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Federal Deposit Insurance Corporation (“FDIC”).
Interim final rule.
The FDIC is adopting an interim final rule (“Rule”), with request for comments, requiring an insured depository institution with $50 billion or more in total assets to submit periodically to the FDIC a contingent plan for the resolution of such institution in the event of its failure (“Resolution Plan”). The Rule establishes the requirements for submission and content of a Resolution Plan, as well as procedures for review by the FDIC. The Rule requires a covered insured depository institution (“CIDI”) to submit a Resolution Plan that should enable the FDIC, as receiver, to resolve the institution under Sections 11 and 13 of the Federal Deposit Insurance Act (“FDI Act”), 12 U.S.C. 1821 and 1823, in a manner that ensures that depositors receive access to their insured deposits within one business day of the institution's failure (two business days if the failure occurs on a day other than Friday), maximizes the net present value return from the sale or disposition of its assets and minimizes the amount of any loss to be realized by the institution's creditors. The FDIC finds that there is good cause and it is in the public interest to adopt the Rule. Resolution plans for large and complex insured depository institutions are essential for their orderly and least-cost resolution. The Rule is intended to address the continuing exposure of the banking industry to the risks of insolvency of large and complex insured depository institutions, an exposure that can be mitigated with proper resolution planning. The Rule enables the FDIC to perform its resolution functions most efficiently through extensive planning in cooperation with the CIDI and to enhance its ability to evaluate potential loss severity if an institution fails.
The Rule is effective January 1, 2012. Written comments on the Rule must be received by the FDIC no later than November 21, 2011.
You may submit comments by any of the following methods:
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Keith Ligon, Acting Associate Director, Office of Complex Financial Institutions, International Coordination Branch (202) 898-3686, or James Marino, Project Manager, Division of Resolutions and Receiverships, (703) 516-5043, or Richard T. Aboussie, Associate General Counsel, (703) 562-2452, David N. Wall, Assistant General Counsel, (703) 562-2440, Mark A. Thompson, Counsel, (703) 562-2529, Mark G. Flanigan, Counsel, (202) 898-7426, or Shane Kiernan, Senior Attorney, (703) 562-2632.
The FDIC is charged by Congress with the responsibility for insuring the deposits of banks and thrifts in the United States, and with serving as receiver of such institutions if they should fail. As of December 31, 2010, the FDIC insured approximately $6.2 trillion in deposits in more than 7,650 depository institutions. To evaluate potential loss severity and to enable it to perform its resolution functions most efficiently, the FDIC is requiring each insured depository institution with $50 billion or more in total assets to submit periodically to the FDIC a Resolution Plan. Currently, 37 insured depository institutions are covered by the Rule. Those institutions held approximately $3.6 trillion in insured deposits or nearly 60 percent of all insured deposits as of December 31, 2010.
In implementing the deposit insurance program and in efficiently and effectively resolving failed depository institutions, the FDIC strengthens the stability of, and helps maintain public confidence in, the banking system in the United States. In its efforts to achieve this objective and to implement its insurance and resolution functions, the FDIC requires a comprehensive understanding of the organization, operation and business practices of insured depository institutions in the United States, with particular attention to the nation's largest and most complex insured depository institutions.
To ensure that the FDIC can effectively carry out these core responsibilities, the Rule requires a limited number of the largest insured depository institutions to provide the FDIC with essential information concerning their structure, operations, business practices, financial responsibilities and risk exposures. The Rule requires these institutions to develop and submit detailed plans demonstrating how such insured depository institutions could be resolved in an orderly and timely manner in the event of receivership. The Rule also makes a critically important contribution to the FDIC's
Since the recent financial crisis began in late 2008, financial authorities throughout the world have recognized and agreed that advance planning for the resolution of large, complex financial institutions is critical to minimizing the disruption that a failure of such an institution may have as well as the costs of its resolution. At the 2009 Pittsburgh Summit, and in response to the crisis, the G20 Leaders called on the Financial Stability Board (“FSB”) to propose possible measures to address the “too big to fail” and moral hazard concerns associated with systemically important financial institutions. Specifically, the G20 Leaders called for the development of “internationally-consistent firm-specific contingency and resolution plans.” The FSB continues its efforts to develop the international standards for contingency and resolution plans and to evaluate how to improve the capacity of national authorities to implement orderly resolutions of large and interconnected financial firms and periodically reports its progress to the G20 Leaders.
The FSB's program has built on work undertaken by the Basel Committee on Banking Supervision's Cross-border Bank Resolution Group, co-chaired by the FDIC, since 2007. In its final
Similarly, the FSB's Principles for Cross-Border Cooperation on Crisis Management commit national authorities to ensure that firms develop adequate contingency plans, including information regarding group structure, and legal, financial and operational intra-group dependencies; the interlinkages between the firms and financial system (
In addition, Section 165(d) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”), 12 U.S.C. 5365(d), adopted July 21, 2010, mandates that each covered company periodically submit to the Board of Governors of the Federal Reserve System (“FRB”), the Financial Stability Oversight Council, and the FDIC the plan of such company for rapid and orderly resolution under the Bankruptcy Code in the event of material financial distress or failure (“DFA Resolution Plan”). This requirement applies to each nonbank financial company subjected to supervision by the Federal Reserve Board under Title I of the Dodd-Frank Act and each bank holding company with assets of $50 billion or more, including foreign bank holding companies with U.S. financial operations.
The Rule, originally proposed on May 17, 2010, is intended to complement the resolution plan requirements of the Dodd-Frank Act. The Rule requires each insured depository institution with $50 billion or more in total assets to submit periodically to the FDIC a contingent plan for the resolution by the FDIC, as receiver, of such institution under the Federal Deposit Insurance Act (“FDI Act”) in the event of the institution's failure. Currently, with the exception of three thrifts covered by the Rule, holding companies of each insured depository institution covered by the Rule are expected to file a DFA Resolution Plan. While a DFA Resolution Plan will describe the plan to resolve each parent holding company under the Bankruptcy Code, the Rule is focused on planning the resolution of the subsidiary insured depository institution, a resolution that will not be conducted under the Bankruptcy Code, but rather will be conducted under the receivership and liquidation provisions of the FDI Act.
The FDI Act gives the FDIC broad authority to carry out its statutory responsibilities, and to obtain the information required by the Rule. The FDIC's roles as insurer and receiver require a distinct focus on potential loss severities, default risks, complexities in structure and operations, and other factors that impact risk to the Deposit Insurance Fund and the ability of the FDIC to conduct an orderly resolution. The authority to issue the Rule is provided by Section 9(a) Tenth of the FDI Act, 12 U.S.C. 1819(a) Tenth, which authorizes the FDIC to prescribe, by its Board of Directors, such rules and regulations as it may deem necessary to carry out the provisions of the FDI Act or of any other law that the FDIC is responsible for administering or
On May 17, 2010, the FDIC caused to be published in the
The NPR solicited public comment on all aspects of the Proposed Rule. The comment period ended on July 16, 2010, and eight comments were received. Most of the commenters suggested that the FDIC withdraw, or delay the implementation of, the Proposed Rule in anticipation of Section 165(d) of the Dodd-Frank Act, which was signed into law on July 21, 2010, as well as ongoing international efforts related to contingent resolution planning. Commenters were concerned that the FDIC's separate rulemaking would result in significant additional costs, duplicated efforts and excessive burdens on covered institutions. Commenters felt that the FDIC should coordinate with other regulators, both domestically and internationally. Some commenters felt that the resolution plan requirements of the Dodd-Frank Act would be sufficient and there was no need for the preparation a specific resolution plan by an insured depository institution owned by a bank holding company that was required to prepare a resolution plan under the Dodd-Frank Act.
In response to the comments related to passage of the Dodd-Frank Act, the FDIC delayed issuance of the Rule until such time as the FRB and the FDIC issued separate rulemaking implementing Section 165(d) and setting forth the resolution plan requirements in detail. During this period, the FDIC sought to make the two rules complementary and avoid duplication of costs, efforts and burdens on the covered institutions. In that regard, the Resolution Plan required by the Rule is different from the DFA Resolution Plan the insured depository institution's holding company is required to prepare under Section 165(d). The Rule requires a plan to resolve the insured depository institution under the FDI Act with the FDIC acting as receiver. The Section 165(d) rule requires the covered company to submit a plan for it to be resolved in an orderly manner under the Bankruptcy Code. The Rule is focused on ensuring depositors receive access to their insured deposits rapidly, minimizing the costs to the Deposit Insurance Fund and maximizing recovery for creditors in the resolution of insured depository institutions. The Section 165(d) rule is focused on minimizing systemic risk in the resolution of the covered company in order to protect the financial stability of the United States while maximizing recovery for creditors. To avoid duplication in the production of information, the Rule specifically provides that the CIDI may incorporate data and other information from its holding company's DFA Resolution Plan. The FDIC requests comments on additional steps that can be taken to allow a CIDI to integrate the resolution planning that takes place under the Rule with its holding company's DFA Resolution Plan.
Several commenters felt the informational requirements of the Proposed Rule were unclear and requested clarification or made suggestions for improvement. Some commenters suggested that the FDIC provide a template for the Resolution Plan. In response to these comments, the Rule provides more detailed descriptions of the elements and the elements were reorganized so that the Rule lists each element that must be included in the Resolution Plan. While each CIDI may organize its plan in a manner that it feels best communicates the requested information, the list of elements was prepared in an order that the FDIC felt would work well for the plans of most institutions.
Several commenters were concerned that the Proposed Rule favored resolution over recovery and was biased in favor of separation of the insured depository institution from the parent organization rather than looking to maintain enterprise value. By issuing the Rule, the FDIC does not intend to substitute resolution planning for recovery planning. Both are very important and serve complementary purposes. The Rule, however, focuses on resolution planning.
One commenter suggested that the FDIC take a risk-based approach to the plan requirements,
A few commenters believed that much of the information requested was already provided to other regulatory agencies and that the FDIC should reduce the informational requirements by leveraging existing reporting. One
Several commenters were concerned that the Proposed Rule would require ongoing reporting of day-to-day operational and fiscal challenges. One commenter suggested requiring the reporting of material events only when the event related to fulfillment of, or had an impact on, the Resolution Plan. In response to these comments, the FDIC clarified in the Rule when and how material events should be addressed.
A number of commenters had questions related to the proposed gap analysis. Requests were made to clarify the purpose and effect of the gap analysis. Requests were made that the Proposed Rule state that the gap analysis is intended for planning purposes only and does not require reorganizing the institution's operations. In light of these comments, the term “gap analysis” is not used in the Rule and the analysis sought is requested in different ways. To the extent, however, that a plan identifies obstacles to the CIDI's resolution that have a bearing on potential loss severity, such as the inability to make quick deposit insurance determinations and depositor payments or the inability to provide sufficient information on qualified financial contracts to allow the FDIC to make timely and correct determinations on these contracts in the event of failure, the FDIC does expect the plans also to provide strategies that could be taken to remove those obstacles or mitigate the effects thereof.
Several commenters were concerned about the provision in the Proposed Rule requiring the production of audited financial statements. These commenters sought clarification that the FDIC did not intend to require institutions to prepare additional audited financial statements for subsidiaries not already preparing such statements. In light of these comments, the Rule reflects that the FDIC is not requiring institutions to prepare additional audited financial statements for subsidiaries not already preparing such statements.
A number of commenters read the Proposed Rule provisions regarding the confidentiality of information submitted as suggesting that confidentiality would only be afforded to information which, if disclosed, would endanger the institution's safety and soundness. These commenters suggested that such a standard for obtaining confidentiality for material submitted was incorrect and should be revised to reflect requirements of existing law. Furthermore, commenters felt that, in all cases, the resolution plan and related analysis and information submitted should be treated as confidential supervisory or examination information exempt from public disclosure. Given the comments on confidentiality, the confidentiality provision has been revised to provide that the Resolution Plan be divided into a public section and a confidential section. In addition, the Rule provides that, to the extent permitted by law, the information comprising the confidential section of a Resolution Plan will be treated as confidential.
Commenters also believed the Proposed Rule's requirement that the insured depository institution's board of directors attest that a resolution plan is accurate and the information is current is inconsistent with corporate governance principles regarding the board's role and imposes too great a burden on the institution's board. The commenters suggested that the final rule simply require the institution's board to approve the resolution plan. The Rule requires a Resolution Plan to be approved by the CIDI's board of directors and requires that a Resolution Plan include certain specified information about the CIDI's corporate governance structure and processes.
A number of commenters questioned the regulatory burden analysis and felt that the estimated time to respond was significantly below the time that would be actually required to respond. In addition, most commenters felt that six months was too short a time to prepare the initial Resolution Plan. Several suggested allowing institutions to obtain extensions for good cause. Given these comments, the FDIC reevaluated its estimates of the regulatory burden and made adjustments thereto. The initial filings will be staggered. This change provides most CIDIs with much more time to prepare their initial Resolution Plans. In order to reduce the burden on CIDIs by allowing them to utilize information and data compiled for their parent company's DFA Resolution Plan, the groupings and timing of the filings are the same as the groupings and timing of filings to be utilized for DFA Resolution Plans. The order utilized also allows the FDIC to focus on the most complex or largest institutions first. The Rule requires the first filing group, which consists of each CIDI whose parent company, as of the effective date of the Rule, had $250 billion or more in total nonbank assets (or in the case of a parent company that is a foreign-based company, such company's total U.S. nonbank assets), to file their initial Resolution Plans on July 1, 2012. The Rule requires the second filing group, which consists of each CIDI not included in the first group whose parent company, as of the effective date of the Rule, had $100 billion or more in total nonbank assets (or, in the case of a parent company that is a foreign-based company, such company's total U.S. nonbank assets) to file their initial Resolution Plans on or before July 1, 2013. The Rule requires the third filing group, which consists of the remaining CIDIs, to file their initial Resolution Plans on or before December 31, 2013. The Rule also provides that, on a case-by-case basis, the FDIC may change a CIDI's scheduled filing date and extend the implementation and updating time frames of the Rule.
Several commenters felt that enforcement action should not be taken except in very limited situations where noncompliance was willful and continuous. The commenters felt that termination of insurance was too draconian a remedy to use except in extraordinary circumstances. Several commenters requested that an appeals process be provided in the Proposed Rule as well as a clarification of what standards will be used to evaluate compliance with the Proposed Rule. The FDIC intends to use its enforcement powers only in appropriate circumstances. The Rule now provides for a multi-step review process that affords the covered institutions the opportunity to correct deficiencies in their Resolution Plans before the FDIC would use its enforcement powers. The
As noted above, the FDIC made a number of revisions to the Proposed Rule as a result of the comments received. The FDIC believes that additional comments would be helpful in refining certain aspects of the Rule and therefore is issuing the Rule as an interim final rule, with request for comments. This action will avoid a delay in the implementation of the important resolution planning process, while allowing the FDIC to solicit and obtain additional comments that may serve as the basis for further clarification of the requirements of the Rule, if necessary.
“Core business lines” means those business lines of the CIDI, including associated operations, services, functions and support that, in the view of the CIDI, upon failure would result in a material loss of revenue, profit, or franchise value. The core business lines of the CIDI are valuable assets of the CIDI. The Resolution Plan should provide a strategy for the sale of the core business lines. The Section 165(d) rule contains a similar definition but, for the Section 165(d) rule the core business lines are determined from the perspective of the covered company rather than the CIDI. For example, the CIDI may be providing services to its holding company, such as payment services, that support a business line of its holding company, such as a brokerage service, that is not a core business line of the CIDI. In such example, payment services may be identified as a core business line of the CIDI, while its holding company identifies brokerage services as a business line in its DFA Resolution Plan.
“Covered insured depository institution” means an insured depository institution with $50 billion or more in total assets, as determined based upon the average of the institution's four most recent Reports of Condition and Income or Thrift Financial Reports, as applicable to the insured depository institution.
“Critical Services” means services and operations of the CIDI, such as servicing, information technology support and operations, human resources and personnel that are necessary to continue the day-to-day operation of the CIDI. The Resolution Plan should provide for the continuation and funding of critical services. For clarity and to avoid confusion, the term “critical services” differs substantially from the term “critical operations” as used in the Section 165(d) rule. The term “critical operations” is used to designate operations of a covered company the discontinuation of which would pose a threat to the financial stability of the United States. In contrast, the term “critical services” is used in the Rule to mean those functions that must be kept operational during the resolution process to allow the receiver to conduct the resolution in an orderly and efficient manner.
“Parent company” means the company that controls, directly or indirectly, an insured depository institution. In a multi-tiered holding company structure, parent company means the top-tier of the multi-tiered holding company only.
“Parent company affiliate” means any affiliate of the parent company other than the CIDI and subsidiaries of the CIDI. The term is used in identifying the exposures or reliance that the CIDI has on entities in its affiliated group that are not owned or otherwise controlled by the CIDI. In a multi-tier holding company structure, the term includes all holding companies of the CIDI (except the top-tier holding company) and their affiliates (other than the top-tier holding company, the CIDI and subsidiaries of the CIDI).
“Material entity” means a company that is significant to the activities of a critical service or core business line. For example, the legal entity utilized by the CIDI as the contracting entity for a core business line would be a material entity. Also, a subsidiary of the CIDI that provides a critical service would be a material entity.
After the initial resolution plan is submitted, each CIDI is required to submit a new Resolution Plan annually on or before the anniversary date of the date for the submission of its initial plan. An insured depository institution that becomes a CIDI after the effective date of the Rule shall submit its initial resolution plan no later than July 1 of the following calendar year.
A CIDI is required to file a notice no later than 45 days after any event, occurrence, change in conditions or circumstances or change which results in, or could reasonably be foreseen to have, a material effect on the Resolution Plan of the CIDI. The FDIC desires a notice only when an event results in, or could reasonably be foreseen to have, a material effect on the Resolution Plan of the CIDI such that the Resolution Plan would be ineffective or require material amendment to be effective. A notice is not required if an event does not result in, or could not reasonably be foreseen
The Resolution Plan should include an executive summary that summarizes the key elements of the CIDI's strategic plan for resolution under the FDI Act in the event of its insolvency. After the CIDI files its initial plan, each annual Resolution Plan should also describe material events, such as acquisitions, sales, litigation and operational changes, since the most recently filed plan that may have a material effect on the plan, material changes to the CIDI's Resolution Plan from its most recently filed plan, and any actions taken by the CIDI since filing of the previous plan to improve the effectiveness of its Resolution Plan or remediate or otherwise mitigate any material weaknesses or impediments to the effective and timely execution of the Resolution Plan.
The Resolution Plan should provide the CIDI's, parent company's, and affiliates' legal and functional structures and identify core business lines. A mapping of core business lines, including material asset holdings and liabilities related thereto, to material entities should be provided that identifies which legal entities are utilized in the conduct of such business line. The Resolution Plan should include a discussion of the CIDI's overall deposit activities including, among other things, unique aspects of the deposit base or underlying systems that may create operational complexity for the FDIC, result in extraordinary resolution expenses in the event of failure and a description of the branch organization, both domestic and foreign. Key personnel tasked with managing core business lines and deposit activities and the CIDI's branch organization should be identified.
The Resolution Plan should identify critical services and providers of critical services. A mapping of critical services to material entities and core business lines should be provided that identifies which legal entities are providing the critical services and which business lines are utilizing the critical services. The Resolution Plan should describe the CIDI's strategy for continuing critical services in the event of the CIDI's failure. When critical services are provided by the parent company or a parent company affiliate, the Resolution Plan should describe the CIDI's strategy for continuing critical services in the event of the parent company's or parent company affiliate's failure. The ability of each parent company affiliate providing critical services to function on a stand-alone basis in the event of the parent company's failure should be assessed.
The Resolution Plan should identify the elements or aspects of the parent company's organizational structure, the interconnectedness of its legal entities, the structure of legal or contractual arrangements, or its overall business operations that would, in the event the CIDI were placed in receivership, diminish the CIDI's franchise value, obstruct its continued business operations or increase the operational complexity to the FDIC of resolution of the CIDI.
The Resolution Plan should provide a strategy to unwind or separate the CIDI and its subsidiaries from the organizational structure of its parent company in a cost-effective and timely fashion. The Resolution Plan should also describe remediation or mitigating steps that can be taken to eliminate or mitigate obstacles to such separation.
The Resolution Plan should provide a strategy for the sale or disposition of the deposit franchise, including branches, core business lines and major assets of the CIDI in a manner that ensures that depositors receive access to their insured deposits within one business day of the institution's failure (two business days if the failure occurs on a day other than Friday), maximizes the net present value return from the sale or disposition of such assets and minimizes the amount of any loss realized in the resolution of cases. The Resolution Plan should also describe how the strategies for the separation of the CIDI and its subsidiaries from its parent company's organization and sale or disposition of deposit franchise, core business lines and major assets can be demonstrated to be the least costly to the Deposit Insurance Fund of all possible methods for resolving the CIDI as required by Section 13(c)(4)(A) of the FDI Act, 12 U.S.C. 1823(c)(4)(A).
Among potential strategies for the payment of depositors that should be considered are: (a) A cash payment of insured deposits,
Among potential strategies for the sale of core business lines and assets that should be considered are: (a) Retention of some or all of the assets in receivership, to be marketed broadly to eligible purchasers, including insured depository institutions as well as other interested purchasers, (b) sale of all or a portion of the core business lines and assets in a purchase and assumption agreement, to one or more insured
In developing a resolution strategy, each CIDI may utilize one or more of the methods described above, but is not limited to these methods. The resolution strategy should be tailored to the size, complexity and risk profile of the institution.
In addition to the strategic analyses described above, the Resolution Plan should provide a detailed description of the processes the CIDI employs for determining the current market values and marketability of core business lines and material asset holdings, assessing the feasibility of the CIDI's plans, under idiosyncratic and industry-wide stress scenarios (including time frames), for executing any sales, divestitures, restructurings, recapitalizations, or similar actions contemplated in the Resolution Plan, and assessing the impact of any sales, divestitures, restructurings, recapitalizations, or other similar actions on the value, funding and operations of the CIDI and its core business lines. This information will allow the FDIC to understand the basis for the valuations included in the Resolution Plan and to consider how those processes could be utilized in a resolution.
Major counterparties should be identified. The CIDI should describe the interconnections, interdependencies and relationships with such major counterparties and analyze whether the failure of each major counterparty would likely have an adverse impact on or result in the material financial distress or failure of the CIDI. The Resolution Plan should describe any material off-balance-sheet exposures (including guarantees and contractual obligations) of the CIDI and those exposures should be mapped to core business lines.
The Resolution Plan should identify and describe processes used by the CIDI to determine to whom the CIDI has pledged collateral, identify the person or entity that holds such collateral, and identify the jurisdiction in which the collateral is located; and if different, the jurisdiction in which the security interest in the collateral is enforceable against the CIDI.
The Resolution Plan should describe the practices of the CIDI and its core business lines related to the booking of trading and derivative activities. Each system on which the CIDI conducts a material number or value amount of trades should be identified. Each trading system should be mapped to the CIDI's legal entities and core business lines. The Resolution Plan should identify material hedges of the CIDI and its core business lines related to trading and derivative activities, including a mapping to legal entity. Hedging strategies of the CIDI should be described.
An unconsolidated balance sheet for the CIDI and a consolidating schedule for all material entities that are subject to consolidation with the CIDI should be provided. Amounts attributed to entities that are not material may be aggregated on the consolidating schedule. Financial statements for material entities should be provided. When available, audited financial statements should be provided.
The Resolution Plan should identify each payment, clearing and settlement system of which the CIDI, directly or indirectly, is a member. Membership in each such system should be mapped to the CIDI's legal entities and core business lines. Systems that are immaterial in resolution planning, such as a local check clearing house, do not need to be identified.
The Resolution Plan should provide detailed descriptions of the funding, liquidity and capital needs of, and resources available to, the CIDI and its material entities, which should be mapped to core business lines and critical services. The Resolution Plan should also describe the material components of the liabilities of the CIDI and its material entities and identify types and amounts of short-term and long-term liabilities by type and term to maturity, secured and unsecured liabilities and subordinated liabilities.
The Resolution Plan should describe any material affiliate funding relationships, accounts, and exposures, including terms, purpose, and duration, that the CIDI and any of its subsidiaries have with its parent or any parent company affiliate. All material affiliate financial exposures, claims or liens, lending or borrowing lines and relationships, guaranties, asset accounts, deposits, or derivatives transactions should be described. The description should clearly identify the nature and extent to which parent company or parent company affiliates serve as a source of funding to the CIDI, the terms of any contractual arrangements, including any capital maintenance agreements, the location of related assets, funds or deposits and the mechanisms by which funds can be downstreamed from the parent company to the CIDI and its subsidiaries.
The Resolution Plan should describe systemically important functions that the CIDI, its subsidiaries and affiliates provide, including the nature and extent of the institution's involvement in payment systems, custodial or clearing operations, large sweep programs, and capital markets operations in which it plays a dominant role. Critical vulnerabilities, estimated exposure and potential losses, and why certain attributes of the businesses detailed in previous sections could pose a systemic risk to the broader economy should be discussed.
The Resolution Plan should describe individual components of the CIDI's structure that are based or located outside the United States, including foreign branches, subsidiaries and offices. Details should be provided on the location and amount of foreign deposits and assets. The Resolution Plan should discuss the nature and extent of the CIDI's cross-border assets, operations, interrelationships and exposures which should be mapped to legal entities and core business lines.
The Resolution Plan should provide a detailed inventory and description of the key management information systems and applications, including systems and applications for risk management, accounting, and financial and regulatory reporting, used by the CIDI and its subsidiaries. The legal owner or licensor of the systems should be identified. The use and function of the system or application should be described. A listing of service level agreements and any software and systems licenses or associated intellectual property related thereto should be provided. Any disaster recovery or other backup plans should be identified and described. The Resolution Plan should identify common or shared personnel, facilities, or systems. The Resolution Plan should also describe the capabilities of the CIDI's processes and systems to collect, maintain, and report the information and other data underlying the resolution plan to management of the CIDI and, upon request to the FDIC. Furthermore, the Resolution Plan should describe any
The Resolution Plan should include a detailed description of how resolution planning is integrated into the corporate governance structure and processes of the CIDI, the CIDI's policies, procedures, and internal controls governing preparation and approval of the Resolution Plan, and the identity and position of the senior management official of the CIDI that is primarily responsible for overseeing the development, maintenance, implementation, and filing of the Resolution Plan and for the CIDI's compliance with this section.
The Resolution Plan should describe the nature, extent, and results of any contingency planning or similar exercise conducted by the CIDI since the date of the most recently filed Resolution Plan to assess the viability of or improve the Resolution Plan.
The Resolution Plan should identify and discuss any other material factor that may impede the resolution of the CIDI.
Because each Resolution Plan is expected to be unique, the FDIC encourages CIDIs to ask questions and, if so desired, to arrange a meeting with the FDIC. The FDIC expects the initial Resolution Plan will provide the foundation for developing more robust annual Resolution Plans.
After receiving a Resolution Plan, the FDIC will determine whether the submitted plan satisfies the minimum informational requirements of this section. If the FDIC determines that a Resolution Plan is informationally incomplete or that additional information is necessary to facilitate review of the Resolution Plan, the FDIC will return the Resolution Plan to the CIDI and inform the CIDI in writing of the area(s) in which the plan is informationally incomplete or with respect to which additional information is required. The CIDI must resubmit an informationally complete Resolution Plan or such additional information as requested to facilitate review of the Resolution Plan no later than 30 days after receiving the notice described in preceding sentence, or such other time period as the FDIC may determine.
Upon acceptance of a Resolution Plan as complete, the FDIC will review the Resolution Plan in consultation with the appropriate Federal banking agency for the CIDI and its parent company. If the FDIC determines that the Resolution Plan of a CIDI submitted is not credible, the FDIC will notify the CIDI in writing of such determination. Any notice provided under this paragraph will identify the aspects of the Resolution Plan that the FDIC determines to be deficient.
Within 90 days of receiving a notice of deficiencies issued pursuant to the preceding paragraph, or such shorter or longer period as the FDIC may determine, a CIDI must submit a revised Resolution Plan to the FDIC that addresses the deficiencies identified by the FDIC and discusses in detail the revisions made to address such deficiencies.
Upon a written request by a CIDI, the FDIC may extend any time period under the Rule. Each extension request shall be in writing and describe the basis and justification for the request.
The CIDI's ability to produce the information and data underlying its resolution rapidly and on demand is a vital element in a credible Resolution Plan. Without up-to-date information on the CIDI, the FDIC, as receiver, would be hampered in implementing the Resolution Plan. Therefore, within a reasonable period of time, as determined by the FDIC, after the filing of its initial Resolution Plan, the CIDI must demonstrate its capability to produce promptly, in a format acceptable to the FDIC, accurate and verifiable data underlying the key aspects of Resolution Plan. The FDIC understands that the capability to produce the data underlying the key aspects of the Resolution Plan will vary by CIDI and, therefore, intends to review and discuss the CIDI's plans to remedy deficiencies as part of their review of a CIDI's initial Resolution Plan.
Notwithstanding the general requirements of this section, on a case-by-case basis, the FDIC may extend, upon notice, the implementation and updating time frames for all or part of the requirements of this section. The FDIC may also, upon application of a CIDI, exempt a CIDI from one or more of the requirements of this section.
Under the Rule, the confidentiality of Resolution Plans is to be assessed in accordance with the applicable exemptions under the FOIA, 5 U.S.C. 552(b), and the FDIC's Disclosure of Information Rule, 12 CFR 309. The FDIC certainly expects that large portions of
The FDIC also recognizes, however, that the regulation calls for the submission of details regarding CIDIs that are publicly available or otherwise are not sensitive and should be made public. Unless inextricably intertwined with exempt information, these details would be releasable under the FOIA. The FDIC is concerned that it and the courts could reach inconsistent conclusions regarding which portions of the Resolution Plans contain or consist of reasonably segregable nonexempt information. This uncertainty, in turn, could impact the quality and content of the information provided by CIDIs.
In order to reduce this uncertainty, the Rule requires Resolution Plans to be divided into two sections: a public section and a confidential section. The Rule further specifies the scope and content of the information that is to comprise each section. In the FDIC's view, the details required to be contained in the public section are or should be publicly available. The public section of the resolution plan should be segregated and separately identified from the confidential section. The public section will be made available to the public in accordance with the FDIC's Disclosure of Information Rule, 12 CFR part 309.
The FDIC also intends and will presume that the confidential section of a resolution plan contains and consists of information that is subject to withholding in full under one or more of the FOIA exemptions. That said, a CIDI should submit a properly substantiated request for confidential treatment of any details in the confidential section that it believes are subject to withholding under exemption 4 of the FOIA. In addition, the FDIC will have to make formal exemption and segregability determinations if and when a plan is requested under the FOIA.
The public section of the Resolution Plan consists of an executive summary of the Resolution Plan that describes the business of the CIDI and includes, to the extent material to an understanding of the CIDI: (1) The names of material entities; (2) a description of core business lines; (3) consolidated financial information regarding assets, liabilities, capital and major funding sources; (4) a description of derivative activities and hedging activities; (5) a list of memberships in material payment, clearing and settlement systems; (6) a description of foreign operations; (7) the identities of material supervisory authorities; (8) the identities of the principal officers; (9) a description of the corporate governance structure and processes related to resolution planning; (10) a description of material management information systems; and (11) a description, at a high level, of the CIDI's resolution strategy, covering such items as the range of potential purchasers of the CIDI, its material entities and core business lines.
The FDIC finds that there is good cause and it is in the public interest to adopt the Rule as an interim final rule. The Rule is intended to address the continuing exposure of the banking industry to the risks of insolvency of large and complex insured depository institutions, an exposure that can be mitigated with proper resolution planning. The Rule enables the FDIC to perform its resolution functions most efficiently through extensive planning in cooperation with the CIDI and to enhance its ability to evaluate potential loss severity if an institution fails.
Resolution plans for large and complex insured depository institutions are essential for their orderly and least-cost resolution. The FDIC believes good cause exists for issuing the Rule as an interim final rule and that its issuance is in the public interest. While the FDIC issued the NPR on the Proposed Rule last year, many commenters recommended that the FDIC defer final action until the companion Section 165(d) rule was finalized. Concurrent with the issuance of the Rule, the FDIC and the FRB are issuing a final rule requiring the preparation of resolution plans pursuant to Section 165(d) of the Dodd-Frank Act, 12 U.S.C. 5365(d). It is imperative that the two companion rules incorporate coordinated requirements and for CIDIs to initiate preparatory work for their resolution plans in concert with the related plans of their holding companies. With limited exception, the parent company of each insured depository institution covered by the Rule is expected to file a DFA Resolution Plan required by Section 165(d). The issuance of the Rule as an interim final rule outlining the requirements for an insured depository institution subsidiary Resolution Plan enables a holding company to consider these requirements in preparing its DFA Resolution Plan.
The Rule will support the FDIC's ongoing resolution planning activities as those insured depository institutions will be best positioned to understand the most effective and efficient manner for their resolution under their existing holding company structure. The initiation of the CIDI resolution planning processes under the Rule along with the related holding company resolution planning process under the Section 165(d) rule will facilitate more effective planning, reduce the risks of inconsistent plan development, and materially assist the FDIC's planning efforts and evaluation of the development of the companion resolution plans under the Section 165(d) rule. Finally, it is in the public interest to issue the Rule as an interim final rule in order to coordinate with the finalization of the Section 165(d) rule, which is subject to a Congressional deadline. The issuance of the Rule as an interim final rule outlining the requirements for a CIDI's Resolution Plan enables a holding company to consider these requirements in preparing its DFA Resolution Plan.
Issuance of the resolution plan requirements for CIDIs through the Rule also will facilitate the development of such plans at an earlier date and provide adequate time for the institutions covered by the Rule to prepare their first Resolution Plans for submission on their initial submission date, as well as to prepare their DFA Resolution Plans for submission in accordance with the Section 165(d) rule.
The FDIC realizes that the Rule imposes additional regulatory and financial burdens on the industry. The FDIC is seeking to minimize the burden while carrying out its mandates as insurer and as receiver. The FDIC seeks comments on all aspects of the Rule. Comments will be considered by the FDIC and appropriate revisions will be made to the Rule, if necessary, before a Final Rule is issued. Comments are specifically requested on the following:
Should a CIDI be defined differently? Should the asset threshold for inclusion be lower or higher than $50 billion?
1. What terms defined by the Rule require further clarification and how should they be defined?
2. What other terms used in the Rule should the FDIC define?
1. What additional elements of strategic analysis should be included in the CIDI's Resolution Plan? Are there any elements listed in the Rule that create an unnecessary burden or that should not be included in the CIDI's Resolution Plan?
2. How can the requirements regarding the strategic analysis be improved to provide additional clarity?
1. What additional resolution planning governance and oversight requirements should the Rule include?
2. What alternative governance requirements might exist that would ensure that a CIDI places adequate importance and attention on resolution planning?
1. What additional informational elements should the Rule require as part of a Resolution Plan? What impediments attend collection and production of the informational elements identified by the Rule? What impediments apply to collection and production of additional informational elements you have identified?
2. Do the informational elements described in the Rule capture the correct types of information for resolution planning? Are any of the informational elements identified in the Rule not necessary?
3. Which of the information elements described in the Rule could be clarified?
4. To the extent any of the informational elements identified in the Rule are not readily available, identify the burden of or impediment to (
5. Should any informational elements be required to be available on an “on demand” or “real time” basis? What impediments apply to making such information available on demand?
6. What is the burden related to producing an unconsolidated balance sheet and providing consolidating schedules? What alternatives could the FDIC include in the Rule to reduce that burden?
1. Are the proposed timelines for Resolution Plan submission (
2. With regard to the provision of the Rule that would require a CIDI to file a notice of material change upon a material event, occurrence, or change, should the Rule provide greater specificity (
3. Are there explicit factors the FDIC should consider in determining whether a Resolution Plan is not credible?
4. What additional steps could be taken to allow a CIDI to integrate the resolution planning that takes place under the Rule with its parent company's DFA Resolution Plan?
In accordance with the Paperwork Reduction Act (44 U.S.C. 3501
A.
B.
C.
•
•
•
•
• 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, Room 3208, Washington, DC 20503.
The Regulatory Flexibility Act 5 U.S.C. 601
The Rule would apply only to insured depository institutions with $50 billion or more in total assets. The Rule would apply to 37 insured depository institutions upon its effective date. Pursuant to section 605(b) of the Regulatory Flexibility Act, the FDIC certifies that the Rule will not have a significant economic impact on a substantial number of small entities and therefore a regulatory flexibility analysis under the RFA is not required.
The FDIC has determined that the Rule will not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act, enacted as part of the Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999 (Pub. L. 105-277, 112 Stat. 2681).
Section 722 of the Gramm-Leach-Bliley Act (Pub. L. 106-102, 113 Stat.1338, 1471), requires the Federal banking agencies to use plain language in all proposed and final rules published after January 1, 2000. The FDIC has sought to present the Rule in a simple and straightforward manner.
The Office of Management and Budget has determined that the Rule is not a “major rule” within the meaning of the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) (5 U.S.C. 801
Section 302 of Riegle Community Development and Regulatory Improvement Act (RCDRIA)
Banks, Banking, Bank deposit insurance, Holding companies, National banks, Participations, Reporting and recordkeeping requirements, Savings associations, Securitizations.
For the reasons stated above, the Board of Directors of the Federal Deposit Insurance Corporation amends part 360 of title 12 of the Code of Federal Regulations as follows:
12 U.S.C. 1817(b), 1818(a)(2), 1818(t), 1819(a) Seventh, Ninth and Tenth, 1820(b)(3), (4), 1821(d)(1), 1821(d)(10)(c), 1821(d)(11), 1821(e)(1), 1821(e)(8)(D)(i), 1823(c)(4), 1823(e)(2); Sec. 401(h), Pub. L. 101-73, 103 Stat. 357.
(a)
(b)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(c)
(1)
(A) July 1, 2012, with respect to a CIDI whose parent company, as of the effective date of this section, had $250 billion or more in total nonbank assets (or in the case of a parent company that is a foreign-based company, such company's total U.S. nonbank assets);
(B) July 1, 2013, with respect to any CIDI not described in paragraph (c)(1)(i)(A) of this section whose parent company, as of the effective date of this section, had $100 billion or more in total nonbank assets (or, in the case of a parent company that is a foreign-based company, such company's total U.S. nonbank assets); and
(C) December 31, 2013, with respect to any CIDI not described in paragraph (c)(1)(i)(A) or (B) of this section.
(ii)
(iii) After filing its initial Resolution Plan pursuant to paragraph (c)(1)(i) or (c)(1)(ii) of this section, each CIDI shall submit a Resolution Plan to the FDIC annually on or before each anniversary date of its Initial Submission Date.
(iv) Notwithstanding anything to the contrary in this paragraph (c)(1), the FDIC may determine that a CIDI shall file its initial or annual Resolution Plan by a date other than as provided in this paragraph (c). The FDIC shall provide a CIDI with written notice of a determination under this paragraph (c)(1)(iv) no later than 180 days prior to the date on which the FDIC determines to require the CIDI to submit its Resolution Plan.
(v)
(B) A CIDI shall not be required to file a notice under paragraph (c)(1)(v)(A) of this section if the date on which the CIDI would be required to submit a notice under paragraph (c)(1)(v)(A) would be within 45 days prior to the date on which the CIDI is required to file an annual Resolution Plan under paragraph (c)(1)(iii) of this section.
(iv)
(2)
(i)
(A) Material events, such as acquisitions, sales, litigation and operational changes, since the most recently filed plan that may have a material effect on the plan;
(B) Material changes to the CIDI's resolution plan from its most recently filed plan; and
(C) Any actions taken by the CIDI since filing of the previous plan to improve the effectiveness of its resolution plan or remediate or otherwise mitigate any material weaknesses or impediments to the effective and timely execution of the resolution plan.
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(A) Determining the current market values and marketability of core business lines and material asset holdings;
(B) Assessing the feasibility of the CIDI's plans, under idiosyncratic and industry-wide stress scenarios (including timeframes), for executing any sales, divestitures, restructurings, recapitalizations, or similar actions contemplated in the CIDI's resolution plan; and
(C) Assessing the impact of any sales, divestitures, restructurings, recapitalizations, or other similar actions on the value, funding and operations of the CIDI and its core business lines.
(ix)
(x)
(xi)
(A) Determine to whom the CIDI has pledged collateral;
(B) Identify the person or entity that holds such collateral; and
(C) Identify the jurisdiction in which the collateral is located; and if different, the jurisdiction in which the security interest in the collateral is enforceable against the CIDI.
(xii)
(xiii)
(xiv)
(xv)
(xvi)
(xvii)
(xviii)
(xix)
(xx)
(A) How resolution planning is integrated into the corporate governance structure and processes of the CIDI;
(B) The CIDI's policies, procedures, and internal controls governing preparation and approval of the resolution plan; and
(C) The identity and position of the senior management official of the CIDI that is primarily responsible for overseeing the development, maintenance, implementation, and filing of the resolution plan and for the CIDI's compliance with this section.
(xxi)
(xxii)
(3)
(4)
(i) Each resolution plan submitted shall be credible. A resolution plan is credible if its strategies for resolving the CIDI, and the detailed information required by this section, are well-founded and based on information and data related to the CIDI that are observable or otherwise verifiable and employ reasonable projections from current and historical conditions within the broader financial markets.
(ii) After receiving a resolution plan, the FDIC shall determine whether the submitted plan satisfies the minimum informational requirements of paragraph (c)(2) of this section; and either acknowledge acceptance of the plan for review or return the resolution plan if the FDIC determines that it is incomplete or that substantial additional information is required to facilitate review of the resolution plan.
(iii) If the FDIC determines that a resolution plan is informationally incomplete or that additional information is necessary to facilitate review of the plan, the FDIC shall inform the CIDI in writing of the area(s) in which the plan is informationally incomplete or with respect to which additional information is required.
(iv) The CIDI shall resubmit an informationally complete resolution plan or such additional information as requested to facilitate review of the resolution plan no later than 30 days after receiving the notice described in preceding paragraph, or such other time period as the FDIC may determine.
(v) Upon acceptance of a resolution plan as informationally complete, the FDIC will review the resolution plan in consultation with the appropriate Federal banking agency for the CIDI and its parent company. If the FDIC determines that the resolution plan of a CIDI submitted is not credible, the FDIC shall notify the CIDI in writing of such determination. Any notice provided under this paragraph shall identify the aspects of the resolution plan that the FDIC determines to be deficient.
(vi) Within 90 days of receiving a notice of deficiencies issued pursuant to paragraph (c)(4)(v) of this section, or such shorter or longer period as the FDIC may determine, a CIDI shall submit a revised resolution plan to the FDIC that addresses the deficiencies identified by the FDIC and discusses in detail the revisions made to address such deficiencies.
(vii) Upon its own initiative or a written request by a CIDI, the FDIC may extend any time period under this section. Each extension request shall be in writing and shall describe the basis and justification for the request.
(d)
(2) Within a reasonable period of time, as determined by the FDIC, following its Initial Submission Date, the CIDI shall demonstrate its capability to produce promptly, in a format acceptable to the FDIC, the information and data underlying its resolution plan.
(3) Notwithstanding the general requirements of paragraph (c)(1) of this section, on a case-by-case basis, the FDIC may extend, on its own initiative or upon written request, the implementation and updating time frames for all or part of the requirements of this section.
(4) FDIC may, on its own initiative or upon written request, exempt a CIDI from one or more of the requirements of this section.
(e)
(f)
(i) The names of material entities;
(ii) A description of core business lines;
(iii) Consolidated financial information regarding assets, liabilities, capital and major funding sources;
(iv) A description of derivative activities and hedging activities;
(v) A list of memberships in material payment, clearing and settlement systems;
(vi) A description of foreign operations;
(vii) The identities of material supervisory authorities;
(viii) The identities of the principal officers;
(ix) A description of the corporate governance structure and processes related to resolution planning;
(x) A description of material management information systems; and
(xi) A description, at a high level, of the CIDI's resolution strategy, covering such items as the range of potential purchasers of the CIDI, its material entities and core business lines.
(2) The confidentiality of resolution plans shall be determined in accordance with applicable exemptions under the Freedom of Information Act (5 U.S.C. 552(b)) and the FDIC's Disclosure of Information Rules (12 CFR part 309).
(3) Any CIDI submitting a resolution plan or related materials pursuant to this section that desires confidential treatment of the information submitted pursuant to 5 U.S.C. 552(b)(4) and the FDIC's Disclosure of Information Rules (12 CFR part 309) and related policies may file a request for confidential treatment in accordance with those rules.
(4) To the extent permitted by law, information comprising the Confidential Section of a resolution plan will be treated as confidential.
(5) To the extent permitted by law, the submission of any nonpublicly available data or information under this section shall not constitute a waiver of, or otherwise affect, any privilege arising under Federal or state law (including the rules of any Federal or state court) to which the data or information is otherwise subject. Privileges that apply to resolution plans and related materials are protected pursuant to Section 18(x) of the FDI Act, 12 U.S.C. 1828(x).
By order of the Board of Directors.
Department of Transportation, Federal Aviation Administration (FAA).
Notice of agency determination.
This action announces an FAA determination that 6 a.m. to 6:59 a.m. no longer is a low demand period at Ronald Reagan Washington National Airport (DCA). As a result of this determination, the FAA will allocate available slots in that period on a temporary basis subject to recall, and the FAA may conduct a lottery in the future to allocate available slots in that period.
September 21, 2011.
Robert Hawks, Office of the Chief Counsel, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone number: 202-267-7143; fax number: 202-267-7971; e-mail:
The FAA issued the High Density Traffic Airports Rule (HDR), 14 CFR part 93 subpart K, in 1968 to reduce delays at five congested airports: John F. Kennedy International Airport, LaGuardia Airport, O'Hare International Airport, Ronald Reagan Washington National Airport (DCA), and Newark Liberty International Airport.
In 1985, the FAA issued part 93 subpart S (the “Buy/Sell Rule”).
Currently, the FAA has allocated all commuter and all but three air carrier slots in the 0600 hour. The FAA has allocated five daily commuter slots and two daily air carrier slots in the 0600 hour on a temporary basis subject to recall.
