI 1.
Asked by the CALJ whether he “wanted to be [BCI 1's] friend,” Respondent answered “[y]es” and added that he “wanted” BCI 1 to “trust” and “like” him and “to be able to say that this guy cares about me, he wants to help me.”
Respondent subsequently testified that he, and not BCI 1, had engaged in the conversation about the street value of the drugs.
Addressing the note he prepared for BCI 1's first visit, Respondent testified that he wrote that Respondent had degenerative disc disease for approximately ten years because BCI 1 “had it [low back pain] for 10 years” and “[i]t would be consistent with degenerative disc disease of his low back.”
As for the notation that BCI 1 walked with a “slight limp,” Respondent testified that “to me, it looked like he walked with a limp.”
After stating his diagnoses and noting that BCI 1 “was previously diagnosed with” anxiety, Respondent explained that he continued the Norco and Xanax prescriptions “[f]or the reasons that I previously mentioned” and that BCI 1
Turning to BCI 1's second visit, as found above, after exchanging pleasantries, Respondent asked: “So how is everything been going with your pain?” and BCI 1 replied: “[g]reat, yup, everything is cool?” GX 5, at 4; Tr. 674. Respondent testified that, in his mind, BCI 1's answer meant “that the regimen or the plan of his management is working. You want the patient to not have any back pain, or you don't want them to, or the pain to be more tolerable.” Tr. 674. Respondent also testified that he asked BCI 1 to walk back and forth to see if he had a limp and that he “noticed a limp.”
As for why Respondent had BCI 1 point to where it hurt in his back, Respondent testified that he did this “[j]ust to gauge . . . the level of his back pain and to see if he had any muscle tightness, the tone, to see if it shot anywhere, if he had any progression of his disease.”
As for BCI 1's statement that “I got stiffness pretty much like right down there,” GX 5, at 4, Respondent explained that he interpreted this as “he has back pain. I'm specifically asking him about back pain. I'm, you know, asking him about that and, to me, when he responds, to me, that means that he has low back pain.” Tr. 675. As for why he performed the arm adduction and abduction tests, Respondent again testified that he did these tests “to see if he had referred pain, to check out his upper body musculature, and to see if he had good muscle tone.
As found above, Respondent then asked BCI 1 to “rate [his] pain on a scale of one to ten today”; BCI 1 responded: “I am good today. I am good today.” GX 5, at 4. Asked why he still prescribed medications to BCI 1 “even though he's just failed to give you a pain score,” Respondent explained:
Well, number one, pain waxes and wanes. So he has had this chronic pain for 10 years. This might be just a time that when he comes into the office he might have just taken his medication, that he's okay.
Usually . . . if the patient takes the medication prior to coming to the office . . . he won't have as much pain.
Next, Respondent testified that on March 19, 2015, he still “did not” have access to the urine drugs screens because “[t]hey still were saying that there was a computer issue.”
Noting Dr. Christensen's testimony that BCI 1's second visit with Respondent “was only about two minutes,” Respondent's counsel asked him why it was “so brief.”
Addressing Dr. Christensen's testimony that he did not see evidence that Respondent did a cranial nerves examination yet documented having done so in the March 19 visit note, Respondent's counsel asked: “[w]hy put down in the record that his CN were intact . . . ?”
Okay. First of all, you can indirectly evaluate the cranial nerves. Like the facial nerve, if he has a facial palsy . . . one his cheeks is [sic] droopy, or his eyelid is not, it's like droopy also, that is indication of an abnormality of one of the cranial nerves. If he . . . has speech patterns similar to somebody who is deaf, that would be indicative of a cranial nerve issue. So that's why. That's it. So you don't necessarily have to, in order to say that the cranial nerves are intact, to directly palpate.
As found above, Respondent also documented in the March 19 visit note “2+ pulses throughout” and Dr. Christensen testified that neither the video nor the transcript show that Respondent took BCI 1's pulses. GX 10, at 32; Tr. 433-35. Asked why he made the notation, Respondent testified: “On the radial pulse is the pulses in the wrist. Now, when I have the patient lift up their arms, I'm at the same time pinching their wrist and I'm feeling their pulse.” Tr. 678-79.
As for BCI 2, Respondent testified that he reviewed her medical file including the records created by both Dr. Vora and Dr. R. prior to treating her and that he had no reason to not believe the statements in her medical record.