Because of the relatively small number of available slots in the 0600 hour, the FAA now determines that hour no longer is a low demand period. Further, permanent allocation of slots in that time period would undermine the new entrant and limited incumbent allocation priority under § 93.225. The FAA no longer will allocate slots during that time period on a permanent first come, first served basis.
The FAA further determines the present demand for available slots does not justify conducting a lottery at this time. Accordingly, the FAA will allocate slots in the 0600 hour on a temporary basis subject to recall by the FAA under § 93.226(e). However, if the FAA cannot accommodate future requests for slots, especially requests by new entrants or limited incumbents, through temporary allocations, the FAA may recall any temporarily allocated slots and conduct a lottery at that time.
Slots currently allocated are unaffected by this determination, and the HDR continues to apply to all allocated slots.
Bureau of Industry and Security, Commerce.
Final rule.
This rule updates the Code of Federal Regulations legal authority citations for the Export Administration Regulations (EAR) to include the citation to the President's Notice of August 12, 2011—Continuation of Emergency Regarding Export Control Regulations.
The rule is effective September 21, 2011. Comments may be submitted at any time.
Comments concerning this rule should be sent to
William Arvin, Regulatory Policy Division, Bureau of Industry and Security,
Since the Export Administration Act of 1979, as amended (50 U.S.C. app. sections 2401-2420 (2000)), expired in August 2001, parts 730-744 and 746-774 of the EAR (15 CFR parts 730-774) have been continued in force pursuant to Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002) and the annual notices continuing the international emergency declared in that executive order. This rule revises 25 authority citations paragraphs in the Code of Federal Regulations (CFR) to include the President's notice of August 12, 2011—Continuation of Emergency Regarding Export Control Regulations (76 FR 50661, August 16, 2011), which is the most recent such annual notice. This rule is purely procedural, and makes no changes other than to revise CFR authority citations paragraphs. It does not change the text of any section of the EAR, nor does it alter any right, obligation or prohibition that applies to any person under the EAR.
1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). This rule does not impose any regulatory burden on the public and is consistent with the goals of Executive Order 13563. This rule has been determined to be not significant for purposes of Executive Order 12866.
2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
3. This rule does not contain policies with Federalism implications as that term is defined under Executive Order 13132.
4. The Department finds that there is good cause under 5 U.S.C. 553(b)(3)(B) to waive the provisions of the Administrative Procedure Act requiring prior notice and the opportunity for public comment because they are unnecessary. This rule only updates legal authority citations. It clarifies information and is non-discretionary. This rule does not alter any right, obligation or prohibition that applies to any person under the EAR. Because these revisions are not substantive changes, it is unnecessary to provide notice and opportunity for public comment. In addition, the 30-day delay in effectiveness required by 5 U.S.C. 553(d) is not applicable because this rule is not a substantive rule. Because neither the Administrative Procedure Act nor any other law requires that notice of proposed rulemaking and an opportunity for public comment be given for this rule, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601
Administrative practice and procedure, Advisory committees, Exports, Reporting and recordkeeping requirements, Strategic and critical materials.
Administrative practice and procedure, Exports, Reporting and recordkeeping requirements.
Administrative practice and procedure, Exports, Inventions and patents, Research, Science and technology.
Exports.
Exports, Terrorism.
Administrative practice and procedure, Reporting and recordkeeping requirements.
Exports, Reporting and recordkeeping requirements, Terrorism.
Exports, Reporting and recordkeeping requirements.
Administrative practice and procedure, Exports, Foreign trade, Reporting and recordkeeping requirements.
Agricultural commodities, Exports, Forests and forest products, Horses, Petroleum, Reporting and recordkeeping requirements.
Administrative practice and procedure, Exports, Penalties.
Boycotts, Exports, Reporting and recordkeeping requirements.
Administrative practice and procedure, Business and industry, Confidential business information, Exports, Reporting and recordkeeping requirements.
Administrative practice and procedure, Exports, Law enforcement, Penalties.
Administrative practice and procedure, Confidential business information, Exports, Law enforcement, Penalties.
Administrative practice and procedure, Exports, Reporting and recordkeeping requirements, Science and technology.
Accordingly, parts 730, 732, 734, 736, 738, 740, 742, 743, 744, 746, 747, 748, 750, 752, 754, 756, 758, 760, 762, 764, 766, 768, 770, 772 and 774 of the EAR (15 CFR parts 700-774) are amended as follows:
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Bureau of Industry and Security, Commerce.
Final rule.
This final rule corrects reference and typographical errors in the Export Administration Regulations (EAR). The corrections are editorial in nature and do not affect license requirements. In addition to the editorial corrections, this rule adds new definitions to the EAR that were inadvertently not incorporated by a previous rule.
Effective on September 21, 2011.
Sharron Cook, Office of Exporter Services, Bureau of Industry and Security, by telephone (202) 482-4890 or
This final rule updates five parts of the EAR and two categories of the Commerce Control List (CCL). Three parts of the EAR are updated to correct internal references and subsection designations, and the supplement to another part is updated to provide a complete and more accurate description of controls and the related items on the CCL. In addition, this rule adds definitions to another part of the EAR to harmonize it with the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies.
This document revises a paragraph designation in the final rule that was published by BIS on May 22, 2009 (74 FR 23941, 23947). More specifically, the last paragraph of Section 743.3 was designated inconsistent with the section's alphabetical order. To use the appropriate alphabetical designation, this document redesignates the last paragraph (d) in Section 743.3 as (f). This change ensures that all relevant paragraphs in Section 743.3 are properly and consistently designated.
This document revises the designation of a subparagraph in the final rule that was published by BIS on March 25, 1996 (61 FR 12812, 12829). The March 25, 1996 rule redesignated some paragraphs in Supplement No. 5 to part 748, but failed to redesignate the paragraph following (a)(6)(vi)(B)(2), which is designated (iii), as (a)(6)(vi)(C). This rule provides the correct designation, thereby ensuring that all relevant paragraphs in Supplement No. 5 to Part 748 are properly designated.
This final rule adds two definitions to part 772 of the EAR to harmonize with definitions found in the list of terms that accompanies the Wassenaar Arrangement list of dual-use items and to ensure consistency within the EAR where these definitions are used. More specifically, the two definitions, “Communications Channel Controller” and “Network Access Controller” are added to Category 4 of the CCL. The addition of the terms to part 772 will ensure consistency.
This rule revises entries on the CCL to provide a complete and more accurate description of controls in certain Export Control Classification Numbers (ECCNs). Specific amendments applying to ECCNs 3A001 and Notes of Category 5 part 2 of the CCL are described below.
ECCN 3A001.g is amended by adding a Technical Note that was removed on October 14, 2009.
The introductory section of this Category is amended by adding “Technical Note: Parity bits are not included in the key length,” because this Note was inadvertently removed from its previous place within ECCN 5A002. However, to remain consistent with the Wassenaar Arrangement and because this note regarding parity bits applies to all Category 5, part 2 ECCNs, BIS is including the additional language
1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated a “not significant regulatory action,” under section 3(f) of Executive Order 12866.
2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information, subject to the requirements of Paperwork Reduction Act, unless that collection of information displays a currently valid Office of Management and Budget Control Number. This rule does not affect any paperwork collection. This rule does not contain policies with Federalism implications as that term is defined under E.O. 13132.
3. The Department finds that there is good cause under 5 U.S.C. 553(b)(3)(B) to waive the provisions of the Administrative Procedure Act requiring prior notice and the opportunity for public comment because they are unnecessary. The revisions made by this rule are administrative in nature and do not affect the rights and obligations of the public. Because these revisions are not substantive changes to the EAR, it is unnecessary to provide notice and opportunity for public comment. In addition, the 30-day delay in effectiveness required by 5 U.S.C. 553(d) is not applicable because this rule is not a substantive rule. No other law requires that a notice of proposed rulemaking and opportunity for public comment be given for this rule. The analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601
Administrative practice and procedure, Reporting and recordkeeping requirements.
Administrative practice and procedure, Exports, Reporting and recordkeeping requirements.
Exports.
Exports, Reporting and recordkeeping requirements.
Accordingly, parts 743, 748, 772 and 774 of the EAR (15 CFR parts 730-774) are amended as follows:
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g. * * *
g.2. * * *
g.2.b. * * *
For the purposes of 3A001.g, a “thyristor module” contains one or more thyristor devices.
Parity bits are not included in the key length.
Food and Drug Administration, HHS.
Notice of compliance policy guide.
The Food and Drug Administration (FDA) is announcing the availability of a revised guidance entitled “Marketed Unapproved Drugs—Compliance Policy Guide Sec. 440.100, Marketed New Drugs Without Approved NDAs or ANDAs” (CPG 440.100). CPG 440.100 describes how FDA intends to exercise its enforcement discretion with regard to drug products marketed in the United States that do not have required FDA approval for marketing. CPG 440.100 has been revised to state that the enforcement priorities and potential exercise of enforcement discretion discussed in the CPG apply only to unapproved new drug products that are being commercially used or sold as of September 19, 2011. All unapproved new drugs introduced onto the market after that date are subject to immediate enforcement action at any time, without prior notice and without regard to the enforcement priorities set forth in CPG 440.100.
Submit either electronic or written comments on Agency guidances at any time.
Submit written requests for single copies of this guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, rm. 2201, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Submit electronic comments on the guidance to
Sakineh Walther, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, rm. 5242, Silver Spring, MD 20993-0002, 301-796-3349.
FDA is announcing the availability of a revised guidance entitled “Marketed Unapproved Drugs—Compliance Policy Guide Sec. 440.100, Marketed New Drugs Without Approved NDAs or ANDAs”. This CPG is being issued consistent with FDA's good guidance practices (GGP) regulation (§ 10.115 (21 CFR 10.115)). This CPG is being implemented without prior public comment because the Agency has determined that prior public participation is not feasible or appropriate (§ 10.115(g)(2)). The Agency made this determination because, in light of the fact that revised CPG 440.100 establishes the date after which the enforcement priorities and potential exercise of enforcement discretion discussed in it do not apply to newly introduced unapproved drugs, delayed implementation of revised CPG 440.100 would provide an incentive for manufacturers to rush new unapproved drugs to market during the comment and finalization period, in order to be subject to enforcement priorities that may be perceived as more advantageous to extended marketing of illegal, unapproved drug products. The potential increase in marketing of new unapproved drugs raises public health concerns; because unapproved drug products have not been approved by FDA for safety, effectiveness, and quality, patients may be at greater risk when using unapproved drug products than when using FDA-approved drug products. In light of the concerns about potential increased marketing of new unapproved drugs, FDA has determined that it is not appropriate to seek comment before implementing revised CPG 440.100. Although CPG 440.100 is immediately in effect, it remains subject to comment in accordance with the Agency's GGP regulation.
Under the Federal Food, Drug, and Cosmetic Act, drug products that require approval must obtain that approval prior to introduction into interstate commerce (
Despite both the long-standing statutory requirement that new drugs must obtain approval prior to marketing (21 U.S.C. 355) and FDA's outreach efforts under the Marketed Unapproved Drugs Initiative, FDA is aware that unapproved new drugs have continued to come onto the market after the issuance of the 2006 CPG. In some cases, these unapproved new drugs come onto the market to compete with other unapproved new drugs that are already on the market. In other cases, unapproved new drugs are introduced to the market when a manufacturer perceives that there may be an “opportunity” to gain a share of the market after actions taken by FDA, including enforcement actions that remove similar unapproved new drugs from the market. In either case, FDA must expend additional scarce resources to address unapproved products in situations where manufacturers and distributors have had ample notice that the products they are introducing onto
To address this situation, FDA is revising CPG 440.100 to make clear that unapproved new drugs introduced onto the market after September 19, 2011 are subject to enforcement action at any time, without prior notice and without regard to the enforcement priorities set forth in CPG 440.100 for unapproved new drugs marketed prior to September 19, 2011. The revision to CPG 440.100 excludes from the enforcement priorities set forth in the guidance the manufacture and marketing of newly introduced unapproved drugs.
This guidance represents the Agency's current thinking on its enforcement priorities with respect to new drugs marketed without approved new drug applications or abbreviated new drug applications. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statutes and regulations.
Interested persons may submit to the Division of Dockets Management (see
Persons with access to the Internet may obtain the document at either
Department of the Navy, DoD.
Final rule.
The Department of the Navy (DoN)is amending its certifications and exemptions under the International Regulations for Preventing Collisions at Sea, 1972 (72 COLREGS), to reflect that the Deputy Assistant Judge Advocate General (DAJAG) (Admiralty and Maritime Law) has determined that USS FORT WORTH (LCS 3) is a vessel of the Navy which, due to its special construction and purpose, cannot fully comply with certain provisions of the 72 COLREGS without interfering with its special function as a naval ship. The intended effect of this rule is to warn mariners in waters where 72 COLREGS apply.
This rule is effective September 21, 2011 and is applicable beginning September 8, 2011.
Lieutenant Jaewon Choi, JAGC, U.S. Navy, Admiralty Attorney, (Admiralty and Maritime Law), Office of the Judge Advocate General, Department of the Navy, 1322 Patterson Ave., SE., Suite 3000, Washington Navy Yard, DC 20374-5066, telephone number: 202-685-5040.
Pursuant to the authority granted in 33 U.S.C. 1605, the DoN amends 32 CFR part 706.
This amendment provides notice that the DAJAG (Admiralty and Maritime Law), under authority delegated by the Secretary of the Navy, has certified that USS FORT WORTH (LCS 3) is a vessel of the Navy which, due to its special construction and purpose, cannot fully comply with the following specific provisions of 72 COLREGS without interfering with its special function as a naval ship: Annex I paragraph 2(a)(i), pertaining to the location of the height of the forward masthead light above the hull; Annex I, paragraph 3(a), pertaining to the location of the forward masthead light, and the horizontal separation between the forward and after masthead lights; Annex I, paragraph 2(i)iii, pertaining to the spacing of the three lights in the task light array; Rule 27, paragraph (b)i, pertaining to the verticality of the three all-round task lights. The DAJAG (Admiralty and Maritime Law) has also certified that the lights involved are located in closest possible compliance with the applicable 72 COLREGS requirements.
Moreover, it has been determined, in accordance with 32 CFR parts 296 and 701, that publication of this amendment for public comment prior to adoption is impracticable, unnecessary, and contrary to public interest since it is based on technical findings that the placement of lights on this vessel in a manner differently from that prescribed herein will adversely affect the vessel's ability to perform its military functions.
Marine safety, Navigation (water), and Vessels.
For the reasons set forth in the preamble, the Navy amends part 706 of title 32 of the CFR as follows:
33 U.S.C. 1605.
The additions read as follows:
22. * * *
23. * * *
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary moving safety zone during the Swim Around Charleston, a swimming race occurring on waters of the Wando River, the Cooper River, Charleston Harbor, and the Ashley River, in Charleston, South Carolina. The Swim Around Charleston is scheduled to take place on Sunday, October 23, 2011. The temporary safety zone is necessary for the safety of the swimmers, participant vessels, spectators, and the general public during the event. Persons and vessels are prohibited from entering, transiting through, anchoring in, or remaining within the safety zone unless authorized by the Captain of the Port Charleston or a designated representative.
This rule is effective from 10 a.m. until 4 p.m. on October 23, 2011.
Comments and material received from the public, as well as documents mentioned in this preamble as being available in the docket, are part of docket USCG-2011-0575 and are available online by going to
If you have questions on this temporary final rule, call or e-mail Ensign John R. Santorum, Sector Charleston Office of Waterways Management, Coast Guard; telephone 843-740-3184, e-mail
On July 1, 2011, we published a notice of proposed rulemaking (NPRM) entitled Safety Zone; Swim Around Charleston, Charleston, SC in the
The legal basis for the rule is the Coast Guard's authority to establish regulated navigation areas and other limited access areas: 33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
The purpose of the rule is to ensure the safety of the swimmers, participant vessels, spectators, and the general public during the Swim Around Charleston.
The Coast Guard did not receive any comments to the proposed rule, and no changes were made to the regulatory text.
On Sunday, October 23, 2011, the Swim Around Charleston is scheduled to take place on the waters of the Wando River, the Cooper River, Charleston Harbor, and the Ashley River, in Charleston, South Carolina. The Swim Around Charleston will consist of a 10-mile swim that starts at Remley's Point on the Wando River, crosses the main shipping channel of Charleston Harbor, and finishes at the General William B. Westmoreland Bridge on the Ashley River.
This rule establishes a temporary moving safety zone of a 75-yard radius around the Swim Around Charleston participant vessels that are officially associated with the swim on the waters of the Wando River, the Cooper River, Charleston Harbor, and the Ashley River, in Charleston, South Carolina. The temporary safety zone will be enforced from 10 a.m. until 4 p.m. on October 23, 2011. Persons and vessels are prohibited from entering, transiting through, anchoring in, or remaining within the safety zone unless authorized by the Captain of the Port Charleston or a designated representative. Persons and vessels desiring to enter, transit through, anchor in, or remain within the safety zone may contact the Captain of the Port Charleston by telephone at 843-740-7050, or a designated representative via VHF radio on channel 16, to request authorization.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.
The economic impact of this rule is not significant for the following reasons: (1) The safety zone will only be enforced for a total of six hours; (2) the safety zone will move with the participant vessels so that once the swimmers clear a portion of the waterway, the safety zone will no longer be enforced in that portion of the waterway; (3) although persons and vessels may not enter, transit through, anchor in, or remain within the safety zone without authorization from the Captain of the Port Charleston or a designated representative, they may operate in the surrounding area during the enforcement period; (4) persons and vessels may still enter, transit through, anchor in, or remain within the safety zone if authorized by the Captain of the Port Charleston or a designated representative; and (5) the Coast Guard will provide advance notification of the safety zone to the local maritime community by Local Notice to Mariners and Broadcast Notice to Mariners.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which may be small entities: the owners or operators of vessels intending to enter, transit through, anchor in, or remain within that portion of the Wando River, the Cooper River, Charleston Harbor, and the Ashley River in Charleston, South Carolina encompassed within the safety zone from 10 a.m. until 4 p.m. on October 23, 2011. For the reasons discussed in the Executive Order 12866 and Executive Order 13563 section above, this rule will not have a significant economic impact on a substantial number of small entities.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), in the NPRM we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process.
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
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 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this 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 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction. This rule involves establishing a temporary safety zone that will be enforced for a total of six hours. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(1) All persons and vessels are prohibited from entering, transiting through, anchoring in, or remaining within the regulated area unless authorized by the Captain of the Port Charleston or a designated representative.
(2) Persons and vessels desiring to enter, transit through, anchor in, or remain within the regulated area may contact the Captain of the Port Charleston by telephone at 843-740-7050, or a designated representative via VHF radio on channel 16, to request authorization. If authorization to enter, transit through, anchor in, or remain within the regulated area is granted by the Captain of the Port Charleston or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Charleston or a designated representative.
(3) The Coast Guard will provide notice of the regulated area by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.
(d)
Forest Service, USDA.
Direct final rule.
The Forest Service is making a purely technical, non-substantive change to Forest Service regulations, which will conform Forest Service regulations to U.S. Department of Justice (DOJ) regulations implementing Title II of the Americans with Disabilities Act (ADA). Effective March 15, 2011, these regulations use the phrase “service animal” to refer to a dog that has been individually trained to do work or perform tasks for the benefit of an individual with a disability. Accordingly, the references to “seeing eye dog” are being changed to “service animal.”
The rule is effective September 21, 2011.
Mary King, Assistant Director for Enforcement and Liaison at 703-605-4527 or via e-mail:
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Standard Time, Monday through Friday.
Effective March 15, 2011, DOJ regulations implementing Title II of the ADA use the term “service animal” to refer to a dog that has been individually trained to do work or perform tasks for the benefit of an individual with a disability. This final rule replaces “seeing eye dog” with “service animal” in Forest Service regulations at 36 CFR 261.16(j) and (k) to conform to DOJ's revised regulations.
Paragraph (k) currently prohibits “bringing in or possessing in a swimming area an animal, other than a seeing eye dog.” This final rule amends paragraph (k) to prohibit, “bringing in or possessing in a swimming area an animal, other than a service animal.”
This final rule revises law enforcement regulations governing certain activities on National Forest System lands. Forest Service regulations at 36 CFR 220.6(d)(2) exclude from documentation in an environmental assessment or environmental impact statement rules, regulations, or policies to establish servicewide administrative procedures, program processes, or instructions. The Department has determined that this final rule falls within this category of actions and that no extraordinary circumstances exist which require preparation of an environmental assessment or environmental impact statement.
This final rule has been reviewed under USDA procedures and Executive Order (E.O.) 12866 on regulatory planning and review. It has been determined that this final rule is not significant. This final rule will not have an annual effect of $100 million or more on the economy, nor will it adversely affect productivity, competition, jobs, the environment, public health or safety, or State or local governments. This final rule will not interfere with an action taken or planned by another agency, nor will this final rule raise new legal or policy issues. Finally, this final rule will not alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of beneficiaries of those programs. Accordingly, this final rule is not subject to review by the Office of Management and Budget under E.O. 12866.
This final rule has been considered in light of the Regulatory Flexibility Act (5 U.S.C. 602
The Department has considered this final rule under the requirements of E.O. 13132 on federalism. The Department has determined that this final rule conforms to the federalism principles set out in this E.O.; will not impose any compliance costs on the States; and will not have substantial direct effects on the States, on the relationship between the Federal Government and States, or on the distribution of power and responsibilities among the various levels of government. Therefore, the Department has determined that no further determination of federalism implications is necessary at this time.
This final rule does not have tribal implications per E.O. 13175, Consultation and Coordination with Indian Tribal Governments. Therefore, advance consultation with tribes is not required in connection with the final rule.
The Department has analyzed the final rule in accordance with the principles and criteria in E.O. 12630 and has determined that his final rule will not pose the risk of a taking of private property.
The Department has reviewed this final rule under E.O. 12988 on civil justice reform. After adoption of this final rule, (1) all State and local laws and regulations that conflict with this final rule or that impedes its full implementation will be preempted; (2) no retroactive effect will be given to this final rule; and (3) it will not require administrative proceedings before parties may file suit in court challenging its provisions.
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538), the Department has assessed the effects of this final rule on State, local, and tribal governments and the private sector. This final rule will not compel the expenditure of $100 million or more by any State, local, or tribal government or anyone in the private sector. Therefore, a statement under section 202 of the Act is not required.
The Department has reviewed the final rule under E.O. 13211 of May 18, 2001, Actions Concerning Regulations That Significantly Affect Energy Supply. The Department has determined that this final rule does not constitute a significant energy action as defined in the E.O.
This final rule does not contain any record-keeping or reporting requirements or other information collection requirements as defined in 5 CFR part 1320 that are not already required by law or not already approved for use. Accordingly, the review provisions of the Paperwork Reduction Act (44 U.S.C. 3501
Law Enforcement, National Forests.
Therefore, for the reasons set forth in the preamble, the Forest Service is amending subpart A of part 261 of Title 36 of the Code of Federal Regulations, as follows:
(j) Bringing in or possessing an animal, other than a service animal, unless it is crated, caged, or upon a leash not longer than six feet, or otherwise under physical restrictive control.
(k) Bringing in or possessing in a swimming area an animal, other than a service animal.
Environmental Protection Agency.
Final rule.
The Environmental Protection Agency (EPA) Region 8 announces the deletion of the remaining portions of Operable Unit 9 (OU9), the Residential Populated Areas, of the California Gulch Superfund Site (Site), located in Lake County, Colorado, from the National Priorities List (NPL). The NPL, promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, is an appendix of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). This partial deletion pertains to the remaining portions of OU9. Operable units 1, 3, 4, 5, 6, 7, 11 and 12 will remain on the NPL and are not being considered for deletion as part of this action. The EPA and the State of Colorado, through the Colorado Department of Public Health and Environment, have determined that all appropriate response actions under CERCLA, other than operation, maintenance, and five-year reviews, have been completed. However, the deletion of these parcels does not preclude future actions under Superfund.
U.S. EPA Region 8, Superfund Records Center, 1595 Wynkoop Street, Denver, CO 80202. (303) 312-6473 or toll free (800) 227-8917; Hours: 8 a.m. to 4:30 p.m., Monday through Friday, excluding holidays; and
Lake County Public Library, 1115 Harrison Avenue, Leadville, CO 80461. (719) 486-0569: Hours: Monday and Wednesday 10 a.m. to 8 p.m.; Tuesday & Thursday 10 a.m. to 5 p.m.; Friday & Saturday 1 p.m. to 5 p.m.; and
Timberline Campus Library of Colorado Mountain College, 901 U.S. Highway 24 South, Leadville, CO 80461. (719) 486-4250; Hours: Monday to Thursday 8 a.m. to 9 p.m.; Friday 8 a.m. to 5 p.m.; Saturday 12 p.m. to 5 p.m.; and Sunday 12 p.m. to 8 p.m.
Linda Kiefer, Remedial Project Manager, U.S. Environmental Protection Agency, Region 8, Mailcode EPR-SR, 1595 Wynkoop Street, Denver, CO 80202-1129, (303) 312-6689, e-mail:
The portion of the site to be deleted from the NPL is: the remaining portions of OU9 of the California Gulch Superfund Site, located in Leadville, Lake County, Colorado. A Notice of Intent for Partial Deletion for this Site was published in the
The closing date for comments on the Notice of Intent for Partial Deletion was June 23, 2011. Three public comments were received: two requesting continuation of the voluntary investigation/remediation program and one recommending that, because OU12, Site-wide Water Quality, is not ready for deletion, OU9 should not be deleted. The deletion is still appropriate, because all appropriate response actions have been completed, and the operable unit is in operations and maintenance. The current operations and maintenance program, the Lake County Community Health Program Phase 2, provides opportunities for investigation and soil remediation, if the Program's Work Group determines that lead in residential soil is contributing to an elevated blood lead in a child or pregnant/nursing woman. Under current EPA policy for partial deletion, one operable unit or environmental medium can be deleted irrespective of the readiness for deletion of other operable units or the site as a whole. A responsiveness summary was prepared and placed in both the docket, EPA-HQ-SFUND-1983-002, on
EPA maintains the NPL as the list of sites that appear to present a significant risk to public health, welfare, or the environment. Deletion of a site from the NPL does not preclude further remedial action. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system. Deletion of portions of a site from the NPL does not affect responsible party liability, in the unlikely event that future conditions warrant further actions.
Environmental protection, Air pollution control, Chemicals, Hazardous waste, Hazardous substances, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.
For reasons set out in the preamble, 40 CFR part 300 is amended as follows:
33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O. 12777, 56 FR 54757, 3 CFR 1991 Comp., p. 351; E.O. 12580, 52 FR 2923, 3 CFR 1987 Comp., p. 193.
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
If you want to determine whether a particular community was suspended on the suspension date or for further information, contact David Stearrett, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-2953.
The NFIP enables property owners to purchase flood insurance which is generally not otherwise available. In return, communities agree to adopt and administer local floodplain management 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 flood insurance coverage as authorized under the NFIP, 42 U.S.C. 4001
In addition, FEMA has identified the Special Flood Hazard Areas (SFHAs) in these communities by publishing a Flood Insurance Rate Map (FIRM). The date of the FIRM, if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may legally be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year, on FEMA's initial flood insurance map of the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment under 5 U.S.C. 553(b) are impracticable and unnecessary because communities listed in this final rule have been adequately notified.
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
Federal Emergency Management Agency, DHS.
Interim rule.
This interim rule lists communities where modification of the Base (1% annual-chance) Flood Elevations (BFEs) is appropriate because of new scientific or technical data. New flood insurance premium rates will be calculated from the modified BFEs for new buildings and their contents.
These modified BFEs are currently in effect on the dates listed in the table below and revise the Flood Insurance Rate Maps (FIRMs) in effect prior to this determination for the listed communities.
From the date of the second publication of these changes in a newspaper of local circulation, any person has ninety (90) days in which to request through the community that the Deputy Federal Insurance and Mitigation Administrator reconsider the changes. The modified BFEs may be changed during the 90-day period.
The modified BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below.
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-4064, or (e-mail)
The modified BFEs are not listed for each community in this interim rule. However, the address of the Chief Executive Officer of the community where the modified BFE determinations are available for inspection is provided.
Any request for reconsideration must be based on knowledge of changed conditions or new scientific or technical data.
The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.
The modified BFEs are the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).
These modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. The changes in BFEs are in accordance with 44 CFR 65.4.
Flood insurance, Floodplains, Reporting and recordkeeping requirements.
Accordingly, 44 CFR part 65 is amended to read as follows:
42 U.S.C. 4001
Federal Emergency Management Agency, DHS.
Final rule.
Modified Base (1% annual-chance) Flood Elevations (BFEs) are finalized for the communities listed below. These modified BFEs will be used to calculate flood insurance premium rates for new buildings and their contents.
The effective dates for these modified BFEs are indicated on the following table and revise the Flood Insurance Rate Maps (FIRMs) in effect for the listed communities prior to this date.
The modified BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below.
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-4064, or (e-mail)
The Federal Emergency Management Agency (FEMA) makes the final determinations listed below of the modified BFEs for each community listed. These modified BFEs have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Deputy Federal Insurance and Mitigation Administrator has resolved any appeals resulting from this notification.
The modified BFEs are not listed for each community in this notice. However, this final rule includes the address of the Chief Executive Officer of the community where the modified BFE determinations are available for inspection.
The modified BFEs are made pursuant to section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.
The modified BFEs are the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).
These modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities.
These modified BFEs are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in those buildings. The changes in BFEs are in accordance with 44 CFR 65.4.
Flood insurance, Floodplains, Reporting and recordkeeping requirements.
Accordingly, 44 CFR part 65 is amended to read as follows:
42 U.S.C. 4001
Federal Communications Commission.
Final rule; announcement of effective date.
In this document, the Commission announces that the Office of Management and Budget (OMB) has approved, for a period of three years, the information collection associated with the Commission's Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, Section 105, Relay Services for Deaf-Blind Individuals, Report and Order (
47 CFR 64.610(b), (e)(1)(ii), (viii), and (ix), (f), and (g), published at 76 FR 26641, May 9, 2011, are effective September 21, 2011.
Rosaline Crawford, Disability Rights Office, Consumer and Governmental Affairs Bureau, at (202) 418-2075, or e-mail
This document announces that, on September 13, 2011, OMB approved, for a period of three years, the information collection requirements contained in 47 CFR 64.610(b), (e)(1)(ii), (viii), and (ix), (f), and (g). The Commission publishes this document to announce the effective date of these rule sections. See, In the Matter of Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, Section 105, Relay Services for Deaf-Blind Individuals, CG Docket No. 10-210; FCC 11-56, published at 76 FR 26641, May 9, 2011. If you have any comments on the burden estimates listed below, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Cathy Williams, Federal
To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to
As required by the Paperwork Reduction Act of 1995 (Pub. L. 104-13, October 1, 1995 and 44 U.S.C. 3507), the FCC is notifying the public that it received OMB approval on September 13, 2011, for the information collection requirements contained in the Commission's rules at 47 CFR 64.610(b), (e)(1)(ii), (viii), and (ix), (f), and (g).
Under 5 CFR 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.
No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number.
The OMB Control Number is 3060-1146 and the total annual reporting burdens and costs for the respondents are as follows:
(a) State EDPs, other public programs, and private entities may submit applications for NDBEDP certification to the Commission. For each state, the Commission will certify a single program as the sole authorized entity to participate in the NDBEDP and receive reimbursement from the TRS Fund. The Commission will determine whether to grant certification based on the ability of a program to meet the following qualifications, either directly or in coordination with other programs or entities, as evidenced in the application and any supplemental materials, including letters of recommendation:
• Expertise in the field of deaf-blindness, including familiarity with the culture and etiquette of people who are deaf-blind, to ensure that equipment distribution and the provision of related services occurs in a manner that is relevant and useful to consumers who are deaf-blind;
• The ability to communicate effectively with people who are deaf-blind (for training and other purposes), by among other things, using sign language, providing materials in Braille, ensuring that information made available online is accessible, and using other assistive technologies and methods to achieve effective communication;
• Staffing and facilities sufficient to administer the program, including the ability to distribute equipment and provide related services to eligible individuals throughout the state, including those in remote areas;
• Experience with the distribution of specialized CPE, especially to people who are deaf-blind;
• Experience in how to train users on how to use the equipment and how to set up the equipment for its effective use; and
• Familiarity with the telecommunications, Internet access, and advanced communications services that will be used with the distributed equipment.
(b) Each program certified under the NDBEDP must submit the following data electronically to the Commission, as instructed by the NDBEDP Administrator, every six months, commencing with the start of the pilot program:
• For each piece of equipment distributed, the identity of and contact information, including street and e-mail addresses, and phone number, for the individual receiving that equipment;
• For each piece of equipment distributed, the identity of and contact information, including street and e-mail addresses, and phone number, for the individual attesting to the disability of the individual who is deaf-blind;
• For each piece of equipment distributed, its name, serial number, brand, function, and cost, the type of communications service with which it is used, and the type of relay service it can access;
• For each piece of equipment distributed, the amount of time, following any assessment conducted, that the requesting individual waited to receive that equipment;
• The cost, time and any other resources allocated to assessing an individual's equipment needs;
• The cost, time and any other resources allocated to installing equipment and training deaf-blind individuals on using equipment;
• The cost, time and any other resources allocated to maintain, repair,
• The cost, time and any other resources allocated to outreach activities related to the NDBEDP, and the type of outreach efforts undertaken;
• The cost, time and any other resources allocated to upgrading the distributed equipment, along with the nature of such upgrades;
• To the extent that the program has denied equipment requests made by their deaf-blind residents, a summary of the number and types of equipment requests denied and reasons for such denials;
• To the extent that the program has received complaints related to the program, a summary of the number and types of such complaints and their resolution; and
• The number of qualified applicants on waiting lists to receive equipment.
(c) Each program certified under the NDBEDP must retain all records associated with the distribution of equipment and provision of related services under the NDBEDP for two years following the termination of the pilot program.
(d) Each program certified under the NDBEDP must obtain verification that NDBEDP applicants meet the definition of an individual who is deaf-blind.
(e) Each program certified under the NDBEDP must obtain verification that NDBEDP applicants meet the income eligibility requirements.
(f) Programs certified under the NDBEDP shall be reimbursed for the cost of equipment that has been distributed to eligible individuals and authorized related services, up to the state's funding allotment under this program. Within 30 days after the end of each six-month period of the Fund Year, each program certified under the NDBEDP pilot must submit documentation that supports its claim for reimbursement of the reasonable costs of the following:
• Equipment and related expenses, including maintenance, repairs, warranties, returns, refurbishing, upgrading, and replacing equipment distributed to consumers;
• Individual needs assessments;
• Installation of equipment and individualized consumer training;
• Maintenance of an inventory of equipment that can be loaned to the consumer during periods of equipment repair;
• Outreach efforts to inform state residents about the NDBEDP; and
• Administration of the program, but not to exceed 15 percent of the total reimbursable costs for the distribution of equipment and related services permitted under the NDBEDP.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting directed fishing for Pacific cod by non-American Fisheries Act (AFA) crab vessels that are subject to sideboard limits harvesting Pacific cod for processing by the inshore component in the Central Regulatory Area of the Gulf of Alaska (GOA). This action is necessary to prevent exceeding the 2011 Pacific cod sideboard limit established for non-AFA crab vessels harvesting Pacific cod for processing by the inshore component in the Central Regulatory Area of the GOA.
Effective 1200 hrs, Alaska local time (A.l.t.), September 17, 2011, through 2400 hrs, A.l.t., December 31, 2011.
Josh Keaton, 907-586-7228.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (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. Regulations governing sideboard protections for GOA groundfish fisheries appear at subpart B of 50 CFR part 680.
The 2011 Pacific cod sideboard limit established for non-AFA crab vessels that are subject to sideboard limits harvesting Pacific cod for processing by the inshore component in the Central Regulatory Area of the GOA is 1,725 metric tons (mt), as established by the final 2011 and 2012 harvest specifications for groundfish of the GOA (75 FR 11111, March 1, 2011).
In accordance with § 680.22(e)(2)(i), the Administrator, Alaska Region, NMFS (Regional Administrator) has determined that the 2011 Pacific cod sideboard limit established for non-AFA crab vessels harvesting Pacific cod for processing by the inshore component in the Central Regulatory Area of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a sideboard directed fishing allowance of 1,700 mt, and is setting aside the remaining 25 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 680.22(e)(3), the Regional Administrator finds that this sideboard directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by non-AFA crab vessels that are subject to sideboard limits harvesting Pacific cod for processing by the inshore component in the Central Regulatory Area of the GOA.
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 sideboard directed fishing closure of Pacific cod for non-AFA crab vessels that are subject to sideboard limits harvesting Pacific cod for processing by the inshore component in the Central Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of September 15, 2011.
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C.
This action is required by § 680.22 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain Model L-1011 series airplanes. This proposed AD would require repetitive inspections for cracking of the wing rear spar and upper surface zones, and repair if necessary. This proposed AD results from a damage tolerance analysis conducted by the manufacturer indicating that fatigue cracking could occur in those areas. We are proposing this AD to detect and correct such fatigue cracking, which could result in cracking that grows large enough to reduce the wing strength below certificated requirements and possibly cause fracture of the rear spar, resulting in extensive damage to the wing and possible fuel leaks.
We must receive comments on this proposed AD by November 7, 2011.
You may send comments by any of the following methods:
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For service information identified in this proposed AD, contact Lockheed Martin Corporation/Lockheed Martin Aeronautics Company, Airworthiness Office, Dept. 6A0M, Zone 0252, Column P-58, 86 S. Cobb Drive, Marietta, Georgia 30063; telephone 770-494-5444; fax 770-494-5445; e-mail
You may examine the AD docket on the Internet at
Carl Gray, Aerospace Engineer, Airframe Branch, ACE-117A, FAA, Atlanta Aircraft Certification Office (ACO), 1701 Columbia Avenue, College Park, Georgia 30337; phone: 404-474-5554; fax: 404-474-5606; e-mail:
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We previously issued AD 94-05-01, Amendment 39-8839 (59 FR 10275, March 4, 1994), and AD 2000-21-01, Amendment 39-11933 (65 FR 62994, October 20, 2000), which require modifications to extend the life of the wing rear spar inboard area. The modifications required by those two ADs removed cracks in the wing upper skin and installed repair bushings as necessary. The lower spar cap was modified by adding nested angles and cold working the attachment holes.
Based upon a damage tolerance analysis, additional inspections are required to ensure the structural integrity of the structure modified in accordance with those two ADs as well as the adjoining baseline structure. If cracking is undetected and unrepaired, it could result in cracking that grows large enough to reduce the wing strength below certificated requirements and possibly cause fracture of the rear spar, resulting in extensive damage to the wing and possible fuel leaks.
We have reviewed Lockheed Service Bulletin 093-57-226, dated August 31, 2009. This service bulletin describes procedures for repetitive eddy current non-destructive inspections (NDI) and detailed inspections for cracking of the wing rear spar and upper surface zones. The service bulletin identifies inspections for the airplane models in the zones identified in the following table, titled “Inspections.”
For airplanes on which cracking is found during any inspection, this service information specifies a bolt hole eddy current inspection to verify the cracking. The corrective actions for cracking include repairing cracking if the cracking is within specified limits, or contacting the manufacturer for repair instructions if the cracking is not within specified limits.
AD 94-05-01, Amendment 39-8839 (59 FR 10275, March 4, 1994), and AD 2000-21-01, Amendment 39-11933 (65 FR 62994, October 20, 2000), specify structural modification installations on Model L-1011 series airplanes. This proposed AD would not change the requirements of AD 94-05-01 and AD 2000-21-01. However, this proposed AD would require new inspections for structures affected by the modifications required by those two ADs.
We are proposing this AD because we evaluated all relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of these same type designs. This proposed AD would require accomplishing the actions specified in Lockheed Service Bulletin 093-57-226, dated August 31, 2009, described previously.
This proposed AD specifies initial compliance times and repetitive inspection intervals that differ from those contained in Lockheed Service Bulletin 093-57-226, dated August 31, 2009. The changes have been coordinated with Lockheed Martin and they concur with the FAA's position. The compliance times were changes to simplify the inspection requirements. We also propose that all crack findings be repaired before further flight. We have determined that the compliance times, as proposed, represent the maximum interval of time allowable for the affected airplanes to continue to safely operate before the inspections and repairs, if necessary, are done.
Although that service bulletin specifies that operators may contact the manufacturer for disposition of certain repairs, this proposed AD would require operators to repair those conditions in accordance with a method approved by the FAA.
We consider this proposed AD interim action. If final action is later identified, we might consider further rulemaking then.
We estimate that this proposed AD affects 4 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in 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
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:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new AD:
(a) We must receive comments by November 7, 2011.
(b) None.
(c) This AD applies to Lockheed Martin Corporation/Lockheed Martin Aeronautics Company Model L-1011-385-1, L-1011-385-1-14, L-1011-385-1-15, and L-1011-385-3 airplanes, certificated in any category, serial numbers 1002 through 1250 inclusive.
(d) Air Transport Association (ATA) of America Code 57, Wings.
(e) This AD results from a damage tolerance analysis conducted by the manufacturer that indicates fatigue cracking could occur in the wing rear spar and upper surface zones. The Federal Aviation Administration is issuing this AD to detect and correct such fatigue cracking, which could result in cracking that grows large enough to reduce the wing strength below certificated requirements and possibly cause fracture of the rear spar, resulting in extensive damage to the wing and possible fuel leaks.
(f) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(g) At the applicable time specified in paragraph (k) of this AD, do eddy current non-destructive inspections (NDI) and detailed inspections for cracking at the applicable zones specified in paragraph (g)(1) or (g)(2) of this AD, in accordance with the Accomplishment Instructions of Lockheed Service Bulletin 093-57-226, dated August 31, 2009. Repeat the inspections thereafter at the applicable interval specified in Table 1 of this AD.
(1) For Model L-1011-385-1, L-1011-385-1-14, and L-1011-385-1-15 airplanes: Zones 1A through 1E, and Zone 1F.
(2) For Model L-1011-385-3 airplanes: Zones 3A through 3E, and Zone 3F.
(h) Except as specified in paragraph (j) of this AD, if any cracking is detected during any inspection required by paragraph (g) of this AD: Before further flight, remove the fastener(s) at the suspect area, as defined in Lockheed Service Bulletin 093-57-226, dated August 31, 2009; and do a secondary eddy current inspection to detect cracking of fastener holes with suspected crack indications; in accordance with the Accomplishment Instructions of Lockheed Service Bulletin 093-57-226, dated August 31, 2009.
(i) Except as specified in paragraph (j) of this AD, if a crack finding is confirmed by the inspection required by paragraph (h) of this AD and the cracking is within the allowable repair limits specified in Lockheed Martin Repair Drawing LCC7622-369, Revision March 30, 1995: Before further flight, repair the cracking, in accordance with Lockheed Martin Repair Drawing LCC7622-369, Revision March 30, 1995. If a crack finding confirmed by the inspection required by paragraph (h) of this AD is not within the allowable repair limits specified in Lockheed Martin Repair Drawing LCC7622-369, Revision March 30, 1995: Before further flight, repair the cracking, in accordance with a method approved by the Manager, Atlanta Aircraft Certification Office (ACO), FAA. For a repair method to be approved by the Manager, Atlanta ACO, as required by this paragraph, the Manager's approval letter must specifically refer to this AD.
(j) If any cracking is found during any inspection required by this AD, and Lockheed Service Bulletin 093-57-226, dated August 31, 2009; or Lockheed Martin Repair Drawing LCC7622-369, Revision March 30, 1995; specifies contacting Lockheed for appropriate action: Before further flight, repair the cracking in accordance with a method approved by the Manager, Atlanta ACO, FAA. For a repair method to be approved by the Manager, Atlanta ACO, as required by this paragraph, the Manager's approval letter must specifically refer to this AD.
(k) Do the inspections required by paragraph (g) of this AD at the applicable time specified in table 1 of this AD.
(l)(1) The Manager, Atlanta ACO, 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 ACO, send it to the attention of the person identified in the Related Information section 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.
(m) For more information about this AD, contact Carl Gray, Aerospace Engineer, Airframe Branch, ACE-117A, FAA, Atlanta ACO, 1701 Columbia Avenue, College Park, Georgia 30337; phone: 404-474-5554; fax: 404-474-5606; e-mail:
Bureau of Economic Analysis, Commerce.
Notice of proposed rulemaking.
This proposed rule would amend regulations of the Department of Commerce's Bureau of Economic Analysis (BEA) to set forth the reporting requirements for the 2012 BE-12,
Comments on this proposed rule will receive consideration if submitted in writing on or before 5 p.m. November 21, 2011.
You may submit comments, identified by RIN 0691-AA80, and referencing the agency name (Bureau of Economic Analysis), by any of the following methods:
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Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in the proposed rule should be sent to both BEA through any of the methods above and to the Office of Management and Budget (OMB), O.I.R.A., Paperwork Reduction Project 0608-0042, Attention PRA Desk Officer for BEA, via e-mail at
David H. Galler, Chief, Direct Investment Division (BE-50), Bureau of Economic Analysis, U.S. Department of Commerce, Washington, DC 20230; phone (202) 606-9835.
In Section 3 of Executive Order 11961, as amended by Executive Orders 12318 and 12518, the President delegated the responsibility for performing functions under the Act concerning direct investment to the Secretary of Commerce, who has redelegated it to BEA. The BE-12, Benchmark Survey of Foreign Direct Investment in the United States, is a mandatory survey and is conducted once every five years by BEA, under the International Investment and Trade in Services Survey Act, 22 U.S.C. 3101-3108 (the Act).
The benchmark survey covers the universe of foreign direct investment in the United States in terms of value, and is BEA's most comprehensive survey of such investment in terms of subject matter. Foreign direct investment in the United States is defined as the ownership or control, directly or indirectly, by one foreign person (foreign parent) of ten percent or more of the voting securities of an incorporated U.S. business enterprise or an equivalent interest in an unincorporated U.S. business enterprise, including a branch.
The purpose of the benchmark survey is to obtain universe data on the financial and operating characteristics of U.S. affiliates, and on positions and transactions between U.S. affiliates and their foreign parent groups (which are defined to include all foreign parents and foreign affiliates of foreign parents). These data are needed to measure the size and economic significance of foreign direct investment in the United States, measure changes in such investment, and assess its impact on the U.S. economy. Such data are generally found in enterprise-level accounting records of respondent companies. These data are used to derive current universe estimates of direct investment from sample data collected in other BEA surveys in nonbenchmark years. In particular, they serve as benchmarks for the quarterly direct investment estimates included in the U.S. international transactions and national income and product accounts, and for annual estimates of the foreign direct investment position in the United States and of the operations of the U.S. affiliates of foreign companies.
BEA will make the survey available via eFile, BEA's electronic filing system, in March 2012, for the convenience of respondents who may wish to file as soon as their 2012 fiscal year ends. BEA will send printed survey forms to potential respondents in March 2013; responses will be due by May 31.
This proposed rule would amend 15 CFR 806.17 to set forth the reporting requirements for the BE-12, Benchmark Survey of Foreign Direct Investment in the United States. The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3520 (PRA).
The proposed changes revise the regulations and the survey forms for the BE-12 benchmark survey. These amendments include changes in reporting thresholds and data items collected, as well as changes in form design. Several of these amendments are part of a larger program to align the data collection program for multinational companies with available resources.
If this proposed rule is made final, U.S. affiliates would report their information, regardless of industry, on one of four forms—BE-12A, BE-12B, BE-12C, or BE-12 Claim for Not Filing. Data on U.S. affiliates that are banks, bank holding companies, or financial holding companies would be collected on the same survey forms as data on other U.S. affiliates, and the 2007 benchmark survey form BE-12 Bank would be discontinued.
The amount of information required to be reported by each U.S. affiliate is determined by the size of the affiliate's assets, sales or gross operating revenue, and net income. To minimize the reporting burden on smaller U.S. companies that are foreign owned, BEA proposes to increase the reporting thresholds for each of the forms. The proposed reporting requirements for the four forms are—
(a) Form BE-12(A)—Report for majority-owned U.S. affiliates with total assets, sales or gross operating revenues, or net income greater than $300 million, positive or negative. (For 2007, this threshold was $175 million.) Form BE-12A would replace 2007 benchmark survey form BE-12 (Long Form) for reporting the largest majority-owned U.S. affiliates.
(b) Form BE-12(B)—Report for majority-owned U.S affiliates with total assets, sales or gross operating revenues,
(c) Form BE-12(C)—Report for U.S. affiliates with total assets, sales or gross operating revenues, or net income less than or equal to $60 million, positive or negative. Form BE-12C would replace 2007 benchmark survey form BE-12 Mini for reporting the smallest U.S. affiliates.
(d) Form BE-12 Claim for Not Filing—Report to be filed by U.S. persons that are not subject to the reporting requirements for the BE-12 benchmark survey, but have been contacted by BEA concerning their reporting status. The name of this form remains unchanged from the 2007 benchmark survey.
In addition to the changes in the reporting criteria, BEA proposes to add and delete some items on the benchmark survey forms. The following items would be added to the benchmark survey:
(1) Questions will be added regarding the use of fair value accounting on the balance sheet. Companies that indicate that they did use fair value accounting will be asked to provide the amount of net property, plant, and equipment, of total assets, and of total liabilities that was recorded at fair value.
(2) Questions will be added to collect information on assets, liabilities, and interest receipts and payments that are related to banking activities.
(3) Several check-box questions will be added asking whether U.S. affiliates purchased contract manufacturing services from others or performed contract manufacturing services for others. They will also be asked whether they owned the materials used in contract manufacturing and if the company that performed or purchased the service was located in the United States or abroad.
(4) A question will be added asking if the U.S. affiliate has equity in its foreign parent(s) (reverse investment). An item will be added to collect voting percent, equity percent, and the dollar amount of the investment.
(5) Several check-box questions will be added to ensure that certain types of finance companies do not report intercompany debt to BEA that is already reported on Treasury International Capital surveys.
BEA proposes to eliminate several items from the benchmark survey. Many of these items were eliminated from the BE-15 Annual Survey of Foreign Direct Investment in the United States beginning with the 2008 survey. Others are proposed for elimination because they are no longer used, because the information is collected on other surveys conducted by BEA, or because the quality of the data collected has been poor. The items proposed to be eliminated are: selected balance sheet items; the breakdown of sales of services to foreign persons into sales of services to the foreign parent group, to foreign affiliates owned by the affiliate, and to other foreign persons; the breakdown of employment and employee compensation by occupational classification; the breakdown of total employee compensation into wages and salaries and employee benefit plans; data on the composition of external finances; manufacturing employment by state; gross property, plant, and equipment by state; commercial property by state; the location of the primary U.S. headquarters of the U.S. affiliate; number of employees covered by collective bargaining agreements; acres of U.S. land owned; basis (shipped or charged) for trade data (check-box questions); exports/imports shipped to/by foreign affiliates owned by U.S. affiliate by country of origin/destination (as in the benchmark surveys for 2002 and earlier years, these columns will be combined with the columns “shipped to/by all other foreign persons”); and withholding taxes on intercompany interest payments and interest receipts.
In addition, BEA plans to rename (as described above) and redesign the survey forms. The new design will incorporate improvements made to other BEA surveys. Survey instructions and data item descriptions will be changed to improve clarity, make the benchmark survey forms more consistent with those of other BEA surveys, and provide updated information on accounting standards.
The BEA conducts the BE-12 survey under the authority of the International Investment and Trade in Services Survey Act (22 U.S.C. 3101-3108), hereinafter, “the Act.” Section 3103(b) of the Act provides that “with respect to foreign direct investment in the United States, the President shall conduct a benchmark survey covering year 1980, a benchmark survey covering year 1987, and benchmark surveys covering every fifth year thereafter.” With respect to foreign direct investment in the United States, section 3103(b) also instructs the BEA to:
(1) Identify the location, nature, and magnitude of, and changes in total investment by any foreign parent in each of its U.S. affiliates and the financial transactions between any foreign parent and each of its U.S. affiliates;
(2) Obtain (A) information on the balance sheet U.S. affiliates of foreign parents and related financial data, (B) income statements, including the gross sales by primary line of business (with as much product line detail as is necessary and feasible) of U.S. affiliates, and (C) related information regarding trade, including trade in both goods and services, between the foreign parent and each of its U.S. affiliates and between each U.S. affiliate and any other person;
(3) Collect employment data showing both the number of United States employees of each U.S. affiliate and the levels of compensation by industry;
(4) Obtain information on tax payments by U.S. affiliates; and
(5) Determine, by industry, the total dollar amount of research and development expenditures by U.S. affiliate, payments or other compensation for the transfer of technology between foreign parents and their U.S. affiliates, and payments or other compensation received by U.S. affiliates from the transfer of technology to other persons.
This proposed rule has been determined to be not significant for purposes of E.O. 12866.
This proposed rule does not contain policies with Federalism implications sufficient to warrant preparation of a Federalism assessment under E.O. 13132.
This proposed rule contains a collection-of-information requirement subject to review and approval by OMB under the PRA. The requirement will be submitted to OMB for approval as a reinstatement, with change, of a previously approved collection under OMB control number 0608-0042.
Notwithstanding any other provisions of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA unless that collection displays a currently valid OMB control number.
The BE-12 survey, as proposed, is expected to result in the filing of reports from approximately 19,950 U.S. affiliates. The respondent burden for this collection of information will vary from one company to another, but is estimated to average 9.7 hours per response, including time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Thus the total respondent burden for this survey is estimated at 194,150 hours, compared to 209,650 hours for the previous (2007) benchmark survey. The decrease in burden hours is due to a reduction in the number of data items on the form which reduces the average burden per form, and increased reporting thresholds which allow more respondents to file on shorter forms.
Comments are requested concerning: (a) 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; (b) the accuracy of the burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.
Written comments regarding the burden-hour estimates or other aspects of the collection of information requirements contained in the proposed rule should be sent to both BEA and OMB following the instructions given in the
The Chief Counsel for Regulation, Department of Commerce, has certified to the Chief Counsel for Advocacy, Small Business Administration, under the provisions of the Regulatory Flexibility Act (RFA), 5 U.S.C. 605(b), that this proposed rulemaking, if adopted, will not have a significant economic impact on a substantial number of small entities. The changes proposed in this rule are discussed in the preamble and are not repeated here.
A BE-12 report is required of any U.S. company in which a foreign person owned or controlled, directly or indirectly, 10 percent or more of the voting securities if an incorporated U.S. business enterprise, or an equivalent interest if an unincorporated U.S. business enterprise. Most small business are not foreign owned and therefore would not be required to submit a BE-12 survey. However, for those small businesses that are foreign owned, the reporting burden is estimated to be small.
The amount of information required to be reported by each U.S. affiliate is determined by the size of the affiliate's assets, sales, or net income or loss. To minimize the reporting burden on smaller U.S. companies that are foreign owned and are required to report, BEA proposes to increase the threshold for reporting on Form BE-12A (the longest form) from $175 million to $300 million and on Form BE-12B from $40 million to $60 million. All affiliates below $60 million will file on Form BE-12C (the shortest form). The smallest affiliates only file a few items on Form BE-12C; BEA proposes to raise the threshold for filing an abbreviated BE-12C from $15 million to $20 million.
Because those small businesses that are impacted are subject to only minimal recordkeeping burdens, the Chief Counsel for Regulation certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities.
Economic statistics, Foreign investment in the United States, International transactions, Penalties, Reporting and record keeping requirements.
For reasons set forth in the preamble, BEA proposes to amend 15 CFR part 806 as follows:
1. The authority citation for 15 CFR part 806 continues to read as follows:
5 U.S.C. 301; 22 U.S.C. 3101-3108; E.O. 11961 (3 CFR, 1977 Comp., p. 86), as amended by E.O. 12318 (3 CFR, 1981 Comp., p. 173), and E.O. 12518 (3 CFR, 1985 Comp., p. 348).
2. Revise § 806.17 to read as follows:
A BE-12, Benchmark Survey of Foreign Direct Investment in the United States, will be conducted covering 2012. All legal authorities, provisions, definitions, and requirements contained in § 806.1 through § 806.13 and § 806.15(a) through (g) are applicable to this survey. Specific additional rules and regulations for the BE-12 survey are given in this section.
(a)
(1) Certifying in writing, by the due date of the survey, to the fact that the person is not a U.S. affiliate of a foreign person and not subject to the reporting requirements of the BE-12 survey;
(2) Completing and returning the “BE-12 Claim for Not Filing” by the due date of the survey; or
(3) Filing the properly completed BE-12 report—Form BE-12A, Form BE-12B, or Form BE-12C—by May 31, 2013.
(b)
(c)
(i) Total assets (do not net out liabilities);
(ii) Sales or gross operating revenues, excluding sales taxes; or
(iii) Net income after provision for U.S. income taxes.
(2) Form BE-12B must be completed by:
(i) A majority-owned U.S. affiliate if, on a fully consolidated basis, or, in the case of real estate investment, on an aggregated basis, any one of the three items listed in paragraph (c)(1) of this section (not just the foreign parent's
(ii) A minority-owned U.S. affiliate if, on a fully consolidated basis, or, in the case of real estate investment, on an aggregated basis, any one of the three items listed in paragraph (c)(1) of this section (not just the foreign parent's share), was greater than $60 million (positive or negative) at the end of, or for, its fiscal year that ended in calendar year 2012. (A “minority-owned” U.S. affiliate is one in which the combined direct and indirect ownership interest of all foreign parents of the U.S. affiliate is 50 percent or less.)
(3) Form BE-12C must be completed by a U.S. affiliate if, on a fully consolidated basis, or, in the case of real estate investment, on an aggregated basis, none of the three items listed in paragraph (c)(1) of this section for a U.S. affiliate (not just the foreign parent's share), was greater than $60 million (positive or negative) at the end of, or for, its fiscal year that ended in calendar year 2012.
(4) BE-12 Claim for Not Filing will be provided for response by persons that are not subject to the reporting requirements of the BE-12 survey but have been contacted by BEA concerning their reporting status.
(d)
(e)
Federal Energy Regulatory Commission.
Notice of proposed rulemaking.
Pursuant to section 215 of the Federal Power Act, the Commission proposes to approve Reliability Standard PRC-023-2 (Transmission Relay Loadability) submitted to the Commission for approval by the North American Electric Reliability Corporation (NERC), the Electric Reliability Organization (ERO) certified by the Commission. The proposed Reliability Standard requires transmission owners, generator owners, and distribution providers to set relays according to specific criteria in order to ensure that the relays reliably detect and protect the electric network from fault conditions, but do not limit transmission loadability or interfere with system operators' ability to protect system reliability. The Commission seeks comment from interested persons on the proposed Reliability Standard. The Commission also proposes to approve NERC Rules of Procedure Section 1700—Challenges to Determinations. This proposed rule provides registered entities a means to challenge determinations made by planning coordinators under Reliability Standard PRC-023.
Comments are due November 21, 2011.
You may submit comments, identified by docket number RM11-16-000 and in accordance with the requirements posted on the Commission's Web site,
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1. Pursuant to section 215 of the Federal Power Act (FPA),
2. Protective relays are devices that detect and initiate the removal of faults
3. On March 18, 2010, the Commission issued a Final Rule approving Reliability Standard PRC-023-1 (Transmission Relay Loadability), a Standard that requires transmission owners, generator owners, and distribution providers to set load-responsive phase protection relays according to specific criteria to ensure that the relays reliably detect and protect the electric network from all fault conditions, but do not operate during non-fault load conditions.
4. Currently effective Reliability Standard PRC-023-1 applies to relay settings on (1) All transmission lines and transformers with low-voltage terminals operated or connected at or above 200 kV; and (2) those transmission lines and transformers with low voltage terminals operated or connected between 100 kV and 200 kV that are designated by planning coordinators as critical to the reliability of the bulk electric system.
5. Requirement R1 states that each transmission owner, generator owner, and distribution provider subject to Reliability Standard PRC-023-1 shall use one of the criteria prescribed in sub-parts R1.1 through R1.13 for any specific circuit terminal to prevent its phase protective relay setting from limiting transmission system loadability while maintaining reliable protection of the bulk electric system for all fault conditions.
6. In Order No. 733, the Commission directed the ERO, under section 215(d)(5) of the FPA, to develop modifications to Requirement R1 to: (1) Require that transmission owners, generator owners, and distribution providers give their transmission operators a list of transmission facilities that implement sub-part R1.2;
[a.] 150 [percent] of the applicable maximum transformer nameplate rating (expressed in amperes), including the forced cooled ratings corresponding to all installed supplemental cooling equipment[; or]
[b.] 115 [percent] of the highest operator established emergency transformer rating.
7. Requirement R2 states that transmission owners, generator owners, and distribution providers that use a circuit with the protective relay settings determined by the practical limitations described in specified R1 sub-parts must use the calculated circuit capability as the circuit's facility rating and must obtain the agreement of the planning coordinator, transmission operator, and reliability coordinator with the calculated circuit capability.
8. Requirement R3 requires planning coordinators to designate which transmission lines and transformers with low-voltage terminals operated or connected between 100 kV and 200 kV are critical to the reliability of the bulk electric system and therefore subject to Requirement R1. Sub-part R3.1 requires planning coordinators to have a process to identify critical facilities. Sub-part R3.1.1 specifies that the process must consider input from adjoining planning coordinators and affected reliability coordinators. Sub-parts R3.2 and R3.3 require planning coordinators to maintain a list of critical facilities and provide it to reliability coordinators, transmission owners, generator owners, and distribution providers within 30 days of initially establishing it, and 30 days of any subsequent change.
9. Under section 215(d)(5) of the FPA, the Commission directed the ERO to modify Requirement R3 to: (1) Apply an “add in” approach to sub-100 kV facilities that are owned or operated by currently registered entities or entities that become registered entities in the future, and are associated with a facility that is included on a critical facilities
10. Attachment A to Reliability Standard PRC-023-1 specifies which protection systems are subject to and excluded from the Standard's Requirements. Section 1 of Attachment A provides that the Reliability Standard applies to any protective functions that can operate with or without time delay, on load current, including but not limited to: (1) Phase distance; (2) out-of-step tripping; (3) switch-on-to-fault; (4) overcurrent relays; and (5) communication-aided protection applications. Section 2 states that the Reliability Standard requires evaluation of out-of-step blocking schemes
11. The Commission, under section 215(d)(5) of the FPA, directed the ERO to modify Attachment A to: (1) Include section 2 as an additional Requirement with the appropriate violation risk factor and violation severity level in the Reliability Standard;
12. Reliability Standard PRC-023-1 established staggered effective dates for various Requirements and facilities. The Standard also included a footnote (exceptions footnote) to the “Effective Dates” section honoring temporary exceptions from enforcement actions approved by the NERC Planning Committee before NERC proposed the Reliability Standard.
13. In Order No. 733, the Commission directed the ERO, under section 215(d)(5), to modify the Reliability Standard to include an implementation plan for sub-100 kV facilities
14. In a March 18, 2011 filing (NERC Petition), NERC requests Commission approval of both its proposed Reliability Standard PRC-023-2 (Transmission Relay Loadability) and its proposed NERC Rules of Procedure Section 1700—Challenges to Determinations.
15. NERC states that the proposed Reliability Standard requires transmission owners, generator owners, and distribution providers to verify relay loadability using methods that achieve “the reliability goal of this Standard in an effective and efficient manner familiar to the responsible entities.”
16. Proposed Reliability Standard PRC-023-2 contains six requirements with the stated purpose of ensuring that protective relay settings do not limit transmission loadability; do not interfere with system operators' ability to take remedial action to protect system reliability; and are set to reliably detect all fault conditions and protect the electrical network from these faults.
17. The ERO describes proposed Reliability Standard PRC-023-2 Requirement R1 as follows:
Requirement R1 mandates that each Transmission Owner, Generator Owner, and Distribution Provider shall use any one of the identified criteria (Requirement R1, criteria 1 through 13) for any specific circuit terminal to prevent its phase protective relay settings from limiting transmission system loadability while maintaining reliable protection of the [bulk electric system] for all fault conditions. Each Transmission Owner, Generator Owner, and Distribution Provider shall evaluate relay loadability at 0.85 per unit voltage and power factor angle of 30 degrees[.]
18. With the exception of clarifying language and the addition of criterion 10.1, proposed Requirement R1 retains the same criteria as currently existing PRC-023-1. Criteria 1 through 13 prescribe specific criteria to be used for certain transmission system configurations. These criteria account for the presence of devices such as series capacitors and address circuit and transformer thermal capability.
19. Criterion 1 specifies transmission line relay settings based on the highest seasonal facility rating using the 4-hour thermal rating of a transmission line, plus a design margin of 150 percent. Criterion 2 allows transmission line relays to be set so that they do not operate at or below 115 percent of the highest seasonal 15-minute facility rating of a circuit, when a 15-minute rating has been calculated and published for use in real-time operations. Criterion 3 allows transmission line relays to be set so that they do not operate at or below 115 percent of the maximum theoretical power capability. Criterion 4 may be applied where series capacitors are used on long transmission lines to increase power transfer. Criterion 5 applies in cases where the maximum end-of-line
20. Criterion 7 is appropriate for system configurations that have load centers that are remote from the generation center. Criterion 8 applies to system configurations that have one or more transmission lines connecting a remote, net importing load center to the rest of the system. Criterion 9 applies to the same system configuration, but applies to the load end. Criterion 10 is specific to transmission transformer fault protective relays and transmission lines terminated only with a transformer. Criterion 11 may be used for transformer overload protection relays when criterion 10 cannot be met. Criterion 12 may be used when the circuits have three or more terminals. The limited circuit loading capability established by this criterion will become the facility rating of the circuit. Finally, criterion 13 is intended to apply when otherwise supportable situations and practical limitations are identified under criteria 1 through 12.
21. Proposed Reliability Standard PRC-023-2 modifies PRC-023-1 by adding criterion 10.1 to address the Commission's directive that entities with protective relays set pursuant to criteria R1.10 must verify that the limiting piece of equipment is capable of sustaining the anticipated overload for the longest clearing time associated with a fault.
22. NERC believes that Requirement 10.1 is equally effective and efficient as the approach directed in Order No. 733.
23. Proposed Reliability Standard PRC-023-2 adds a new Requirement R2 that requires each transmission owner, generation owner, and distribution provider to set its out-of-step blocking elements to allow tripping of phase protective relays for faults that occur during the loading conditions modeled under Requirement R1. NERC states that Requirement R2 has been added to proposed Reliability Standard PRC-023-2 to address the Commission's directive to include section 2 of PRC-023-1 Attachment A as an additional Requirement with the appropriate violation risk factor and violation severity level.
24. Requirement R3 in proposed Reliability Standard PRC-023-2 renumbers and makes conforming edits to Requirement R2 from PRC-023-1. Proposed new Requirement R4 requires an entity that chooses to use Requirement R1 criterion 2 as the basis for verifying transmission line relay loadability to provide its planning coordinator, transmission operator, and reliability coordinator with an updated list of circuits associated with those transmission line relays at least once each calendar year. Similarly, proposed Reliability Standard PRC-023-2 adds a new Requirement R5 that requires entities that set transmission line relays according to Requirement R1 criterion 12 to provide an updated list of the circuits associated with those relays to its Regional Entity at least once each calendar year, to allow the ERO to compile a list of all circuits that have protective relays settings that limit circuit capability. NERC states that new Requirements R4 and R5, respectively, address the Commission's directives relating to providing transmission operators a list of transmission facilities that implement criterion 2 and directing that the ERO create a list of those facilities that have protective relays set pursuant to criterion 12.
25. Requirement R6 of proposed Reliability Standard PRC-023-2 requires each planning coordinator to conduct an assessment at least once each calendar year (but no less frequently than every 15 months) by applying the criteria in Attachment B to determine the circuits in its planning coordinator area for which entities must comply with Requirements R1 through R5. Sub-part 6.1 requires the planning coordinator to maintain a list of circuits subject to PRC-023-2 per application of Attachment B identifying the year in which any criterion in Attachment B applies. Sub-part 6.2 requires the planning coordinator to provide the list to all Regional Entities, reliability coordinators, transmission owners, generators owners, and distribution providers within its planning coordinator area within 30 calendar days of establishing the initial list, and 30 days of any subsequent change thereto. NERC states that the proposed sub-part 6.2, formerly Requirement R3.3 in PRC-023-1, modifies the Requirement in order to address the Commission's directive to add the Regional Entity to the list of entities that receive the list of critical facilities.
26. Attachment A to proposed Reliability Standard PRC-023-2
27. NERC states that it believes proposed section 1.6 of Attachment A is equally effective and efficient in addressing the Commission's concern as the approach directed in Order No. 733.
28. Proposed Reliability Standard PRC-023-2 adds an Attachment B to specify six criteria that planning coordinators must use to identify sub-200kV facilities that, upon being so identified, are required to comply with the proposed Reliability Standard. The proposed criteria identify facilities using bright line criteria and analyses. A facility meets the bright line criteria if it:
• Is a monitored facility of a permanent flowgate in the Eastern Interconnection, a major transfer path within the Western Interconnection, or a comparable monitored facility in the Quebec Interconnection, that has been included to address reliability concerns for loading of that circuit (Criteria B1);
• Is a monitored facility of an interconnection reliability operating limit, where the limit was determined in the planning horizon pursuant to Reliability Standard FAC-010 (System Operating Limits Methodology for Planning Horizon) (Criteria B2); or
• Forms a path to supply off-site power to a nuclear plant as established in the nuclear plant interface requirements pursuant to Reliability Standard NUC-001 (Nuclear Plant Interface Coordination) (Criteria B3).
A facility is identified through the analysis criteria if it:
• Is identified through a sequence of power flow analyses specified in Attachment B and performed by the planning coordinator (Criteria B4);
• Is selected by the planning coordinator based on technical studies or assessments other than those specified above, in consultation with the facility owner (Criteria B5); or
• Is mutually agreed upon for inclusion by the planning coordinator and the facility owner (Criteria B6).
NERC states that while the six criteria presented in Attachment B vary from some of the guidance provided in Order No. 733, they nonetheless identify all facilities that must be subject to proposed Reliability Standard PRC-023-2 in order to achieve the Standard's reliability objective.
29. Attachment B, unlike currently effective Reliability Standard PRC-023-1, does not state that the goal of screening sub-200 kV facilities is to identify those that are “critical to the reliability of the bulk electric system.” Instead, NERC states that the test in Attachment B “is designed to identify circuits that if tripped on relay loadability following an initiating event could contribute to undesirable system performance similar to what occurred during the August 2003 Blackout * * *.”
30. The proposed Reliability Standard also omits reference to sub-100 kV facilities “that Regional Entities have identified as critical to the reliability of the [b]ulk [e]lectric [s]ystem” in favor of referring to “transmission lines operated below 100 kV and transformers with low voltage terminal connected below 100 kV that are part of the [bulk electric system].” NERC states that sub-100 kV circuits identified by the Regional Entities as critical facilities should be included in the definition of the bulk electric system and the proposed language conveys the same meaning in an equally effective and efficient manner.
31. NERC is taking a three phase approach to addressing the various directives in Order No. 733. Phase I is intended to address directed modifications to PRC-023-1. Phase II entails development of a new Reliability Standard addressing generator relay loadability, and Phase III consists of developing a new Reliability Standard addressing protective relay operations due to stable power swings. According to the NERC Petition, transmission lines that tripped unnecessarily during the August 2003 Blackout did not trip as a result of power swings up through the tripping of the Argenta-Battle Creek and the Argenta-Tompkins 345 kV lines, but subsequent line trips were due to power swings. While the power system did experience stable swings following each line trip prior to losing these two lines, the swings were not of significant magnitude and dampened quickly allowing the system to return to a new steady-state condition. For this reason, NERC asserts that analysis using steady-state base cases is the appropriate tool to assess the potential for lines to trip under similar conditions, and dynamic base cases are the appropriate tool to assess line tripping due to power swings. NERC has elected to limit the applicability test in Attachment B to power flow analysis with steady-state base cases and to address dynamic base cases in its Phase III Reliability Standard addressing power swings. This
32. Order No. 733 provided guidance that a test to determine critical sub-200 facilities should include the same simulations and assessments as the Transmission Planning (TPL) Reliability Standards. While the TPL Standards permit manual system adjustments between two contingencies, NERC believes it is more informative, and in line with the reliability objective, to require testing of double contingencies without such manual adjustments, thereby modeling a situation in which an operator fails to, or does not have time to, make appropriate system adjustments. This focused testing exceeds the requirements of the TPL Standards and, NERC asserts, is an equally efficient and effective approach to addressing the Commission's concern that the test must be sufficiently robust to provide assurance that all appropriate facilities are identified and made subject to the Reliability Standard for the Standard to achieve its purpose.
33. Order No. 733 also provided guidance regarding elements of a definition of desirable system performance that must inform any test to determine which sub-200 kV circuits are critical to system reliability. The Commission's guidance stated, among other things, that the power system should maintain all facilities within their applicable thermal (i.e., current), voltage, or stability ratings (short time ratings are applicable). NERC asserts that it is most appropriate to focus on avoiding thermal loading of transmission circuits. In order to achieve its reliability goal, NERC believes, Reliability Standard PRC-023-2 must apply to circuits whose relays will be challenged by excessive thermal loading to the point that a relay hampers the system operator's ability to take remedial action. The system performance measure in this test is less rigorous than that required by TPL-003 (System Performance Following Loss of Two or More BES Elements) because it ignores voltage and stability ratings. But, NERC points out that the contingency condition in Attachment B is more stringent than that in TPL-003 and the contingency and system performance measure were developed together in order to align with the reliability objective of the proposed Standard. NERC believes this test is an equally effective and efficient approach to addressing the Commission's concern regarding the rigorousness of the test.
34. NERC proposes staggered effective dates for Reliability Standard PRC-023-2,
35. To determine a base penalty amount for a violation of a Requirement within a Reliability standard, NERC must first determine an initial range for the penalty amount. To do so, NERC assigns a violation risk factor to each Requirement of a Reliability Standard that relates to the expected or potential impact of a violation of the Requirement on the reliability of the Bulk-Power System. NERC may propose either a lower, medium, or high violation risk factor for each Requirement. The Commission has established guidelines for evaluating the validity of each violation risk factor assignment.
36. Proposed NERC Rules of Procedure Section 1700—Challenges to Determinations allows registered entities to challenge a planning coordinator's determination made under a Reliability Standard or terms defined in the Glossary of Terms Used in NERC Reliability Standards. Proposed Rule 1702 sets out the procedure for challenging a determination by a planning coordinator under Reliability Standard PRC-023-2. It provides that a registered entity is encouraged, but not required, initially to meet with the planning coordinator to resolve any dispute. If the matter cannot be resolved, the registered entity may challenge the determination with the appropriate Regional Entity, and if not satisfied with the Regional Entity's decision, may appeal to NERC. Review by NERC would initially be handled by a panel appointed by the NERC Board of Trustees. The Board of Trustees would then have the authority, but not the duty, to review the matter upon the request of the planning coordinator or registered entity. The final NERC decision may then be appealed to the applicable governmental authority,
37. We agree with NERC that the proposed Reliability Standard PRC-023-2 addresses the reliability gaps identified in Order No. 733 that relate specifically to Reliability Standard PRC-023-1 and represents an improvement in the Reliability Standard. Accordingly, under section 215(d)(2) of the FPA, the Commission proposes to approve the new Reliability Standard, including its Violation Risk Factors and Violation Severity Levels, as just, reasonable, not unduly discriminatory or preferential, and in the public interest. Also, under section 215(f) of the FPA, the Commission proposes to approve NERC Rule of Procedure Section 1700—Challenges to Determinations as just, reasonable, not unduly discriminatory or preferential, in the public interest, and satisfying the requirements of section 215(c) of the FPA. NERC reports that it is in the process of applying the test set forth in Attachment B to a representative sample of utilities from each of the three Interconnections and will file the results of these tests in a report on or before February, 2013 (Report). In order to better understand the practical application of the test, the Commission proposes to direct the ERO to address specific matters described below in the Report.
38. Based on our review of NERC's petition and accompanying information, we propose to find that the proposed
39. Attachment A to the proposed Reliability Standard has been modified to extend coverage of the Standard to phase overcurrent supervisory elements associated with current-based, communication-assisted schemes capable of tripping for loss of communications. While the description of the supervisory elements is more specific than the directive in Order No. 733,
40. Transmission relay loadability is important to ensuring the reliability of the Bulk-Power System. The ERO has proposed changes to currently effective Reliability Standard PRC-023-1 on many issues, including (1) Extending its coverage to communication assisted supervising elements and out-of-step blocking schemes; (2) requiring that a uniform test is applied consistently by planning coordinators utilizing their judgment to identify sub-200 kV circuits to which the Reliability Standard must apply; (3) requiring that load responsive transformer fault protection relays be set to reflect the transformer's mechanical withstand capability; and (4) ensuring communication regarding the ratings used to verify transmission facility relay loadability. These changes extend and strengthen the reliability benefits currently effective Reliability Standard PRC-023-1 was designed to achieve.
41. Attachment B to the proposed Reliability Standard specifies the test planning coordinators are required to use to determine whether a sub-200 kV facility is critical to reliability. NERC states that it plans to revise the test, if necessary, based on the results of this testing and the clarifications regarding the test made in Order No. 733-A.
42. Criterion B4 of Attachment B requires application of proposed Reliability Standard PRC-023-2 to any circuit identified through a specified set of power flow analyses performed by planning coordinators. Planning coordinators must apply their engineering judgment in the simulation of double contingency combinations in order to determine which combinations of contingencies result in undesirable tripping. In guidance given in Order No. 733, the Commission stated that for Category C contingencies (
43. NERC states that though “the system performance measure in this test is less stringent than required for Category C contingencies in TPL-003, it is important to note that the contingency itself is more stringent than a Category C contingency [because it does not allow manual system adjustments between the two contingencies as does a Category C contingency], and the contingency and system performance measure have been developed together * * * .”
44. Criterion B5 of Attachment B requires compliance with the proposed Reliability Standard with respect to a “circuit * * * selected by the Planning Coordinator based on technical studies or assessments, other than those specified in criteria B1 through B4, in consultation with the Facility owner.” The Commission proposes that the Report comment on what “technical studies or assessments” planning coordinators use to identify critical facilities.
45. According to the NERC Petition, “[d]uring the standard development
46. In summary, the Commission proposes to approve proposed Reliability Standard PRC-023-2 as just, reasonable, not unduly discriminatory or preferential, and in the public interest. We also propose to approve proposed NERC Rules of Procedure Section 1700—Challenges to Determinations as just, reasonable, not unduly discriminatory or preferential, in the public interest, and satisfying the requirements of section 215(c) of the FPA. In addition, the Commission proposes that NERC addresses in the Report questions regarding the system assessment simulations and results of the power flow analyses criterion in the proposed test for critical facilities.
47. The Office of Management and Budget (OMB) regulations require approval of certain information collection requirements imposed by agency rules.
48. The Commission is submitting these reporting and recordkeeping requirements to OMB for its review and approval under section 3507(d) of the PRA. Comments are solicited on the Commission's need for this information, whether the information will have practical utility, the accuracy of provided burden estimates, ways to enhance the quality, utility, and clarity of the information to be collected, and any suggested methods for minimizing the respondent's burden, including the use of automated information techniques.
49. This Notice of Proposed Rulemaking proposes to approve Reliability Standard PRC-023-2 (Transmission Relay Loadability) which will replace currently effective Reliability Standard PRC-023-1 approved by the Commission in Order No. 733. Rather than creating entirely new requirements regarding the setting of protective relays, the proposed Reliability Standard instead modifies and improves the existing Reliability Standard. Thus this proposed rulemaking does not impose entirely new burdens on the effected entities. For example, the currently effective Reliability Standard PRC-023-1 requires transmission owners, generation owners, and distribution providers to each have evidence to show that each of its transmission relays are set according to one of the criteria in criteria R1.1 through R1.13. Similarly, proposed Reliability Standard PRC-023-2 requires transmission owners, generation owners, and distribution providers to have evidence that each of its transmission relays is set according to one of the 13 criteria in Requirement R1 but adds that each such entity shall also have evidence that relays set according to criterion 10 do not expose the transformer to fault levels and durations beyond those indicated in the Standard. Thus, the recordkeeping obligations for some Requirements are more specific but not necessarily more expansive than those of currently effective Reliability Standard PRC-023-1. However, proposed PRC-023-2 does add new Requirements, each of which has new recordkeeping obligations.
50. Proposed Requirement R2 will require each transmission owner, generator owner, and distribution provider to have evidence that its out-of-step blocking elements are set in accordance with the Standard, and proposed Requirements R4 and R5 will require those same entities to maintain evidence that they have informed the appropriate parties of their updated lists of certain circuits. Under Requirement R6, planning coordinators will be required to execute a test for applicability of the Standard as set forth in Attachment B and retain analyses, calculation summaries, or study reports to evidence execution of the test, whereas under the currently effective PRC-023-1, a test was required but only the results needed to be retained. Because an unspecified test is currently required to be carried out on facilities operated at between 100 kV and 200 kV under currently effective Reliability Standard PRC-023-1, for purposes of this analysis, we assume that there is little additional cost for planning coordinators to implement and document that portion of the test. However, the proposed Requirement R6 imposes the new burdens of performing the test on sub-100 kV facilities, maintaining appropriate records, and distributing the list of circuits identified by the test to Regional Entities.
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52. Interested persons may obtain information on the reporting requirements by contacting: Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426 [
53. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment.
54. The Regulatory Flexibility Act of 1980 (RFA)
55. Proposed Reliability Standard PRC-023-2 modifies currently existing Reliability Standard PRC-023-1 which requires applicable entities to set protective relays according to specific criteria, to communicate about such settings with specified entities, and to conduct assessments to determine the applicability of the Standard to 100-200 kV facilities. The proposed standard modifies PRC-023-1 by (1) Increasing communication and documentation requirements, (2) extending the applicability of the Standard to formerly excluded relays, and (3) standardizing the terms of the assessment whose terms were formerly not specified. In addition, proposed PRC-023-2 extends the current requirement that planning coordinators annually assess which 100-200 kV circuits must be brought into compliance with the Standard and will require planning coordinators to carry out the assessment with respect to some sub-100 kV facilities.
56. Comparison of the NERC compliance registry with data submitted to the Energy Information Administration on Form EIA-861 indicates that perhaps as many 103 transmission owners, 329 distribution providers, 46 generation owners, and 8 planning coordinators qualify as small entities. However, under NERC's compliance registration program, entities may be registered for multiple functions, so these numbers incorporate some double counting. The net number of registered entities that qualify as small entities responding to this rule will be approximately 339 entities registered as a transmission owner, a distribution provider, or a generation owner that is also a transmission owner and/or a distribution provider, and 8 planning coordinators. The proposed rule directly affects each of the small entities. Therefore, FERC has determined that this proposed rule will have an impact on a substantial number of small entities. However, the Commission has determined that the impact on entities affected by the proposed rule will not be significant. The Commission estimates that in order to comply with the Standard's modification of existing requirements each of the small entities registered as planning coordinators will face a cost of $2,680 and each of the remaining small entities (transmission owners, distribution providers, or generation owners that are also transmission owners and/or distribution providers) will face a cost of $3,512. Accordingly, the Commission determines that the incremental cost of Reliability Standard PRC-023-2 (going from PRC-023-1 to PRC-023-2) is minimal, and should not present a significant operating cost to any of the small entities.
57. Based on this understanding, the Commission certifies that this Reliability Standard will not have a significant economic impact on a substantial number of small entities. Accordingly, no regulatory flexibility analysis is required.
58. The Commission invites comment from members of the public regarding the accuracy of the certification provided here, the economic analysis, and its underlying assumptions.
59. The Commission invites interested persons to submit comments on the matters and issues proposed in this notice to be adopted, including any related matters or alternative proposals that commenters may wish to discuss. Comments are due November 21, 2011. Comments must refer to Docket No. RM11-16-000, and must include the commenter's name, the organization they represent, if applicable, and their address in their comments.
60. Commenters may submit comments, identified by Docket No. RM11-16-000 and in accordance with the requirements posted on the Commission's Web site,
•
•
61. All comments will be placed in the Commission's public files and may be viewed, printed, or downloaded remotely as described in the Document Availability section below. Commenters on this proposal are not required to serve copies of their comments on other commenters.
62. In addition to publishing the full text of this document in the
63. From FERC's Home Page on the Internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field.
64. User assistance is available for eLibrary and the FERC's Web site during normal business hours from FERC Online Support at (202) 502-6652 (toll free at 1 (866) 208-3676) or e-mail at
By direction of the Commission.
Postal Service
Advance notice of proposed rulemaking; request for comments.
The Postal Service seeks public comment on a proposal to revise the service standard regulations contained in 39 CFR part 121. Among other things, the proposal involves eliminating the expectation of overnight service for First-Class Mail and Periodicals, and, for each of these classes, narrowing the two-day delivery range and enlarging the three-day delivery range. One major effect of the proposal would be to facilitate a significant consolidation of the Postal Service's processing and transportation networks.
Comments must be received on or before October 21, 2011.
Written comments should be mailed to Manager, Industry Engagement and Outreach, United States Postal Service, 475 L'Enfant Plaza, SW., Room 4617, Washington, DC 20260. Comments also may be transmitted via e-mail to
Anthony Frost, Industry Engagement and Outreach, 202-268-8093; or Emily Rosenberg, Network Analytics, 202-268-5585.
The Postal Service's processing and transportation networks were developed, over many decades of growing mail volumes, largely to achieve service standards for First-Class Mail and Periodicals, particularly their overnight service standards. In Section 302 of the Postal Accountability and Enhancement Act of 2006, Congress found that the Postal Service's networks were larger than necessary and directed the Postal Service to consolidate its infrastructure to better align with changing conditions. Since then, the Postal Service has vigorously pursued operational consolidation opportunities to reduce excess capacity in its networks.
During the same time period, however, mail volumes have declined substantially, such that the Postal Service's processing and transportation networks exhibit more excess capacity in relation to current and projected mail volumes than previously anticipated. As a result of the sharp revenue declines associated with falling volumes, as well as other statutorily mandated costs, the Postal Service has experienced significant financial losses for the past four years. Unfortunately, further network consolidations (beyond those that have already been performed or are currently under study), which are necessary to align the Postal Service's infrastructure with current and projected mail volumes and to bring operating costs in line with revenues, will for the most part be unachievable without a relaxation of certain service standards for First-Class Mail, Periodicals, and Standard Mail. The Postal Service is therefore exploring a proposal (the Proposal) to revise these service standards.
The Postal Service established its current service standards for market-dominant products on December 19, 2007, in accordance with 39 U.S.C. 3691. The service standards for First-Class Mail, as set forth in 39 CFR 121.1, range from 1 to 3 delivery days for mail that travels within the contiguous United States, and 1 to 5 delivery days for mail that originates or destinates in Alaska, Hawaii, or the U.S. territories. One aspect of the Proposal would be to revise 39 CFR 121.1 such that the service standards for First-Class Mail that travels within the contiguous United States would become 2 to 3 delivery days. Similarly, the service standards for First-Class Mail that originates or destinates in Alaska, Hawaii, or the U.S. territories would become 2 to 5 delivery days.
In other words, the Postal Service would eliminate the expectation of overnight service for First-Class Mail, narrow the two-day delivery range, and enlarge the three-day delivery range. These changes would apply to all First-Class Mail, including letters, flats, and parcels.
Because service standards for a portion of Periodicals are linked to First-Class Mail service standards, the Postal Service would revise the Periodicals service standards as well. As specified in 39 CFR 121.2, the service standards for Periodicals presently range from 1 to 9 delivery days within the contiguous United States. Under the Proposal, the service standards for both end-to-end and destination-entry Periodicals within the contiguous United States would be revised to a range of 2 to 9 delivery days.
The substantial consolidation of the mail processing network made possible by the above service standard revisions would result in the elimination of some facilities at which Standard Mail users currently enter mail. In particular, it is possible that Area Distribution Centers (ADCs) would no longer be available for entering mail. Therefore, it is possible that the Proposal could require a revision to the current service standard for end-to-end Standard Mail entered at ADCs, as set forth in 39 CFR 121.3(a)(2). The exact nature of this revision is presently unclear.
In addition, although the service standards for other Postal Service products would not be revised, all Postal Service products could experience changes in specific 3-digit ZIP Code origin-destination pairs' transit times. The changed transit times would remain within the current ranges set forth in each product's service standards.
If the Postal Service were to revise service standards as described above, it could significantly improve operating efficiency and lower the operating costs of its mail processing and transportation networks. To meet overnight service standards for First-Class Mail, processing facilities currently initiate their primary and secondary sortation
By eliminating overnight service standards for First-Class Mail, and thus eliminating the need for processing facilities to wait into the night for mail collected during the day to reach the facilities, the Postal Service could move the time for its primary and secondary sortations to much earlier in the day. Under the Proposal, the Postal Service would institute earlier critical entry times and redesign its network so that mail that needs to be processed on a particular day would reach mail processing facilities by 8 a.m. Consequently, the Postal Service could begin running DPS at noon. Thus, DPS could be run for 16 hours (12 p.m. to 4 a.m.) instead of 6.5 hours (12:30 a.m. to 7 a.m.) each day.
The Postal Service could also reduce the amount of manual casing that occurs at delivery units. Currently, some First-Class Mail Flats and Periodicals whose zones are processed on the Flats Sequencing System (FSS) arrive at mail processing facilities too late to be sorted by FSS. Because some of these mail pieces have an overnight service standard, they are sorted on the same night to the carrier route level and then transported to delivery units. As a result, these pieces require manual casing at delivery units. Under the revised service standards, such pieces would arrive at processing facilities in time for the next day's FSS sortation, thereby eliminating manual casing of such pieces at delivery units.
The Postal Service believes that, with the longer processing windows and other changes described above, it could consolidate mail processing operations from over 500 locations currently to fewer than 200 locations, resulting in lower facilities costs and significant labor workhour savings.
In addition, the Postal Service could improve the efficiency of its transportation network. To meet the current service standards, a large proportion of the Postal Service's mail trucks operate at low levels of capacity. With a reduced number of processing locations and longer processing windows, the Postal Service could reduce the number of mail trucks it needs and ensure that more of those trucks operate at higher levels of capacity.
The Postal Service believes that the consolidations and reductions described above would result in an infrastructure that better aligns with current and projected mail volumes and would lead to significant cost containment opportunities.
The Postal Service has listed briefly below several major effects that the Proposal may have:
• The reduced availability of locations at which drop ship discounts may be applied could require changes to commercial mailers' transportation networks. For national mailers, this could result in cost savings, given that they would transport mail to fewer locations. For regional and local mailers, the reduced availability of business mail entry units and drop ship locations could cause additional costs, if they have to transport mail over longer distances.
• Commercial mailers who use products that have zone-based pricing may experience price changes, if the locations at which they currently enter mail are eliminated and the nearest available locations are within different 3-digit ZIP Codes.
• Commercial mailers of First-Class Mail, Periodicals, and Standard Mail who seek to have their mail reach recipients on specific delivery days may have to restructure their production cycles to align with the changed critical entry times and reduced number of entry points.
• While some commercial mailers could effectively maintain same-day processing and overnight delivery by restructuring their production cycles to align with the changed critical entry times, this would not be possible for retail First-Class Mail customers, because mail pieces dropped off at blue collection boxes and other retail collection points before 8 a.m. would not be collected and transported to processing locations in time for same-day processing.
• The longer processing windows could enhance the reliability of the Postal Service in meeting the revised service standards.
The Postal Service requests comments on all aspects of the Proposal. In particular, the Postal Service solicits comments on the effects that the Proposal could have on senders and recipients of First-Class Mail, Periodicals, and Standard Mail, as well as any potential effects on users of other mail classes. Mail users are encouraged to comment on the nature and extent of costs or savings they might experience as a result of the changes described in this notice, as well as any additional possible benefits they foresee. Comments explaining how mail users might change their mailing practices or reliance on the mail if the Proposal is implemented also are encouraged. The provision of empirical data supporting any cost-benefit analysis also would be useful. In addition, the Postal Service seeks suggestions on how to modify the Proposal to better serve mail users. Further, the Postal Service requests mail users' views regarding the application of the policies and requirements of title 39 of the U.S. Code, particularly sections 101, 403, 404, and 3691, to the Proposal and to service standard revisions generally.