As found above, after exchanging pleasantries, Respondent asked BCI 2 “to tell [him] what's going on” and she replied: “just here for refills.”
Respondent then testified that he believed that he knew BCI 2's pain score from her previous visit with Dr. R. and that based on the Pain Clinic History Questionnaire, he believed her pain was “at least a 4,” which was the rating BCI 2 listed on the form as her usual pain level.
As for his decision to increase the Norco and decrease the Soma from the quantities prescribed by Dr. R., Respondent testified that “she was getting 120 of the Soma,” and in his opinion, that was “too high.”
Respondent's counsel then pointed out that “the MAPS report doesn't show the prescription by Dr. [R.] for Xanax” and asked if he “look[ed] at another MAPS report somewhere?”
As for why he increased BCI 2's Norco, Respondent testified: “that the
Respondent was then asked by his counsel why he increased the Norco prescription “if [he] saw that the other doctor had prescribed less?”
Well, the point being was that generally you want to, if you're going to wean a patient off of a medication, again, it's unique to each patient, but you can wean like 10 percent a week, 10 percent a month, but you have to gauge, or the patient has to be monitored. . . . And with that, I wanted to make sure that her pain was under control.
Respondent further testified that after his first day in Dr. Vora's office, he tried to contact a psychiatrist because “many of these patients needed to be followed for the Xanax, for the anti-anxiety diagnosis.”
Respondent also testified that because his instructions regarding obtaining access to the EMR and the urine drug screen results were not followed, he “told them that I cannot do this anymore.”
On cross-examination, the Government asked Respondent why he “still prescribed a 30-day supply of controlled substances” rather than “a lesser day . . . supply” at each of the three undercover visits “given [his] uncomfortableness with not having [the] urinalysis results.”
So what would they, if I'm not going to be there or they're not going to be seen for a month, what would they do—from my standpoint, this is rhetorical, is that if you do give a lesser amount . . . they run out. Then they're going to self-medicate if they run out and they don't have access. And then if the patient runs out, they go into withdrawals, they might be driving, then they might cross the median, they could kill somebody. So that's my concern of like saying okay, I'm going to just give you 10.”
When the Government suggested that Respondent could have “had the patient return or . . . could have phoned in the additional pills later,” Respondent testified that “[y]ou can't phone in Norco” and that “he'd go in[to] withdrawal from the Norco.”
Addressing BCI 1's February 19, 2015 prescriptions, the Government asked Respondent whether he believed, at the time he issued each of the prescriptions, that the prescriptions were “for a legitimate medical purpose within the usual course of professional practice and the Michigan standard of practice?”
While Respondent admitted that it was a mistake to prescribe Soma to BCI 1 because he was on a different non-controlled muscle relaxant, he again testified that if “I had been more knowledgeable about the holy trinity, I would not have given him the Soma.”
Respondent offered testimony to the same effect with respect to the three prescriptions he issued to BCI 1 at the March 19, 2015 visit, testifying that he believed that he wrote the prescriptions “in good faith” and “[b]ased on Dr. Vora's history, what he told me.”
Finally, Respondent testified that both the Norco and Soma prescriptions he issued to BCI 2 were for a legitimate medical purpose, and within both the usual course of professional practice and the Michigan Standard of Practice.
Section 303(f) of the Controlled Substances Act (CSA) provides that “[t]he Attorney General may deny an application for [a practitioner's] registration . . . if the Attorney General determines that the issuance of such registration . . . would be inconsistent with the public interest.” 21 U.S.C. 823(f). With respect to a practitioner, the Act requires the consideration of the
(1) The recommendation of the appropriate State licensing board or professional disciplinary authority.
(2) The applicant's experience in dispensing . . . controlled substances.
(3) The applicant's conviction record under Federal or State laws relating to the manufacture, distribution, or dispensing of controlled substances.
(4) Compliance with applicable State, Federal, or local laws relating to controlled substances.
(5) Such other conduct which may threaten the public health and safety.
“[T]hese factors are . . . considered in the disjunctive.”
The Government has the burden of proving, by a preponderance of the evidence, that the requirements for denial of an application pursuant to 21 U.S.C. 823(f) are met. 21 CFR 1301.44(d). However, once the Government has made a
Having considered all of the factors, I find that the Government's evidence with respect to Factors Two and Four satisfies its
To be sure, the Agency's case law contains some older decisions which can be read as giving more than nominal weight in the public interest determination to a State Board's decision (not involving a recommendation to DEA) either restoring or maintaining a practitioner's state authority to dispense controlled substances.