The Postal Service intends to consider comments received in response to this notice as it determines whether and how to amend its service standard regulations. This request for comments is being pursued in concert with other customer and public outreach activities, through mailer and other organizations, and through consultation with individual customers and groups of customers. If the Postal Service should decide to move forward with the Proposal, it will publish a proposed rule in the
Federal Emergency Management Agency, DHS.
Proposed rule.
Comments are requested on the proposed Base (1% annual-chance) Flood Elevations (BFEs) and proposed BFE modifications for the communities listed in the table below. The purpose of this proposed rule is to seek general information and comment regarding the proposed regulatory flood elevations for the reach described by the downstream and upstream locations in the table below. The BFEs and modified BFEs are a part of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP). In addition, these elevations, once finalized, will be used by insurance agents and others to calculate appropriate flood insurance premium rates for new buildings and the contents in those buildings.
Comments are to be submitted on or before December 20, 2011.
The corresponding preliminary Flood Insurance Rate Map (FIRM) for the proposed BFEs for each community is available for inspection at the community's map repository. The respective addresses are listed in the table below.
You may submit comments, identified by Docket No. FEMA-B-1218, to Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-4064, or (e-mail)
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-4064, or (e-mail)
The Federal Emergency Management Agency (FEMA) proposes to make determinations of BFEs and modified BFEs for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).
These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in those buildings.
Comments on any aspect of the Flood Insurance Study and FIRM, other than the proposed BFEs, will be considered. A letter acknowledging receipt of any comments will not be sent.
Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements.
Accordingly, 44 CFR part 67 is proposed to be amended as follows:
1. The authority citation for part 67 continues to read as follows:
42 U.S.C. 4001
2. The tables published under the authority of § 67.4 are proposed to be amended as follows:
Fish and Wildlife Service, Interior.
Proposed rule; reopening of comment period.
We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the public comment period on the March 15, 2011, proposed threatened status for the Chiricahua leopard frog (
We will consider comments received on or before October 21, 2011. Comments must be received by 11:59 p.m. Eastern Time on the closing date. Any comments that we receive after the closing date may not be considered in the final decision on this action.
You may submit written comments by one of the following methods:
(1)
(2)
We will post all comments on the Internet at
Steve Spangle, Field Supervisor, U.S. Fish and Wildlife Service, Arizona Ecological Services Field Office, 2321 West Royal Palm Road, Suite 103, Phoenix, AZ 85021; by telephone (602/242-0210), or by facsimile (602/242-2513). Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.
We will accept written comments and information during this reopened comment period on our proposed listing and designation of critical habitat for the Chiricahua leopard frog that was published in the
(1) Information about the status of the species, especially the Ramsey Canyon portion of the range, including:
(a) Genetics and taxonomy;
(b) Historical and current range, including distribution patterns;
(c) Historical and current population levels, and current and projected trends; and
(d) Past and ongoing conservation measures for the species, its habitat, or both.
(2) The factors that are the basis for making a listing determination for a species under section 4(a) of the Act (16 U.S.C. 1531
(a) The present or threatened destruction, modification, or curtailment of its habitat or range;
(b) Overutilization for commercial, recreational, scientific, or educational purposes;
(c) Disease or predation;
(d) The inadequacy of existing regulatory mechanisms; or
(e) Other natural or manmade factors affecting its continued existence.
(3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to Chiricahua leopard frog and regulations that may be addressing those threats.
(4) Additional information concerning the range, distribution, and population size of Chiricahua leopard frog, including the locations of any additional populations.
(5) Any information on the biological or ecological requirements of Chiricahua leopard frog.
(6) The reasons why we should or should not designate habitat as “critical habitat” under section 4 of the Act, including whether there are threats to
(7) Specific information on:
(a) The amount and distribution of the Chiricahua leopard frog's habitat;
(b) What areas occupied at the time of listing that contain features essential to the conservation of the species should be included in the designation, and why;
(c) Special management considerations or protections that the physical and biological features essential to the conservation of the Chiricahua leopard frog that have been identified in this proposal may require, including managing for the potential effects of climate change; and
(d) What areas not occupied at the time of listing are essential for the conservation of the species, and why.
(8) Land-use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat.
(9) Any probable economic, national security, or other relevant impacts of designating as critical habitat any area that may be included in the final designation. We are particularly interested in any impacts on small entities or families, and the benefits of including or excluding areas that exhibit these impacts.
(10) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments.
(11) Information on whether the benefits of an exclusion of any particular area outweigh the benefits of inclusion under section 4(b)(2) of the Act.
(12) Information on the projected and reasonably likely impacts of climate change on the Chiricahua leopard frog and the critical habitat areas we are proposing.
(13) Information on the extent to which the description of economic impacts in the draft economic analysis and draft environmental assessment is complete and accurate.
(14) The likelihood of adverse social reactions to the designation of critical habitat, as discussed in the draft economic analysis, and how the consequences of such reactions, if likely to occur, would relate to the conservation and regulatory benefits of the proposed critical habitat designation.
(15) Information regarding the amended primary constituent elements (PCEs).
If you submitted comments or information on the proposed rule (76 FR 14126; March 15, 2011) during the initial comment period from March 15, 2011, to May 16, 2011, please do not resubmit them. We will incorporate them into the public record as part of this comment period, and we will fully consider them in the preparation of our final determination. Our final determination concerning revised critical habitat will take into consideration all written comments and any additional information we receive during both comment periods. On the basis of public comments, we may, during the development of our final determination, find that areas proposed are not essential, are appropriate for exclusion under section 4(b)(2) of the Act, or are not appropriate for exclusion.
You may submit your comments and materials concerning the proposed rule, draft economic analysis, or draft environmental assessment by one of the methods listed in the
If you submit a comment via
Comments and materials we receive, as well as supporting documentation we used in preparing the proposed rule, draft economic analysis, and draft environmental assessment, will be available for public inspection on
It is our intent to discuss only those topics directly relevant to the designation of critical habitat for Chiricahua leopard frog in this document. For more information on previous Federal actions concerning the Chiricahua leopard frog, refer to the proposed designation of critical habitat published in the
We published a proposed rule to list the Chiricahua leopard frog as threatened in the
In a May 6, 2009, order from the Arizona District Court, the Secretary of the Interior was required to publish a critical habitat prudency determination for the Chiricahua leopard frog and, if found prudent, a proposed rule to designate critical habitat by December 8, 2010. Because of unforeseen delays related to species taxonomic issues, we requested a 3-month extension to the court-ordered deadlines for both the proposed and final rules. On November 24, 2010, the extension was granted and new deadlines of March 8, 2011, for the proposed rule and March 8, 2012, for the final rule were established for completing and submitting the critical habitat rules to the
On March 15, 2011, we published a proposed rule to designate critical habitat for the Chiricahua leopard frog (76 FR 14126). We proposed to designate as critical habitat approximately 11,136 acres (ac) (4,510 hectares (ha)) in 40 unit(s) located in Apache, Cochise, Gila, Graham, Greenlee, Pima, Santa Cruz, and Yavapai Counties, Arizona; and Catron, Hidalgo, Grant, Sierra, and Socorro Counties, New Mexico. That proposal had a 60-day comment period ending May 16, 2011. In addition, because of a taxonomic revision of the Chiricahua leopard frog, we are reassessing the
In this notice, we are notifying the public of changes to the proposed critical habitat rule. This revision proposes to add three additional units (Units 41, 42, and 43) and to amend the PCEs. The three new units identified in this proposed rule constitute an addition to the areas we proposed for designation as critical habitat on March 15, 2011 (76 FR 14126). The explanation for this proposed change is discussed below. All areas proposed on March 15, 2011, remain proposed for designation as critical habitat. We will submit a final critical habitat designation for Chiricahua leopard frog to the
This revision proposes three additional units as critical habitat, to include the areas in the vicinity of Kerr Canyon, West Fork Gila River, and Palomas Creek (Service 2008, pp. 1-2; Service 2009; pp. 15-16). As a result of these changes, we are proposing to add 219 ac (89 ha) under Federal and 112 ac (45 ha) under private ownership to the critical habitat designation. In total, we are proposing to designate as critical habitat approximately 11,467 ac (4,644 ha) for the species. For a full description of the previously proposed Units 1 through 40, please see the proposed critical habitat rule (76 FR 14126, March 15, 2011).
In the previous proposed critical habitat rule (76 FR 14126, March 15, 2011), we identified specific sites occupied by Chiricahua leopard frogs at the time of listing in June 2002 that contain sufficient PCEs to support life-history functions essential for the conservation of the species. We included sites where the species was breeding, utilizing historic information and all known breeding and adult locality data available at that time. Subsequently, we discovered that we overlooked three sites in New Mexico that were occupied at the time of listing and contained the essential physical and biological features. Therefore, the purpose of this revision to the proposed critical habitat is to include these three areas that were occupied at the time of listing, are currently occupied by Chiricahua leopard frogs, contain the physical or biological features essential to the conservation of the species, and meet the definition of critical habitat for the species in New Mexico. We believe these additional areas included in the proposed designation, if secured, would provide for the conservation of Chiricahua leopard frog by:
(1) Maintaining the physical and biological features essential to the conservation of the species in New Mexico where the species is known to occur, and
(2) Maintaining the current distribution in New Mexico, thus preserving genetic variation throughout the range of the species and minimizing the potential effects of local extirpation.
We are proposing to amend the PCEs proposed in our March 15, 2011, proposed rule (76 FR 14126) to provide more clarification by making them more objective and measurable. By being more objective and measurable, future section 7 consultations on critical habitat will be more precise. The original meaning of the proposed PCEs has not changed. Based on the needs and our current knowledge of the life history, biology, and ecology of the species, and the habitat requirements for sustaining the essential life-history functions of the species, we have determined that, in total, the PCEs essential to the conservation of the Chiricahua leopard frog are:
(1) Aquatic breeding habitat and immediately adjacent uplands exhibiting the following characteristics:
(a) Standing bodies of fresh water (with salinities less than 5 parts per thousand, pH greater than or equal to 5.6, and pollutants absent or minimally present), including natural and manmade (
(b) Emergent and or submerged vegetation, root masses, undercut banks, fractured rock substrates, or some combination thereof, but emergent vegetation does not completely cover the surface of water bodies.
(c) Nonnative predators (
(d) Absence of chytridiomycosis, or if present, then environmental, physiological, and genetic conditions are such that allow persistence of Chiricahua leopard frogs.
(e) Upland areas that provide opportunities for foraging and basking that are immediately adjacent to or surrounding breeding aquatic and riparian habitat.
(2) Dispersal and nonbreeding habitat, consisting of areas with ephemeral (present for only a short time), intermittent, or perennial water that are generally not suitable for breeding, and associated upland or riparian habitat that provides corridors (overland movement or along wetted drainages) for frogs among breeding sites in a metapopulation with the following characteristics:
(a) Are not more than 1.0 mile (1.6 kilometers) overland, 3.0 miles (4.8 kilometers) along ephemeral or intermittent drainages, 5.0 miles (8.0 kilometers) along perennial drainages, or some combination thereof not to exceed 5.0 miles (8.0 kilometers).
(b) In overland and nonwetted corridors, provides some vegetation cover or structural features (
(c) Are free of barriers that block movement by Chiricahua leopard frogs, including, but not limited to, urban, industrial, or agricultural development; reservoirs that are 50 acres (20 hectares) or more in size and contain predatory nonnative fishes, bullfrogs, or crayfish; highways that do not include frog fencing and culverts; and walls, major dams, or other structures that physically block movement.
With the exception of impoundments, livestock tanks, and other constructed waters, critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries.
During our compilation of the administrative record for the previous proposal, we found three occupied sites that were overlooked where reproduction has been documented recently in New Mexico, which led to this revision and proposal of additional critical habitat units for the species.
Section 3 of the Act defines critical habitat as the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features essential to the conservation of the species and that may require special management considerations or protection, and specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. If the proposed rule is made final, section 7 of the Act will prohibit destruction or adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency. Federal agencies proposing actions affecting critical habitat must consult with us on the effects of their proposed actions, under section 7(a)(2) of the Act.
The Kerr Canyon unit contains 19 ac (8 ha) of Gila National Forest land and 6 ac (2 ha) of private land in Catron County, New Mexico. The 1.0-mi (1.6-km) reach extends from Kerr Spring, located on the Gila National Forest, through an intermittent drainage to Kerr Canyon Pond (sometimes referred to as the Kerr Canyon Trick Tank) to include the adjacent private property in Kerr Canyon. This unit is proposed as critical habitat because it was occupied at the time of listing and currently contains sufficient PCEs (PCE 1) to support life-history functions essential for the conservation of the species.
Our records indicate that this area contained a robust breeding population of Chiricahua leopard frogs from 2002 through 2007 (Service 2008, pp. 1-2). However, during surveys conducted in 2008 and 2009, few individuals were observed (Service 2009a, p. 2). We believe the population experienced a mass mortality event or die-off from chytridiomycosis (Service 2009a, p. 2; Service 2009b, p. 1; Service 2009c, p. 1). Tiger salamanders have also recently been found in Kerr Canyon Pond (Service 2009a, p. 2); however, the abundance of these Chiricahua leopard frog predators is currently unknown. Partial surveys of Kerr Canyon Creek and Pond were conducted in 2010, with no frogs observed, yet thorough surveys are needed to determine whether frogs persist in the area.
Kerr Canyon will be managed as an isolated population, as it is currently separated from other populations in Tularosa Creek (Unit 28) that are at least 6.5 mi (10.4 km) away. As recently as 2007, Kerr Canyon supported a robust breeding population (Service 2007a, p. 2); however, the current population status is greatly reduced from 2007 numbers, or may possibly be extirpated. We suspect that observed declines in Chiricahua leopard frog abundance can be attributed to chytridiomycosis or predation. Because of the disease and competition with nonnative species, we find that the essential features in this area may require special management considerations or protection.
The West Fork Gila River unit contains 177 ac (72 ha) of Gila National Forest land in Catron County, New Mexico. This 7.0-mi (11.2-km) reach runs from Turkeyfeather Spring, through an intermittent drainage to the confluence with the West Fork Gila River, then downstream in the West Fork Gila River to confluence with White Creek. Within this unit, the Upper West Fork is divided into two perennial segments by a 1.2-mi (2.0-km) long ephemeral reach between Turkeyfeather Creek and Whiskey Creek. The area within Unit 42 was occupied at the time of listing and currently contains sufficient PCEs (PCE 1) to support life-history functions essential for the conservation of the species.
The West Fork Gila River unit was occupied at the time of listing and Chiricahua leopard frogs are currently present. The species has been observed in West Fork Gila River since 1995, with reproduction observed in 2001 (Blue Earth Ecological Consultants 2002, pp. 16-17; Service 2007, pp. B-64; Service 2009, p. 15). The population is not well studied; however, this section of the West Fork Gila River is long enough that it could support a robust population. This unit will be managed as an isolated population, because it is likely occupied by low numbers of frogs and the nearest known, robust breeding population occurs on Main Diamond in Unit 30, over 5 mi (8 km) away along a perennial water course. There may be some potential for linking this population to Unit 30, if aquatic habitat between the two units could be identified, renovated as needed, and populations of frogs established. However, potential sites and presence of PCEs in these connecting areas have not been investigated in any detail.
Chytridiomycosis has been found on Chiricahua leopard frogs within this unit and nonnative predators are present, including fish, crayfish, and American bullfrogs. Even though a cooperative restoration project between the Service, the U.S. Forest Service, and New Mexico Department of Game and Fish is underway to restore native fish and remove nonnative predatory fish in this unit, the frog population is currently threatened by nonnative predators and chytridiomycosis (Service 2009, pp. 15-16). As such, the essential features in this unit may require special management considerations or protection to minimize impacts resulting from these threats.
The South Fork Palomas Creek unit consists of 23 ac (9 ha) of Gila National Forest land and 106 ac (43 ha) of private land in Sierra County, New Mexico. This 4.5-mi (7.3-km) reach of South Fork Palomas Creek runs downstream from Wagonbed Canyon to Avilas Well, including Circle Seven Well, but not Avilas Well. This unit is proposed as critical habitat because it was occupied at the time of listing, is currently occupied, and contains sufficient PCEs (PCEs 1 and 2) to support life-history functions essential for the conservation of the species.
Our records for this area are intermittent; however, South Fork Palomas Creek was occupied at the time of listing (Christman 2003, p. 5) and Chiricahua leopard frogs reproduced at Circle Seven Well in 2010 (Christman 2010, p. 1). Currently, we consider this area to be occupied by the species. This unit has undergone management actions that likely have resulted in the persistence of Chiricahua leopard frogs in the South Fork Palomas drainage. Chiricahua leopard frogs were observed in low numbers in 2002 and 2003 in the South Fork Palomas Creek, but Circle Seven Well (a steel rim tank that overflows to an earthen tank) was dry and unoccupied during the time of listing. Due to Circle Seven Well's close proximity to South Fork Palomas Creek, we believe that Circle Seven Well was historically occupied by the Chiricahua
Summer rains in 2003, following a wildfire in upland slopes, caused an ash flow into South Fork Palomas Creek. Active management actions in 2003 included capturing 188 Chiricahua leopard frog tadpoles from an ash-affected pool and releasing half of the individuals to the lower portion of South Fork Palomas Creek and releasing half of the individuals farther down the drainage to the steel rim portion of Avilas Well (a steel rim tank that overflows to an earthen tank). Monitoring post-translocations indicated that more than 20 individuals metamorphosed and escaped the steel rim tank, but did not become established in the earthen tank at Avilas Well. To date, Avilas Well remains unoccupied; however, Chiricahua leopard frogs continue to occupy South Fork Palomas Creek, including documented breeding in Circle Seven Well. The proposed area in South Fork Palomas Creek and Circle Seven Well currently contains sufficient PCEs (PCE1) to support life-history functions essential for the conservation of the species.
Under section 4(b)(2) of the Act, private lands in this unit, which are part of the Ladder Ranch, will be considered for exclusion from the final rule. The 156,439-acre Ladder Ranch is owned by Turner Enterprises and is managed for its biodiversity. The Ladder Ranch has been an active participant in the conservation of a number of rare and listed species, including the Mexican wolf (
Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific data available, after taking into consideration the economic impact, impact on national security, or any other relevant impact of specifying any particular area as critical habitat. We may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area as critical habitat, provided such exclusion will not result in the extinction of the species.
When considering the benefits of inclusion for an area, we consider the additional regulatory benefits that area would receive from the protection from adverse modification or destruction as a result of actions with a Federal nexus (activities conducted, funded, permitted, or authorized by Federal agencies), the educational benefits of mapping areas containing essential features that aid in the recovery of the listed species, and any benefits that may result from designation due to State or Federal laws that may apply to critical habitat.
When considering the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in conservation; the continuation, strengthening, or encouragement of partnerships; or implementation of a management plan.
The final decision on whether to exclude any areas will be based on the best scientific data available at the time of the final designation, including information obtained during the comment period and information about the economic impact of designation. Accordingly, we have prepared a draft economic analysis concerning the proposed critical habitat designation, which is available for review and comment (see
To consider the economic impacts “of specifying any particular area as critical habitat,” as section 4(b)(2) of the Act requires, the Service must first identify the probable economic impacts that stem from a designation (50 CFR 424.19). We have interpreted “probable economic impacts” to be those potential impacts that are reasonably likely to occur as a result of the critical habitat designation. The identification of the probable incremental effects of a critical habitat designation involves comparing the economic and other relevant impacts that would be present without the designation of a particular area as critical habitat with what would be expected if the particular area is included in the designation—in other words, a comparison of the world with and without critical habitat. A key aspect of this comparison requires identifying, at a general level, the additional protections for species (
The Service traditionally understood the first sentence of section 4(b)(2) of the Act to require consideration of only those impacts that are solely attributable to—that would not occur “but for”—the proposed critical habitat designation. Under this approach, known as the “incremental effects analysis” (otherwise referred to by the courts as the “baseline approach”), the Service isolates the probable impacts that would result solely from the designation (incremental effects) from those that stem also from other causes, such as the underlying listing determination or other conservation measures being implemented for the species and its habitat (baseline effects). Once identified, the resulting incremental effects of the designation are then used in the balancing analysis, if one is conducted, under the second sentence of section 4(b)(2) for evaluating the benefits of including a particular area in, or excluding it from, critical habitat, and for evaluating compliance with the required determinations.
However, the application of this relatively straightforward paradigm had become problematic by the late 1990s, in light of our interpretations and practices that had the effect of minimizing the role of critical habitat in safeguarding species' recovery. This stemmed in part from the Service's and National Marine Fisheries Service's 1986 joint regulations implementing the interagency consultation provisions of section 7 of the Act (50 CFR 402). Those regulations govern the assessment of
As a result, case law significantly influenced the Service's methodology for evaluating the probable economic effects of a critical habitat designation. In 2001, the United States Court of Appeals for the Tenth Circuit held that, in light of the narrow role reserved for critical habitat under the regulations and the Service's view at the time, the Service was legally precluded from relying on the incremental-effects approach.
To satisfy section 4(b)(2) of the Act in light of the then-current regulations, the court ruled that the Service must consider all impacts that stem in any way from the proposed critical habitat designation, even if they are also partially caused (or, caused “coextensively”) by listing. In other words, even if there was no “but for” economic impact as a result of critical habitat designation, the Service was still required to consider the coextensive economic impacts. The court did not define “coextensive” economic analysis; however, the Services interpreted “coextensive” to be the sum of anticipated baseline and incremental economic impacts. As a consequence, following the
Meanwhile, other courts began to conclude that the definition of “destruction or adverse modification” in the 1986 regulations did not adequately fulfill the statute's conservation purpose. In fact, the Ninth Circuit in
Similarly, in 2010, the Ninth Circuit concluded that the faulty underlying premises that led to the invalidation of the incremental effects (baseline approach) in 2001 no longer applied, and that our consideration of “but for” impacts in the increment above the baseline is permissible under the Act (
In 2008, the Solicitor for the Department of the Interior drafted a Memorandum Opinion summarizing case law on the Secretary's authority to exclude areas from a critical habitat designation under section 4(b)(2) of the Act, including the appropriate use of economic analyses in critical habitat determinations (Department of the Interior Solicitor Memorandum, October 3, 2008, The Secretary's Authority to Exclude Areas from a Critical Habitat Designation under Section 4(b)(2) of the Endangered Species Act (Opinion M-37016)). In this opinion, the Solicitor concluded that
Consistent with recent case law and the 2008 Solicitors Memorandum Opinion, the Service concludes that the appropriate analysis to consider economic impacts of a critical habitat designation is to limit the evaluation of the probable economic effects to those that are incremental to, or result solely from, the designation itself. The Service also believes that the use of an incremental-effects analysis is sufficient to fulfill the requirement under section
Since the Service currently does not have an operative regulatory definition of “destruction or adverse modification,” the Service attempted to clarify the difference between the jeopardy and adverse modification standards for the Chiricahua leopard frog critical habitat in our Incremental Effects Memorandum. This memorandum outlined typical conservation actions, project modifications, and minimization measures that would be requested by the Service to meet the “not likely to destroy or adversely modify” standard, above what would be requested to avoid jeopardy to the species. This evaluation of the incremental effects as outlined in the Incremental Effects Memorandum has been used as the basis to develop the draft economic analysis of this proposed designation of critical habitat.
The purpose of the draft economic analysis is to identify and analyze the probable incremental economic impacts associated with the proposed critical habitat designation for the Chiricahua leopard frog. The analysis looks retrospectively at baseline impacts incurred since the species was listed, and forecasts both baseline and incremental impacts likely to occur if we finalize the proposed critical habitat designation. For a further description of the methodology of the analysis, see Chapter 2 of the draft economic analysis.
The draft economic analysis provides estimated costs of the reasonably probable incremental economic impacts of the proposed critical habitat designation for the Chiricahua leopard frog over the next 20 years, which was determined to be the appropriate period for analysis because limited planning information is available for most activities to forecast activity levels for projects beyond a 20-year timeframe. The draft economic analysis quantifies economic impacts of Chiricahua leopard frog conservation efforts associated with the following categories of activity:
(1) Improperly managed livestock grazing: Includes drying of stock tanks and changes to water quality due to cattle feces.
(2) Mining: Includes copper mining operations and associated mining-related contaminants and runoff.
(3) Water diversion and management: Includes groundwater pumping, agricultural development, and operations of dams and diversions.
(4) Residential and commercial development and transportation: Includes sedimentation and runoff associated with construction.
(5) Fires and fire suppression activities: Includes ash flow and fire retardants from fires and fire suppression activities; and,
(6) Nonnative species introductions/disease: Includes saltcedar control, stocking of predatory fishes, bullfrogs, or crayfish, as well as chytridiomycosis (an infectious fungal disease).
Because a significant level of baseline protection exists for the Chiricahua leopard frog, no significant economic impacts are likely to result from the designation of critical habitat for this species. Incremental costs are limited to administrative efforts of new and reinitiated consultations to consider adverse modification of critical habitat for the frog.
The draft economic analysis estimates that the present value impacts of critical habitat designation are $1,300,000 assuming a 7 percent real discount rate. This figure represents an annualized impact of approximately $115,000. As stated above, these costs represent expectations of additional administrative effort as part of future section 7 consultations that consider both jeopardy and adverse modification.
As we stated earlier, we are soliciting data and comments from the public on the draft economic analysis, as well as all aspects of the proposed rule and our amended required determinations. We may revise the proposed rule or supporting documents to incorporate or address information we receive during the public comment period. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area, provided the exclusion will not result in the extinction of this species.
The purpose of the draft environmental assessment, prepared pursuant to the National Environmental Policy Act (NEPA) (42 U.S.C. 4321
As we stated earlier, we are soliciting data and comments from the public on the draft environmental assessment, as well as all aspects of the proposed rule. We may revise the proposed rule or supporting documents to incorporate or address information we receive during the comment period on the environmental consequences resulting from our designation of critical habitat.
In our March 15, 2011, proposed rule (76 FR 14126), we indicated that we would defer our determination of compliance with several statutes and executive orders until the information concerning potential economic impacts of the designation and potential effects on landowners and stakeholders became available in the draft economic analysis. We have now made use of the draft economic analysis data to make these determinations. In this document, we affirm the information in our proposed rule concerning E.O. 13132 (Federalism), E.O. 12988 (Civil Justice Reform), the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Office of Management and Budget (OMB) has determined that this rule is not significant under Executive Order 12866 (E.O. 12866). OMB bases its
(a) Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government.
(b) Whether the rule will create inconsistencies with other Federal agencies' actions.
(c) Whether the rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients.
(d) Whether the rule raises novel legal or policy issues.
Under the Regulatory Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 802(2)), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (
According to the Small Business Administration, small entities include small organizations, such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.
To determine if the proposed designation of critical habitat for the Chiricahua leopard frog would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities, such as livestock management, fire management, habitat management, water management, transportation, recreation, and development. In order to determine whether it is appropriate for our agency to certify that this proposed rule would not have a significant economic impact on a substantial number of small entities, we considered each industry or category individually. In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement. Critical habitat designation will not affect activities that do not have any Federal involvement; designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies. In areas where the Chiricahua leopard frog is present, Federal agencies already are required to consult with us under section 7 of the Act on activities they fund, permit, or implement that may affect the species. If we finalize this proposed critical habitat designation, consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process.
In the draft economic analysis, we evaluated the potential economic effects on small entities resulting from implementation of conservation actions related to the proposed designation of critical habitat for the Chiricahua leopard frog. We estimate that up to 171 small entities may be affected by section 7 consultations stemming from this rule. Annualized incremental economic impacts to small businesses range from $254 per year for transportation and residential and commercial development to $8,390 per year for livestock management. Although the analysis did not have access to average annual revenues for small entities in the proposed critical habitat areas, and thus estimated annualized impacts as a percentage of annual revenues could not be determined, it is unlikely that these impacts would be significant. Please refer to the draft economic analysis of the proposed critical habitat designation for a more detailed discussion of potential economic impacts.
In summary, we have considered whether the proposed designation would result in a significant economic impact on a substantial number of small entities. Information for this analysis was gathered from the Small Business Administration, stakeholders, and the Service. Estimated incremental costs that may be borne by small entities consist of additional administrative costs for livestock management, water management, transportation, and development activities, but it is unlikely that these impacts would be significant. For the above reasons and based on currently available information, we certify that, if promulgated, the proposed critical habitat designation would not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required.
Pursuant to Executive Order No. 13211, “Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use,” issued May 18, 2001, Federal agencies must prepare and submit a “Statement of Energy Effects” for all “significant energy actions.” The purpose of this requirement is to ensure that all Federal agencies “appropriately weigh and consider the effects of the Federal Government's regulations on the supply, distribution, and use of energy.” The Office of Management and Budget provides guidance for implementing this Executive Order, outlining nine outcomes that may constitute “a significant adverse effect” when compared with the regulatory action under consideration (Memorandum For Heads of Executive Department Agencies, and Independent Regulatory Agencies, Guidance For Implementing E.O. 13211, M-01-27, Office of Management and Budget, July 13, 2001,
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
(1) This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.”
The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments.
(2) We do not believe that this rule will significantly or uniquely affect small governments. Therefore, a Small Government Agency Plan is not required. However, we will further evaluate this issue as we complete our final economic analysis, and review and revise this assessment as appropriate.
In accordance with E.O. 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for the Chiricahua leopard frog in a takings implications assessment. Critical habitat designation does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to allow actions that do require Federal funding or permits to go forward. The takings implications assessment concludes that this proposed designation of critical habitat does not pose significant takings implications for lands within or affected by the designation. However, we will further evaluate this issue as we complete our final economic analysis, and review and revise this assessment as appropriate.
It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses as defined by NEPA (42 U.S.C. 4321
The primary authors of this notice are the staff members of the Arizona Ecological Services Field Office, Southwest Region, U.S. Fish and Wildlife Service.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we propose to further amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as proposed to be amended at 76 FR 14126, March 15, 2011, as follows:
1. The authority citation for part 17 continues to read as follows:
16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. In § 17.95, amend paragraph (d) by adding an entry for “Chiricahua leopard frog (
(d)
(2) The primary constituent elements of critical habitat for the Chiricahua leopard frog are:
(i) Aquatic breeding habitat and immediately adjacent uplands exhibiting the following characteristics:
(A) Standing bodies of fresh water (with salinities less than 5 parts per
(B) Emergent and or submerged vegetation, root masses, undercut banks, fractured rock substrates, or some combination thereof, but emergent vegetation does not completely cover the surface of water bodies.
(C) Nonnative predators (
(D) Absence of chytridiomycosis, or if present, then environmental, physiological, and genetic conditions are such that allow persistence of Chiricahua leopard frogs.
(E) Upland areas that provide opportunities for foraging and basking that are immediately adjacent to or surrounding breeding aquatic and riparian habitat.
(ii) Dispersal and nonbreeding habitat, consisting of areas with ephemeral (present for only a short time), intermittent, or perennial water that are generally not suitable for breeding, and associated upland or riparian habitat that provides corridors (overland movement or along wetted drainages) for frogs among breeding sites in a metapopulation with the following characteristics:
(A) Are not more than 1.0 mile (1.6 kilometers) overland, 3.0 miles (4.8 kilometers) along ephemeral or intermittent drainages, 5.0 miles (8.0 kilometers) along perennial drainages, or some combination thereof not to exceed 5.0 miles (8.0 kilometers).
(B) In overland and nonwetted corridors, provides some vegetation cover or structural features (
(C) Are free of barriers that block movement by Chiricahua leopard frogs, including, but not limited to, urban, industrial, or agricultural development; reservoirs that are 50 acres (20 hectares) or more in size and contain predatory nonnative fishes, bullfrogs, or crayfish; highways that do not include frog fencing and culverts; and walls, major dams, or other structures that physically block movement.
(5)
(46) Unit 41: Kerr Canyon, Catron County, New Mexico.
(i) From Kerr Spring (33.900561 N, 108.664732 W) downstream in unnamed drainage in Kerr Canyon to Kerr Canyon Pond (33.649088 N, 108.517011 W), a distance of approximately 0.98 drainage miles (1.58 km).
(ii)
(47) Unit 42: West Fork Gila River, Catron County, New Mexico.
(i) From Turkeyfeather Spring (33.337486 N, 108.528607 W) downstream in Turkeyfeather Creek to its confluence with West Fork Gila River (33.32593 N, 108.517011 W); then downstream and southeast in West Fork Gila River to its confluence with White Creek (33.3274675 N, 108.4925 W), a distance of approximately 6.97 drainage miles (11.22 km).
(ii)
(48) Unit 43: South Fork Palomas Creek, Sierra County, New Mexico.
(i) From the confluence of an unnamed tributary in Wagonbed Canyon and South Fork Palomas Creek (33.164592 N, 107.723155 S), downstream in South Fork Palomas Creek to, but not including, Avilas Well (33.162567 N, 107.661564 S), and including a galvanized tank and a dirt tank at Circle Seven Well (33.169617 N, 107.684648 W) and an overland segment from Circle Seven Well (33.169617 N, 107.684648 W) to South Fork Palomas Creek (107.685045 N, 33.1688196 W), a distance of approximately 4.5 drainage miles (7.3 km) and 0.75 overland miles (1.21 km).
(ii)
Fish and Wildlife Service, Interior.
Proposed rule; extension of comment period.
We, the U.S. Fish and Wildlife Service (Service), announce the extension of the public comment period on the proposed rule to amend the regulations that implement the Endangered Species Act (Act) by removing inter-subspecific crossed or generic tigers (
We will consider comments received on or before October 21, 2011.
You may submit comments by one of the following methods:
We will not accept e-mails or faxes. We will post all comments on
Timothy J. Van Norman, Chief, Branch of Permits, Division of Management Authority, U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive, Suite 212, Arlington, VA 22203; telephone 703-358-21040; fax 703-358-2281. If you use a telecommunications devise for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.
On August 22, 2011, we published a proposed rule (76 FR 52297) to amend the Captive-bred Wildlife (CBW) regulations that implement the Act by removing inter-subspecific crossed or generic tiger (
The comment period was opened for 30 days from August 22, 2011, to September 21, 2011. We have received several requests to extend the comment period in order to give all interested parties an increased opportunity to fully research this issue and provide more substantial comments. Accordingly, we are extending the comment period by 30 days. Our August 22, 2011, proposed rule (79 FR 52297) specifies the information that we seek from the public. If you submitted comments previously, you do not need to resubmit them because we have already incorporated them into the public record and will fully consider them in preparation of the final rule.
You may submit your comments and materials concerning this proposed rule by one of the methods listed in
We will post your entire comment—including your personal identifying information—on
Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on
16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS proposes to implement management actions described in a regulatory amendment to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP) prepared by the Gulf of Mexico Fishery Management Council (Council). If
Written comments must be received on or before October 6, 2011.
You may submit comments on the proposed rule identified by “NOAA-NMFS-2011-0199” by any of the following methods:
•
•
To submit comments through the Federal e-Rulemaking Portal:
Comments through means not specified in this rule will not be accepted.
Electronic copies of the regulatory amendment, which includes an environmental assessment and a regulatory impact review, may be obtained from the Southeast Regional Office Web Site at
Peter Hood, Southeast Regional Office, NMFS,
The reef fish fishery of the Gulf of Mexico is managed under the FMP. The FMP was prepared by the Council and is implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801
The Magnuson-Stevens Act requires NMFS and regional fishery management councils to prevent overfishing and achieve, on a continuing basis, the OY from federally-managed fish stocks. These mandates are intended to ensure fishery resources are managed for the greatest overall benefit to the Nation, particularly with respect to providing food production and recreational opportunities, and protecting marine ecosystems. To further this goal, the Magnuson-Stevens Act requires fishery managers to end overfishing of stocks while achieving OY from the fishery, and to minimize bycatch and bycatch mortality to the extent practicable.
Red grouper was declared overfished and placed under a rebuilding plan in 2004. A 2007 Southeast Data, Assessment, and Review (SEDAR) stock assessment determined that overfishing had ended and stock biomass had increased to near its OY spawning stock biomass. With this update in stock status, new regulations were implemented in 2009 (74 FR 17603, April 16, 2009) through Amendment 30B to the FMP, that increased the commercial red grouper quota from 5.31 million lb (2.41 million kg) to 5.75 million lb (2.61 million kg) and increased the red grouper bag limit from one fish to two fish (within the four-fish grouper aggregate bag limit).
The 2007 SEDAR red grouper assessment was updated in 2009. The assessment update indicated that the stock continues to be neither overfished nor undergoing overfishing. However, the assessment update indicated the stock had declined since 2005. A large part of the decline was attributed to an episodic mortality event in 2005 (most likely associated with red tide) that resulted in an approximate 20 percent mortality of the red grouper stock, in addition to mortalities resulting from fishing and other natural causes. As a result of the findings of the assessment update, the Council's Scientific and Statistical Committee (SSC) recommended an acceptable biological catch (ABC) level of 6.31 million lb (2.86 million kg). This amount is equal to 85 percent of the yield at F
The 2009 assessment update was rerun in late 2010 to incorporate new information on red grouper harvest. Specifically, the assessment used revised estimates of historical discards in the commercial sector based on newly available observer data from the years 2006-2008 and updated projections taking into account the reduction in the commercial size limit from 20 inches to 18 inches. Given these changes, the rerun resulted in a slightly improved estimate of the stock status for the last year of the assessment (2008) and indicated the TAC in the near term could be substantially increased. After reviewing the rerun of the assessment update, the SSC recommended that the overfishing limit for red grouper be set at 8.10 million lb (3.67 million kg) (the equilibrium yield at F
At the request of the Council, NMFS ran a new projection in 2011 that incorporated revised 2010 landings. Actual landings from 2010 were lower than projected, likely due to new longline restrictions implemented through Amendment 31 to the FMP (75 FR 21512, April 26, 2010) and disruptions in the fishery associated with the Deepwater Horizon oil spill that occurred in April 2010. The yield streams from this rerun showed that TAC could be increased in 2011. Because many commercial red grouper
The current red grouper TAC of 5.68 million lb (3.43 million kg) was implemented in 2010 through a 2010 red grouper regulatory amendment (75 FR 74656, December 1, 2010). The TAC proposed for 2011 through the 2011 red grouper regulatory amendment is 6.88 million lb (3.12 million kg). Subsequent increases in TAC from 2012 to 2015 would be 7.07 million lb (3.21 million kg) for 2012, 7.27 million lb (3.30 million kg) for 2013, 7.41 (3.36 million kg) for 2014, and 7.52 million lb (3.41 million kg) for 2015 and subsequent fishing years.
The recreational and commercial allocations for red grouper included in the 2011 red grouper regulatory amendment are proposed to remain consistent with those established in Amendment 30B to the FMP. Therefore, 76 percent of the TAC would be allocated to the commercial sector and 24 percent of the TAC would be allocated to the recreational sector.
Based on the current commercial and recreational allocations, the TAC would be implemented through this rule by increasing the commercial quota in 2011 for Gulf red grouper from 4.32 million lb (1.96 million kg) to 5.23 million lb (2.82 million kg). The rule would also set the commercial quotas for 2012 to 2015 at 5.37 million lb (2.37 million kg) for 2012, 5.53 million lb (2.44 million kg) for 2013, 5.63 million lb (2.51 million kg) for 2014, and 5.72 million lb (2.59 million kg) for 2015 and subsequent fishing years. However, these increases in the red grouper commercial quota are contingent on the TAC not being exceeded in the previous fishing year (regardless of which sector is responsible for any overage). The increase in the 2011 red grouper quota by 0.91 million lb (0.41 million kg) would, therefore, increase the 2011 combined SWG quota by 0.91 million lb (0.41 million kg) to 6.07 million lb (2.75 million kg). Increases in the red grouper quotas from 2012 to 2015 would increase the SWG quota to 6.21 million lb (2.82 million kg) for 2012, 6.37 million lb (2.89 million kg) for 2013, 6.47 million lb (2.93 million kg) for 2014, and 6.56 million lb (2.98 million kg) for 2015 and subsequent fishing years. Increases in the SWG quota would be contingent on the red grouper TAC or gag TAC not being exceeded in the previous fishing year.
The proposed increase in the TAC would also increase the recreational allocation. For 2011, the increase in the recreational allocation would be from 1.36 million lb (0.62 million kg) to 1.65 million lb (0.75 million kg). The recreational allocation for 2012 to 2015 would be 1.70 million lb (0.78 million kg) for 2012, 1.74 million lb (0.79 million kg) for 2013, 1.78 million lb (0.81 million kg) for 2014, and 1.80 million lb (0.82 million kg) for 2015 and subsequent fishing years. However, recreational management measures have held the annual recreational harvest to approximately 1 million lb (0.45 million kg) since 2006, well below the recreational allocation of the TAC. Therefore, relaxing the recreational management measures is warranted to allow the recreational sector to harvest its allocation.
Based on a bag limit analysis conducted for Amendment 30B to the FMP, the proposed bag limit increase from two to four fish could result in a 13.2 percent increase in recreational harvest. This increase is less than the proposed increase in the recreational allocation (approximately 18 percent), and so should not result in the recreational sector exceeding its catch target or annual catch limit, particularly for 2011. As stated elsewhere, there is a great deal of uncertainty in estimating increased catch levels. These estimates of catch levels for increased bag limits are uncertain because of a lack of recent catch data at higher bag limits. Consequently, it is not considered prudent to further relax restrictions and further increase harvest beyond the estimated 13.2 percent. Because accountability measures cannot currently be implemented through a framework action, the 2011 red grouper regulatory amendment does not contain revisions to the red grouper accountability measures; however, proposed measures in Amendment 32 to the FMP would add an accountability measure for the recreational sector for this bag limit increase. If the recreational ACL were exceeded, the proposed measure would reduce the bag limit in the subsequent year by one fish (with a two-fish bag limit as the lowest bag limit allowable under this accountability measure).
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the regulatory amendment, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The factual basis for this determination is as follows.
The purposes of the regulatory amendment are to establish the red grouper total allowable catch, and thus the red grouper commercial quota and recreational allocation, and to set the red grouper recreational bag limit consistent with the goals and objectives of the Council's red grouper rebuilding plan and the mandates of the Magnuson-Stevens Act. The objective of this specific rule is to support rebuilding of the red grouper resource in the Gulf of Mexico and to allow harvest of that resource at optimum yield. The Magnuson-Stevens Act provides the statutory basis for this proposed rule. The management measures contained in this proposed rule are described in the preamble of this rule and are not repeated here.
This rule is expected to directly affect commercial fishing vessels whose owners possess commercial red grouper fishing quota shares. The Small Business Administration (SBA) has established size criteria for all major industry sectors in the U.S. including fish harvesters. A business involved in fish harvesting is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $4.0 million (NAICS code 114111, finfish fishing) for all its affiliated operations worldwide.
As of October 1, 2009, 970 entities owned a valid commercial Gulf reef fish permit and thus were eligible for initial shares and allocation in the grouper/tilefish IFQ program. Of these 970 entities, 908 entities initially received shares and allocation of grouper or tilefish in 2010. More importantly, with respect to the proposed action, 815 entities specifically received red
Of the 815 entities that initially received red grouper shares, 191 were not commercially fishing in 2008 or 2009 and thus had no commercial fishing revenue during these years. On average, these 191 entities received an initial allocation of 6,459 lb (2,936 kg) of red grouper in 2010. Eight of these 191 entities also received a bottom longline endorsement in 2010. These 8 entities received a much higher initial allocation of red grouper in 2010, with an average of approximately 44,000 lb (20,000 kg). The other 624 entities that received red grouper shares and initial allocations in 2010 were active in commercial fisheries in 2008 or 2009. These 624 entities are expected to be most affected by the proposed action to increase the red grouper commercial quota.
Of the 624 commercial fishing vessels with commercial landings in 2008 or 2009, 126 vessels did not have any red grouper landings in 2008 or 2009. Their average annual gross revenue in these 2 years was approximately $55,800 (2008 dollars). The vast majority of these vessels' commercial fishing revenue is from a combination of landings of snapper, mackerel, dolphin, and wahoo. However, as described in the regulatory amendment, in 2009, they did become relatively more dependent on landings of highly migratory species (HMS) species and relatively less dependent on landings of deep-water grouper species. On average, in 2010, these vessels received an initial allocation of 2,524 lb (1,147 kg) of red grouper quota. Five of these vessels also received a bottom longline endorsement in 2010.
The remaining 498 commercially active fishing vessels did have landings of red grouper in 2008 or 2009. Their average annual gross revenue from commercial fishing was approximately $66,000 (2008 dollars) between the 2 years. On average, these vessels had 9,425 lb (4,284 kg) and 6,734 lb (3,061 kg) of red grouper landings in 2008 and 2009 respectively, or 8,053 lb (3,660 kg) between the 2 years. Red grouper landings accounted for approximately 35 percent of these vessels' annual average gross revenue, and thus they are relatively dependent on revenue from red grouper landings. These vessels' average initial red grouper allocation in 2010 was 8,404 lb (3,820 kg). Therefore, on average, their 2008 and 2009 red grouper landings are very near their 2010 red grouper allocation, though their red grouper landings differed considerably between 2008 and 2009.
Of these 498 vessels, 49 vessels also received a bottom longline endorsement in 2010. These particular vessels' average annual revenue was approximately $156,000 (2008 dollars) in 2008 and 2009. Revenue from red grouper landings decreased from approximately $104,000 to $65,000 in 2009. Nonetheless, these vessels remain highly dependent on revenue from red grouper landings, which averaged approximately 36,000 lb (13,364 kg) in 2008 and 23,000 lb (10,455 kg) in 2009. Their average initial 2010 allocation of red grouper was approximately 42,000 lb (19,091 kg), and thus their recent years' harvests have been within that 2010 average allocation, particularly in 2009.
The maximum annual commercial fishing revenue in 2008 or 2009 by an individual vessel whose owner possessed red grouper fishing quota shares was approximately $606,000 (2008 dollars). Based on this figure, all commercial fishing vessels expected to be directly affected by this rule are determined for the purpose of this analysis to be small business entities.
As a result of the expected increase in commercial red grouper harvests due to the increase in the commercial red grouper quota, this rule would be expected to increase commercial ex-vessel revenue by approximately $2.76 million from 2011 through 2015, or approximately $551,268 annually, relative to the status quo. Thus, the expected annual increase in each affected entity's annual ex-vessel revenue is estimated to be approximately $676. As a result, no reduction in profits for a substantial number of small entities would be expected.