Of note, these cases cannot be squared with the Agency's longstanding holding that “[t]he Controlled Substances Act requires that the Administrator . . . make an independent determination [from that made by state officials] as to whether the granting of controlled substance privileges would be in the public interest.”
As to Factor Three, I acknowledge that there is no evidence that Respondent has been convicted of an offense under either federal or Michigan law “relating to the manufacture, distribution or dispensing of controlled substances.” 21 U.S.C. 823(f)(3). However, there are a number of reasons why even a person who has engaged in criminal misconduct may never have been convicted of an offense under this factor, let alone prosecuted for one.
As for Factor Five, the Government made no allegations that implicate Factor Five. Nor did it claim that Respondent's false testimony on certain issues implicates Factor Five.
Under a longstanding DEA regulation, a prescription for a controlled substance is not “effective” unless it is “issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” 21 CFR 1306.04(a).
Under the CSA, it is fundamental that a practitioner must establish a bonafide doctor-patient relationship in order to act “in the usual course of . . . professional practice” and to issue a prescription for a “legitimate medical purpose.”
Both this Agency and the federal courts have held that establishing a violation of the prescription requirement “requires proof that the practitioner's conduct went `beyond the bounds of any legitimate medical practice, including that which would constitute civil negligence.' ”
Thus, in
However, as the Sixth Circuit has explained, “[o]ne or more of the foregoing factors, or a combination of them, but usually not all of them, may be found in reported decisions of prosecutions of physicians for issuing prescriptions for controlled substances exceeding the usual course of professional practice.”
“Accordingly, under the public interest standard, DEA has authority to consider those prescribing practices of a physician, which, while not rising to the level of intentional or knowing misconduct, nonetheless create a substantial risk of diversion.”
The CALJ found that Respondent violated 21 CFR 1306.04(a) with respect to each of the prescriptions issued to both investigators. I agree. Even considering the evidence that Respondent practiced at the clinic on a
With respect to BCI 1's first visit, the CALJ credited Dr. Christensen's testimony that the combination of drugs that Respondent prescribed (Norco, Xanax and carisoprodol), otherwise known as the Holy Trinity, has both a very high abuse potential because of its “euphoric” effects and creates a high risk of “respiratory depression,” especially in a patient who admits to drinking alcohol. Tr. 397-98. The CALJ also credited Dr. Christensen's testimony that, under the standard of care, the Investigator's admission of alcohol use required Respondent to not prescribe the Xanax.
Moreover, even though Dr. Vora's progress notes list a diagnosis of anxiety, and Dr. Christensen testified that a physician can trust the medical documentation of another physician if
As for Respondent's prescribing of carisoprodol at the first visit, a muscle relaxant which is also a schedule IV drug with sedative effects and Respondent's statements that he was going to prescribe this drug for muscle spasms, Dr. Christensen testified that muscle spasms would be diagnosed by palpating the patient but that he did not see evidence that Respondent had done so. Tr. 399. By contrast, Respondent, in addition to asserting that he interpreted BCI 1's statements that his back was stiff with the presence of muscle spasms, also testified that he lifted up BCI 1's shirt and palpated his back at this visit.
Dr. Christensen opined that the Soma prescription was “not appropriate.”
Notably, the CALJ found BCI 1's testimony “fully credible” as to all issues. R.D. 14 By contrast, the CALJ found Respondent's testimony on the issue of why he prescribed the carisoprodol, to be “not just a little confusing” and “not convincing.”
Thus, notwithstanding that BCI 1's records showed that Dr. Vora had diagnosed him with muscle spasms and the somewhat ambiguous statements made by BCI 1 as to his condition, I conclude that the weight of the evidence supports the conclusion that Respondent acted outside of the usual course of professional practice and lacked a legitimate purpose when he prescribed carisoprodol to BCI 1. 21 CFR 1306.04(a). While Dr. Christensen testified that a physical exam is not required at a follow-up visit and a subsequent physician can rely on a diagnosis of another physician if there is evidence that a pertinent examination had previously been performed, I reject Respondent's defense that he reasonably relied on the examinations as documented by Dr. Vora and that while “we now know” that Dr. Vora's records “were largely false, Respondent had no indication that this was the case.”
First, as found above, BCI 1 told Respondent that he had asked Dr. Vora for a couple of extra pills, and based on the statements Respondent made regarding the quantity of the prescriptions (66 pills for both Norco and Xanax) written by Vora, I find that Respondent clearly knew that Vora had given extra pills to BCI 1, thus calling into question the legitimacy of Vora's prescribing as well as his recordkeeping. Moreover, Respondent falsified the visit note to indicate a finding of moderate point tenderness, and in this proceeding, he falsely testified that he lifted up BCI 1's clothing and palpated his back. Unexplained by Respondent is why, if he reasonably relied on Vora's records and had “no indication” that they “were largely false,” he proceeded to create his own set of false physical exam findings and gave false testimony at the hearing. Indeed, Respondent's testimony and his falsification of BCI 1's visit note support the conclusion that Respondent did not merely make a mistake when he prescribed carisoprodol but that he knowingly diverted controlled substances when he prescribed the drug (as well as alprazolam and Norco) to BCI 1. 21 CFR 1306.04(a).
As for the Norco prescription, Dr. Christensen noted that on his initial intake form, BCI 1 had listed “refills” as his reason for visit and that on the medical history form, BCI 1 did not check off any symptom listed on the form, let alone those that are relevant in assessing lower back pain. Tr. 410;
Notably, the visit notes created by Dr. Vora contained no discussion of these issues other than to note that the onset date of BCI 1's back pain was 12/15/2014.
As for Respondent's physical exam, it is acknowledged that Dr. Vora's visit note for BCI 1's December 15, 2014 visit documented the performance of a physical exam and that Dr. Christensen acknowledged that this would be an appropriate exam on a follow-up visit.
I also assume, without deciding, that at the time he commenced his February 2015
Moreover, even as to the tests Respondent did perform, Dr. Christensen's testimony suggests that Respondent was just going through the motions, as the arm abduction/adduction test he did do is not used to assess lower back pain but rather nerve issues in the thoracic and cervical spine.
Thus, Respondent did not simply rely on Dr. Vora's physical exam findings but deemed it necessary to document his own false findings to support his decision to prescribe Norco to BCI 1. Respondent also gave false testimony when he asserted that he had actually palpated BCI 1. Moreover, the statements made at various points in his interaction with BCI 1 show that Respondent knew that BCI 1 was not a legitimate pain patient. These include:
BCI 1's statement that he took Xanax because it kept him from drinking too much moonshine on the weekends;
BCI 1's statement that the drugs he was getting from Respondent were “worth a lot of money on the street” and Respondent's explanation that this is because the drugs are “pure” and “there is nothing cut down about them. So when you're selling them” followed by BCI 1's statement that “it's a little safer to do it that way” and Respondent's acknowledgement that this was “right”;
BCI 1's statements that “a couple of times” he had “r[u]n out of pills” and had to “trade with [his] neighbor,” as well as his statement that he asked Dr. Vora “for a couple extra” pills which he gave back to his neighbor;
As further evidence that Respondent knew that BCI 1 was likely engaged in either abuse or diversion of controlled substances, BCI 1's MAPS report
Dr. Christensen opined that based on his review of the video, the transcript, and BCI 1's medical file, Respondent's issuance of the Norco prescription was inappropriate because “[t]here was no documentation of moderate to moderately severe pain.”
Dr. Christensen thus opined, and the CALJ agreed, that none of the three prescriptions Respondent wrote for BCI 1 on February 19, 2015 were issued for a legitimate medical purpose by a practitioner acting in the usual course of his professional practice. Tr. 425-26. I agree.
As for BCI 1's second visit, as Dr. Christensen noted, when Respondent asked about his pain level, the former replied that “everything is cool.” Tr. 428. Dr. Christensen also noted that when Respondent then asked BCI 1 to rate his pain on a 1-10 scale, BCI 1 simply replied: “I'm good today.”
Even were I to consider this testimony without regard to the CALJ's findings that Respondent's testimony was generally not credible, which I decline to do, Respondent did not ask any further questions to probe why BCI 1 answered his questions as he did, nor ask BCI 1 when he last took his medication. Also, as Dr. Christensen testified, Respondent did not engage in anything close to a meaningful assessment of how the pain affected BCI 1's level of function, whether there were side effects, or ask about aberrant behavior. I thus find Respondent's testimony on these issues not credible.
Respondent also explained that the reasons he made various comments to BCI 1 was because he felt the latter's comments to him were racially motivated and created a situation where he had to work to gain BCI1's trust. Tr. 658. He also testified that he encountered racial animus from several other patients.