No duplicative, overlapping, or conflicting Federal rules have been identified. This proposed rule would not establish any new reporting, record-keeping, or other compliance requirements.
This rule would not be expected to significantly reduce the profits of any small entities. Because this rule, if implemented, is not expected to have significant economic impact on any small entities, an initial regulatory flexibility analysis is not required and none has been prepared.
Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping requirements, Virgin Islands.
For the reasons set out in the preamble, 50 CFR part 622 is proposed to be amended as follows:
1. The authority citation for part 622 continues to read as follows:
16 U.S.C. 1801
2. In § 622.39, the first sentence in paragraph (b)(1)(ii) is revised to read as follows:
(b) * * *
(1) * * *
(ii) Groupers, combined, excluding goliath grouper and Nassau grouper—4 per person per day, but not to exceed 1 speckled hind or 1 warsaw grouper per vessel per day, or 2 gag per person per day. * * *
3. In § 622.42, two sentences are added after the first sentence in the introductory paragraph and paragraphs (a)(1)(iii)(A) and (C) are revised to read as follows:
(a) * * * Annual quota increases are contingent on the total allowable catch for the applicable species not being exceeded in the previous fishing year. If the total allowable catch is exceeded in the previous fishing year, the RA will file a notification with the Office of the Federal Register to maintain the quota for the applicable species from the previous fishing year for following fishing years, unless the best scientific information available determines maintaining the quota from the previous year is unnecessary. * * *
(1) * * *
(iii) * * *
(A)
(
(
(
(
(C)
(
(
(
(
Forest Service, USDA.
Notice; request for comment.
In accordance with the Paperwork Reduction Act of 1995, the Forest Service is seeking comments from all interested individuals and organizations on the extension (with contact revision) of a currently approved information collection, Qualified Products List for Long-Term Retardant For Wildland Firefighting.
Comments must be received in writing on or before November 21, 2011 to be assured of consideration. Comments received after that date will be considered to the extent practicable.
Comments concerning this notice should be addressed to Victoria Henderson, Branch Director, Equipment and Chemicals, U. S. Forest Service, National Interagency Fire Center, 3833 S. Development Avenue, Boise, ID 83705.
Comments also may be submitted via facsimile to 208-387-5398 or by e-mail to:
The public may inspect comments received at the National Interagency Fire Center (NIFC), Jack Wilson Building, Boise, Idaho, Monday through Friday between 10 a.m. and 3 p.m. Visitors are encouraged to call ahead to 208-387-5348 to facilitate entry to the building.
Cecilia Johnson, Missoula Technology and Development Center (MTDC), 406-329-4819; Shirley Zylstra (MTDC), 406-329-4859; or Tory Henderson, NIFC, 208-387-5348. Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Relay Service (FRS) at 1-800-877-8339 twenty-four hours a day, every day of the year, including holidays.
To initiate an evaluation, product manufacturers (or authorized suppliers) enter into an agreement with the Forest Service and pay all costs associated with the submission and evaluation of the product.
Once the agreement is in place and funds are deposited to cover the associated costs, the manufacturer submits the following information to WFCS:
1. List of the specific ingredients and quantity used to prepare the product;
2. Identification of the source of supply for each ingredient;
3. Copies of the Material Safety Data Sheet (MSDS) for the product and for each ingredient used to prepare the product; and
4. Specific mixing requirements and performance information.
Review of the submitted information assures that the product does not contain ingredients meeting the criteria for Chemicals of Concern, for example. by appearing on one or more of the following lists:
1. Agency list of unacceptable ingredients;
2. National Toxicology Program (NTP) “Annual Report on Carcinogens”;
3. International Agency for Research on Cancer (IARC) Monographs for Potential Carcinogens; and
4. Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) “List of Extremely Hazardous Substances and Their Threshold Planning Quantities”.
A risk assessment, performed at manufacturer expense, may be required. When a risk assessment is necessary, a third party selected by the Agency assesses the products and levels of ingredients found in typical applications relative to human and environmental impact.
Each product submitted is tested to determine the mammalian and aquatic toxicity of the product and must meet specific levels of performance to minimize potential risk during firefighting operations.
Additional tests are performed to determine the effectiveness of the product to reduce spread rate and intensity of the fire even after the water in the product has evaporated.
A number of product characteristics are measured over the operational performance range of the product to ensure that the product meets the needs of the firefighters in the field.
The collection of this information for each product submission is necessary due to the length of time needed to test the product (18 to 24 months) and need to ensure that products are safe and effective prior to purchase and use.
This information collection and the product evaluation must be conducted on an on-going basis to ensure the Agency can solicit and award contracts in a timely manner to provide firefighters with safe and effective wildland fire chemical products.
Comment is invited on: (1) Whether this collection of information is appropriate for the stated purposes and the proper performance of the functions of the Agency, including whether the information will have practical or scientific utility; (2) the accuracy of the Agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used; (3) 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 the use of automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
All comments received in response to this notice, including names and addresses when provided, will be a matter of public record. Comments will be summarized and included in the submission request toward Office of Management and Budget approval.
Forest Service, USDA.
Notice; request for comment.
In accordance with the Paperwork Reduction Act of 1995, the Forest Service is seeking comments from all interested individuals and organizations on the extension (without revision) of a currently approved information collection, Qualified Products List for Class A Foams for Wildland Firefighting.
Comments must be received in writing on or before November 21, 2011 to be assured of consideration. Comments received after that date will be considered to the extent practicable.
Comments concerning this notice should be addressed to Victoria Henderson, Branch Director, Equipment and Chemicals, U.S. Forest Service, National Interagency Fire Center, 3833 S. Development Avenue, Boise, Idaho 83705.
Comments also may be submitted via facsimile to 208-387-5398 or by e-mail to:
The public may inspect comments received at the National Interagency Fire Center (NIFC), Jack Wilson Building, Boise, Idaho, Monday through Friday between 10 a.m. to 3 p.m. Visitors are encouraged to call ahead to 208-387-5348 to facilitate entry to the building.
Cecilia Johnson, Missoula Technology and Development Center (MTDC), 406-329-4819, Shirley Zylstra (MTDC), 406-329-4859, or Tory Henderson, NIFC, 208-387-5348. Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Relay Service (FRS) at 1-800-877-8339 twenty-four hours a day, every day of the year, including holidays.
1. List of the specific ingredients and quantity used to prepare the product,
2. Identification of the source of supply for each ingredient,
3. Copies of the Material Safety Data Sheet (MSDS) for the product and for each ingredient used to prepare the product, and
4. Specific mixing requirements and performance information.
Review of the submitted information assures that the product does not contain ingredients meeting the criteria for Chemicals of Concern,
Agency list of unacceptable ingredients.
National Toxicology Program (NTP) “Annual Report on Carcinogens.”
International Agency for Research on Cancer (IARC) Monographs for Potential Carcinogens.
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) “List of Extremely Hazardous Substances and Their Threshold Planning Quantities.”
A risk assessment, performed at the manufacturer expense, may be required. When a risk assessment is necessary, a third party selected by the Agency assesses the products and levels of ingredients found in typical applications relative to human and environmental impact. Each product submitted is tested to determine the mammalian and aquatic toxicity of the product and must meet specific levels of performance to minimize potential risk during firefighting operations.
Additional tests are performed to determine the effectiveness of the product to reduce spread rate and intensity of the fire by application directly on or near the fire. A number of product characteristics are measured over the operational performance range of the product to ensure that the product meets the needs of the firefighters in the field. The collection of this information for each product submission is necessary due to the length of time needed to test the product (18 to 24 months) and need to ensure that products are safe and effective prior to purchase and use. This information collection and the product evaluation must be conducted on an on-going basis to ensure the Agency can solicit and award contracts in a timely manner to provide firefighters with safe and effective wildland fire chemical products.
All comments received in response to this notice, including names and addresses when provided, will be a matter of public record. Comments will be summarized and included in the submission request toward Office of Management and Budget approval.
Forest Service, USDA.
Notice; request for comment.
In accordance with the Paperwork Reduction Act of 1995, the Forest Service is seeking comments from all interested individuals and organizations on the extension with no revision of a currently approved information collection, Qualified Products List for Water Enhancers (Gels) for Wildland Firefighting.
Comments must be received in writing on or before November 21, 2011 to be assured of consideration. Comments received after that date will be considered to the extent practicable.
Comments concerning this notice should be addressed to Victoria Henderson, Branch Director, Equipment and Chemicals, U.S. Forest Service, National Interagency Fire Center, 3833 S. Development Avenue, Boise, ID 83705.
Comments also may be submitted via facsimile to 208-387-5398 or by e-mail to:
The public may inspect comments received at the National Interagency Fire Center (NIFC), Jack Wilson Building, in Boise, Idaho, Monday through Friday between 10 a.m. to 3 p.m. Visitors are encouraged to call ahead to 208-387-5348 to facilitate entry to the building.
Cecilia Johnson, Missoula Technology and Development Center (MTDC), 406-329-4819, Shirley Zylstra (MTDC), 406-329-4859, or Tory Henderson, NIFC, 208-387-5348. Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Relay Service (FRS) at 1-800-877-8339 twenty-four hours a day, every day of the year, including holidays.
1.
To initiate an evaluation, product manufacturers (or authorized suppliers) enter into an agreement with the Forest Service and pay all costs associated with the submission and evaluation of the product.
Once the agreement is in place and funds are deposited to cover the associated costs, the manufacturer submits the following information to WFCS:
1. List of the specific ingredients and quantity used to prepare the product,
2. Identification of the source of supply for each ingredient,
3. Copies of the Material Safety Data Sheet (MSDS) for the product and for each ingredient used to prepare the product, and
4. Specific mixing requirements and performance information.
Review of the submitted information assures that the product does not contain ingredients meeting the criteria for Chemicals of Concern, for example by appearing on one or more of the following lists:
• Agency list of unacceptable ingredients.
• National Toxicology Program (NTP) “Annual Report on Carcinogens”.
• International Agency for Research on Cancer (IARC) Monographs for Potential Carcinogens.
• Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) “List of Extremely Hazardous Substances and Their Threshold Planning Quantities”.
A risk assessment, performed at manufacturer expense, may be required. When a risk assessment is necessary, a third party selected by the Agency assesses the products and levels of ingredients found in typical applications relative to human and environmental impact.
Each product submitted is tested to determine the mammalian and aquatic toxicity of the product and must meet specific levels of performance to minimize potential risk during firefighting operations.
Additional tests are performed to determine the effectiveness of the product to reduce spread rate and intensity of the fire by application directly on or near the fire.
A number of product characteristics are measured over the operational performance range of the product to ensure that the product meets the needs of the firefighters in the field.
The collection of this information for each product submission is necessary due to the length of time needed to test the product (18 to 24 months) and need to ensure that products are safe and effective prior to purchase and use.
This information collection and the product evaluation must be conducted on an on-going basis to ensure the Agency can solicit and award contracts in a timely manner to provide firefighters with safe and effective wildland fire chemical products.
Comment is invited on: (1) Whether this collection of information is necessary for the stated purposes and the proper performance of the functions of the Agency, including whether the information will have practical or scientific utility; (2) the accuracy of the Agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used; (3) 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 the use of automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
All comments received in response to this notice, including names and addresses when provided, will be a matter of public record. Comments will be summarized and included in the submission request toward Office of Management and Budget approval.
Rural Utilities Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended), the Rural Utilities Service, an agency of the United States Department of Agriculture (USDA), invites comments on this information collection for which approval from the Office of Management and Budget (OMB) will be requested.
Comments on this notice must be received by November 21, 2011.
Michele Brooks, Director, Program Development and Regulatory Analysis, USDA-Rural Utilities Service, 1400 Independence Ave., SW., STOP 1522, Room 5818 South Building, Washington, DC 20250-1522. Telephone: (202) 690-1078. Fax: (202) 720-3485. E-mail:
The Office of Management and Budget's (OMB) regulation (5 CFR part 1320) implementing provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13) requires that interested members of the public and affected agencies have an opportunity to comment on information collection and recordkeeping activities [see 5 CFR 1320.8(d)]. This notice identifies an information collection that will be submitted to OMB for approval.
• Appropriate standards and specifications are maintained;
• The Agency loan security is not adversely affected; and
• Loan and loan guarantee funds are used effectively and for the intended purpose.
Standardization of forms by the Agency results in substantial savings to:
• Borrowers—If standard forms were not used, borrowers would need to prepare their own documents at significant expense; and
• Government—If standard forms were not used, each document submitted by a borrower would require extensive and costly review by both the Agency and the Office of General Counsel.
Copies of this information collection can be obtained from Joyce McNeil, Program Development and Regulatory Analysis, at (202) 720-0812.
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Bureau of Industry and Security, Commerce.
Notice of inquiry.
The purpose of this notice is to advise the public that the National Defense Stockpile Market Impact Committee (MIC), co-chaired by the Departments of Commerce and State, is seeking public comments on the potential market impact of the proposed disposal levels of materials for the Fiscal Year (FY) 2013 Annual Materials Plan. The role of the MIC is to advise the National Defense Stockpile Manager on the projected domestic and foreign economic effects of all acquisitions and disposals of materials from the stockpile. Public comments are an important element of the Committee's market impact review process.
To be considered, written comments must be received by October 21, 2011.
Address all comments concerning this notice to Michael Vaccaro, U.S. Department of Commerce, Bureau of Industry and Security, Office of Strategic Industries and Economic Security, 1401 Constitution Avenue, NW., Room 3876, Washington, DC 20230, fax: (202) 482-5650 (Attn: Michael Vaccaro), e-mail:
Liam McMenamin, Office of Strategic Industries and Economic Security, Bureau of Industry and Security, U.S. Department of Commerce, Telephone: (202) 482-2233.
Under the authority of the Strategic and Critical Materials Stock Piling Act of 1979, as amended (50 U.S.C. 98,
The Committee is comprised of representatives from the Departments of Commerce, State, Agriculture, Defense, Energy, Interior, the Treasury, and Homeland Security, and is co-chaired by the Departments of Commerce and State. The FY 1993 NDAA directs the Committee to consult with industry representatives that produce, process, or consume the types of materials stored in the stockpile.
In Attachment 1, the Defense Logistics Agency (DLA) lists the proposed quantities for the FY 2013 Annual Materials Plan. The Committee is seeking public comments on the potential market impact of the sale of these materials as enumerated. Public comments are an important element of the Committee's market impact review process.
The quantities listed in Attachment 1 are not disposal or sales target quantities, but rather a statement of the proposed maximum disposal quantity of each listed material that may be sold in a particular fiscal year by the DLA as noted. The quantity of each material that will actually be offered for sale will depend on the market for the material at the time of the offering as well as on the quantity of each material approved for disposal by Congress.
The Committee requests that interested parties provide written comments, supporting data and documentation, and any other relevant information on the potential market impact of the sale of these commodities. All comments must be submitted to the address indicated in this notice. All comments submitted through e-mail must include the phrase “Market Impact Committee Notice of Inquiry” in the subject line.
The Committee encourages interested persons who wish to comment to do so at the earliest possible time. The period for submission of comments will close on October 21, 2011. The Committee will consider all comments received before the close of the comment period. Comments received after the end of the comment period will be considered, if possible, but their consideration cannot be assured.
All comments submitted in response to this notice will be made a matter of public record and will be available for public inspection and copying. Anyone submitting business confidential information should clearly identify the business confidential portion of the submission and also provide a non-confidential submission that can be placed in the public record. The Committee will seek to protect such information to the extent permitted by law.
The Office of Administration, Bureau of Industry and Security, U.S. Department of Commerce, displays public comments on the BIS Freedom of Information Act (FOIA) Web site at
International Trade Administration, Department of Commerce.
The Department of Commerce (Department) is soliciting applications for an allocation of the 2012 tariff rate quotas on certain worsted wool fabric to persons who cut and sew men's and boys' worsted wool suits, suit-type jackets and trousers in the United States.
The Department hereby solicits applications from persons (including firms, corporations, or other legal entities) who cut and sew men's and boys' worsted wool suits and suit-like jackets and trousers in the United States for an allocation of the 2012 tariff rate quotas on certain worsted wool fabric. Interested persons must submit an application on the form provided to the address listed below by October 21, 2011. The Department will cause to be published in the
To be considered, applications must be received or postmarked by 5 p.m. on October 21, 2011.
Applications must be submitted to Office of Textiles and Apparel, Room 3001, United States Department of Commerce, Washington, DC 20230 (
Robert Carrigg, Office of Textiles and Apparel, U.S. Department of Commerce, (202) 482-2573.
Title V of the Trade and Development Act of 2000 (the Act) created two tariff rate quotas (TRQs), providing for temporary reductions in the import duties on limited quantities of two categories of worsted wool fabrics suitable for use in making suits, suit-type jackets, or trousers: (1) For worsted wool fabric with average fiber diameters greater than 18.5 microns (Harmonized Tariff Schedule of the United States (HTS) heading 9902.51.11); and (2) for worsted wool fabric with average fiber diameters of 18.5 microns or less (HTS heading 9902.51.12). On August 6, 2002, President Bush signed into law the Trade Act of 2002, which includes several amendments to Title V of the Act. On December 3, 2004, the Act was further amended pursuant to the Miscellaneous Trade Act of 2004, Public Law 108-429, by increasing the TRQ for worsted wool fabric with average fiber diameters greater than 18.5 microns, HTS 9902.51.11, to an annual total level of 5.5 million square meters, and extending it through 2007, and increasing the TRQ for average fiber diameters of 18.5 microns or less, HTS 9902.51.15 (previously 9902.51.12), to an annual total level of 5 million square meters and extending it through 2006. On August 17, 2006 the Act was further amended pursuant to the Pension Protection Act of 2006, Public Law 109-280, which extended both TRQs, 9902.51.11 and 9902.51.15, through 2009. The Senate-passed Emergency Economic Stabilization Act of 2008 extending the TRQ for both HTS through 2014.
The Act requires that the TRQs be allocated to persons who cut and sew men's and boys' worsted wool suits, suit-type jackets and trousers in the United States. On October 24, 2005, the Department adopted final regulations establishing procedures for allocating the TRQ.
Department of Commerce, International Trade Administration.
The Department of Commerce (Department) is soliciting applications for an allocation of the 2012 tariff rate quotas on certain worsted wool fabric to persons who weave such fabrics in the United States.
The Department hereby solicits applications from persons (including firms, corporations, or other legal entities) who weave worsted wool fabrics in the United States for an allocation of the 2012 tariff rate quotas on certain worsted wool fabric. Interested persons must submit an application on the form provided to the address listed below by October 21, 2011. The Department will cause to be published in the
To be considered, applications must be received or postmarked by 5 p.m. on October 21, 2011.
Applications must be submitted to the Office of Textiles and Apparel, Room 3001, United States Department of Commerce, Washington, DC 20230 (
Robert Carrigg, Office of Textiles and Apparel, U.S. Department of Commerce, (202) 482-2573.
Title V of the Trade and Development Act of 2000 (the Act) created two tariff rate quotas (TRQs), providing for temporary reductions in the import duties on limited quantities of two categories of worsted wool fabrics suitable for use in making suits, suit-type jackets, or trousers: (1) For worsted wool fabric with average fiber diameters greater than 18.5 microns (Harmonized Tariff Schedule of the United States
On October 24, 2005, the Department adopted final regulations establishing procedures for allocating the TRQ.
International Trade Administration, Department of Commerce.
Notice and request for comments.
The International Trade Administration invites submission of comments from the public and relevant industries on influenza surveillance and response, including implementation of the World Health Organization Pandemic Influenza Preparedness Framework (
Written comments must be submitted on or before October 21, 2011. Comments should be no more than 15 pages. Business-confidential information should be clearly identified as such.
You may submit comments by any of the following methods:
For questions on the submission of comments, please contact Jane Earley by phone at (202) 482-6241 or Andrea Cornwell at (202) 482-0998.
Written comments are sought in light of the approval of the World Health Organization (WHO) Pandemic Influenza Preparedness Framework by WHO Member States at the World Health Assembly and the need for the U.S. Government to participate in discussions and activities to plan for future pandemics. The facts and information obtained from written submissions will be used to inform the participation of the United States Department of Commerce in the interagency process to prepare for United States participation in international pandemic preparedness discussions and activities, following the May 2011 approval of the WHO Pandemic Influenza Preparedness Framework. The written submissions will be shared with other interested U.S. Government agencies, as needed, during the interagency process.
This agency previously requested comments on international pandemic influenza preparedness via the
The Department of Commerce invites comments from civil society organizations as well as pharmaceutical and medical technology industries and other interested members of the public on a number of issues regarding pandemic influenza preparedness and response.
The Department of Commerce invites written submissions on the following topics:
1.
2.
3.
4.
Upon receipt of the written submission, representatives from the Department of Commerce will consider them and share them, as needed, with other interested U.S. Government agencies and departments. Entities making submissions may be contacted for further information or explanation and, in some cases, meetings with individual submitters may be requested.
U.S. Department of Commerce, National Institute of
Request for Information.
The U.S. Department of Commerce and U.S. Department of Homeland Security are requesting information on the requirements of, and possible approaches to creating, a voluntary industry code of conduct to address the detection, notification and mitigation of botnets.
Comments are due on or before 5 p.m. EDT, November 4, 2011.
Written comments may be submitted by mail to the National Institute of Standards and Technology at the U.S. Department of Commerce, 1401 Constitution Avenue, NW., Room 4822, Washington, DC 20230. Submissions may be in any of the following formats: HTML, ASCII, Word, rtf, or pdf. Online submissions in electronic form may be sent to
Jon Boyens, National Institute of Standards and Technology, 100 Bureau Drive, Mail Stop 8930, Gaithersburg, MD 20899,
The U.S. Department of Commerce (Commerce) recently issued a “Green Paper”
The U.S. Department of Homeland Security (DHS) has played an essential role in building cybersecurity educational programs for consumers. DHS's educational programs emphasize that every Internet consumer has a role to play in securing cyberspace and in ensuring the safety of ourselves, our families, and our communities online. DHS has a variety of outreach programs; most notable from a consumer perspective are the National Cybersecurity Awareness Month and Campaign. Each October DHS hosts events to encourage consumers to follow a few simple steps to keep themselves safe online. The Awareness Campaign “Stop. Think. Connect.” is a year-round program that helps consumers become more aware of growing threats and arms them with tools to protect themselves.
While security risks on the Internet exist in many areas, one current widely exploited threat comes from `botnets.' Through this Request for Information and any follow-on work, the two Departments aim to reduce the harm that botnets inflict on the nation's computing environment.
To build a botnet, intruders exploit security flaws in the hardware and/or software used by individual consumers, and they install malicious software that connects the consumer's computer into a remotely controlled network of many computers. Once compromised, the owners of these computers are put at risk. Criminals have the ability to access personal information stored on the computer and communications made with the computer. Criminals can exploit this information for identity theft, privacy violations, and other crimes, as well as utilize the impacted users' computing power and Internet access. Networks of these compromised computers are often used to disseminate spam, store and transfer illegal content, and attack the servers of government and private entities with distributed denial of service attacks. Researchers suggest an average of about 4 million new botnet infections occur every month.
The Departments are concerned about the potential economic impact of botnets and the problems they cause to computer systems, businesses, and consumers. To address these problems, it is necessary to stop botnets from propagating and to remove or mitigate the malicious software (malware) where installed. Companies and consumers may be able to voluntarily address some of these issues, but to fully address the problem, they will need to work together to clean and better protect computers. This will require voluntary efforts on many fronts, including better standards and procedures to secure systems.
One strategy that security experts suggest has been successful in stemming the tide of botnets has been for private sector entities to voluntarily and timely detect and notify end-users that their machines have been infected. This voluntary notification has mostly, though not always, come from the user's Internet Service Provider (ISP), which has contact information for the end-user and a pre-existing relationship. Once a service provider has detected a likely end-user security problem, it can inform the Internet user of the steps the user can take to address the problem. For example, last year in Australia, the Internet Industry Association in conjunction with the Minister for Broadband, Communications and the Digital Economy launched a voluntary code of practice for Australian ISPs to ensure consistent notification and remediation of consumer computer problems created by botnets. Once notified of a botnet infection, the consumer is sent to a website with information to help clean up his or her
To promote voluntary best practices in botnet detection, notification and mitigation, one suggestion has been to provide companies that take action with certain types of liability protection in order to foster greater marketplace certainty. Another suggestion is to encourage ISPs to send consumer support queries to a centralized consumer resource center that could be supported by a wide number of players.
There are many different ways that such a resource center could be created, including some that help encourage innovation in preventative security models and/or directly aid consumers in cleaning their machines. Below are three very broad scenarios proposed to help focus comment on possible voluntary approaches:
A.
B.
C.
The questions below are to assist in framing the issues and should not be construed as a limitation on comments. The Departments invite comment on the full range of issues that may be presented by this Request for Information. Comments that contain references, studies, research and other empirical data that are not widely published should include copies of the referenced materials with the submitted comments.
(1) What existing practices are most effective in helping to identify and mitigate botnet infections? Where have these practices been effective? Please provide specific details as to why or why not.
(2) What preventative measures are most effective in stopping botnet infections before they happen? Where have these practices been effective? Please provide specific details as to why or why not.
(3) Are there benefits to developing and standardizing these practices for companies and consumers through some kind of code of conduct or otherwise? If so, why and how? If not, why not?
(4) Please identify existing practices that could be implemented more broadly to help prevent and mitigate botnet infections.
(5) What existing mechanisms could be effective in sharing information about botnets that would help prevent, detect, and mitigate botnet infections?
(6) What new and existing data can ISPs and other network defense players share to improve botnet mitigation and situational awareness? What are the roadblocks to sharing this data?
(7) Upon discovering that a consumer's computer or device is likely infected by a botnet, should an ISP or other private entity be encouraged to contact the consumer to offer online support services for the prevention and mitigation of botnets? If so, how could support services be made available? If not, why not?
(8) What should customer support in this context look like (
(9) Describe scalable measures parties have taken against botnets. Which scalable measures have the most impact in combating botnets? What evidence is available or necessary to measure the impact against botnets? What are the
(10) When identifying botnets, how can those engaged in voluntary efforts use methods, processes and tools that maintain the privacy of consumers' personally identifiable information?
(11) How can organizations best avoid “false positives” in the detection of botnets (
(12) To date, many efforts have focused on the role of ISPs in detecting and notifying consumers about botnets. It has been suggested that other entities beyond ISPs (such as operating system vendors, search engines, security software vendors,
(13) What baselines are available to understand the spread and negative impact of botnets and related malware? How can it be determined if practices to curb botnet infections are making a difference?
(14) What means of notification would be most effective from an end-user perspective?
(15) Should notices, and/or the process by which they are delivered, be standardized? If so, by whom? Will this assist in ensuring end-user trust of the notification? Will it prevent fraudulent notifications?
(16) For those companies that currently offer mitigation services, how do different pricing strategies affect consumer response? Are free services generally effective in both cleaning computers and preventing re-infection? Are fee-based services more attractive to certain customer segments?
(17) What impact would a consumer resource center, such as one of those described above, have on value-added security services? Could offers for value-added services be included in a notification? If not, why not? If so, why and how? Also, how can fraudulent offers be prevented in this context?
(18) Once a botnet infection has been identified and the end-user does not respond to notification or follow up on mitigating measures, what other steps should the private sector consider? What type of consent should the provider obtain from the end-user? Who should be responsible for considering and determining further steps?
(19) Are private entities declining to act to prevent or mitigate botnets because of concerns that, for example, they may be liable to customers who are not notified? If so, how can those concerns be addressed?
(20) Countries such as Japan, Germany, and Australia have developed various best practices, codes of conduct, and mitigation techniques to help consumers. Have these efforts been effective? What lessons can be learned from these and related efforts?
(21) Are there best practices in place, or proposed practices, to measure the effectiveness of notice and educational messages to consumers on botnet infection and remediation?
(22) Should companies have liability protections for notifying consumers that their devices have been infected by botnets? If so, why and what protections would be most effective in incentivizing notification? If not, why not? Are there other liability issues that should be examined?
(23) What is the state-of-practice with respect to helping end-users clean up their devices after a botnet infection? Are the approaches effective, or do end-users quickly get re-infected?
(24) What agreements with end-users may need modification to support a voluntary code of conduct?
(25) Of the consumer resource scenarios described above, which would be most effective at providing incentives for entities to participate? Are there other reasons to consider one of these approaches over the others?
(26) If a private sector approach were taken, would a new entity be necessary to run this project? Who should take leadership roles? Are the positive incentives involved (cost savings, revenue opportunity,
(27) If a public/private partnership approach were taken, what would be an appropriate governance model? What stakeholders should be active participants in such a voluntary program? What government agencies should participate? How could government agencies best contribute resources in such a partnership?
(28) If a government-run approach were taken, what government agencies should play leading roles?
(29) Are there other approaches aside from the three scenarios suggested above that could be used to create a consumer resource and to incentivize detection, notification, and mitigation of botnets?
(30) Are there other positive incentives that do not involve creation of an organized consumer resource that could encourage voluntary market-based action in detection, notification, and mitigation of botnets?
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of applications.
Notice is hereby given that NMFS has received twelve applications applying in due form for permits to take Atlantic sturgeon (
Written, telefaxed, or e-mail comments must be received on or before October 21, 2011.
The application and related documents are available for review by selecting “Records Open for Public Comment” from the
These documents are also available upon written request or by appointment in the offices listed in
Written comments on this application should be submitted to the Chief, Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705,
• By e-mail to
• By facsimile to (301) 713-0376, or
• At the address listed above.
Those individuals requesting a public hearing should submit a written request to the Chief, Permits and Conservation Division at the address listed above. The request should set forth the specific reasons why a hearing on this application would be appropriate.
Malcolm Mohead or Colette Cairns, (301) 427-8401.
The subject permits are requested under the authority of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531
Each of the twelve applications is summarized below. For specific take numbers of each research project, please refer to the associated application.
Gail Wippelhauser, PhD, [File No. 16526] of the Maine Department of Marine Resources, 21 State House Station, Augusta, ME 04333, requests a five year permit to determine the movement patterns and rate of exchange between coastal river systems in Maine, characterize the population structure and generate estimates of population abundance. Researchers would capture adult, juvenile, and early life stage Atlantic sturgeon. Individuals would be measured, weighed, photographed, PIT tagged, Floy/T-bar tagged, tissue sampled, boroscoped, apical spine sampled, blood sampled, anesthetized, fin ray sectioned, and be implanted with an acoustic telemetry tag.
Tom Savoy [File No. 16323] of the Connecticut Department of Environmental Protection, Marine Fisheries, P.O. Box 719, Old Lyme, CT 06371, requests a five year permit to monitor Atlantic sturgeon populations to determine behavior, movement and current status of the species in Connecticut waters. Adult and juvenile Atlantic sturgeon would be measured, weighed, photographed, PIT and Floy/T-bar tagged, genetic tissue sampled, anesthetized and have a fin ray clipped for ageing analysis, and a subset would be implanted with an internal sonic tag to assess movement patterns.
Kathryn Hattala [File No. 16436] of New York State Department of Environmental Conservation, 21 South Putt Corners Road, New Paltz, NY 12561, requests a five year permit to research Atlantic sturgeon in the Hudson River estuary, specifically to assess abundance of juveniles, characterize the adult spawning stock, and generate population estimates. Captured Atlantic sturgeon would be measured, weighed, PIT and dart tagged, tissue sampled, implanted with an external telemetry tag, anesthetized and gastric lavaged.
Stony Brook University (Keith Dunton, Responsible Party) [File No. 16422], School of Marine and Atmospheric Sciences, Stony Brook, NY 11794-5000, requests a five year permit to research Atlantic sturgeon in the marine and estuarine waters of Connecticut, New York, New Jersey, and Delaware. To characterize Atlantic sturgeon aggregations, Atlantic sturgeon would be captured, measured, weighed, Carlin/Dart tagged, PIT tagged, anesthetized, fin ray sampled, and genetic tissue sampled. Some sturgeon would additionally be implanted internally with a satellite tag, and others would be fitted with an external pop-up satellite tag. A subset of fish would be gastric lavaged, blood sampled and gill biopsied.
Hal Brundage [File No. 16438] of Environmental Research and Consulting, Inc., 126 Bancroft Road, Kennett Square, PA 19348, requests a five year permit to study juvenile Atlantic sturgeon abundance, distribution, movement, habitat preferences and biology in the Delaware River and Bay. The applicant would capture, measure, weigh, photograph, PIT and Floy tag, genetic tissue sample juvenile Atlantic sturgeon. A subset would be selected and be anesthetized, gastric lavaged, blood sampled, and implanted an internal sonic tag. Early life stage fish would also be lethally sampled.
Matthew Fisher [File No. 16431] of the Delaware Division of Fish and Wildlife, 4876 Hay Point Landing Road, Smyrna, DE 19977, requests a five year permit to sample juvenile Atlantic sturgeon in the Delaware River to locate nursery habitat, characterize population ecology and habitat use. Fish would be captured using gill nets, measured, weighed, photographed, PIT and Floy tagged, tissue sampled, anesthetized, gastric lavaged, and implanted with an internal sonic tag.
Dewayne Fox, PhD, [File No. 16507] of Delaware State University, 1200 North DuPont Highway, Dover, DE 19901, requests a five year permit to sample Atlantic and shortnose sturgeon in the Delaware River and Bay, as well as in the coastal waters of Delaware. The objectives of this research are to provide more detailed information on the spawning location of Atlantic sturgeon and to develop a fishery independent sampling program to help assess recovery of the species. The applicant would use gill nets to capture adult and juvenile Atlantic sturgeon and egg mats to capture larval fish. Adult and juvenile Atlantic sturgeon would be measured, weighed, photographed, PIT and Floy tagged, and tissue sampled; a subset would be anesthetized, implanted with an internal sonic tag and gonad tissue sampled.
Albert Spells of U.S. Fish and Wildlife Service, 11110 Kimages Road, Charles City, VA 23030 (Responsible Party) [File No. 16547] requests a five year permit in conjunction with other investigators in Maryland and Virginia to study Atlantic sturgeon in the Chesapeake Bay and its tributaries. Adult and juvenile Atlantic sturgeon would be captured using gill nets, trawls, fyke nets, trammel nets, and pound nets, and larval fish would be collected using egg mats. Adult and juvenile fish would be measured, weighed, tissue sampled, PIT and Floy tagged, and a subset of fish would have an external satellite tag attached.
Joe Hightower, PhD, [File No. 16375] of North Carolina State University, Campus Box 7617, Raleigh, NC 27695-7617, requests a five-year permit to determine the presence, abundance, and distribution of Atlantic sturgeon in North Carolina rivers and estuaries. The applicant would use gill nets to capture adult and juvenile Atlantic sturgeon. Captured fish would be measured, weighed, photographed, PIT tagged, Floy tagged, tissue sampled, and a sub-set would be implanted with an internal sonic tag.
Bill Post, [File No. 16442] of the South Carolina Department of Natural Resources, 217 Fort Johnson Road, Charleston, SC 29412, requests a five year permit to conduct scientific research on Atlantic sturgeon in the rivers and estuaries of South Carolina. Adult and juvenile Atlantic sturgeon would be captured using gill nets, and measured, weighed, photographed, PIT and dart tagged, tissue sampled, and a sub-set would be implanted with an internal satellite tag. Young of the year fish would be captured using trawls, and measured and weighed; larval fish would be collected with egg mats. This research would contribute to knowledge about Atlantic sturgeon coastal migrations and riverine movement patterns and information on the status of the species.
Doug Peterson, PhD, [File No. 16482] of the University of Georgia Warnell School of Forestry and Natural
Kenneth Sulak, PhD, [File No. 16508] of the U.S. Geological Survey, Florida Integrated Science Center, 7920 NW., 71st Street, Gainesville, FL 32653, requests a five year permit to identify and track Atlantic sturgeon in Florida and Georgia rivers. Adult and juvenile Atlantic sturgeon would be captured using a combination of side-scan sonar and gill nets. Captured individuals would be measured, weighed, photographed, PIT and Floy tagged, tissue sampled, and have an external satellite tag attached.
Documents may be reviewed in the following locations:
Northeast Region, NMFS, 55 Great Republic Drive, Gloucester, MA 01930; phone (978) 281-9328; fax (978) 281-9394; and
Southeast Region, NMFS, 263 13th Avenue South, Saint Petersburg, Florida 33701; phone (727) 824-5312; fax (727) 824-5309.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of application.
Notice is hereby given that Gail Wippelhauser, Maine Department of Marine Resources, 21 State House Station, Augusta, ME 04333, has applied in due form for a permit to take shortnose sturgeon for purposes of scientific research.
Written, telefaxed, or e-mail comments must be received on or before October 21, 2011.
The application and related documents are available for review by selecting “Records Open for Public Comment” from the
These documents are also available upon written request or by appointment in the following offices:
Written comments on this application should be submitted to the Chief, Permits and Conservation Division
• By e-mail to
• By facsimile to (301) 713-0376, or
• At the address listed above.
Those individuals requesting a public hearing should submit a written request to the Chief, Permits, Conservation and Education Division at the address listed above. The request should set forth the specific reasons why a hearing on this application would be appropriate.
Colette Cairns or Malcolm Mohead, (301) 427-8401.
The subject permit is requested under the authority of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531
The applicant proposes to collect information on shortnose sturgeon life history in the Gulf of Maine, including movement, natal river origin, and other vital population parameters. The proposed research would take place in the waters of the Gulf of Maine, the Penobscot, Kennebec, and Saco Rivers in Maine, the Merrimack River in Massachusetts, and other small coastal rivers of Maine and New Hampshire. Adult and juvenile shortnose sturgeon would be collected using gill nets, trammel nets, beach seines and trawls. Shortnose sturgeon eggs would be lethally collected using egg mats or D-frame nets. All adult and juvenile shortnose sturgeon would be measured, weighed, passive integrated transponder (PIT) tagged, Floy/T-bar tagged, tissue sampled, boroscoped, photographed, and released. Depending on the research objective to be met, several subsets of captured shortnose sturgeon would be assigned different take activities. One subset of the sturgeon from each river would additionally be fitted with either an internal or external satellite tag; another subset would have an apical spine or scute removed; a third subset would be blood sampled; a fourth subset would undergo gastric lavage; a fifth subset would have a fin ray section removed; and a final subset of ten adult/juvenile fish would be fitted with an internal/external acoustic tag with trailing antennae. As required for the specific procedure, fish would be anesthetized using tricaine methanesulfonate (MS-222) or electronarcosis. The proposed research would provide managers with a more comprehensive understanding of the population dynamics of shortnose sturgeon in the Gulf of Maine and aid in the management of this protected species. The permit would be valid for five years from the date of issuance.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of application.
Notice is hereby given that NMFS Southwest Fisheries Science Center (SWFSC), 3333 N. Torrey Pines Ct., La Jolla, CA 92037, [Responsible Party: Lisa Ballance, Ph.D.], has applied in due form for a permit to take leatherback sea turtles (
Written, telefaxed, or e-mail comments must be received on or before October 21, 2011.
The application and related documents are available for review by
These documents are also available upon written request or by appointment in the following offices:
Permits, Conservation and Education Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427-8401; fax (301) 713-0376;
Northwest Region, NMFS, 7600 Sand Point Way NE, BIN C15700, Bldg. 1, Seattle, WA 98115-0700; phone (206) 526-6150; fax (206) 526-6426; and
Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213; phone (562) 980-4001; fax (562) 980-4018.
Written comments on this application should be submitted to the Chief, Permits, Conservation and Education Division
• By e-mail to
• By facsimile to (301)713-0376, or
• At the address listed above.
Those individuals requesting a public hearing should submit a written request to the Chief, Permits, Conservation and Education Division at the address listed above. The request should set forth the specific reasons why a hearing on this application would be appropriate.
Amy Hapeman or Colette Cairns, (301) 427-8401.
The subject permit is requested under the authority of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531
The SWFSC proposes to conduct research on leatherback sea turtles to continue long-term monitoring of their status off the coasts of California, Oregon, and Washington. This purpose of the work is to identify critical forage habitats, genetic stock structure, migratory corridors, and potential fishery impacts for leatherbacks. Up to 55 sea turtles would be located annually through aerial surveys and subsequently approached from a research vessel for remote tissue sampling and attachment of a suction-cup transmitter. After tag attachment a subset of the animals would be captured by breakaway hoopnet for additional research procedures before release: measure; weigh; flipper and passive integrated transponder tag; ultrasound; tissue, blood, cloacal swab and fat sample; opportunistically sample feces and stomach contents; photograph/video; insertion of a stomach pill; transmitter attachment via suction-cup and drilling through the medial ridge; and/or oxytetracline injection. The permit would be valid for 5 years from the date of issuance.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of permit.
Notice is hereby given that Blank Park Zoo [Kevin V. Drees, Responsible Party], 7401 SW Ninth, Des Moines, IA 50315 has been issued a permit to import up to five non-releasable California sea lions (
The permit and related documents are available for review upon written request or by appointment in the following offices:
Permits, Conservation and Education Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427-8401; fax (301) 713-0376; and
Southeast Region, NMFS, 263 13th Avenue South, Saint Petersburg, Florida 33701; phone (727) 824-5312; fax (727) 824-5309.
Laura Morse or Jennifer Skidmore, (301) 427-8401.
On June 24, 2011, notice was published in the
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting of the North Pacific Fishery Management Council's (Council) Pacific Northwest Crab Industry Advisory Committee.
The Pacific Northwest Crab Industry Advisory Committee will meet October 13, 2011 at the Leif Erickson Hall in Ballard, WA. In Alaska, listening sites for the meeting will be located at the Unalaska City Hall and in Kodiak listening site to be announced.
The meeting will be held on October 13, 2011.
The meeting will be held at the Leif Erickson Hall, 2245 NW 57th Street, Seattle, WA 98107 (in Ballard).
Diana Stram, Council staff;
Agenda—Alaska Department of Fish & Game/NMFS scientists from Alaska will be presenting the information on these
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Gail Bendixen at (907) 271-2809 at least 7 working days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; proposed incidental harassment authorization; request for comments.
NMFS received an application from Apache Alaska Corporation (Apache) for an Incidental Harassment Authorization (IHA) to take marine mammals, by harassment, incidental to a proposed 3D seismic survey in Cook Inlet, Alaska, between November 2011 and November 2012. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS requests comments on its proposal to issue an IHA to Apache to take, by Level B harassment only, five species of marine mammals during the specified activity.
Comments and information must be received no later than October 21, 2011.
Comments on the application should be addressed to Michael Payne, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910. The mailbox address for providing e-mail comments is
A copy of the application used in this document may be obtained by writing to the address specified above, telephoning the contact listed below (see
Brian D. Hopper, Office of Protected Resources, NMFS, (301) 427-8401.
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
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.”
Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the U.S. can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny the authorization.
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as:
NMFS received an application on June 15, 2011, from Apache for the taking, by harassment, of marine mammals incidental to a 3D seismic survey program in Cook Inlet, Alaska. After addressing comments from NMFS, Apache modified its application and submitted a revised application on July 19, 2011. The July 19, 2011, application is the one available for public comment (see
The proposed 3D seismic surveys would employ the use of two source vessels. Each source vessel will be equipped with compressors and 2400 in
Apache intends to conduct offshore/transition (intertidal) zone marine surveys during November and December 2011 and March 2012. Nearshore areas adjacent to uplands and offshore areas will be acquired in open water periods
In 2010, Apache acquired over 300,000 acres of oil and gas leases in Cook Inlet with the primary objective to explore for and develop oil fields. In the spring of 2011, Apache conducted a seismic test program to evaluate the feasibility of using new nodal (
The proposed operations will be performed from multiple vessels. Apache will employ the use of two source vessels. Each source vessel will be equipped with compressors and 2400 in
The actual survey duration to acquire ~829 km
Seismic surveys are designed to collect bathymetric and sub-seafloor data that allow the evaluation of potential shallow faults, gas zones, and archeological features at prospective exploration drilling locations. Data are typically collected using multiple types of acoustic equipment. During the surveys, Apache proposes to use the following in-water acoustic sources: two 2400 in
The 2400 in
These instruments will be operated during survey operations to determine the exact position of the nodes after they have been placed on the seafloor. One device, the Scout Ultra-Short Baseline Transceiver, operates at frequencies between 33 and 55 kHz with a source level of 188 dB re 1 μPa at 1 m. The other device, an LR Ultra-Short Baseline Transponder, operates at a frequency of 35-50 kHz at a source level of 185 dB re 1 μPa at 1 m. With respect to these two sources, Apache provided and NMFS will rely on the distances to the Level B harassment thresholds estimated for the “louder” of the two; therefore, assuming a simple spreading loss of 20 log R (where R is radius), with a source level of 188 dB the distance to the 190, 180, and 160 dB isopleths would be 1, 3, and 25 m, respectively. Another technique for locating the nodes in deeper water is called Ocean Bottom Receiver Location, which uses a small volume air gun (10 in
The onshore areas will be surveyed using explosives as the sound source. Seismic surveys on land use “shot holes” that are drilled every 50 m along source lines and are oriented perpendicular to the receiver lines and parallel to the coast. At each source location, Apache will drill to the prescribed hole depth of approximately 10 m and load it with 4 kg of explosives. The hole is then capped with a “smart cap” that makes it impossible to detonate the explosive without the proper detonator. During the 2D test program conducted in March 2011, Apache deployed acoustic recorders to measure underwater sound produced by land-based explosives; however, the resulting measurements were inconclusive and Apache has proposed a sound source verification study to characterize the underwater received sound levels and determine if marine mammal monitoring will be required for future onshore operations.
Apache successfully measured the sounds produced by the air guns and pingers during the 2D test program conducted in March 2011 and found levels to be consistent with the modeled mitigation threshold levels (180 dB for cetaceans, 190 dB for pinnipeds); therefore, except for the measurements of in-water sound produced by detonations of explosives on shore, a sound source verification study will not be included in the proposed 3D seismic survey.
The marine mammal species under NMFS's jurisdiction that could occur near operations in Cook Inlet include three cetacean species: beluga whale (
The Cook Inlet beluga whale and western population of Steller sea lion are listed as “endangered” under the Endangered Species Act (ESA) and as depleted under the MMPA. The site of the proposed survey is within designated critical habitat for Cook Inlet beluga whales.