Dr. Christensen further explained that a reasonable practitioner would have asked BCI 1 about his function level,
Also, as Dr. Christensen explained, Respondent again falsified the visit note by documenting physical exam findings when he did not perform the tests necessary to make those findings.
While Respondent testified that he palpated BCI 1's back, here again, BCI 1 credibly testified that he did not do so. Moreover, as for Respondent's testimony that “you can indirectly evaluate the cranial nerves” by looking for facial palsy and if “speech patterns [are] similar to somebody who is deaf,”
Accordingly, based on the medical record, the video and transcript of the visit, Dr. Christensen's testimony, and the inferences to be drawn from Respondent's false testimony, I conclude that Respondent lacked a legitimate medical purpose and acted outside of the usual course of professional practice when he issued each of the three March 19, 2015 prescriptions to BCI 1. 21 CFR 1306.04(a).
The CALJ also concluded that Respondent violated 21 CFR 1306.04(a) when he issued the Norco and Carisoprodol prescriptions to BCI 2. R.D. 84. I agree.
As found above, in responding to Respondent's instruction to tell him how she was doing and how she was feeling, BCI 2 stated that she was “[j]ust here for refills,” that she was “feel[ing] great today,” and “actually,” she had “been doing really good” and “ha[d] no complaints.” GX 7, at 2. Dr. Christensen testified that the statement that she had “no complaints” did “not mean anything” and that Respondent did not determine whether BCI 2 had “been taking the medication and if the medication is the reason . . . for how she feels.” Tr. 450. According to Dr. Christensen's unrefuted testimony, under the standard of care, Respondent was required to follow-up this exchange by asking BCI 2 if she had “been taking the medications,” as well as by asking about her “pain level, activity level, side effects,” and inquire as to whether she was engaged in any aberrant behavior.
Dr. Christensen noted that BCI 2 denied that she had muscle spasms and when asked “when does it hurt the most,” her answer was that “sometimes” when she was asleep and her alarm went off, she would twist to turn off her alarm and screw her back up, but that this had not “happened in a very long time” and she had “been doing really well.” Tr. 454. Dr. Christensen testified that this discussion did not support a finding “of a moderate or higher pain level” and that a reasonable practitioner would ask a patient who said she was not having pain if she was taking her medication and evaluate based on her answer.
Dr. Christensen noted that while BCI 2's records listed a complaint of lower back pain, she did not check any of the symptoms of muscle, joint or bone pain listed on the Medical History Form.
With respect to the pain clinic history questionnaire, Dr. Christensen noted that BCI 2 had listed her pain level as ranging from “0 to 4,” but did not circle such items as its location, what made her pain worse, how the pain made her feel, and whether pain levels she listed were with or without medication.
Dr. Christensen further observed that Respondent documented various findings in the progress note even though the video evidence shows that he had no basis to do so. Specifically, Respondent made a finding of “point tenderness to right lower back,” notwithstanding that he never palpated BCI 2. Tr. 464-65; GX 11, at 35. Dr. Christensen further noted that BCI 2 “said she was good and she was great and there was no problem.” Tr. 464.
As for Respondent's finding that the pain “shoots to left hip,” Dr. Christensen testified that BCI 2 did not complain that her pain radiated or shot to her left hip, and, in fact, when BCI 2 was asked “to point to where it is,” she pointed to her right hip area.
As found above, on January 23, 2015, Dr. R. had issued BCI 2 prescriptions for 30-day quantities of both Xanax and Ambien, with each prescription providing for four refills. Thus, when Respondent prescribed Norco and carisoprodol to BCI 2, she had current prescriptions for four different controlled substances. As Dr. Christensen explained, this combination of sedatives is “a highly addictive and dangerous combination.” Tr. 474.
Respondent justified his prescribing, maintaining that he reviewed the medical records created by Dr. Vora and Dr. R., including the latter's “physical and . . . what she gave the patient.”
Moreover, while Dr. Christensen testified that that Dr. R.'s documentation of her January 23, 2015 examination reflected an appropriate examination based on BCI 2's complaint of lower back pain (as documented on her chart), notably, at BCI 2's Feb. 19 visit (which immediately preceded her visit with Respondent), Dr. R. had reduced the Norco prescription from 60 dosage units to five dosage units (a five-day supply), doing what Dr. Christensen explained was “a planned taper.” Tr. 577; see also GX 11, at 30. Yet Respondent increased BCI 2's Norco prescription back up to 60 dosage units even though BCI 2 never once claimed that she was currently in pain and, indeed, made statements that she was “feel[ing] great,” that she had “been doing really good” and “ha[d] no complaints,” that “like right now I have like nothing. I feel good. I have good days and bad,” and even when she identified when it hurt her the most, she added: “But I haven't had that happen in a very long time like literally I have been really doing well.”
Although Dr. Christensen acknowledged that these statements could be an indication that BCI 2's condition was well managed with her medication, he explained that it was not reasonable for Respondent to conclude that her medication regimen was appropriate given that Respondent did not ask her if she was taking her medication and how much medication she was taking. Tr. 563-64. Moreover, while Respondent testified that he had reviewed what Dr. R. had prescribed to BCI 2, he did not issue the same prescriptions but rather increased her Norco prescription back up to 60 dosage units.
As Dr. Christensen explained, while there was some discussion between Respondent and BCI 2 as to why he had decreased the carisoprodol prescription, there was no discussion between the two as to why he increased the Norco prescription.
As for why he increased BCI 2's Norco prescription, Respondent testified that he was aware that Dr. R. had previously reduced it to five dosage units, but that he “wanted to make sure her pain was under control.”
Dr. Christensen opined that Respondent lacked a legitimate medical purpose and acted outside of the usual course of professional practice in issuing the Norco and carisoprodol prescriptions to BCI 2. I agree. Based on Dr. Christensen's testimony that Respondent's evaluation was totally inadequate, his testimony that increasing the Norco prescription was not a rational therapeutic choice, that the combinations of drugs prescribed to BCI 2 was highly addictive and dangerous, and Respondent's falsification of the visit note to reflect various findings to support the prescribing of controlled substances when he failed to perform the necessary tests and BCI 2 made no complaint of pain, I conclude that the record as a whole supports the conclusion that Respondent did not simply engage in malpractice, but knowingly issued the prescriptions in violation of 21 CFR 1306.04(a).
In addition to the violations of the CSA's prescription requirement, the record supports a finding that Respondent violated 21 CFR 1306.05(a) when he failed to include the patient's address on each of the eight prescriptions at issue in this matter. Under this regulation, “[a]ll prescriptions for controlled substances . . . shall bear the full name and address of the patient.”
As for Respondent's evidence of his experience as a dispenser of controlled substances, it includes the testimony of Dr. Scott that, pursuant to the order of the Michigan Board, she had supervised Respondent beginning around April 2014 for a period of one year, that she reviewed about 10 of his pain clinic patient charts, and that she “did not have any problems with” them. Tr. 605, 610. Dr. Scott's testimony does not, however, refute the proof of the specific violations found above. Moreover, Dr. Scott's testimony suggests that the prescribing violations which have been proven on the record of this case occurred during the period in which
In any event, even assuming that Respondent has complied with federal law with respect to every other controlled substance prescription he has issued in the course of his professional career, Respondent's experience evidence does not refute my findings that he lacked a legitimate medical purpose and acted outside of the usual course of professional practice in issuing each of the eight different prescriptions and that he knowingly diverted controlled substances.
Where, as here, the Government has established grounds to revoke a registration or deny an application, a respondent must then “present[ ] sufficient mitigating evidence” to show why he can be entrusted with a new registration.
An applicant's acceptance of responsibility must be unequivocal.
While a registrant must accept responsibility for his misconduct and demonstrate that he will not engage in future misconduct in order to establish that his registration would be consistent with the public interest, DEA has repeatedly held that these are not the only factors that are relevant in determining the appropriate disposition of the matter.
So too, the Agency can consider the need to deter similar acts, both with respect to the respondent in a particular case and the community of registrants.
The CALJ found that Respondent has refused to accept responsibility for his misconduct. R.D. at 91. As the CALJ explained, “[f]ar from offering an unequivocal acceptance of responsibility . . . Respondent offered excuses for his conduct that smacked more of contrivance than contrition.”
Given the egregious nature of his misconduct, which involves the knowing diversion of controlled substances, Respondent's failure to acknowledge his misconduct provides reason alone to conclude that he has not rebutted the Government's
I therefore conclude that granting Respondent's application for a registration “would be inconsistent with the public interest.” 21 U.S.C. 823(f). Accordingly, I will order that his pending application be denied.
Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 28 CFR 0.100(b),
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| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
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