Apache's application contains information on the status, distribution, seasonal distribution, and abundance of each of the species under NMFS jurisdiction mentioned in this document. Please refer to the application for that information (see
Operating active acoustic sources, such as air gun arrays, has the potential for adverse effects on marine mammals.
The effects of sounds from air gun pulses might include one or more of the following: tolerance, masking of natural sounds, behavioral disturbance, and temporary or permanent hearing impairment or non-auditory effects (Richardson
Numerous studies have shown that pulsed sounds from air guns are often readily detectable in the water at distances of many kilometers. Numerous studies have also shown that marine mammals at distances more than a few kilometers from operating survey vessels often show no apparent response. That is often true even in cases when the pulsed sounds must be readily audible to the animals based on measured received levels and the hearing sensitivity of that mammal group. Although various toothed whales, and (less frequently) pinnipeds have been shown to react behaviorally to air gun pulses under some conditions, at other times, mammals of both types have shown no overt reactions. In general, pinnipeds and
Marine mammals may behaviorally react to sound when exposed to anthropogenic noise. These behavioral reactions are often shown as: changing durations of surfacing and dives, number of blows per surfacing, or moving direction and/or speed; reduced/increased vocal activities; changing/cessation of certain behavioral activities (such as socializing or feeding); visible startle response or aggressive behavior (such as tail/fluke slapping or jaw clapping); avoidance of areas where noise sources are located; and/or flight responses (
The biological significance of many of these behavioral disturbances is difficult to predict, especially if the detected disturbances appear minor. However, the consequences of behavioral modification have the potential to be biologically significant if the change affects growth, survival, and reproduction. Examples of significant behavioral modifications include:
• Drastic change in diving/surfacing patterns (such as those thought to be causing beaked whale stranding due to exposure to military mid-frequency tactical sonar);
• Habitat abandonment due to loss of desirable acoustic environment; and
• Cease feeding or social interaction.
For example, at the Guerreo Negro Lagoon in Baja California, Mexico, which is one of the important breeding grounds for Pacific gray whales, shipping and dredging associated with a salt works may have induced gray whales to abandon the area through most of the 1960s (Bryant
The onset of behavioral disturbance from anthropogenic noise depends on both external factors (characteristics of noise sources and their paths) and the receiving animals (hearing, motivation, experience, demography) and is also difficult to predict (Southall
Currently NMFS uses a received level of 160 dB re 1 μPa for impulse noises (such as air gun pulses) as the onset threshold for marine mammal behavioral harassment.
Chronic exposure to excessive, though not high-intensity, noise could cause masking at particular frequencies for marine mammals that utilize sound for vital biological functions. Masking can interfere with detection of acoustic signals such as communication calls, echolocation sounds, and environmental sounds important to marine mammals. Since marine mammals depend on acoustic cues for vital biological functions, such as orientation, communication, finding prey, and avoiding predators, marine mammals that experience severe acoustic masking (
Masking occurs when noise and signals (that the animal utilizes) overlap at both spectral and temporal scales. For the air gun noise generated from the proposed seismic surveys, noise will consist of low frequency (under 500 Hz) pulses with extremely short durations (less than one second). Lower frequency man-made noises are more likely to affect detection of communication calls and other potentially important natural sounds such as surf and prey noise. There is little concern regarding masking near the noise source due to the brief duration of these pulses and relatively longer silence between air gun shots (approximately 12 seconds). However, at long distances (over tens of kilometers away), due to multipath propagation and reverberation, the durations of air gun pulses can be “stretched” to seconds with long decays (Madsen
This could affect communication signals used by low frequency mysticetes when they occur near the noise band and thus reduce the communication space of animals (
Marine mammals exposed to high intensity sound repeatedly or for prolonged periods can experience hearing threshold shift (TS), which is the loss of hearing sensitivity at certain frequency ranges (Kastak
Experiments on a bottlenose dolphin (
In pinnipeds, TTS thresholds associated with exposure to brief pulses (single or multiple) of underwater sound have not been measured. Initial evidence from prolonged exposures suggested that some pinnipeds may incur TTS at somewhat lower received levels than do small odontocetes exposed for similar durations (Kastak
NMFS (1995, 2000) concluded that cetaceans and pinnipeds should not be exposed to pulsed underwater noise at received levels exceeding 180 and 190 dB re 1 μPa rms, respectively. The
No cases of TTS are expected as a result of Apache's proposed activities given the strong likelihood that marine mammals would avoid the approaching air guns (or vessel) before being exposed to levels high enough for there to be any possibility of TTS, and the mitigation measures proposed to be implemented during the survey described later in this document.
There is no empirical evidence that exposure to pulses of air gun sound can cause PTS in any marine mammal, even with large arrays of air guns (see Southall
Non-auditory physical effects might occur in marine mammals exposed to strong underwater pulsed sound. Possible types of non-auditory physiological effects or injuries that theoretically might occur in mammals close to a strong sound source include stress, neurological effects, bubble formation, and other types of organ or tissue damage. Some marine mammal species (
Therefore, it is unlikely that such effects would occur during Apache's proposed surveys given the brief duration of exposure and the planned monitoring and mitigation measures described later in this document.
Marine mammals close to underwater detonations of high explosive can be killed or severely injured, and the auditory organs are especially susceptible to injury (Ketten
However, in numerous past IHA notices for seismic surveys, commenters have referenced two stranding events allegedly associated with seismic activities, one off Baja California and a second off Brazil. NMFS has addressed this concern several times, and, without new information, does not believe that this issue warrants further discussion. For information relevant to strandings of marine mammals, readers are encouraged to review NMFS' response to comments on this matter found in 69 FR 74905 (December 14, 2004), 71 FR 43112 (July 31, 2006), 71 FR 50027 (August 24, 2006), and 71 FR 49418 (August 23, 2006). In addition, a May-June 2008, stranding of 100-200 melon-headed whales (
It should be noted that strandings related to sound exposure have not been recorded for marine mammal species in Cook Inlet. NMFS notes that beluga whale strandings in Cook Inlet are not uncommon; however, these events often coincide with extreme tidal fluctuations (“spring tides”) or killer whale sightings (Shelden
Active acoustic sources other than the air gun arrays have been proposed for Apache's seismic survey in Cook Inlet. The specifications for this equipment (source levels and frequency ranges) are provided above. In general, the potential effects of this equipment on marine mammals are similar to those from the air gun, except the magnitude of the impacts is expected to be much less due to the lower intensity and higher frequencies. Estimated source levels from these devices are discussed above.
In addition to the noise generated from seismic air guns and active sonar systems, various types of vessels will be used in the operations, including source vessels and the vessel used for placing and retrieving the nodal recording system. Sounds from boats and vessels have been reported extensively (Greene and Moore 1995; Blackwell and Greene 2002; 2005; 2006). Measurements of underwater vessel sound have been performed in upper Cook Inlet. For example, Blackwell and Greene (2002) conducted a survey that measured in-water noise from various sources in Cook Inlet, including a tug boat docking a barge. The highest SPL recorded for the working tug under load was 149 dB re 1 µPa, at a distance of about 90 m, with an extrapolated SPL at 0.9 m of 178.9 dB re 1 µPa. Compared to air gun pulses, underwater sound from vessels is generally at relatively low frequencies.
The primary sources of sounds from all vessel classes are propeller cavitation, propeller singing, and propulsion or other machinery. Propeller cavitation is usually the dominant noise source for vessels (Ross 1976). Propeller cavitation and singing are produced outside the hull, whereas propulsion or other machinery noise originates inside the hull. There are additional sounds produced by vessel activity, such as pumps, generators, flow noise from water passing over the hull, and bubbles breaking in the wake.
The onshore component of the seismic survey involves the underground detonation of explosive devices to acquire seismic data on land. Because underwater sound levels associated with the land-based explosives are currently unknown, Apache proposes to conduct a sound source verification (SSV) study to ensure that marine mammals are not exposed to underwater sound levels that exceed the NMFS injury or harassment thresholds. This study is expected to take two days to complete and a report will be submitted to NMFS prior to making a final determination on whether to issue or deny the IHA. The study will include a robust marine mammal monitoring plan to ensure that marine mammals are not harassed or injured. For example, Apache proposes to conduct visual monitoring using vessel-based and aerial platforms. In addition, the SSV will only take place during daylight hours with good visibility. Following the completion of the study, a SSV report will be submitted to NMFS. The report will describe the operations that were conducted and the marine mammals that were observed. The report will provide full documentation of the methods, results, and interpretations pertaining to all monitoring and will contain information on the need to implement marine mammal monitoring during land-based operations.
The primary potential impacts to marine mammal habitat and other marine species are associated with elevated sound levels produced by airguns and other active acoustic sources. However, other potential impacts to the surrounding habitat from physical disturbance are also possible and are discussed below.
With regard to fish as a prey source for cetaceans and pinnipeds, fish are known to hear and react to sounds and to use sound to communicate (Tavolga
The level of sound at which a fish will react or alter its behavior is usually well above the detection level. Fish have been found to react to sounds when the sound level increased to about 20 dB above the detection level of 120 dB (Ona 1988); however, the response threshold can depend on the time of year and the fish's physiological condition (Engas
Investigations of fish behavior in relation to vessel noise (Olsen
Apache's seismic survey requires the deployment of a submersible recording system in the inter-tidal and marine zones. An autonomous “nodal” (
Based on the preceding discussion, the proposed activity is not expected to have any habitat-related effects that could cause significant or long-term consequences for individual marine mammals or their populations.
In order to issue an incidental take authorization 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 adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses.
For the proposed seismic survey in Cook Inlet, Apache worked with NMFS and proposed the following mitigation measures to minimize the potential impacts to marine mammals in the project vicinity as a result of the survey activities.
For the proposed mitigation measures, Apache listed the following protocols to be implemented during its seismic survey in Cook Inlet.
Apache proposes to conduct both daytime and nighttime operations. Nighttime operations will only be initiated if a mitigation air gun (typically the 10 in
Under current NMFS guidelines, “safety radii” for marine mammal exposure to impulse sources are customarily defined as the distances within which received sound levels are ≥180 dB
The proposed surveys will use an air gun sources composed of two 2400 in
In addition to the marine mammal monitoring radii described above, pursuant to Alaska Department of Fish and Game restrictions, there will be a 1.6 km setback of sound source points from the mouths of any anadromous streams.
Apache also plans to use dedicated vessels to deploy and retrieve the nodal recording system. Sounds produced by the vessels are not expected to exceed 180 dB (rms). Therefore, mitigation related to acoustic impacts from these activities is not expected to be necessary.
An acoustics contractor will perform direct measurements of the received levels of underwater sound versus distance and direction from the detonation of explosives onshore using calibrated hydrophones. The acoustic data will be analyzed as quickly as reasonably practicable in the field and used to determine whether the detonation of explosives onshore exposes marine mammals to underwater sound levels that may result in Level B harassment. The field report will be made available to NMFS prior to the final determination on whether to issue or deny the IHA. If necessary, mitigation measures similar to those proposed for the other sound sources (
If a marine mammal is detected outside the applicable safety radius and, based on its position and the relative motion, is likely to enter the safety radius, changes of the vessel's speed and/or direct course will be considered if this does not compromise operational safety. For marine seismic surveys using large arrays, course alterations are not typically possible. However, for the smaller air gun arrays planned during the proposed site surveys, such changes may be possible. After any such speed and/or course alteration is begun, the marine mammal activities and movements relative to the survey vessel will be closely monitored to ensure that the marine mammal does not approach within the safety radius. If the mammal appears likely to enter the safety radius, further mitigative actions will be taken, including a power down or shut down of the airgun(s).
A power-down for mitigation purposes is the immediate reduction in the number of operating airguns such that the radii of the 190 dB rms and 180 dB rms zones are decreased to the extent that an observed marine mammal(s) are not in the applicable safety zone of the full array. During a power-down, one air gun, typically the 10 in
The array will be immediately powered down whenever a marine mammal is sighted approaching close to or within the applicable safety zone of the full array, but is outside the applicable safety zone of the single mitigation airgun. Likewise, if a mammal is already within the safety zone when first detected, the airguns will be powered down immediately. If a marine mammal is sighted within or about to enter the applicable safety zone of the single mitigation airgun, it too will be shut down (see following section).
Following a power-down, operation of the full airgun array will not resume until the marine mammal has cleared the safety zone. The animal will be considered to have cleared the safety zone if it
• Is visually observed to have left the safety zone of the full array, or
• Has not been seen within the zone for 15 min in the case of pinnipeds or small odontocetes, or
• Has not been seen within the zone for 30 min in the case of large odontocetes.
The operating air gun(s) will be shut down completely if a marine mammal approaches or enters the safety radius and a power-down is not practical or adequate to reduce exposure to less than 190 or 180 dB rms, as appropriate. In most cases, this means the mitigation airgun will be shut down completely if a marine mammal approaches or enters the estimated safety radius around the single 10 in
A ramp up of an air gun array provides a gradual increase in sound levels, and involves a step-wise increase in the number and total volume of air guns firing until the full volume is achieved. The purpose of a ramp-up (or “soft start”) is to “warn” cetaceans and pinnipeds in the vicinity of the air guns and to provide the time for them to leave the area and thus avoid any potential injury or impairment of their hearing abilities.
During the proposed seismic survey, the seismic operator will ramp up the airgun cluster slowly. Full ramp-ups (
A full ramp up, after a shut down, will not begin until there has been a minimum of 30 minutes of observation of the safety zone by PSOs to assure that no marine mammals are present. The entire safety zone must be visible during the 30-minute lead-in to a full ramp up. If the entire safety zone is not visible, then ramp up from a cold start cannot begin. If a marine mammal(s) is sighted within the safety zone during the 30-minute watch prior to ramp up, ramp up will be delayed until the marine mammal(s) is sighted outside of the safety zone or the animal(s) is not sighted for at least 15-30 minutes: 15 minutes for small odontocetes and pinnipeds, or 30 minutes for large odontocetes.
Besides Apache's proposed mitigation measures discussed above, NMFS proposes the following additional protective measures to address some uncertainties regarding the impacts of seismic surveys on beluga whale cow-calf pairs and aggregations of whales. Specifically, NMFS proposes that a 160-dB vessel monitoring zone will be established and monitored in Cook Inlet during all seismic surveys. Whenever an aggregation of beluga whales, killer whales, or harbor porpoises (five or more whales of any age/sex class that appear to be engaged in a non-migratory, significant biological behavior (
Furthermore, NMFS proposes the following measures be included in the IHA, if issued, in order to ensure the least practicable impact on the affected species or stocks:
(1) All vessels should reduce speed when within 300 yards (274 m) of whales, and those vessels capable of steering around such groups should do so. Vessels may not be operated in such a way as to separate members of a group of whales from other members of the group;
(2) Avoid multiple changes in direction and speed when within 300 yards (274 m) of whales; and
(3) When weather conditions require, such as when visibility drops, support vessels must adjust speed (increase or decrease) and direction accordingly to avoid the likelihood of injury to whales.
NMFS has carefully evaluated the applicant's proposed mitigation measures and considered a range of other measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another:
• The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals;
• The proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and
• The practicability of the measure for applicant implementation.
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 of effecting the least practicable impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an ITA 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 ITAs 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.
The monitoring plan proposed by Apache can be found in section 13 of the IHA application. The plan may be modified or supplemented based on comments or new information received from the public during the public comment period. A summary of the primary components of the plan follows.
Vessel-based monitoring for marine mammals will be done by experienced PSOs throughout the period of marine survey activities. PSOs will monitor the occurrence and behavior of marine mammals near the survey vessel during all daylight periods during operation and during most daylight periods when airgun operations are not occurring. PSO duties will include watching for and identifying marine mammals, recording their numbers, distances, and reactions to the survey operations, and documenting “take by harassment” as defined by NMFS.
A sufficient number of PSOs will be required onboard the survey vessel to meet the following criteria: (1) 100 percent monitoring coverage during all periods of survey operations in daylight; (2) maximum of 4 consecutive hours on watch per PSO; and (3) maximum of 12 hours of watch time per day per PSO.
PSO teams will consist of experienced field biologists. An experienced field crew leader will supervise the PSO team onboard the survey vessel. Apache currently plans to have PSOs aboard the three vessels: the two source vessels (
Crew leaders and most other biologists serving as observers will be individuals with experience as observers during seismic surveys in Alaska or other areas in recent years.
The observer(s) will watch for marine mammals from the best available vantage point on the source and support vessels, typically the flying bridge. The observer(s) will scan systematically with the unaided eye and 7 × 50 reticle binoculars. Laser range finders will be available to assist with estimating distance. Personnel on the bridge will assist the observer(s) in watching for marine mammals.
All observations will be recorded in a standardized format. Data will be entered into a custom database using a notebook computer. The accuracy of the data will be verified by computerized validity data checks as the data are entered and by subsequent manual checks of the database. These procedures will allow for initial summaries of the data to be prepared during and shortly after the completion of the field program, and will facilitate transfer of the data to statistical, geographical, or other programs for future processing and achieving. When a mammal sighting is made, the following information about the sighting will be recorded:
(A) Species, group size, age/size/sex categories (if determinable), behavior when first sighted and after initial sighting, heading (if consistent), bearing and distance from the PSO, apparent reaction to activities (
(B) Time, location, speed, activity of the vessel, sea state, ice cover, visibility, and sun glare; and
(C) The positions of other vessel(s) in the vicinity of the PSO location.
The ship's position, speed of support vessels, and water temperature, water depth, sea state, ice cover, visibility, and sun glare will also be recorded at the start and end of each observation watch, every 30 minutes during a watch, and whenever there is a change in any of those variables.
In addition to the vessel-based PSOs, Apache proposes to utilize a shore-based station to visually monitor for marine mammals. The shore-based station will follow all safety procedures, including bear safety. The location of the shore-based station will need to be sufficiently high to observe marine mammals; the PSOs would be equipped with pedestal mounted “big eye” (20 × 110) binoculars. The shore-based PSOs would scan the area prior to, during, and after the air gun operations, and would be in contact with the vessel-based PSOs via radio to communicate sightings of marine mammals approaching or within the project area.
When practicable, Apache proposes to utilize the crew helicopter to conduct aerial surveys near river mouths prior to the commencement of air gun operations in order to identify locations where beluga whales congregate. The helicopter will not be used every day, but will be used when survey operations occur near a river mouth. The types of helicopters currently planned for use by Apache include a Bell 407, Bell UH1B, and ASB3. Weather and scheduling permitting, aerial surveys will fly at an altitude of 305 m (1,000 ft). In the event of a marine mammal sighting, aircraft will attempt to maintain a radial distance of 457 m (1,500 ft) from the marine mammal(s). Aircraft will avoid approaching marine mammals from head-on, flying over or passing the shadow of the aircraft over the marine mammal(s). By following these operational requirements, sound levels underwater are not expected to meet or exceed NMFS harassment thresholds (Richardson
To further enhance detection of cetaceans, Apache proposes to deploy passive acoustic monitoring (PAM) devices during the seismic survey. According to Apache's IHA application, the actual PAM system has not been identified; however, Apache anticipates utilizing the same system that was deployed during the 2D test program in March 2011 in Cook Inlet. Apache expects to deploy two PAM devices that will send real-time acoustic data via digital UHF radio-broadcast systems to the PAM operators aboard the M/V Dreamcatcher. The PAM operators will use specialized real-time detection software and audio playback to detect marine mammal sounds. If the PAM operators detect marine mammals, Apache will initiate a temporary shut-down of the air gun arrays to avoid takes. Following a shut-down, the air guns may be restarted in accordance with the ramp-up procedure described earlier.
A report on the preliminary results of the acoustic verification measurements, including as a minimum the measured 190-, 180-, and 160-dB
During the proposed survey program, the PSOs will prepare a report each day or at such other interval as the IHA (if issued), or Apache may require, summarizing the recent results of the monitoring program. The field reports will summarize the species and numbers of marine mammals sighted. These reports will be provided to NMFS and to the survey operators.
The results of Apache's 2011 monitoring program, including estimates of “take” by harassment, will be presented in the “90-day” and Final Technical reports. The Technical Report will include:
(a) Summaries of monitoring effort (
(b) Analyses of the effects of various factors influencing detectability of marine mammals (
(c) Species composition, occurrence, and distribution of marine mammal sightings, including date, water depth, numbers, age/size/gender categories (if determinable), group sizes, and ice cover;
(d) Analyses of the effects of survey operations;
• Sighting rates of marine mammals during periods with and without seismic survey activities (and other variables that could affect detectability), such as:
• Initial sighting distances versus survey activity state;
• Closest point of approach versus survey activity state;
• Observed behaviors and types of movements versus survey activity state;
• Numbers of sightings/individuals seen versus survey activity state;
• Distribution around the source vessels versus survey activity state; and
• Estimates of take by harassment.
Following the survey season, a comprehensive report describing the vessel-based, shore-based, aerial-based, and acoustic monitoring programs will be prepared. The comprehensive report will describe the methods, results, conclusions and limitations of each of the individual data sets in detail. The report will also integrate (to the extent possible) the studies into a broad based assessment of industry activities, and other activities that occur in Cook Inlet, and their impacts on marine mammals. The report will help to establish long-term data sets that can assist with the evaluation of changes in the Cook Inlet ecosystem. The report will attempt to provide a regional synthesis of available data on industry activity in this part of Alaska that may influence marine mammal density, distribution and behavior.
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 (Level A harassment), serious injury or mortality (
• Time, date, and location (latitude/longitude) of the incident;
• Name and type of vessel involved;
• Vessel's speed during and leading up to the incident;
• Description of the incident;
• Status of all sound source use in the 24 hours preceding the incident;
• Water depth;
• Environmental conditions (
• Description of all marine mammal observations in the 24 hours preceding the incident;
• Species identification or description of the animal(s) involved;
• Fate of the animal(s); and
• Photographs or video footage of the animal(s) (if equipment is available).
In the event that Apache 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 Apache 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 (
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]. Only take by Level B behavioral harassment is anticipated as a result of the proposed marine survey program. Anticipated impacts to marine mammals are associated with noise propagation from the airgun(s) used in the seismic survey; however, Level B harassment may also result from the detonation of explosives onshore if supported by the proposed SSV study.
The full suite of potential impacts to marine mammals was described in detail in the “Potential Effects of the Specified Activity on Marine Mammals” section found earlier in this document. The potential effects of sound from the proposed seismic survey might include one or more of the following: tolerance; masking of natural sounds; behavioral disturbance; non-auditory physical effects; and, at least in theory, temporary or permanent hearing impairment (Richardson
For impulse sounds, such as those produced by airgun(s) used in the seismic survey, NMFS uses the 160 dB
Apache requests authorization to take five marine mammal species by Level B harassment. These five marine mammal species are: Cook Inlet beluga whale (
As stated previously, it is current NMFS policy to estimate take by Level B harassment for impulse sounds at a received level of 160 dB
As described earlier in the document, air gun arrays will be used to obtain geological data during the surveys. For use in estimating potential harassment takes in this application, as well as for mitigation radii to be implemented by PSOs, ranges to the 160 dB
The following subsections describe the estimated densities of marine mammals that may occur in the areas where activities are planned, and areas of water that may be ensonified by pulsed sounds to ≥160 dB.
Marine mammal densities near the planned activities in Cook Inlet were estimated from the annual aerial surveys conducted by NMFS between 2000 and 2010 for Cook Inlet beluga whales (Rugh
Fifteen species of marine mammals are known to occur in Cook Inlet, but only five of these (Cook Inlet beluga whales, killer whales, harbor porpoises, harbor seals, and Steller sea lions) are likely to be encountered during the proposed survey activities in the upper inlet. Two of the five species (Cook Inlet beluga whales and western population of Steller sea lions) are listed as endangered under the ESA.
Two species of pinnipeds may be encountered in Cook Inlet: Harbor seal and Steller sea lion.
This subsection provides estimates of the number of individuals potentially exposed to sound levels ≥160 dB
The number of estimated takes by Level B harassment was calculated using the following assumptions:
• The number of nearshore and shallow water survey days is 10 (20 days/12 hours) and daily acoustic footprint is 356 km
• The number of nearshore and intermediate water depth survey days is 10 (20 days/12 hours) and daily acoustic footprint is 468 km
• The number of nearshore and deep water depth survey days is 10 (20 days/12 hours) and daily acoustic footprint is 455 km
• The number of offshore survey days is 50 (100 days/12 hours) and daily acoustic footprint is 389 km
Table 5 shows the estimated maximum and average takes by species for the first year of seismic surveys in Cook Inlet with the methods and assumptions outlined above. As noted earlier, the use of the NMML aerial survey data has inherent weaknesses that need to be discussed further. For example, the estimated number of takes by Level B harassment of harbor seals is higher than what is anticipated because there are no haul-out sites within the action area. Seals in some numbers are expected to be observed in the Susitna River delta, but not in the large numbers that are observed in lower Cook Inlet. These density estimates are skewed by the numbers observed in large haul outs during aerial surveys. Seals in the water usually travel in small groups or as single individuals; therefore, although Table 5 indicates an average of 102 and maximum of 207 seals exposed to sounds likely to result in Level B harassment, it is highly unlikely that those number of seals will actually be taken during the proposed seismic survey.
Similarly, and for many of the same reasons, the number of actual takes by
The average and maximum take estimates for harbor porpoise and killer whales shown in Table 5 appear to be reasonable based on the NMFS aerial surveys, although the actual number of animals is expected to be low.
The average and maximum estimated number of takes by Level B harassment for Cook Inlet beluga whales away from river mouths is two and five, respectively. Given that beluga are usually transiting from one feeding area to another in lower concentrations, these estimates appear to be reasonable in assessing the probability for potentially observing beluga whales in the action area. However, it is important to note that a combination of visual and acoustic monitoring will be used extensively throughout this project, particularly for sighting beluga whales approaching the area, so the actual number of takes is expected to be lower than these estimates.
The average and maximum estimated number of takes by Level B harassment for Cook Inlet beluga whales near river mouths is 16 and 41 animals, respectively. The total number of days surveying will actually occur near river mouths is much lower than the 160 days used to estimate takes in the different water depths; therefore, this take estimate is likely to be extremely conservative. As a result, due to the actual number of days and hours Apache is likely to be operating air guns near river mouths and taking into account the monitoring and mitigation measures applicable when operating seismic survey equipment near rivers, Apache expects the actual number of takes by Level B harassment estimated for Cook Inlet beluga whales to be much lower than the numbers provided in Table 5.
Cetaceans—Effects on cetaceans are generally expected to be restricted to avoidance of an area around the seismic survey and short-term changes in behavior, falling within the MMPA definition of “Level B harassment”.
Using the 160 dB criterion, the requested take numbers of individual cetaceans exposed to sounds ≥160 dB
Pinnipeds—Two pinniped species may be encountered in the proposed action area, but the harbor seal is likely to be the more abundant species in this area. The number of takes requested for individuals exposed to sounds at received levels ≥160 dB
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.” In making a negligible impact determination, NMFS considers a variety of factors, including but not limited to: (1) The number of anticipated mortalities; (2) the number and nature of anticipated injuries; (3) the number, nature, intensity, and duration of Level B harassment; and (4) the context in which the takes occur.
No injuries or mortalities are anticipated to occur as a result of Apache's proposed seismic survey in Cook Inlet, and none are proposed to be authorized. Additionally, animals in the
Odontocete reactions to seismic energy pulses are usually assumed to be limited to shorter distances from the airgun(s) than are those of mysticetes, probably in part because odontocete low-frequency hearing is assumed to be less sensitive than that of mysticetes. However, at least when in the Canadian Beaufort Sea in summer, belugas appear to be fairly responsive to seismic energy, with few being sighted within 6-12 mi (10-20 km) of seismic vessels during aerial surveys (Miller
Taking into account the mitigation measures that are planned, effects on cetaceans are generally expected to be restricted to avoidance of a limited area around the survey operation and short-term changes in behavior, falling within the MMPA definition of “Level B harassment”.
Furthermore, the estimated numbers of animals potentially exposed to sound levels sufficient to cause appreciable disturbance are very low percentages of the population sizes in Cook Inlet, as described above.
The many reported cases of apparent tolerance by cetaceans of seismic exploration, vessel traffic, and some other human activities show that co-existence is possible. Mitigation measures such as controlled vessel speed, dedicated marine mammal observers, non-pursuit, and shut downs or power downs when marine mammals are seen within defined ranges will further reduce short-term reactions and minimize any effects on hearing sensitivity. In all cases, the effects are expected to be short-term, with no lasting biological consequence.
Some individual pinnipeds may be exposed to sound from the proposed marine surveys more than once during the time frame of the project. However, as discussed previously, due to the constant moving of the survey vessel, the probability of an individual pinniped being exposed to sound multiple times is much lower than if the source is stationary. Therefore, NMFS has preliminarily determined that the exposure of pinnipeds to sounds produced by the proposed seismic survey in Cook Inlet is not expected to result in more than Level B harassment and is anticipated to have no more than a negligible impact on the animals.
Of the five marine mammal species likely to occur in the proposed marine survey area, only Cook Inlet beluga whales and Steller sea lions are listed as endangered under the ESA. These species are also designated as “depleted” under the MMPA. Despite these designations, Cook Inlet beluga whales and the western population of Steller sea lions have not made significant progress towards recovery. The Cook Inlet population of beluga whales has been decreasing at a rate of 1.5 percent annually for nearly a decade (Allen and Angliss 2010). With respect to Steller sea lions, results of aerial surveys conducted in 2008 (Fritz
Potential impacts to marine mammal habitat were discussed previously in this document (see the “Anticipated Effects on Habitat” section). Although some disturbance is possible to food sources of marine mammals, the impacts are anticipated to be minor enough as to not affect rates of recruitment or survival of marine mammals in the area. Based on the size of Cook Inlet where feeding by marine mammals occurs versus the localized area of the marine survey activities, any missed feeding opportunities in the direct project area would be minor based on the fact that other feeding areas exist elsewhere.
The requested takes proposed to be authorized represent 8.5 percent of the Cook Inlet beluga whale population of approximately 355 animals (Allen and Angliss 2010), 0.89 percent of the combined Alaska resident stock and Gulf of Alaska, Aleutian Island and Bering Sea stock of killer whales (1,123 residents and 314 transients), and 0.06 percent of the Gulf of Alaska stock of approximately 31,046 harbor porpoises. The take requests presented for harbor seals represent 0.17 percent of the Gulf of Alaska stock of approximately 29,175 animals. Finally, the requested takes proposed for Steller sea lions represent 0.12 percent of the western stock of approximately 41,197 animals. These estimates represent the percentage of each species or stock that could be taken by Level B behavioral harassment if each animal is taken only once. In addition, the mitigation and monitoring measures (described previously in this document) proposed for inclusion in the IHA (if issued) are expected to reduce even further any potential disturbance to marine mammals.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, NMFS preliminarily finds that Apache's proposed seismic survey in Cook Inlet may result in the incidental take of small numbers of marine mammals, by Level B harassment only, and that the total taking from the marine surveys will have a negligible impact on the affected species or stocks.
Section 101(a)(5)(D) also requires NMFS to determine that the authorization will not have an unmitigable adverse effect on the availability of marine mammal species or stocks for subsistence use. NMFS has defined “unmitigable adverse impact” in 50 CFR 216.103 as:
* * * an impact resulting from the specified activity: (1) That is likely to reduce the availability of the species to a level insufficient for a harvest to meet subsistence needs by: (i) Causing the marine mammals to abandon or avoid hunting areas; (ii) Directly displacing subsistence users; or (iii) Placing physical barriers between the marine mammals and the subsistence hunters; and (2) That cannot be sufficiently mitigated by other measures to increase the availability of marine mammals to allow subsistence needs to be met.
The subsistence harvest of beluga whales transcends the nutritional and economic value attributed to the whale and is an integral part of the cultural identity of the region's Alaska Native
With respect to the proposed action, Apache met with the Cook Inlet Marine Mammal Council (CIMMC)—a group of Native Alaskans with traditional subsistence hunting rights—on March 29, 2011, to discuss the proposed activities and discuss any subsistence concerns. In addition, Apache met with the Tyonek Native Corporation on November 9, 2010 and the Salamatof Native Corporation on November 22, 2010. During these meetings, no concerns were raised regarding potential conflict with subsistence harvest of marine mammals. Apache has identified the following features that are intended to reduce impacts to subsistence users:
• In-water seismic activities will follow mitigation procedures to minimize effects on the behavior of marine mammals and, therefore, opportunities for harvest by Alaska Native communities;
• Regional subsistence representatives may support recording marine mammal observations along with marine mammal biologists during the monitoring programs and will be provided with annual reports; and
• The size of the affected area, mitigation measures, and input from the CIMMC should result in the proposed action having no effect on the availability of marine mammals for subsistence uses.
NMFS anticipates that any harassment to marine mammals, including Cook Inlet beluga whales, would be short-term, site specific, and limited to inconsequential changes in behavior and mild stress responses. NMFS does not anticipate that the authorized taking of affected species or stocks will result in changes in reproduction, survival, or longevity rates, impact population levels, or result in changes in distribution. Therefore, NMFS has preliminarily determined that the proposed regulations will not have an unmitigable adverse impact on the availability of marine mammal stocks for subsistence uses.
There are two marine mammal species listed as endangered under the ESA with confirmed or possible occurrence in the proposed project area: the Cook Inlet beluga whale and Steller sea lion. NMFS' Permits, Conservation and Education Division has initiated consultation with NMFS' Protected Resources Division under section 7 of the ESA on the issuance of an IHA to Apache under section 101(a)(5)(D) of the MMPA for this activity. Consultation will be concluded prior to a determination on the issuance of an IHA.
NMFS is currently preparing an Environmental Assessment, pursuant to NEPA, to determine whether or not this proposed activity may have a significant effect on the human environment. This analysis will be completed prior to the issuance or denial of the IHA.
As a result of these preliminary determinations, NMFS proposes to authorize the take of marine mammals incidental to Apache's seismic survey in Cook Inlet, Alaska, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated.
Department of the Navy, DOD.
Notice.
The following invention is assigned to the United States Government as represented by the Secretary of the Navy and is made available for licensing by the Department of the Navy. U.S. Patent Application Serial Number 13/137521: Bulk HME Precursor Detection Kit.
Requests for copies of the Patent Application cited should be directed to the Naval Surface Warfare Center, Code CAB, 3824 Strauss Avenue, Indian Head, MD 20640-5152.
Dr. J. Scott Deiter, Head, Technology Transfer Office, Naval Surface Warfare Center Indian Head Division, Code CAB, 3824 Strauss Avenue, Indian Head, MD 20640-5152, telephone 301-744-6111.
Department of the Navy, DoD.
Notice.
The Department of the Navy hereby gives notice of its intent to grant American Innovations, Inc. a revocable, nonassignable, partially exclusive license, with exclusive fields of use in entry control points, route clearance, patrolling, site exploitation, cache finds, area surveillance, joint security stations/combat outposts, raids, SPECOPS, K-9 support, training, in the United States to practice the Government-owned invention, U.S. Patent Application Serial Number 13/137521, filed August 24, 2011, entitled “Bulk Homemade Explosives (HME) Precursor Detection Kit.”
Anyone wishing to object to the grant of this license must file written objections along with supporting evidence, if any, not later than October 6, 2011.
Written objections are to be filed with the Indian Head Division, Naval Surface Warfare Center, Code OC4, Bldg. D-31, 3824 Strauss Avenue, Indian Head, MD 20640-5152.
Dr. J. Scott Deiter, Head, Technology
U.S. Department of Education, White House Initiative on Educational Excellence for Hispanics.
Notice of an Open Meeting.
This notice sets forth the schedule and agenda of the second meeting of the President's Advisory Commission on Educational Excellence for Hispanics, which is subject to Congressional approval and passage of the fiscal year 2012 budget. The notice also describes the functions of the Commission. Notice of the meeting is required by section 10(a)(2) of the Federal Advisory Committee Act and intended to notify the public of its opportunity to attend.
Thursday, Oct. 6, 2011, and Friday, Oct. 7, 2011.
The Commission will meet at the Eisenhower Executive Office Building (EEOB), in Washington, District of Columbia. Room 430 A-C, 1600 Pennsylvania Avenue, Washington, DC 20202, 202-401-1411.
Glorimar Maldonado, Chief of Staff, White House Initiative on Educational Excellence for Hispanics, 400 Maryland Ave., SW., Room 4W110, Washington, DC 20202;
The President's Advisory Commission on Educational Excellence for Hispanics (the Commission) is established by Executive Order 13555 (Oct. 19, 2010). The Commission is governed by the provisions of the Federal Advisory Committee Act (FACA), (Pub. L. 92-463; as amended, 5 U.S.C.A., Appendix 2) which sets forth standards for the formation and use of advisory committees. The purpose of the Commission is to advise the President and the Secretary of Education (Secretary) on all matters pertaining to the education attainment of the Hispanic community.
The Commission shall advise the President and the Secretary in the following areas: (i) Developing, implementing, and coordinating educational programs and initiatives at the Department and other agencies to improve educational opportunities and outcomes for Hispanics of all ages; (ii) increasing the participation of the Hispanic community and Hispanic-Serving Institutions in the Department's programs and in education programs at other agencies; (iii) engaging the philanthropic, business, nonprofit, and education communities in a national dialogue regarding the mission and objectives of this order; (iv) establishing partnerships with public, private, philanthropic, and nonprofit stakeholders to meet the mission and policy objectives of this order.
The Commission will continue its discussion from the first meeting, including possible strategies to improve education outcomes for Hispanics.
Individuals who will need accommodations in order to attend the meeting (
Individuals who wish to attend the Commission meetings must RSVP by noon EDT, Friday, Sept. 30, to the White House Initiative staff at 202-453-6347. Due to space limitations, RSVPs are required by the due date. Members of the public must RSVP by the due date.
An opportunity for public comment is available throughout the day on Thursday, Oct. 6, 2011, from 1-5 p.m., and Friday, Oct 7, 2011, from 9 a.m. to 5 p.m. Individuals who wish to provide comments will be allowed three minutes to speak. Those members of the public interested in submitting written comments may do so by submitting them to the attention of Glorimar Maldonado, White House Initiative on Educational Excellence for Hispanics, U.S. Department of Education, 400 Maryland Ave., SW., Room 4W110, Washington, DC 20202, by Wednesday, Oct. 5, 2011. The meeting proceedings will be webcast at
Records are kept of all Commission proceedings and are available for public inspection at the office of the White House Initiative on Educational Excellence for Hispanics, U.S. Department of Education, 400 Maryland Ave., SW., Room 4W108, Washington, DC 20202, Monday through Friday (excluding federal holidays) during the hours of 9 a.m. to 5 p.m.
Electronic Access to the Document: You may view this document, as well as all other documents of this Department published in the
Office of Fossil Energy, DOE.
Notice of application.
The Office of Fossil Energy (FE) of the Department of Energy (DOE) gives notice of receipt of an application (Application), filed on August 8, 2011, by Dominion Cove Point LNG, LP (DCP), requesting blanket authorization to export liquefied natural gas (LNG) that previously had been imported into the United States from foreign sources in an amount up to the equivalent of 150 billion cubic feet (Bcf) of natural gas. The LNG would be exported from the Cove Point LNG Terminal (Cove Point Terminal), owned by DCP, in Calvert County, Maryland, to any country with the capacity to import LNG via ocean-going carrier and with which trade is not prohibited by U.S. law or policy. DCP seeks authorization to act as an agent for others who own title to the LNG who will export the LNG over a two-year period commencing on December 1, 2011. The application was filed under section 3 of the Natural Gas Act (NGA). Protests, motions to intervene, notices of intervention, and written comments are invited.
Protests, motions to intervene or notices of intervention, as applicable, requests for additional procedures, and written comments are to be filed using procedures detailed in Public Comment Procedures below no later than 4:30 p.m., eastern time, October 21, 2011.
Electronic Filing on the Federal eRulemaking Portal under FE Docket No. 11-98-LNG:
Larine Moore or Lisa Tracy, U.S. Department of Energy (FE-34), Office of Natural Gas Regulatory Activities, Office of Fossil Energy, Forrestal Building, Room 3E-042, 1000 Independence Avenue, SW., Washington, DC 20585, (202) 586-9478; (202) 586-4523.
Edward Myers, U.S. Department of Energy, Office of the Assistant General Counsel for Electricity and Fossil Energy, Forrestal Building, Room 6B-159, 1000 Independence Ave., SW., Washington, DC 20585, (202) 586-3397.
DCP is a Delaware limited partnership with its principal place of business in Lusby, Maryland, and offices in Richmond, Virginia. DCP is the current owner of the Cove Point Terminal. DCP is a subsidiary of Dominion Resources, Inc. (DRI), a producer and transporter of energy. DRI is a corporation organized and existing under the laws of the Commonwealth of Virginia with its principal place of business in Richmond, Virginia.
In the instant application, DCP is seeking blanket authorization to export from its Cove Point Terminal LNG that previously had been imported from foreign sources. DCP seeks authorization to export this LNG to any country with the capacity to import LNG via ocean-going carrier and with which trade is not prohibited by U.S. law over a two-year period commencing on December 1, 2011, in an amount up to the equivalent of 150 Bcf of natural gas. DCP states that it does not seek authorization to export domestically produced LNG or natural gas. DCP also states that it will engage in short-term (or “blanket”) re-exports of previously imported LNG. DCP does not intend to hold title to the LNG itself, and is requesting authorization to act as agent on behalf of other entities who themselves hold title to the LNG but will register each such LNG title holder with DOE/FE consistent with registration requirements previously adopted in DOE/FE Order 2986, issued July 19, 2011, which granted blanket export authorization to Freeport LNG Development, L.P.
In support of its application, DCP states that pursuant to section 3 of the NGA, FE is required to authorize exports to a foreign country unless there is a finding that such exports “will not be consistent with the public interest.”
In addition, DCP notes that a DOE/FE review of the most recent data and analysis prepared by the Energy Information Administration (EIA) shows an increasing volume of shale gas production compared to the data and projections referenced in
DCP states that its application seeks only to re-export foreign-sourced LNG that has been imported and stored at the Cove Point LNG Terminal, and does not propose to export domestically produced natural gas. DCP states that the additional flexibility to re-export previously imported LNG will provide additional flexibility to its customers and should encourage the continued importation of LNG into the United States.
DCP also states that re-exports of previously imported LNG will allow the Cove Point Terminal to remain in a cooled-down state so that it is operationally capable of providing DCP's certificated services. DCP states that granting the requested export authorization will not diminish domestically-produced natural gas supplies. Further details can be found in the Application, which has been posted at
DCP states that its requested LNG export authorization does not require the construction of any new facilities (or modifications to any existing facilities) at the Cove Point Terminal except for the conversion of six check valves located on the pier, which would allow ships to both load and unload at the terminal. In addition, DCP would modify its computer software for Emergency Shutdown to include loading operations and prepare a loading procedure for the U.S. Coast Guard. DCP states that exports of LNG from the Cove Point Terminal would not increase ship traffic beyond the number already stated in the U.S. Coast Guard Letter of Recommendation and Waterway Suitability Report issued for the Cove Point Terminal. DCP states that approval of the Application would not constitute a federal action significantly affecting the human environment under the National Environmental Policy Act (NEPA).
DCP states that it plans in the near future to file an application with the Federal Energy Regulatory Commission (FERC) for the necessary authorization to allow for the re-export of foreign-sourced LNG from the Cove Point Terminal. DCP acknowledges that the requested authorization to be issued by DOE/FE would not take effect until FERC has completed its NEPA review and has granted DCP authorization for the re-export of LNG at the Cove Point facility. DCP requests that DOE/FE issue a conditional order authorizing the re-export of LNG from the Cove Point Terminal conditioned on completion of the environmental review and subsequent authorization by FERC.
This export application will be reviewed pursuant to section 3 of the NGA, as amended, and the authority contained in DOE Delegation Order No. 00-002.00L (April 29, 2011) and DOE Redelegation Order No. 00-002.04E (April 29, 2011). In reviewing this LNG export application, DOE will consider domestic need for the gas, as well as any other issues determined to be appropriate, including whether the arrangement is consistent with DOE's policy of promoting competition in the marketplace by allowing commercial parties to freely negotiate their own trade arrangements. Parties that may oppose this application should comment in their responses on these issues.
NEPA requires DOE to give appropriate consideration to the environmental effects of its proposed decisions. No final decision will be issued in this proceeding until DOE has met its NEPA responsibilities.
In response to this notice, any person may file a protest, comments, or a motion to intervene or notice of intervention, as applicable. Any person wishing to become a party to the proceeding must file a motion to intervene or notice of intervention, as applicable. The filing of comments or a protest with respect to the Application will not serve to make the commenter or protestant a party to the proceeding, although protests and comments received from persons who are not parties will be considered in determining the appropriate action to be taken on the Application. All protests, comments, motions to intervene or notices of intervention must meet the requirements specified by the regulations in 10 CFR part 590.
Filings may be submitted using one of the following methods: (1) Submitting comments in electronic form on the Federal eRulemaking Portal at
A decisional record on the Application will be developed through responses to this notice by parties, including the parties' written comments and replies thereto. Additional procedures will be used as necessary to achieve a complete understanding of the facts and issues. A party seeking intervention may request that additional procedures be provided, such as additional written comments, an oral presentation, a conference, or trial-type hearing. Any request to file additional written comments should explain why they are necessary. Any request for an oral presentation should identify the substantial question of fact, law, or policy at issue, show that it is material and relevant to a decision in the proceeding, and demonstrate why an oral presentation is needed. Any request for a conference should demonstrate why the conference would materially advance the proceeding. Any request for a trial-type hearing must show that there are factual issues genuinely in dispute that are relevant and material to a decision and that a trial-type hearing is necessary for a full and true disclosure of the facts.
If an additional procedure is scheduled, notice will be provided to all parties. If no party requests additional procedures, a final Opinion and Order may be issued based on the official record, including the Application and responses filed by parties pursuant to this notice, in accordance with 10 CFR 590.316.
The Application filed by DCP is available for inspection and copying in the Office of Natural Gas Regulatory Activities docket room, Room 3E-042, 1000 Independence Avenue, SW., Washington, DC 20585. The docket room is open between the hours of 8 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays. The Application and any filed protests, motions to intervene or notice of interventions, and comments will also be available electronically by going to the following DOE/FE Web address:
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 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 exempt wholesale generator 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
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Comments must be submitted on or before November 21, 2011.
Submit your comments, identified by Docket ID No. EPA-HQ-RCRA-2011-0751, by one of the following methods:
•
•
•
•
•
Peggy Vyas, (mail code 5303P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460;
EPA has established a public docket for this ICR under Docket ID No. EPA-HQ-RCRA-2011-0751, which is available for online viewing at
Use
Pursuant to section 3506(c)(2)(A) of the PRA, EPA specifically solicits comments and information to enable it to:
(i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(ii) Evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(iii) Enhance the quality, utility, and clarity of the information to be collected; and
(iv) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology,
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible and provide specific examples.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Offer alternative ways to improve the collection activity.
6. Make sure to submit your comments by the deadline identified under
7. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and
State program revision may be necessary when the controlling Federal or State statutory or regulatory authority is modified or supplemented. In the event that the State is revising its program by adopting new Federal requirements, the State shall prepare and submit modified revisions of the program description, Attorney General's statement, Memorandum of Agreement, or such other documents as EPA determines to be necessary. The State shall inform EPA of any proposed modifications to its basic statutory or regulatory authority in accordance with section 271.21. If a State is proposing to transfer all or any part of any program from the approved State agency to any other agency, it must notify EPA in accordance with section 271.21 and submit revised organizational charts as required under section 271.6, in accordance with section 271.21. These paperwork requirements are mandatory under § 3006(a). EPA will use the information submitted by the State in order to determine whether the State's program meets the statutory and regulatory requirements for authorization.
Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements which have subsequently changed; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.
The ICR provides a detailed explanation of the Agency's estimate, which is only briefly summarized here:
EPA will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval pursuant to 5 CFR 1320.12. At that time, EPA will issue another
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Comments must be submitted on or before November 21, 2011.
Submit your comments, identified by Docket ID No. EPA-HQ-RCRA-2011-0750, by one of the following methods:
Bryan Groce, Office of Solid Waste, (mail code 5304P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460;
EPA has established a public docket for this ICR under Docket ID No. EPA-HQ-RCRA-2011-0750, which is available for online viewing at
Use
Pursuant to section 3506(c)(2)(A) of the PRA, EPA specifically solicits comments and information to enable it to:
(i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(ii) Evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(iii) Enhance the quality, utility, and clarity of the information to be collected; and
(iv) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology,
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible and provide specific examples.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Offer alternative ways to improve the collection activity.
6. Make sure to submit your comments by the deadline identified under
7. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and
Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements which have subsequently changed; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.
The ICR provides a detailed explanation of the Agency's estimate, which is only briefly summarized here:
EPA will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval pursuant to 5 CFR 1320.12. At that time, EPA will issue another
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before October 21, 2011.
Submit your comments, referencing Docket ID No. EPA-HQ-OAR-2006-0971 to (1) EPA online using
Sharon Nizich, Office of Air and Radiation, Office of Air Quality Planning and Standards, Mail Code D243-04, Research Triangle Park, North Carolina 27711; telephone number: (919) 541-2825; fax number: (919) 541-5450; e-mail address:
The EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On May 2, 2011, (76 FR 24476), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments. Any comments on this ICR should be submitted to the EPA and the OMB within 30 days of this notice.
EPA has established a public docket for this ICR under Docket ID No. EPA-HQ-OAR-2006-0971, which is available for online viewing at
Use the EPA's electronic docket and comment system at
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Comments must be submitted on or before November 21, 2011.
Submit your comments, identified by Docket ID No. EPA-HQ-RCRA-2011-0752 by one of the following methods:
Craig Dufficy, Materials Recovery and Waste Management Division, Office of Resource Conservation and Recovery, mail code 5304P, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460;
EPA has established a public docket for this ICR under Docket ID No. EPA-HQ-RCRA-2011-0752, which is available for online viewing at
Use
Pursuant to section 3506(c)(2)(A) of the PRA, EPA specifically solicits comments and information to enable it to:
(i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(ii) evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(iii) enhance the quality, utility, and clarity of the information to be collected; and
(iv) minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology,
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible and provide specific examples.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Offer alternative ways to improve the collection activity.
6. Make sure to submit your comments by the deadline identified under
7. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and
In response to the statutory requirement in § 4005(c), EPA developed 40 CFR Part 239, commonly referred to as the State Implementation Rule (SIR). The SIR describes the state application and EPA review procedures and defines the elements of an adequate state permit program.
The collection of information from the state during the permit program adequacy determination process allows EPA to evaluate whether a program for which approval is requested is appropriate in structure and authority to ensure owner or operator compliance with the revised federal criteria. The SIR does not require the use of a particular application form. Section 239.3 of the SIR, however, requires that all state applications contain the following five components:
(1) A transmittal letter requesting permit program approval.
(2) A narrative description of the state permit program, including a demonstration that the state's standards for non-municipal, non-hazardous waste disposal units that receive CESQG hazardous waste are technically comparable to the part 257, subpart B criteria and/or that its MSWLF standards are technically comparable to the Part 258 criteria.
(3) A legal certification demonstrating that the state has the authority to carry out the program.
(4) Copies of state laws, regulations, and guidance that the state believes demonstrate program adequacy.
(5) Copies of relevant state-tribal agreements if the state has negotiated with a tribe for the implementation of a permit program for non-municipal, non-hazardous waste disposal units that receive CESQG hazardous waste and/or MSWLFs on tribal lands.
The EPA Administrator has delegated the authority to make determinations of adequacy, as contained in the statute, to the EPA Regional Administrator. The appropriate EPA Regional Office, therefore, will use the information provided by each state to determine whether the state's permit program satisfies the statutory test reflected in the requirements of 40 CFR part 239. In all cases, the information will be analyzed to determine the adequacy of the state's permit program for ensuring compliance with the federal revised criteria.
The ICR provides a detailed explanation of the Agency's estimate, which is only briefly summarized here:
EPA will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval pursuant to 5 CFR 1320.12. At that time, EPA will issue another
Environmental Protection Agency (EPA).
Notice.
Section 5 of the Toxic Substances Control Act (TSCA) requires any person who intends to manufacture (defined by statute to include import) a new chemical (
Comments identified by the specific PMN number or TME number, must be received on or before October 21, 2011.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPPT-2011-0768, and the specific PMN number or TME number for the chemical related to your comment, by one of the following methods:
•
•
•
This action is directed to the public in general. As such, the Agency has not attempted to describe the specific entities that this action may apply to. Although others may be affected, this action applies directly to the submitter of the PMNs addressed in this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
EPA classifies a chemical substance as either an “existing” chemical or a “new” chemical. Any chemical substance that is not on EPA's TSCA Inventory is classified as a “new chemical,” while those that are on the TSCA Inventory are classified as an “existing chemical.” For more information about the TSCA Inventory go to:
Under TSCA sections 5(d)(2) and 5(d)(3), EPA is required to publish in the
In Table I. of this unit, EPA provides the following information (to the extent that such information is not claimed as CBI) on the PMNs received by EPA during this period: The EPA case number assigned to the PMN, the date the PMN was received by EPA, the projected end date for EPA's review of the PMN, the submitting manufacturer/importer, the potential uses identified by the manufacturer/importer in the PMN, and the chemical identity.
In Table II. of this unit, EPA provides the following information (to the extent that such information is not claimed as CBI) on the TMEs received by EPA during this period: The EPA case number assigned to the TME, the date the TME was received by EPA, the projected end date for EPA's review of the TME, the submitting manufacturer/importer, the potential uses identified by the manufacturer/importer in the TME, and the chemical identity.
In Table III. of this unit, EPA provides the following information (to the extent that such information is not claimed as CBI) on the NOCs received by EPA during this period: The EPA case number assigned to the NOC, the date the NOC was received by EPA, the projected end date for EPA's review of the NOC, and chemical identity.
If you are interested in information that is not included in these tables, you may contact EPA as described in Unit II. to access additional non-CBI information that may be available.
Environmental Protection, Chemicals, Hazardous substances, Imports, Notice of Commencement, Premanufacturer, Reporting and recordkeeping requirements, Test marketing exemptions.
Environmental Protection Agency (EPA).
Notice.
Pursuant to the Federal Advisory Committee Act, EPA gives notice that a public meeting of the Pesticide Program Dialogue Committee (PPDC) is scheduled for October 12-13, 2011. A draft agenda is under development and will be posted by September 26, 2011. Four PPDC workgroup meetings are also scheduled for October 11, 2011: Integrated Pest Management, Comparative Safety Statements, Pollinator Protection, and the 21st Century Toxicology/Integrated Testing Strategies Workgroup's Workshop on Diagnostic Tools and Biomarkers in Pesticide Medical Management, Exposure Surveillance, and Epidemiologic Research. The PPDC Public Health Work Group is planning to meet on October 13, 2011, following the PPDC meeting. All meetings are free, open to the public, and no advance registration is required.
The PPDC meeting will be held on Wednesday, October 12, 2011, from 9 a.m. to 5 p.m., and Thursday, October 13, 2011, from 9 a.m. to noon. On Tuesday, October 11, 2011, Workgroup meeting schedules are as follows: Integrated Pest Management from 8 a.m. to noon; Comparative Safety Statements from 1 p.m. to 4 p.m.; Pollinator Protection from 1 p.m. to 5 p.m.; and 21st Century Toxicology/Integrated Testing Strategies Workshop from 8:30 a.m. to 5 p.m. On Thursday, October 13, the PPDC Public Health Work Group will meet from 1 p.m. to 4 p.m. Information regarding PPDC
To request accommodation of a disability, please contact the person listed under
The PPDC and Workgroup meetings will be held at EPA's location at 1 Potomac Yard South, 2777 S. Crystal Drive, Arlington, VA. The PPDC meeting will be held in the lobby-level Conference Center, as will the 21st Century Toxicology/Integrated Testing Strategies Workgroup's Workshop. The Integrated Pest Management and Pollinator Protection Workgroup meetings will be held in room S-4370, and the Comparative Safety Statements Workgroup meeting will be held in room N-4830. The Public Health Workgroup meeting will be held in room N-4830. EPA's Potomac Yard South building is approximately one mile from the Crystal City Metro Station.
Margie Fehrenbach, Office of Pesticide Programs (7501P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001;
This action is directed to the public in general, and may be of particular interest to persons who work in agricultural settings or persons who are concerned about implementation of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA); the Federal Food, Drug, and Cosmetic Act (FFDCA); the amendments to FIFRA and FFDCA by the Food Quality Protection Act (FQPA) of 1996; the Pesticide Registration Improvement Act; and the Endangered Species Act. Potentially affected entities may include, but are not limited to: Agricultural workers and farmers; pesticide industry and trade associations; environmental, consumer, and farmworker groups; animal welfare organizations; pesticide users and growers; pest consultants; State, local and Tribal governments; academia; public health organizations; food processors; and the public. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under
EPA has established a docket for this action under docket ID number EPA-HQ-OPP-2011-0771. Publicly available docket materials are available either in the electronic docket at
A draft agenda is being developed and will be posted by September 26, 2011, on EPA's Web site at:
EPA's Office of Pesticide Programs (OPP) is entrusted with the responsibility to help ensure the safety of the American food supply, the education and protection from unreasonable risk of those who apply or are exposed to pesticides occupationally or through use of products, and general protection of the environment and special ecosystems from potential risks posed by pesticides.
The Charter for EPA's Pesticide Program Dialogue Committee (PPDC) was established under the Federal Advisory Committee Act (FACA), Public Law 92-463, in September 1995, and has been renewed every 2 years since that time. PPDC's Charter was renewed October 30, 2009, for another 2-year period. The purpose of PPDC is to provide advice and recommendations to the EPA Administrator on issues associated with pesticide regulatory development and reform initiatives, evolving public policy and program implementation issues, and science issues associated with evaluating and reducing risks from use of pesticides. It is determined that PPDC is in the public interest in connection with the performance of duties imposed on the Agency by law. The following sectors are represented on the PPDC: Pesticide industry and trade associations; environmental/public interest, consumer, and animal rights groups; farm worker organizations; pesticide user, grower, and commodity groups; Federal and State/local/Tribal governments; the general public; academia; and public health organizations.
Copies of the PPDC Charter are filed with appropriate committees of Congress and the Library of Congress and are available upon request.
PPDC meetings are open to the public and seating is available on a first-come basis. Persons interested in attending do not need to register in advance of the meeting. Comments may be made during the public comment session of each meeting or in writing to the address listed under
Environmental protection, Agricultural workers, Agriculture, Chemicals, Endangered species, Foods, Integrated Pest Management, Pesticide labels, Pesticides and pests, Pollinator protection, Public health, 21st Century toxicology.
Environmental Protection Agency (EPA).
Notice of proposed settlement agreement; Request for public comment.
In accordance with section 113(g) of the Clean Air Act, as amended (“CAA” or the “Act”), notice is hereby given of a proposed settlement agreement to address a lawsuit filed by Sierra Club in the United States District Court for the District of Columbia:
Written comments on the proposed settlement agreement must be received by
Submit your comments, identified by Docket ID number EPA-HQ-OGC-2011-0765, online at
Kendra Sagoff, Air and Radiation Law Office (2344A), Office of General Counsel, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460;
The proposed settlement agreement would resolve a lawsuit seeking to compel the Administrator to take various actions related to whether six areas: (1) Houston-Galveston-Brazoria, (2) Baltimore, (3) New York-Northern New Jersey-Long Island, (4) Springfield (Western Massachusetts), (5) Greater Connecticut, and (6) Boston-Lawrence-Worcester, which are designated as nonattainment for ozone, attained the 1-hour ozone NAAQS by the applicable attainment date.
The proposed settlement agreement provides various dates by which EPA must propose a determination and make a final determination as to whether each area previously listed has attained the 1-hour ozone standard by its 1-hour ozone attainment date. No later than 15 business days following signature on each notice related to a proposed or final determination specified in the proposed settlement agreement, EPA is required to send the notice to the Office of the Federal Register for review and publication in the
For a period of thirty (30) days following the date of publication of this notice, the Agency will accept written comments relating to the proposed settlement agreement from persons who were not named as parties or intervenors to the litigation in question. EPA or the Department of Justice may withdraw or withhold consent to the proposed settlement agreement if the comments disclose facts or considerations that indicate that such consent is inappropriate, improper, inadequate, or inconsistent with the requirements of the Act. Unless EPA or the Department of Justice determines that consent to this settlement agreement should be withdrawn, the terms of the agreement will be affirmed.
The official public docket for this action (identified by Docket ID No. EPA-HQ-OGC-2011-0765) contains a copy of the proposed settlement agreement. The official public docket is available for public viewing at the Office of Environmental Information (OEI) Docket in the EPA Docket Center, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OEI Docket is (202) 566-1752.
An electronic version of the public docket is available through
It is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing online at
You may submit comments as provided in the
If you submit an electronic comment, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment and with any disk or CD-ROM you submit. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. Any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.
Use of the
Environmental Protection Agency (EPA).
Notice of availability.
On June 28, 2011, the EPA made available for public review the
Comments should be received on or before October 21, 2011.
This document is available primarily via the Internet at the following
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Dr. Zachary Pekar, Office of Air Quality Planning and Standards (Mail code C539-07), U.S. Environmental Protection Agency, Research Triangle Park, NC 27711;
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• Identify the rulemaking by docket number and other identifying information (subject heading,
• Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
• Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
• Describe any assumptions and provide any technical information and/or data that you used.
• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
• Provide specific examples to illustrate your concerns, and suggest alternatives.
• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
• Make sure to submit your comments by the comment period deadline identified.
Two sections of the Clean Air Act govern the establishment and revision of the NAAQS. Section 108 (42 U.S.C. 7408) directs the Administrator to identify and list certain air pollutants and then to issue air quality criteria for those pollutants. The Administrator is to list those air pollutants that in her “judgment, cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare;” “the presence of which in the ambient air results from numerous or diverse mobile or stationary sources;” and “for which * * * [the Administrator] plans to issue air quality criteria * * *” Air quality criteria are intended to “accurately reflect the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects on public health or welfare which may be expected from the presence of [a] pollutant in the ambient air * * * ” 42 U.S.C. 7408(b). Under section 109 (42 U.S.C. 7409), EPA establishes primary (health-based) and secondary (welfare-based) NAAQS for pollutants for which air quality criteria are issued. Section 109(d) requires periodic review and, if appropriate, revision of existing air quality criteria. The revised air quality criteria reflect advances in scientific knowledge on the effects of the pollutant on public health or welfare. The EPA is also required to periodically review and revise the NAAQS, if appropriate, based on the revised criteria. Section 109(d)(2) requires that an independent scientific review committee “shall complete a review of the criteria * * * and the national primary and secondary ambient air quality standards * * * and shall recommend to the Administrator any new * * * standards and revisions of existing criteria and standards as may be appropriate. * * *” Since the early 1980's, this independent review function has been performed by the Clean Air Scientific Advisory Committee (CASAC).
Presently, EPA is reviewing the NAAQS for Pb.
The REA Planning Document has been made available for consultation with CASAC and for public comment. Comments should be submitted to the docket, as described above. The CASAC consultation on this planning document occurred on July 21, 2011. A separate
Federal Accounting Standards Advisory Board.
Notice.
The purpose of the meetings are to discuss issues related to:
Wendy Payne, Executive Director, at (202) 512-7350.
Federal Advisory Committee Act, Pub. L. 92-463.
Federal Communications Commission.
Notice and request for comments.
The Federal Communications Commission (FCC), as part of its continuing effort to reduce paperwork burdens, invites the general public and other Federal agencies to take this opportunity to comment on the following information collection, as required by the Paperwork Reduction Act (PRA) of 1995. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid control number. Comments are requested concerning (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written comments should be submitted on or before October 21, 2011. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contacts below as soon as possible.
Direct all PRA comments to Nicholas A. Fraser, OMB, via fax 202-395-5167, or via e-mail
For additional information or copies of the information collection, contact Cathy Williams at (202) 418-2918. To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the Web page
The First Report and Order simplified the annual Section 43.61(a) report by amending subpart (a) of the rule to eliminate the current requirement that filing entities separately report IMTS and private line traffic between the conterminous 48 states and offshore U.S. points such as Guam and the U.S. Virgin Islands and traffic between such offshore U.S. points and foreign points. The Commission did not amend subparts (1), (2), or (3) of Section 43.61(a).
In the First Report and Order, the Commission retained the annual circuit-status report contained in Section 43.82, but eliminated the requirement that filing entities separately report circuits between the conterminous 48 states and offshore U.S. points such as Guam and the U.S. Virgin Islands and circuits between such offshore U.S. points and foreign points.
In the First Report and Order, the Commission also removed the requirement that filing entities file the circuit-addition report in section 63.23(e) of the rules. The Commission found that the section 43.82 annual circuit-status report provides enough information so that the circuit-addition report is no longer necessary. Section 63.23(e) required carriers that have been certified to resell international private lines for the provision of telecommunications services to file each year the number of private line circuits they added and the service for which they were used. The Commission required this report because such service provider did not file the annual circuit-status report. The underlying carriers that provide the private lines that the resellers are using are required to report those circuits in their annual circuit-status report. As a result, we have a record that the circuits are used and do not need for the resellers also to report the same circuits.
Federal Communications Commission.
Notice.
The Federal Communications Commission has received Office of Management and Budget (OMB) approval for the following public information collections pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). An agency may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number, and no person is required to respond to a collection of information unless it displays a currently valid OMB control number. Comments concerning the accuracy of the burden estimates and any suggestions for reducing the burden should be directed to the person listed in the
Matt Warner, Wireline Competition Bureau, Competition Policy Division at 202-418-2418 or e-mail at
OMB Control Number: 3060-1157.
Federal Communications Commission.
Notice of public meeting.
In accordance with the Federal Advisory Committee Act, this notice advises interested persons that the Federal Communications Commission's (FCC) Technological Advisory Council will hold a meeting on Tuesday, September 27th, 2011, in the Commission Meeting Room, from 1 p.m. to 4 p.m. at the Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554.
September 27th, 2011.
Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554.
Walter Johnston, Chief, Electromagnetic Compatibility Division, 202-418-0807;
Technical Advisory Council members have been prioritizing and further developing technology issues discussed at the initial meeting on November 4, 2010. The Technical Advisory Council members will discuss this work, outline progress to date and discuss possible further work. The FCC will attempt to accommodate as many people as possible. However, admittance will be limited to seating availability. Meetings are also broadcast live with open captioning over the internet from the FCC Live Web page at
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 renewal of an existing information collection, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35). Currently, the FDIC is soliciting comments on renewal of the information collection described below.
Comments must be submitted on or before November 21, 2011.
Interested parties are invited to submit written comments to the FDIC by any of the following methods:
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Leneta G. Gregorie, at the FDIC address above.
Proposal to renew the following currently approved collections of information:
Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the FDIC's functions, including whether the information has practical utility; (b) the accuracy of the estimates of the burden of the 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; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology. All comments will become a matter of public record.
The Commission hereby gives notice of the filing of the following agreement under the Shipping Act of 1984. Interested parties may submit comments on the agreement to the Secretary, Federal Maritime Commission, Washington, DC 20573, within ten days of the date this notice appears in the
By Order of the Federal Maritime Commission.
The Commission gives notice that it has formally requested that the parties to the below listed agreement provide additional information pursuant to 46 U.S.C. 40304(d). This action prevents the agreement from becoming effective as originally scheduled. Interested parties may file comments within fifteen (15) days after publication of this notice appears in the
By Order of the Federal Maritime Commission.
Office of the Assistant Secretary for Planning and Evaluation, HHS.
Notice of meeting.
This notice announces public meetings of the Technical Advisory Panel on Medicare Trustee Reports (Panel). Notice of these meetings is given under the Federal Advisory Committee Act (5 U.S.C. App. 2, section 10(a)(1) and (a)(2)). The Panel will discuss the long range (75 year) projection methods and assumptions in projecting Medicare health expenditures and projecting National Health Expenditures and may make recommendations to the Medicare Trustees on how the Trustees might more accurately estimate health spending in the long run. The Panel's discussion is expected to be very technical in nature and will focus on the actuarial and economic assumptions and methods by which Trustees might more accurately project health spending. Although panelists are not limited in the topics they may discuss, the Panel is not expected to discuss or recommend changes in current or future Medicare provider payment rates or coverage policy.
September 26, 2011, 9:15 a.m. to 5 p.m.
The meeting will be held at HHS headquarters at 200 Independence Ave., SW., Washington, DC, 20201, Room 425A.
Donald T Oellerich (202) 690-7409,
Topics of the Meeting: The Panel is specifically charged with discussing and possibly making recommendations to the Medicare Trustees on how the Trustees might more accurately project health spending in the United States. The discussion is expected to focus on highly technical aspects of estimation involving economics and actuarial science. Panelists are not restricted, however, in the topics that they choose to discuss.
42 U.S.C. 217a; Section 222 of the Public Health Services Act, as amended. The panel is governed by provisions of Public Law 92-463, as amended (5 U.S.C. Appendix 2), which sets forth standards for the formation and use of advisory committees.
The Centers for Disease Control and Prevention (CDC) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these requests, call the CDC Reports Clearance Officer at (404) 639-5960 or send an e-mail to
National Youth Tobacco Surveys (NYTS) 2012-2014—Revision (Exp Date: 1/31/2012)—National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP), Centers for Disease Control and Prevention (CDC).
The Centers for Disease Control and Prevention (CDC) has periodically collected information about tobacco use among adolescents since 2004 (National Youth Tobacco Survey (NYTS) 2004, 2006, 2009, 2011, OMB No. 0920-0621, exp. 12/31/2011). At present, the NYTS is the most comprehensive source of nationally representative tobacco data among students in grades 9-12, and the only source of such data for students in grades 6-8. The NYTS has provided national estimates of tobacco use behaviors, information about exposure to pro- and anti-tobacco influences, and information about racial and ethnic disparities in tobacco-related topics. Information collected through the NYTS is used to identify trends over time, to inform the development of tobacco cessation programs for youth, and to evaluate the effectiveness of existing interventions and programs.
CDC is requesting OMB approval to conduct additional cycles of the NYTS in the spring of 2012, 2013, and 2014. The survey will be conducted among nationally representative samples of students attending public and private schools in grades 6-12, and will be administered to students as an optically scannable, eight-page booklet of multiple-choice questions. Information supporting the NYTS also will be collected from state-, district-, and school-level administrators and teachers. During the 2012-2014 timeframe, a number of changes will be incorporated that reflect CDC's ongoing collaboration with FDA and the need to measure progress toward meeting strategic goals established by the Family Smoking Prevention and Tobacco Control Act. Information collection will occur annually and will include a number of new questions, as well as increased representation of minority youth.
Results of the NYTS will continue to be used for public health program planning and evaluation. Information collected through the NYTS is also expected to provide multiple measures and data for monitoring progress on six of the 20 tobacco-related objectives for Healthy People 2020.
OMB approval is requested for three years. The estimated average burden per response is 45 minutes, and the total estimated annualized burden hours are 18,862. There are no costs to respondents other than their time.
The Centers for Disease Control and Prevention (CDC) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these requests, call the CDC Reports Clearance Officer at (404) 639-5960 or send an e-mail to
Health Hazard Evaluation/Technical Assistance and Emerging Problems—Revision (OMB No. 0920-0260 Exp. 1/31/2012)—National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention (CDC).
In accordance with its mandates under the Occupational Safety and Health Act of 1970 and the Federal Mine Safety and Health Act of 1977, the National Institute for Occupational Safety and Health (NIOSH) responds to requests for health hazard evaluations (HHE) to identify chemical, biological or physical hazards in workplaces throughout the United States. Each year, NIOSH receives approximately 320 such requests. Most HHE requests come from the following types of companies: service, manufacturing companies, health and social services, transportation, construction, agriculture, mining, skilled trade and construction.
A printed Health Hazard Evaluation request form is available in English and in Spanish. The form is also available on the Internet and differs from the printed version only in format and in the fact that it uses an Internet address to submit the form to NIOSH. Both the printed and Internet versions of the form provide the mechanism for employees, employers, and other
In the case of 25% to 50% of the health hazard evaluation requests received, NIOSH determines an on-site evaluation is needed. The primary purpose of an on-site evaluation is to help employers and employees identify and eliminate occupational health hazards. In most on-site evaluations employees are interviewed to help further define concerns, and in approximately 50% these evaluations (presently estimated to be about 80 facilities), questionnaires are distributed to the employees (averaging about 40 employees per site for this last subgroup). The interview and survey questions are specific to each workplace and its suspected diseases and hazards, however, items are derived from standard medical and epidemiologic techniques. The request forms take an estimated 12 minutes to complete. The interview forms take 15-30 minutes to complete.
NIOSH distributes interim and final reports of health hazard evaluations, excluding personal identifiers, to: requesters, employers, employee representatives; the Department of Labor (Occupational Safety and Health Administration or Mine Safety and Health Administration, as appropriate); and, as needed, other federal, state, and local agencies.
NIOSH administers a follow-back program to assess the effectiveness of its health hazard evaluation program in reducing workplace hazards. This program entails the mailing of follow-back questionnaires to employer and employee representatives at all the workplaces where NIOSH conducted site visits. In a small number of instances, a follow-back on-site evaluation may be conducted. The initial follow-back questionnaire is administrated immediately following the site visits and takes about 10 minutes. Another follow-back questionnaire is sent a year later and requires about 15 minutes to complete. At 24 months, a final follow-back questionnaire regarding the completed evaluation is sent which takes about 15 minutes to complete.
For requests where NIOSH does not conduct an onsite evaluation, the requester receives a follow-back questionnaire 12 months after our response and a second one 24 months after our response. The first questionnaire takes about 10 minutes to complete and the second questionnaire takes about 15 minutes to complete. Because of the large number of investigations conducted each year, the need to respond quickly to requests for assistance, the diverse and unpredictable nature of these investigations, and its follow-back program to assess evaluation effectiveness; NIOSH requests a clearance of the revised information collection package for data collections performed within the domain of its health hazard evaluation program. There is no cost to respondents other than their time. The total estimated annual burden hours are 2874.
The Centers for Disease Control and Prevention (CDC) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these requests, call the CDC Reports Clearance Officer at (404) 639-5960 or send an e-mail to
Environmental Health Specialists Network (EHS-NET) Program, OMB 0920-0792, expiration 10/31/2011—Revision—National Center for Environmental Health (NCEH), Centers for Disease Control and Prevention (CDC).
The CDC is requesting OMB approval for three additional years to use this generic clearance for a research program focused on identifying the environmental causes of foodborne illness. This revision will provide OMB clearance for EHS-Net data collections conducted in 2011 through 2014 (a maximum of 3 annually). The program is revising the generic information collection request (ICR) to reduce the number of respondent groups, reduce the number of studies conducted and the estimated burden, and collect more generalizable data.
Reducing foodborne illness first requires identification and understanding of the environmental factors that cause these illnesses. We need to know how and why food becomes contaminated with foodborne illness pathogens. This information can then be used to determine effective food safety prevention methods. The purpose of this food safety research program is to identify and understand environmental factors associated with foodborne illness and outbreaks. This program will continue to involve up to 3 data collections a year. This program is conducted by the Environmental Health Specialists Network (EHS-Net), a collaborative project of CDC, FDA, USDA, and six state/local sites (CA, NYC, NY, MN, RI, and TN).
Environmental factors associated with foodborne illness include both food safety practices (e.g., inadequate cleaning practices) and the factors in the environment associated with those practices (e.g., worker and retail food establishment characteristics). To understand these factors, we need to continue to collect data from those who prepare food (
For each data collection, we will collect data in approximately 480 retail food establishments. For each data collection, we will collect data from a maximum 1,440 workers. Each respondent will respond only once and the average burden per response will be approximately 30 minutes. We will conduct up to 3 data collections a year. The maximum annual interview/survey burden for all 3 data collections will be 2,160 hours.
We expect a worker response rate of approximately 70 percent. Thus, for each data collection, we will need to conduct a recruiting screener with approximately 2,057 worker respondents to obtain the needed number of respondents. Each respondent will respond only once and the average burden per response will be 3 minutes. As we plan to conduct up to 3 data collections annually, the maximum annual recruiting screener burden will be 309 hours. The total maximum annual burden will be 2,469 hours. There is no cost to the respondents other than their time.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (DHHS).
Notice of availability and request for public comment.
With this notice, the Centers for Disease Control and Prevention (CDC), located within the Department of Health and Human Services (HHS) requests public comment on the draft
Also found at the docket is a supporting document for reference, the
The Draft Guideline is for use by organ procurement organizations (OPOs); transplant centers, including physicians, nurses, administrators, and clinical coordinators; laboratory personnel responsible for testing and storing donor and recipient specimens; and persons responsible for developing, implementing, and evaluating infection prevention and control programs for OPOs and transplant centers. This Draft Guideline provides evidence-based recommendations for reducing unexpected transmission of HIV, HBV and HCV from deceased and living organ donors.
Written comments must be received on or before November 21, 2011.
Written comments may be submitted electronically or by mail. You may also submit written comments electronically to:
You may also submit written comments to the following address: Office of Blood, Organ, and Other Tissue Safety, Division of Healthcare Quality Promotion, National Center for Emerging and Zoonotic Infectious Diseases, Centers for Disease Control and Prevention, Attn:
Debbie Seem, Division of Healthcare Quality Promotion, National Center for Emerging and Zoonotic Infectious Diseases, Centers for Disease Control and Prevention, 1600 Clifton Road NE., Mailstop A-07, Atlanta, Georgia, 30329-4018; Telephone: (404) 639-4000.
Since 2008, CDC has collaborated with state and federal agencies, national partners, academicians, public and private health professionals, the transplant field, public health organizations, and other partners to revise and expand the 1994
CDC worked with the University of Pennsylvania's Health System Center for Evidence-based Practice (CEP) and sought input in each phase of the Draft Guideline's development from subject matter experts in HIV and hepatitis through formation of a Guideline Expert Panel to develop the new Draft Guideline. CDC also formed a Guideline Review Committee to provide feedback on the Draft Guideline recommendations. Members of the Review Committee included representatives from public health, the regulatory arena, transplant infectious disease experts, and other stakeholders. This new Draft Guideline will not be a federal rule or regulation.
In compliance with the requirements of Section 506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Planning, Research and Evaluation, 370 L'Enfant Promenade, SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. E-mail address:
The Department specifically requests comments on: (a) Whether the proposed collection of information is necessary for the proper performance of functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the Agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Lee L. Zwanziger at least 7 days in advance of the meeting.
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the Agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Caleb Briggs at least 7 days in advance of the meeting.
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
In compliance with the requirement of Section 3506(c)(2)(A) of
To request additional information on the proposed collection of information contact: Michele M. Doody, Radiation Epidemiology Branch, National Cancer Institute, Executive Plaza South, Room 7051, Bethesda, MD 20892-7238, or call non-toll-free at 301-594-7203. You may also e-mail your request to
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Notice is hereby given that the National Institute of Allergy and Infectious Diseases (NIAID), a component of the National Institutes of Health (NIH) of the Department of Health and Human Services (DHHS), will convene a public information session (Town Hall meeting) and Webinar on November 1, 2011 in Bethesda, MD at 9 a.m. Eastern Time to discuss future plans for the NIAID Regional Centers of Excellence for Biodefense and Emerging Infectious Diseases (RCE) Program (
The meeting will be held at the Doubletree Hotel, 8120 Wisconsin Avenue, Bethesda, MD. Interested parties may attend in person (seating capacity is limited to 150) or participate through Webinar access. Please visit the following Web site for meeting information and registration:
Please send Inquiries to: Dr. Rona Hirschberg,
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the National Heart, Lung, and Blood Advisory Council.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and/or contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications and/or contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, hotel, and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
Information is also available on the Institute's/Center's home page:
Coast Guard, DHS.
Notice of Federal Advisory Committee Meeting; correction.
On August 16, 2011 (76 FR 50744), the Coast Guard published a notice of meeting for the Merchant Marine Personnel Advisory Committee in the
Mr. Rogers Henderson, Maritime Personnel Qualification Division, U.S. Coast Guard, telephone 202-372-1408, e-mail
On August 16, 2011 (76 FR 50744), the Coast Guard published a notice of meeting for the Merchant Marine Personnel Advisory Committee (MERPAC) on October 6-7, 2011, in the
In the
On page 50744, in the third column, correct the
On page 50744, in the third column, correct the
On page 50745, in the first column, insert the following after the Agenda of Meeting caption:
The agenda for the October 5, 2011, meeting is as follows:
(1) A working group will meet to discuss and prepare proposed recommendations for the full committee to consider concerning Task Statement 75, entitled, “Review of the Supplemental Notice of Proposed Rulemaking Concerning the Implementation of the Amendments to the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978, and Changes to Domestic Endorsements;”
(2) Public comment period; and
(3) Adjournment of meeting.
On page 50745, in the first column, change “Day 1” to read “Day 2”.
On page 50745, in the second column, change “Day 2” to read “Day 3”.
Privacy Office, DHS.
Committee Management; Notice of Federal Advisory Committee Meeting.
The DHS Data Privacy and Integrity Advisory Committee will meet on October 5, 2011, in Arlington, VA. The meeting will be open to the public.
The DHS Data Privacy and Integrity Advisory Committee will meet on Wednesday, October 5, 2011, from 1 p.m. to 5 p.m. Please note that the meeting may end early if the Committee has completed its business.
The meeting will be held in the Navy League Building, 2300 Wilson Boulevard (corner of North Adams Street), Arlington, VA 22201 (Courthouse Metro Station). For information on facilities or services for individuals with disabilities, or to request special assistance at the meeting, contact Martha K. Landesberg, Executive Director, DHS Data Privacy and Integrity Advisory Committee, as soon as possible.
To facilitate public participation, we invite public comment on the issues to be considered by the Committee as listed in the
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If you wish to attend the meeting, please plan to arrive at the Navy League Building by 12:45 p.m. The DHS Privacy Office encourages you to register for the meeting in advance by contacting Martha K. Landesberg, Executive Director, DHS Data Privacy and Integrity Advisory Committee, at
Martha K. Landesberg, Executive Director, DHS Data Privacy and Integrity Advisory Committee, Department of Homeland Security, Washington, DC 20528, by telephone (703) 235-0780, by fax (703) 235-0442, or by e-mail to
Notice of this meeting is given under the Federal Advisory Committee Act (FACA), 5 U.S.C. App. 2 The DHS Data Privacy and Integrity Advisory Committee provides advice at the request of the Secretary of Homeland Security and the DHS Chief Privacy Officer on programmatic, policy, operational, administrative, and technological issues within the DHS that relate to personally identifiable information, as well as data integrity and other privacy-related matters. The committee was established by the Secretary of Homeland Security under the authority of 6 U.S.C. 451.
During the meeting, the Chief Privacy Officer will provide the Committee an update on the activities of the DHS Privacy Office. The Committee will also receive updates on DHS FOIA operations by the Deputy Chief FOIA Officer and on Advanced Imaging Technology by the Transportation Security Administration's Privacy Officer. In addition, the Subcommittees will report on their work in support of the Committee's planned guidance on privacy protections for information sharing within DHS. The agenda will be posted in advance of the meeting on the Committee's Web site at
DHS requests that you voluntarily submit this information under its following authorities: the Federal Records Act, 44 U.S.C. 3101; the FACA, 5 U.S.C. App. 2; and the Privacy Act of 1974, 5 U.S.C. 552a.
Privacy Office, DHS.
Notice of revision and republication of Privacy Act System of Records.
In accordance with the Privacy Act of 1974, the Department of Homeland Security proposes to revise an existing Department of Homeland Security system of records notice titled “DHS/USCIS-004 Verification Information System” system of records and republish it as “DHS/USCIS-004 Systematic Alien Verification for Entitlements Program” system of records. Previously, the Department of
Submit comments on or before October 21, 2011. This new system will be effective October 21, 2011.
You may submit comments, identified by docket number DHS-2011-0071 by one of the following methods:
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For general questions please contact: Janice Jackson, Acting Privacy Branch, Chief, Verification Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 131 M Street NE., Suite 200, MS 2600, Washington, DC 20529. For privacy issues please contact: Mary Ellen Callahan (703-235-0780), Chief Privacy Officer, Privacy Office, U.S. Department of Homeland Security, Washington, DC 20528.
Congress mandated that the Immigration and Naturalization Service, as a precursor to the Department of Homeland Security (DHS) United States Citizenship and Immigration Services (USCIS), establish a system to verify the immigration status of individuals seeking government benefits. Authority for having a system for verification of citizenship and immigration status of individuals seeking government benefits can be found in the Immigration Reform and Control Act of 1986 (IRCA), Public Law (Pub. L.) 99-603; the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), Public Law 104-193, 110 Stat. 2168; Title IV, Subtitle A, of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Public Law 104-208, 110 Stat. 3009; and the Real ID Act of 2005, Public Law 109-13. Based on these authorities and in accordance with the Privacy Act of 1974, 5 U.S.C. 552a, DHS USCIS proposes to establish a new DHS system of records titled “DHS/USCIS-004 Systematic Alien Verification for Entitlements Program System of Records.”
USCIS Verification Division administers the Systematic Alien Verification for Entitlements (SAVE) Program, a fee-based intergovernmental initiative designed to help Federal, state, tribal, and local government agencies check immigration status when granting benefits, licenses, and other lawful purposes. SAVE is supported by and uses information derived from individuals, partner agencies, the Verification Information System (VIS) and other DHS, Department of State, and Department of Justice systems.
The REAL ID Act of 2005, Public Law 109-13, 119 Stat. 231, 302 (2005) (codified at 49 U.S.C. 30301 note) requires all state Departments of Motor Vehicles (DMV) to utilize the USCIS SAVE program to verify the legal immigration status of applicants for driver's licenses, driver's permits, and state-issued identification cards. Congress delayed the initial implementation date from May 2008 until December 2009. DMVs access SAVE through the American Association of Motor Vehicle Administrators Network (AAMVAnet) or via Internet access using Web 3 or Web Services, which is a support service that allows SAVE customer agencies to access VIS information through a software interface.
Previously, USCIS documented the SAVE and E-Verify Programs in the VIS Privacy Impact Assessment (PIA) and System of Records Notice (SORN). VIS was and continues to be the underlying technology of both systems. In order to assist the public in better understanding the two programs, USCIS has issued a separate E-Verify SORN and, with this publication, is updating the original VIS SORN with this updated SORN. SAVE is described in previous SORNs, most recently in the VIS SORN (73 FR 75445, December 11, 2008).
The SAVE Program was originally limited to immigration status verification for eligibility determinations of any public benefit, license, or credential—the benefit or “entitlement” referred to in the name of the program. However, over time the scope of SAVE has grown to include the implementation of Section 642(c) of IIRIRA, which obligates USCIS to respond to inquiries “by a federal, state, or local government agency seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law.” This expansion was highlighted in previous versions of the SAVE Privacy Impact Assessment (PIA).
Accordingly, to the extent that a Federal, state, or local government entity has the legal authority to verify immigration status, SAVE, as an access method to USCIS systems, is authorized to respond to the request. Specifically, in addition to verifications for purposes of granting government benefits, this includes verification for purposes of background investigations for individuals, and cohabitants of the individuals undergoing background investigations.
Government agencies input biographic information into SAVE for status determinations. If SAVE has a record pertaining to the individual, the government agency automatically receives limited biographic information on the citizenship and immigration status of the individual. If SAVE does
The primary use of the SAVE information is to provide immigration status information for any legally mandated purpose to Federal, state, and local government customer agencies. The majority of customer agencies use SAVE to determine if applicants are entitled to receive the public benefits, licenses, or credentials that they administer. For example, based on IRCA, customer agencies use SAVE when providing benefits such as education and housing assistance, unemployment benefits, and Medicaid or other state health insurance benefits. PRWORA, through its definition of public benefits, allows customer agencies to use SAVE to determine the immigration status for purposes such as granting licensing and loans. (IIRIRA) provides for customer agencies to use SAVE for any legal purpose, such as credentials, background investigations, and voter registration. In addition, the Real ID Act of 2005 requires that all states utilize SAVE to verify the immigration status of individuals claiming to be non-U.S. citizens for driver's licenses, driver's permits, and identification cards.
Information in SAVE will only be used for SAVE verifications and other purposes incidental to the SAVE process, such as customer agency registration and relationship management, user accountability, program quality management, and monitoring and compliance activities.
In accordance with the Privacy Act of 1974, DHS proposes to establish a new DHS system of records notice titled “DHS/USCIS-004—Systematic Alien Verification for Entitlements Program” system of records. The USCIS Verification Division administers the SAVE Program. SAVE is an intergovernmental initiative designed to assist benefit-granting Federal, state, and local agencies determine if non-U.S. citizen applicants are entitled to receive the public benefits, licenses, or credentials that they administer. Previously, DHS published a single system of records notice for the E-Verify and SAVE Programs as part of the underlying technology, VIS (73 FR 75445, December 11, 2008). DHS is now publishing separate system of records notices for E-Verify and SAVE in order to assist the public in better understanding these programs. This newly established system of records will be included in DHS's inventory of record systems.
With the publication of this SAVE SORN to accompany the E-Verify SORN (76 FR 26738, May 9, 2011), the VIS SORN will be retired.
The Privacy Act embodies fair information practice principles in a statutory framework governing the means by which the U.S. Government collects, maintains, uses, and disseminates individuals' records. The Privacy Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency for which information is retrieved by the name of an individual or by some identifying number, symbol, or other identifying particular assigned to the individual. In the Privacy Act, an individual is defined to encompass U.S. citizens and lawful permanent residents. As a matter of policy, DHS extends administrative Privacy Act protections to all individuals where systems of records maintain information on U.S. citizens, lawful permanent residents, and visitors. Below is the description of the DHS/USCIS-004 Systematic Alien Verification for Entitlements Program System of Records.
In accordance with 5 U.S.C. 552a(r), DHS has provided a report of this system of records to the Office of Management and Budget and to Congress.
Department of Homeland Security U.S. Citizenship and Immigration Services—004 Systematic Alien Verification for Entitlements Program System of Records.
Unclassified, for official use only.
Records are maintained at USCIS Headquarters in Washington, DC and field offices.
Categories of individuals covered by this system include both U.S. citizens and non-U.S. citizens covered by provisions of the Immigration and Nationality Act of the United States, including individuals who have been lawfully admitted to the United States, individuals who have been granted or derived U.S. citizenship, and individuals who have applied for other immigration benefits pursuant to 8 United States Code (U.S.C.) 1103
SAVE users are covered by the DHS/ALL-004—General Information Technology Access Account Records System SORN (74 FR 49882, last published September 29, 2009).
A. Information collected from the benefit applicant by the customer agency to facilitate immigration status verification may include the following about the benefit applicant: receipt number, Alien Number (A-Number), admission number (I-94 number), name (last, first, middle), date of birth, country of birth, customer agency case number, DHS document type, DHS document expiration date, Immigration and Custom Enforcement's (ICE) Student and Exchange Visitor Identification System (SEVIS) ID, foreign passport number, visa number, social security number (in very limited circumstances using the Form G-845, Document Verification Request), and type of benefit(s) for which the applicant has applied (
B. System-generated responses as a result of the SAVE verification process including case verification number and SAVE response.
C. Any information on the individual may be verified through SAVE from the following Federal databases: Arrival/Departure Information System (ADIS), Central Index System (CIS), Computer-Linked Application Information Management System 3 & 4 (CLAIMS 3 & CLAIMS 4), Customer Profile Management System (CPMS), Student and Exchange Visitor Identification System (SEVIS), Customs and Border Protection's (CBP) Nonimmigrant Information System and Border Crossing Information (NIIS and BCI), Enforcement Integrated Database (EID), Enforcement Alien Removal Module (EARM), Enterprise Document Management System (EDMS), Marriage Fraud Amendment System (MFAS), Microfilm Digitization Application System (MiDAS), National File Tracking System (NFTS), Refugees, Asylum, and Parole System (RAPS), Reengineered Naturalization Applications Casework System (RNACS), Image Storage and Retrieval System (ISRS), and immigration status (
The individual information that may be verified through SAVE includes: A-Number, name (last, first, middle), date of birth, date entered into the United States (entry date), country of birth, class of admission code, file control office code, SSN, I-94 number, provision of law code cited for employment authorization, alien's status change date, date admitted until, country of citizenship, port of entry, departure date, visa number, passport number, passport information, passport card number, document receipt number, form numbers (
Authority for having a system for verification of immigration status is found in IRCA, Public Law 99-603, 100 Stat. 3359; PRWORA, Public Law 104-193, 110 Stat. 2105; Title IV, Subtitle A, of IIRIRA, Public Law 104-208, 110 Stat. 3009; and the REAL ID Act of 2005, Public Law 109-13, 119 Stat. 231.
The purpose of the SAVE Program is to provide a fee-based intergovernmental service, which assists Federal, state, Tribal, or local government agencies, or contractors acting on the agency's behalf and licensing bureaus confirm immigration status information, to the extent that such disclosure is necessary to enable these agencies to make decisions related to: (1) Determining of eligibility for a Federal, state, or local public benefit; (2) issuing a license or grant; (3) issuing a government credential; (4) conducting a background investigation; or (5) any other lawful purpose.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, all or a portion of the records or information contained in this system may be disclosed outside DHS as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
A. To the Department of Justice (DOJ), including U.S. Attorney Offices, or other Federal agencies conducting litigation or in proceedings before any court, adjudicative or administrative body, when it is necessary to the litigation and one of the following is a party to the litigation or has an interest in such litigation:
1. DHS or any component thereof;
2. Any employee of DHS in his/her official capacity;
3. Any employee of DHS in his/her individual capacity where DOJ or DHS has agreed to represent the employee; or
4. The U.S. or any agency thereof, is a party to the litigation or has an interest in such litigation, and DHS determines that the records are both relevant and necessary to the litigation and the use of such records is compatible with the purpose for which DHS collected the records.
B. To a congressional office from the record of an individual in response to an inquiry from that congressional office made at the request of the individual to whom the record pertains.
C. To the National Archives and Records Administration (NARA) or other Federal government agencies pursuant to records management inspections being conducted under the authority of 44 U.S.C. 2904 and 2906.
D. To an agency, organization, or individual for the purpose of performing audit or oversight operations as authorized by law, but only such information as is necessary and relevant to such audit or oversight function.
E. To appropriate agencies, entities, and persons when:
1. DHS suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised;
2. DHS has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by DHS or another agency or entity) or harm to the individual that rely upon the compromised information; and
3. The disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with DHS's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
F. To contractors and their agents, grantees, experts, consultants, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for DHS, when necessary to accomplish an agency function related to this system of records. Individuals provided information under this routine use are subject to the same Privacy Act requirements and limitations on disclosure as are applicable to DHS officers and employees.
G. To an appropriate Federal, state, Tribal, local, international, or foreign law enforcement agency or other appropriate authority charged with investigating or prosecuting a violation or enforcing or implementing a law, rule, regulation, or order, where a record, either on its face or in conjunction with other information, indicates a violation or potential violation of law, which includes criminal, civil, or regulatory violations and such disclosure is proper and consistent with the official duties of the person making the disclosure.
H. To approved Federal, state, and local government agencies for any legally mandated purpose in accordance with their authorizing statute or law and where an approved Memorandum of Agreement (MOA) or Computer Matching Agreement (CMA) is in place between DHS and the entity.
None.
Records in this system are stored electronically or on paper in secure facilities in a locked drawer behind a locked door. The records are stored on magnetic disc, tape, digital media, and CD-ROM.
Records may be retrieved by name of applicant or other unique identifier to include: Verification number, A-Number, I-94 number, SSN, Passport number, Visa number, SEVIS ID, or by the submitting agency name.
Records in this system are safeguarded in accordance with applicable rules and policies, including all applicable DHS automated systems security and access policies. Strict controls have been imposed to minimize the risk of compromising the information that is being stored. Access to the computer system containing the records in this system is limited to those individuals who have a need to know the information for the performance of their official duties and who have appropriate clearances or permissions.
The retention and disposal schedule, N1-566-08-7, has been approved by the National Archives and Records Administration. Records collected in the process of enrolling in SAVE and in verifying citizenship or immigration status are stored and retained in SAVE for ten (10) years from the date of the completion of verification, unless the records are part of an on-going investigation in which case they be retained until completion of the investigation. This period is based on the statute of limitations for most types of misuse or fraud possibly using SAVE (under 18 U.S.C. 3291, the statute of limitations for false statements or misuse regarding passports, citizenship, or naturalization documents).
Chief, Verification Division, U.S. Citizenship and Immigration Services, 131 M Street NE., Suite 200, MS 2600, Washington, DC 20529.
Individuals seeking notification of and access to any record contained in this system of records, or seeking to contest its content, may submit a request in writing to the USCIS's FOIA Officer whose contact information can be found at
When seeking records about yourself from this system of records or any other Departmental system of records your request must conform with the Privacy Act regulations set forth in 6 CFR part 5. You must first verify your identity, meaning that you must provide your full name, current address and date and place of birth. You must sign your request, and your signature must either be notarized or submitted under 28 U.S.C. 1746, a law that permits statements to be made under penalty of perjury as a substitute for notarization. While no specific form is required, you may obtain forms for this purpose from the Chief Privacy Officer and Chief Freedom of Information Act Officer,
• An explanation of why you believe the Department would have information on you;
• Identify which component(s) of the Department you believe may have the information about you;
• Specify when you believe the records would have been created;
• Provide any other information that will help the FOIA staff determine which DHS component agency may have responsive records; and
• If your request is seeking records pertaining to another living individual, you must include a statement from that individual certifying his/her agreement for you to access his/her records.
Without this bulleted information the component(s) may not be able to conduct an effective search, and your request may be denied due to lack of specificity or lack of compliance with applicable regulations.
See “Notification procedure” above.
See “Notification procedure” above.
Records are obtained from several sources to include: (A) Agencies seeking to determine immigration status; (B) individuals seeking public licenses, benefits, or credentials; (C) information collected from the Federal databases listed in the Category of Records section above; and (D) information created by SAVE.
None.
Coast Guard, DHS.
Sixty-day notice requesting comments.
In compliance with the Paperwork Reduction Act of 1995, the U.S. Coast Guard intends to submit Information Collection Requests (ICRs) to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs (OIRA), requesting approval of revisions to the following collections of information: 1625-0067, Claims under the Oil Pollution Act of 1990; and 1625-0068, State Access to the Oil Spill Liability Trust Fund for Removal costs under the Oil Pollution Act of 1990. Our ICRs describe the information we seek to collect from the public. Before submitting these ICRs to OIRA, the Coast Guard is inviting comments as described below.
Comments must reach the Coast Guard on or before November 21, 2011.
You may submit comments identified by Coast Guard docket number [USCG-2011-0869] to the Docket Management Facility (DMF) at the U.S. Department of Transportation (DOT). To avoid duplicate submissions, please use only one of the following means:
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(2)
(3)
(4)
The DMF maintains the public docket for this Notice. Comments and material received from the public, as well as documents mentioned in this Notice as being available in the docket, will become part of the docket and will be available for inspection or copying at room W12-140 on the West Building Ground Floor, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find the docket on the Internet at
Copies of the ICRs are available through the docket on the Internet at
Contact Ms. Kenlinishia Tyler, Office of Information Management, telephone 202-475-3652, or fax 202-475-3929, for questions on these documents. Contact Ms. Renee V. Wright, Program Manager, Docket Operations, 202-366-9826, for questions on the docket.
This Notice relies on the authority of the Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended. An ICR is an application to OIRA seeking the approval, extension, or renewal of a Coast Guard collection of information (Collection). The ICR contains information describing the Collection's purpose, the Collection's likely burden on the affected public, an explanation of the necessity of the Collection, and other important information describing the Collections. There is one ICR for each Collection.
The Coast Guard invites comments on whether these ICRs should be granted based on the Collections being necessary for the proper performance of Departmental functions. In particular, the Coast Guard would appreciate comments addressing: (1) The practical utility of the Collections; (2) the accuracy of the estimated burden of the Collections; (3) ways to enhance the quality, utility, and clarity of information subject to the Collections; and (4) ways to minimize the burden of the Collections on respondents, including the use of automated collection techniques or other forms of information technology. In response to your comments, we may revise these ICRs or decide not to seek approval for the Collections. We will consider all comments and material received during the comment period.
We encourage you to respond to this request by submitting comments and related materials. Comments must contain the OMB Control Number of the ICR and the docket number of this request, [USCG-2011-0869], and must be received by November 21, 2011. We will post all comments received, without change, to
If you submit a comment, please include the docket number [USCG-2011-0869], indicate the specific section of the document to which each comment applies, providing a reason for each comment. You may submit your comments and material online (via
You may submit your comments and material by electronic means, mail, fax, or delivery to the DMF at the address under
Anyone can search the electronic form of comments received in dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act statement regarding Coast Guard public dockets in the January 17, 2008, issue of the
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2.
Transportation Security Administration, DHS.
60-day Notice.
The Transportation Security Administration (TSA) invites public comment on one currently approved Information Collection Request (ICR), Office of Management and Budget (OMB) control number 1652-0021, abstracted below, that we will submit to OMB for renewal in compliance with the Paperwork Reduction Act (PRA). The ICR describes the nature of the information collection and its expected burden. The collection involves conducting background checks for all aliens and other designated individuals seeking flight instruction (“candidates”) from Federal Aviation Administration (FAA)-certified flight training providers. Through the information collected, TSA will determine whether a candidate is a threat to aviation or national security, and thus prohibited from receiving flight training. Additionally, flight training providers are required to conduct a security awareness program for their employees and to maintain records associated with this training.
Send your comments by November 21, 2011.
Comments may be e-mailed to
Joanna Johnson at the above address, or by telephone (571) 227-3651.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
(1) Evaluate whether the proposed information requirement 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;
(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 using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Based on the numbers of respondents to date, TSA estimates a total of 31,000 respondents annually: 26,500 candidates and 4,500 flight training providers.
Respondents are required to provide the subject information every time an alien or other designated individual applies for pilot training as described in the regulation, which is estimated to be twice a year per candidate, for a total of 53,000 responses per year. In response to comments to the interim final rule, TSA delineated the types of training events that would be subject to the requirements. TSA specified that candidates applying for flight training in aircraft weighing 12,500 lbs. or less would be subject to requirements only if they are training towards an initial certificate, an instrument, or multi-engine training. See TSA's clarifying interpretation document (Document ID: TSA-2004-19147-0337), dated January 5, 2005, titled “Flight Schools and Individuals Subject to 49 CFR part 1552; RE: Interpretation of `Flight Training' for Aircraft with an MTOW of 12,500 Pounds or Less and Exemption from Certain ‘Recurrent Training’ Information Submission Requirements Contained in 49 CFR part 1552.” This document is available in the docket for the interim final rule on “Flight Training for Aliens and Other Designated Individuals; Security Awareness Training for Flight School Employees” (Docket ID: TSA-2004-19147). This clarification reduced the number of candidates anticipated
TSA estimates that it will take the 26,500 candidates 45 minutes per application (twice per year) to provide TSA with all of the information required, for a total approximate application burden of 39,750 hours per year. Flight training providers must keep records for five years from the time they are created, and it is estimated each of the 4,500 flight training providers will carry an annual record keeping burden of 104 hours, for a total of 468,000 hours. Thus, TSA estimates the combined hour burden associated with this collection to be 507,750 hours annually.
Transportation Security Administration, DHS.
60-day Notice.
The Transportation Security Administration (TSA) invites public comment on one currently approved Information Collection Request (ICR), Office of Management and Budget (OMB) control number 1652-0030 abstracted below that we will submit to OMB for renewal in compliance with the Paperwork Reduction Act (PRA). The ICR describes the nature of the information collection and its expected burden. This collection allows customers to provide feedback to TSA about their experiences with TSA's airport security process and procedures while traveling.
Send your comments by November 21, 2011.
Comments may be e-mailed to
Joanna Johnson at the above address, or by telephone (571) 227-3651.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
(1) Evaluate whether the proposed information requirement 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;
(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 using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
TSA Customer Comment Cards will collect feedback, and the passenger may voluntarily provide contact information. TSA may use the contact information to respond to the passenger's comments. For passengers who deposit their cards in the designated drop-boxes, TSA staff at airports will collect the cards, categorize comments, enter the results into an online system for reporting, and respond to passengers as appropriate. Passengers also have the option to mail the cards directly to the address provided on the comment card which varies by airport. The TSA Contact Center will continue to be available for passengers to make comments independently of airport involvement. TSA estimates the number of respondents to be 1,783,800, with an estimated number of 150,880 annual burden hours.
Bureau of Land Management, Interior.
30-day notice and request for comments.
The Bureau of Land Management (BLM) has submitted an information collection request to the Office of Management and Budget (OMB) for a 3-year renewal of OMB control number 1004-0169, which pertains to use and occupancy under the mining laws.
The OMB is required to respond to this information collection request within 60 days but may respond after 30 days. Therefore, written comments should be received on or before October 21, 2011.
Please submit comments directly to the Desk Officer for the Department of the Interior (OMB #1004-0169), Office of Management and Budget, Office of Information and Regulatory Affairs, fax 202-395-5806, or by electronic mail at
Adam Merrill at 202-912-7044. Persons who use a telecommunication device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339, to contact Mr. Merrill. You may also review the information collection request online at
The Paperwork Reduction Act (44 U.S.C. 3501-3521) and OMB regulations at 5 CFR part 1320 provide that an agency
As required at 5 CFR 1320.8(d), the BLM published a 60-day notice in the
1. Whether the collection of information is necessary for the proper functioning of the BLM, including whether the information will have practical utility;
2. The accuracy of the BLM's estimate of the burden of collecting the information, including the validity of the methodology and assumptions used;
3. The quality, utility and clarity of the information to be collected; and
4. How to minimize the information collection burden on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other forms of information technology.
Please send comments as directed under
The following information is provided for the information collection:
Bureau of Land Management, Interior.
Notice of filing of plats of survey.
The Bureau of Land Management (BLM) will file the plat of survey of the lands described below in the BLM Montana State Office, Billings, Montana, on October 21, 2011.
Protests of the survey must be filed before October 21, 2011 to be considered.
Protests of the survey should be sent to the Branch of Cadastral Survey, Bureau of Land Management, 5001 Southgate Drive, Billings, Montana 59101-4669.
Marvin Montoya, Cadastral Surveyor, Branch of Cadastral Survey, Bureau of Land Management, 5001 Southgate Drive, Billings, Montana 59101-4669, telephone (406) 896-5124 or (406) 896-5009,
This survey was executed at the request of the Director, Bureau of Indian Affairs, Great Plains Region, Aberdeen, South Dakota and was necessary to determine boundaries of individual and tribal trust lands.
The lands we surveyed are:
: 43 U.S.C. Chap. 3.
Bureau of Land Management, Interior.
Notice of Public Meeting.
The Powder River Regional Coal Team (RCT) has scheduled a public meeting for October 26, 2011, to review coal management activities in the Powder River Coal Production Region.
The RCT meeting will begin at 9 a.m. MDT on October 26, 2011. The meeting is open to the public.
The meeting will be held at the Wyoming Oil and Gas Conservation Commission Hearing Room, 2211 King Boulevard, Casper, Wyoming.
Brenda Vosika Neuman, Solid Minerals Branch Chief, BLM Wyoming State Office, Division of Minerals and Lands, 5353 Yellowstone Road, Cheyenne, Wyoming 82009: telephone 307-775-6179 or Phil Perlewitz, Solid Minerals Branch Chief, BLM Montana State Office, Division of Resources, 5001 Southgate Drive, Billings, Montana 59101: telephone 406-896-5159.
The purpose of the meeting is to discuss progress in processing pending coal lease by applications (LBAs) in the Powder River Coal Production Region as well as other Federal coal-related actions in the region. Specific coal-related topics planned for the RCT meeting include:
1. Update on progress in processing existing coal LBAs in the Powder River Coal Production Region.
2. Update on U.S. Geological Survey coal inventory work.
3. Update on BLM land use planning efforts in the Powder River Coal Production Region of Wyoming and Montana.
4. Consider and vote on the following new and potential LBA filings in the Powder River Coal Production Region:
(1) The Belle Ayr West LBA located west of the Belle Ayr Mine; and
(2) The Antelope Ridge LBA located west and north of the North Antelope Rochelle Mine.
5. Presentation on potential exchange of Preference Right Lease Applications in New Mexico held by Ark Land Company, for competitive bidding rights in Wyoming, pursuant to 43 CFR part 3435.
The RCT will also consider any coal LBAs and/or other coal-related issues that may arise prior to the meeting. The acreages, as well as estimates of coal resources, will be presented at the meeting on each individual LBA.
During the public meeting, the RCT may generate recommendation(s) for any or all of these topics and other topics that may arise prior to the meeting date. The meeting will serve as a forum for public discussion on Federal coal management issues of concern in the Powder River Coal Production Region. Any party interested in providing comments or data related to existing pending applications, or any party proposing other issues to be considered by the RCT, may either do so in writing to the State Director (922), BLM Wyoming State Office, 5353 Yellowstone Road, Cheyenne, WY 82009, no later than October 12, 2011, or by addressing the RCT with his/her concerns at the meeting on October 26, 2011.
Following is the draft agenda for the meeting:
1. Introductions.
2. Approval of the minutes from the last RCT meeting.
3. Speaker on coal resources.
4. Coal activity since the last RCT meeting.
5. LBA presentations.
6. Potential coal bidding rights exchange.
7. BLM land use planning update.
8. Call for other coal related discussion items.
9. Discussion of next meeting.
10. Adjourn.
National Park Service, Interior.
Notice of public meeting.
Notice is hereby given in accordance with the Federal Advisory Committee Act that the 24th meeting of the Concessions Management Advisory Board (the Board) will be held as indicated below.
The meeting will be held October 12-13, 2011, in Mesa Verde National Park, CCC Recreation Hall, Mile Post 19, Mesa Verde, Colorado, beginning at 9 a.m. Members of the public are invited to attend. A public comment period will be held.
National Park Service, Commercial Services Program, 1201 Eye Street, NW., Washington, DC 20005,
The Board was established by Title IV, Section 409 of the National Parks Omnibus Management Act of 1998, November 13, 1998 (Pub. L. 105-391). The purpose of the Board is to advise the Secretary and the National Park Service on matters relating to management of concessions in the National Park System. The members of the Advisory Board are: Dr. James J. Eyster, Ms. Ramona Sakiestewa, Mr. Richard Linford, Mr. Phil Voorhees, Mr. Edward E. Mace, Ms. Ruth Griswold Coleman, and Ms. Michele Michalewicz.
Topics that will be presented during the meeting include:
• General Commercial Services Program Updates;
• Concession Contracting Status Update;
• Standards, Evaluations, and Rate Approval Project Update;
• Planning Forum—A discussion of best practices opportunities and challenges when planning for commercial services;
• Public Comment—Limited to 3 minutes per person.
The meeting site is accessible to individuals with disabilities. If you plan to attend and will require an auxiliary aid or service to participate in the meeting (
Anyone may file with the Board a written statement concerning matters to be discussed. The Board may also permit attendees to address the Board, but may restrict the length of the presentations, as necessary to allow the Board to complete its agenda within the allotted time. Such requests should be made to the Director, National Park Service, Attention: Chief, Commercial Services Program, at least 7 days prior to the meeting. Draft minutes of the meeting will be available for public inspection approximately 6 weeks after the meeting, at the Commercial Services Program office located at 1201 Eye Street, NW., 11th Floor, Washington, DC.
Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
National Park Service, Interior.
Notice of meeting.
Notice is hereby given in accordance with the Federal Advisory Committee Act that a meeting of the Committee for the Preservation of the White House will be held at the White House at 1 p.m. on Tuesday, October 18, 2011.
Tuesday, October 18, 2011.
The White House, 1600 Pennsylvania Avenue, NW., Washington, DC 20500.
Comments may be provided to: Executive Secretary, Committee for the Preservation of the White House, 1100 Ohio Drive, SW., Washington, DC 20242, (202) 619-6344. Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
It is expected that the meeting agenda will include policies, goals, and long-range plans. The meeting will be open, but subject to appointment and security clearance requirements. Clearance information, which includes full name, date of birth, Social Security number, city and state of residence, and country of citizenship must be received by October 11, 2008. Due to the present mail delays being experienced, clearance information should be faxed to (202) 619-6353 in order to assure receipt by deadline. Inquiries may be made by calling the Committee for the Preservation of the White House between 9 a.m. and 4 p.m. weekdays at (202) 619-6344. Written comments may be sent to the Executive Secretary, Committee for the Preservation of the White House, 1100 Ohio Drive, SW., Washington, DC 20242.
Nominations for the following properties being considered for listing or related actions in the National Register were received by the National Park Service before August 27, 2011. Pursuant to section 60.13 of 36 CFR part 60, written comments are being accepted concerning the significance of the nominated properties under the National Register criteria for evaluation. Comments may be forwarded by United States Postal Service, to the National Register of Historic Places, National Park Service, 1849 C St., NW., MS 2280, Washington, DC 20240; by all other carriers, National Register of Historic Places, National Park Service,1201 Eye St., NW., 8th floor, Washington, DC 20005; or by fax, 202-371-6447. Written or faxed comments should be submitted by October 6, 2011. Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Request for REMOVAL has been made for the following resource:
United States International Trade Commission.
Notice.
The Commission hereby gives notice that it will proceed with a full review pursuant to section 751(c)(5) of the Tariff Act of 1930 (19 U.S.C. 1675(c)(5)) to determine whether revocation of the antidumping duty order on tin- and chromium-coated steel sheet from Japan would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time. A schedule for the review will be established and announced at a later date. For further information concerning the conduct of this review and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A through E (19 CFR part 201), and part 207, subparts A, D, E, and F (19 CFR part 207).
Mary Messer (202-205-3193), Office of Investigations, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its Internet server (
On September 6, 2011, the Commission determined that it should proceed to a full review in the subject five-year review pursuant to section 751(c)(5) of the Act. The Commission found that both the domestic and respondent interested party group responses to its notice of institution (76 FR 31633, June 1, 2011) were adequate. A record of the Commissioners' votes, the Commission's statement on adequacy, and any individual Commissioner's statements will be available from the Office of the Secretary and at the Commission's web site.
This review is being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.62 of the Commission's rules.
By order of the Commission.
United States International Trade Commission.
Notice of remand proceedings
The U.S. International Trade Commission (“Commission”) hereby gives notice of the court-ordered remand of its preliminary determinations in Investigation Nos. 701-TA-472 and 731-TA-1171 to 1172 (Preliminary) concerning certain standard steel fasteners (“CSSF”) from China and Taiwan. For further information concerning the conduct of these remand proceedings and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A through E (19 CFR part 201), and part 207, subpart A (19 CFR part 207).
Douglas E. Corkran, Office of Investigations, telephone 202-205-3057, or Mary Jane Alves, Office of General Counsel, telephone 202-708-2969, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its Internet server (
1. The nature of the action the Commission should take on remand to address the Court's finding that the Commission treated its import data as “comprehensive.”
2. The nature of the action the Commission should take on remand to address the Court's finding that the Commission did not identify a rational basis for its “unqualified reliance on” the questionnaire response of a firm referred to in the Court's opinion as Producer A, which reported itself as a U.S. producer of the domestic like product CSSF.
All written submissions must conform with the provisions of section 201.8 of the Commission's rules; any submissions that contain BPI must also conform with the requirements of sections 201.6, 207.3, and 207.7 of the Commission's rules. The Commission's rules do not authorize filing of submissions with the Secretary by facsimile or electronic means, except to the extent permitted by section 201.8 of the Commission's rules, as amended, 67 FR 68036 (Nov. 8, 2002).
In accordance with sections 201.16(c) and 207.3 of the Commission's rules, each document filed by a party to the investigation must be served on all other parties to the investigation (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
Parties are also advised to consult with the Commission's Rules of Practice and Procedure, part 201, subparts A through E (19 CFR part 201), and part 207, subpart A (19 CFR part 207) for provisions of general applicability concerning written submissions to the Commission.
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined to review in part the final initial determination (“final ID”) issued by the presiding administrative law judge (“ALJ”) on July 15, 2011, finding a violation of section 337 of the Tariff Act of 1930, 19 U.S.C. 1337, in the above-captioned investigation.
Sidney A. Rosenzweig, Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 708-2532. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 205-2000. General information concerning the Commission may also be obtained by accessing its Internet server at
The Commission instituted this investigation on April 6, 2010, based on a complaint filed by Apple Inc., and its subsidiary NeXT Software, Inc., both of Cupertino, California (collectively, “Apple”), alleging a violation of section 337 in the importation, sale for importation, and sale within the United States after importation of certain personal data and mobile communications devices and related software. 75 FR 17434 (Apr. 6, 2010). The complaint named as respondents High Tech Computer Corp. of Taiwan and its United States subsidiaries HTC America Inc. of Bellevue, Washington, and Exedia, Inc. of Houston, Texas (collectively, “HTC”).
Several patents that had been asserted by Apple in this investigation were earlier asserted by Apple in Investigation No. 337-TA-704 against Nokia Corp. of Finland and Nokia Inc. of White Plains, New York (collectively, “Nokia”). On motion by the Commission investigative attorney (“IA”) in the 704 investigation and by the respondents in both investigations, the Chief ALJ transferred Apple's assertion of overlapping patents against Nokia from the 704 investigation into the 710 investigation.
On July 15, 2011, the ALJ issued the final ID. By that time, the investigation had narrowed to certain claims of four patents: claims 1, 3, 8, 15, and 19 of U.S. Patent No. 5,946,647 (“the '647 patent”); claims 1, 2, 24, and 29 of U.S. Patent No. 6,343,263 (“the '263 patent”); claims 1, 5, and 6 of U.S. Patent No. 5,481,721 (“the '721 patent”); and claims 1 and 7 of U.S. Patent No. 6,275,983 (“the '983 patent”). The final ID found a violation of section 337 by HTC by virtue of the infringement of claims 1, 8, 15, and 19 of the '647 patent, and claims 1, 2, 24, and 29 of the '263 patent. The ALJ recommended the issuance of a limited exclusion order but that no bond be posted during the Presidential review period. The final ID found that claim 3 of the '647 patent was not infringed. In addition, the final ID found that Apple had demonstrated neither infringement nor Apple's own practice (for purposes of establishing the existence of a domestic industry) of claims 5 and 6 of the '721 patent and claims 1 and 7 of the '983 patent. The final ID concluded that HTC had not demonstrated that any of the asserted patent claims were invalid.
On August 1, 2011, HTC, Apple, and the IA each petitioned for review of the final ID. HTC and the IA challenge the ALJ's finding of a violation of section 337 for the '647 and '263 patents. In addition, HTC challenged some of the final ID's findings with respect to the '721 and '983 patents. Apple's petition challenges the ALJ's finding of no violation for the '721 and '983 patents. Apple does not contest the ALJ's determination that HTC did not infringe claim 3 of the '647 patent. On August
Having examined the record of this investigation, including the ALJ's final ID, the petitions for review, and the responses thereto, the Commission has determined to review the final ID in part.
Specifically, the Commission has determined to review the following issues:
For the '263 patent, the Commission has determined to review certain claim constructions, as well as the final ID's determinations of infringement, domestic industry, and validity, as set forth below:
(1) The final ID's construction of “realtime API” and whether the accused products and Apple's domestic industry products practice this limitation if HTC's proposed construction were adopted. (HTC Pet. 15-21.)
(2) The final ID's construction of “device handler” and whether the accused products and Apple's domestic industry products practice this limitation if HTC's proposed construction were adopted. (HTC Pet. 21-30.)
(3) Whether the API of the accused products is “coupled between” two subsystems. (HTC Pet. 30-35).
(4) Whether the final ID's applications of the claim constructions for “realtime API” and “device handler” are consistent in its analyses of infringement and validity, and whether, based on a consistent treatment, the asserted claims are valid and infringed, and whether the domestic industry requirement is satisfied. (HTC Pet. 33-36; IA Pet. 5-13.)
(5) Whether Apple's domestic industry products have an adapter subsystem for the “device.” (HTC Pet. 36-37).
For the '647 patent, the Commission has determined to review the final ID's determinations of infringement and validity, as set forth below:
(1) Whether the final ID's applications of the claim constructions for “linking actions to the detected structures” and “linking at least one action to the detected structure” are consistent in its analyses of infringement and validity, and whether, based on a consistent treatment, the asserted claims are valid (in view of the Perspective system and handbook) and infringed. (HTC Pet. 53-62; IA Pet. 15-17).
(2) Whether the steps of method claim 15 must be performed in the order in which they appear in the claim, and if so, whether the accused products infringe claims 15 and 19. (HTC Pet. 47-50).
(3) Whether the accused products link structures to multiple actions. (HTC Pet. 39-47.)
(4) The effect, if any, of the Supreme Court's decision in
For the '721 patent, the Commission has determined to review certain claim constructions, as well as the final ID's determinations regarding infringement, domestic industry, and validity, as set forth below:
(1) The final ID's construction of the “processing means” terms, including whether the terms are to be construed under 35 U.S.C. 112 ¶ 6; if 112 ¶ 6 does apply, whether the recited function is “processing”; whether the accused products and Apple's domestic industry products practice these limitations based upon the alternative constructions (
(2) The final ID's construction of “dynamic binding” and whether, if Apple's proposed construction were adopted, the accused products and Apple's domestic industry products practice this limitation. (Apple Pet. 50-54.)
(3) Whether, based upon the final ID's construction of “dynamic binding,” the accused products and Apple's domestic industry products practice this limitation. (Apple Pet. 55-58.)
For the '983 patent, the Commission has determined to review certain claim constructions, as well as the final ID's determinations regarding infringement, domestic industry, and validity, as set forth below:
(1) The final ID's construction of “loading” to include virtual copying in the term “selectively loading,” and whether, if HTC's proposed construction were adopted, the accused products and Apple's domestic industry products practice this limitation. (HTC Pet. 83-84).
(2) The final ID's construction of “selectively” to include class loading in the term “selectively loading”; whether, if Apple's proposed construction were adopted, the accused products and Apple's domestic industry products practice this limitation; and whether based upon Apple's proposed construction the asserted claims are invalid in view of NeXTSTEP Release 3, or in view of Vernon and Gautron. (Apple Pet. 4-11; HTC Pet. 86-87).
(3) Whether the accused products and the Apple domestic industry products practice the claim limitations that call for “executable program memory.” (Apple Pet. 20-34).
(4) Whether the ALJ acted properly in striking portions of HTC's expert's report regarding whether the Actor User Manual anticipates claim 7 of the '983 patent. (HTC Pet. 82-83).
By determining to review these enumerated issues, the Commission is not excusing any party's noncompliance with Commission rules and the ALJ's procedural requirements, including requirements to present issues in pre-hearing and post-hearing submissions.
The Commission has determined not to review the remainder of the final ID.
In connection with this determination not to review the remainder of the final ID, the Commission rejects HTC's attempt to “incorporate[] by * * * reference in their entirety all of the arguments * * * with respect to all issues decided adversely to HTC's positions” from the thousands of pages of briefing before the ALJ, “pre-hearing motions in limine and other evidentiary submissions, hearing transcripts, and hearing exhibits.” HTC Pet. 6. Commission Rule 210.43(b)(1) states as follows: “The petition for review must set forth a concise statement of the facts material to the consideration of the stated issues, and must present a concise argument providing the reasons that review by the Commission is necessary or appropriate to resolve an important issue of fact, law or policy.” 19 CFR 210.43(b)(1). HTC's purported incorporation does not satisfy section 210.43(b)(1), frustrates any meaningful opposition by the other parties,
The parties are invited to brief their positions on the issues under review enumerated above with reference to the applicable law and evidentiary record. In particular, the parties are requested to respond to the following questions:
(a) For the '263 patent, if the Commission were to find inconsistency between the ALJ's infringement and validity analyses, should the claim constructions for “realtime API” and/or “device handler program” be narrowed in accordance with the ID's analysis of validity? If a party answers this question “yes,” it is to identify where in the record (including in its petition for review) it made and preserved such contentions, and should explain in detail whether such narrowing of the scope of the asserted patent claims would result in a finding of noninfringement for any of the accused products.
(b) For the '647 patent, whether the Supreme Court's decision in
(c) For the '647 patent, whether claim 15's “enabling selection of the structure and a linked action” (as opposed to the unclaimed step of “selection of the structure and a linked action” by the user) is a single step, and whether HTC made and preserved the argument that it is a single step.
(d) For the '721 patent, whether the ALJ's construction of the “processor means” has the effect of impermissibly transforming a method claim into an apparatus claim.
(e) For the '983 patent, whether any aspects of the parent applications' file histories are pertinent to the issues under review. If a party makes any such contentions, it is to identify where in the record it made and preserved such a position.
In connection with the final disposition of this investigation, the Commission may (1) Issue an order that could result in the exclusion of the subject articles from entry into the United States, and/or (2) issue one or more cease and desist orders that could result in the respondent(s) being required to cease and desist from engaging in unfair acts in the importation and sale of such articles. Accordingly, the Commission is interested in receiving written submissions that address the form of remedy, if any, that should be ordered. If a party seeks exclusion of an article from entry into the United States for purposes other than entry for consumption, the party should so indicate and provide information establishing that activities involving other types of entry either are adversely affecting it or likely to do so. For background, see
If the Commission contemplates some form of remedy, it must consider the effects of that remedy upon the public interest. The factors the Commission will consider include the effect that an exclusion order and/or cease and desist orders would have on (1) The public health and welfare, (2) competitive conditions in the U.S. economy, (3) U.S. production of articles that are like or directly competitive with those that are subject to investigation, and (4) U.S. consumers. The Commission is therefore interested in receiving written submissions that address the aforementioned public interest factors in the context of this investigation.
If the Commission orders some form of remedy, the U.S. Trade Representative, as delegated by the President, has 60 days to approve or disapprove the Commission's action.
Persons filing written submissions must file the original document and 12 true copies thereof on or before the deadlines stated above with the Office of the Secretary. Any person desiring to submit a document to the Commission in confidence must request confidential treatment unless the information has already been granted such treatment during the proceedings. All such requests should be directed to the Secretary of the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in sections 210.42-46 and 210.50 of the Commission's Rules of Practice and Procedure (19 CFR 210.42-46 and 210.50).
By order of the Commission.
Notice is hereby given that, on August 15, 2011, pursuant to Section 6(a) the
No other changes have been made in either the membership or planned productivity of the group research project. Membership in this group research project remains open, and FlawPRO-JIP intends to file additional written notifications disclosing all changes in membership.
On May 17, 2011, FlawPRO-JIP filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
Notice is hereby given that, on August 22, 2011, pursuant to Section 6(a) of the
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and Open Axis intends to file additional written notifications disclosing all changes in membership.
On October 6, 2010, Open Axis filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on May 31, 2011. A notice was published in the
Notice is hereby given that, on August 17, 2011, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and Pistoia Alliance, Inc. intends to file additional written notifications disclosing all changes in membership.
On May 28, 2009, Pistoia Alliance, Inc. filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on June 1, 2011. A notice was published in the
Employment and Training Administration, Labor.
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collection of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) [44 U.S.C. 3506(c)(2)(A)]. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed.
A copy of the proposed information collection request (ICR) can be obtained by contacting the office listed below in the addressee section of this notice or by accessing:
Written comments must be submitted to the office listed in the addressee section below on or before November 21, 2011.
Send comments to Joseph Toth, U.S. Department of Labor, Employment and Training Administration, Office of Unemployment Insurance, 200 Constitution Avenue, NW., Frances Perkins Bldg. Room S-4524, Washington, DC, 20210, telephone number (202) 693-3894 (this is not a toll-free number) or by e-mail:
The Office of Unemployment Insurance (OUI) of the Employment and Training Administration (ETA) has responsibility for the Tax Performance System (TPS) which evaluates the employer-related or tax functions of the UI program. The Contribution Operations report (Form ETA 581) is a comprehensive report of each state's UI tax operations and is essential in providing quarterly tax performance data to OUI. ETA 581 data are the basis for measuring the performance and effectiveness of states' UI tax operations. Using ETA 581 data, the TPS program measures performance, accuracy, and promptness in employer registration (status determinations), report delinquency, collections (accounts receivable), the audit function, and the detection of employer tax avoidance schemes, known as State Unemployment Tax Act (SUTA) Dumping.
Currently, the Employment and Training Administration is soliciting comments concerning the proposed extension collection of the ETA 581, Contribution Operations Report. Comments are requested to:
• Evaluate whether the proposed collection of information is necessary to assess performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
It is important that approval of the ETA 581 report be extended because this report is the only vehicle for collection of information required under the TPS program. If ETA 581 data were not collected, there would be no basis for determining the adequacy of funding for states’ UI tax operations, making projections and forecasts in the budgetary process, nor measuring program performance and effectiveness. The ETA 581 accounts receivable data are necessary in the preparation of complete and accurate financial statements for the Unemployment Trust Fund (UTF) and the maintenance of a modified accrual system for UTF accounting. Data on SUTA Dumping measures state compliance with section 303(k) of the Social Security Act, which is known as the SUTA Dumping Prevention Act of 2004.
Comments submitted in response to this comment request will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
Nuclear Regulatory Commission.
Notice of the OMB review of information collection and solicitation of public comment.
The U.S. Nuclear Regulatory Commission (NRC) has recently submitted to OMB for review the following proposal for the collection of information under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). The NRC hereby informs potential respondents that an agency may not conduct or sponsor, and that a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The NRC published a
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Holders of renewed licenses must retain in an auditable and retrievable form, for the term of the renewed operating license, all information and
The public may examine and have copied for a fee, publicly available documents including the final supporting statement, at the NRC's Public Document Room, Room O-1F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. OMB clearance requests are available at the NRC Web site:
Comments and questions should be directed to the OMB reviewer listed below by October 21, 2011. Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given to comments received after this date.
Chad Whiteman, Desk Officer, Office of Information and Regulatory Affairs (3150-0155), NEOB-10202, Office of Management and Budget, Washington, DC 20503.
Comments can also be e-mailed to
The NRC Clearance Officer is Tremaine Donnell, 301-415-6258.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of the OMB review of information collection and solicitation of public comment.
The U.S. Nuclear Regulatory Commission (NRC) has recently submitted to OMB for review the following proposal for the collection of information under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). The NRC hereby informs potential respondents that an agency may not conduct or sponsor, and that a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The NRC published a
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The public may examine and have copied for a fee, publicly available documents, including the final supporting statement, at the NRC's Public Document Room, Room O-1F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. OMB clearance requests are available at the NRC Web site:
Comments and questions should be directed to the OMB reviewer listed below by October 21, 2011. Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given to comments received after this date.
Chad Whiteman, Desk Officer, Office of Information and Regulatory Affairs (3150-0013), NEOB-10202, Office of Management and Budget, Washington, DC 20503, Comments can also be e-mailed to
The NRC Clearance Officer is Tremaine Donnell, 301-415-6258.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of the OMB review of information collection and solicitation of public comment.
The U.S. Nuclear Regulatory Commission (NRC) has recently submitted to OMB for review the following proposal for the collection of
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6. Who will be required or asked to report: Power reactor licensees.
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9. An estimate of the total number of hours needed annually to complete the requirement or request: 85,300 hours (84,000 hours of reporting and 1,300 hours of recordkeeping).
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The public may examine and have copied for a fee publicly available documents, including the final supporting statement, at the NRC's Public Document Room, Room O-1F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. OMB clearance requests are available at the NRC web site:
Comments and questions should be directed to the OMB reviewer listed below by October 21, 2011. Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given to comments received after this date.
Chad Whiteman, Desk Officer, Office of Information and Regulatory Affairs (3150-0195), NEOB-10202, Office of Management and Budget, Washington, DC 20503.
Comments can also be e-mailed to
The NRC Clearance Officer is Tremaine Donnell, 301-415-6258.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Reopening of comment period.
On August 15, 2011 (76 FR 50500), the U.S. Nuclear Regulatory Commission (NRC) published for public comment a draft Policy Statement on Volume Reduction and Low-Level Radioactive Waste Management that updates the 1981 Policy Statement on Low-Level Waste Volume Reduction. The revised Policy Statement acknowledges that volume reduction continues to be important, but that risk-informed, performance-based approaches to managing waste are also needed to safely manage Low-Level Radioactive Waste. The public comment period closed on September 14, 2011. The NRC has decided to reopen the comment period until October 14, 2011, in response to a request from advocacy groups.
The comment period has been reopened and expires on October 14, 2011. Comments received after this date will be considered if it is practical to do so, but the NRC is able to assure consideration only for comments received on or before this date.
Please include Docket ID NRC-2011-0183 in the subject line of your comments. For additional instructions on submitting comments and instructions on accessing documents related to this action, see “Submitting comments and Accessing Information” in the
Donald Lowman, Office of Federal and State Materials and Environmental Management Programs, Division of Waste Management and Environmental Protection, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001,
Comments submitted in writing or in electronic form will be posted on the NRC Web site and on the Federal rulemaking Web site,
The NRC requests that any party soliciting or aggregating comments received from other persons for submission to the NRC inform those persons that the NRC will not edit their comments to remove any identifying or contact information, and therefore, they should not include any information in their comments that they do not want publicly disclosed.
You can access publicly available documents related to this notice using the following methods:
The NRC is reopening the comment period for the draft Policy Statement on Volume Reduction and Low-Level Radioactive Waste Management in response to a combined request from Nuclear Information & Resource Service, HEAL UTAH, Sierra Club Nuclear Issues Action Team, Tennessee Sierra Club, South Carolina Sierra Club, Military Toxics Project, Tennessee Environmental Council, We The People, Inc. of the US, Institute for Energy and Environmental Research, Friends of the Earth, SEED Coalition, Public Citizen TX, and Citizens to ENDIT—End Nuclear Dumping in Tennessee. The comment period will close on October 14, 2011.
For the Nuclear Regulatory Commission.
Postal Regulatory Commission.
Notice.
This document informs the public that an appeal of the closing of the Latham, Missouri post office has been filed. It identifies preliminary steps and provides a procedural schedule. Publication of this document will allow the Postal Service, petitioner, and others to take appropriate action.
Submit comments electronically by accessing the “Filing Online” link in the banner at the top of the Commission's Web site (
Stephen L. Sharfman, General Counsel, at 202-789-6820 (case-related information) or
Notice is hereby given that, pursuant to 39 U.S.C. 404(d), on September 13, 2011, the Commission received a petition for review of the Postal Service's determination to close the Latham post office in Latham, Missouri. The petition was filed by Deanna Cook on behalf of The Tipton Latham Bank (Petitioner) and is postmarked September 2, 2011. The Commission hereby institutes a proceeding under 39 U.S.C. 404(d)(5) and establishes Docket No. A2011-71 to consider Petitioner's appeal. If Petitioner would like to further explain her position with supplemental information or facts, Petitioner may either file a Participant Statement on PRC Form 61 or file a brief with the Commission no later than October 18, 2011.
After the Postal Service files the administrative record and the Commission reviews it, the Commission may find that there are more legal issues than the one set forth above, or that the Postal Service's determination disposes of one or more of those issues. The deadline for the Postal Service to file the applicable administrative record with the Commission is September 28, 2011.
The appeal and all related documents are also available for public inspection in the Commission's docket section. Docket section hours are 8 a.m. to 4:30 p.m., eastern time, Monday through Friday, except on Federal government holidays. Docket section personnel may be contacted via electronic mail at
The Commission reserves the right to redact personal information which may infringe on an individual's privacy rights from documents filed in this proceeding.
1. The Postal Service shall file the applicable administrative record regarding this appeal no later than September 28, 2011.
2. Any responsive pleading by the Postal Service to this notice is due no later than September 28, 2011.
3. The procedural schedule listed below is hereby adopted.
4. Pursuant to 39 U.S.C. 505, Emmett Rand Costich is designated officer of the Commission (Public Representative) to represent the interests of the general public.
5. The Secretary shall arrange for publication of this notice and order in the
By the Commission.
Postal Regulatory Commission.
Notice.
This document informs the public that an appeal of the closing of the Woodgate, New York post office has been filed. It identifies preliminary steps and provides a procedural schedule. Publication of this document will allow the Postal Service, petitioner, and others to take appropriate action.
Submit comments electronically by accessing the “Filing Online” link in the banner at the top of the Commission's Web site (
Stephen L. Sharfman, General Counsel, at 202-789-6820 (case-related information) or
Notice is hereby given that, pursuant to 39 U.S.C. 404(d), on September 13, 2011, the Commission received a petition for review of the Postal Service's determination to close the Woodgate post office in Woodgate, New York. The petition was filed by the Woodgate Citizens Committee (Petitioner) who also filed an application for suspension of the determination and is postmarked September 1, 2011. The Commission hereby institutes a proceeding under 39 U.S.C. 404(d)(5) and establishes Docket No. A2011-70 to consider Petitioner's appeal. If Petitioner would like to further explain its position with supplemental information or facts, Petitioner may either file a Participant Statement on PRC Form 61 or file a brief with the Commission no later than October 18, 2011.
After the Postal Service files the administrative record and the Commission reviews it, the Commission may find that there are more legal issues than the ones set forth above, or that the Postal Service's determination disposes of one or more of those issues. The deadline for the Postal Service to file the applicable administrative record with the Commission is September 28, 2011.
The appeal and all related documents are also available for public inspection in the Commission's docket section. Docket section hours are 8 a.m. to 4:30 p.m., eastern time, Monday through Friday, except on Federal government holidays. Docket section personnel may be contacted via electronic mail at
The Commission reserves the right to redact personal information which may infringe on an individual's privacy rights from documents filed in this proceeding.
1. The Postal Service shall file an answer to the application for suspension of the Postal Service's determination no later than September 23, 2011.
2. The Postal Service shall file the applicable administrative record regarding this appeal no later than September 28, 2011.
3. Any responsive pleading by the Postal Service to this notice is due no later than September 28, 2011.
4. The procedural schedule listed below is hereby adopted.
5. Pursuant to 39 U.S.C. 505, Kenneth E. Richardson is designated officer of the Commission (Public Representative) to represent the interests of the general public.
6. The Secretary shall arrange for publication of this notice and order in the
By the Commission.
Postal Regulatory Commission.
Notice.
This document informs the public that an appeal of the closing of the Hailesboro, New York post office has been filed. It identifies preliminary steps and provides a procedural schedule. Publication of this document will allow the Postal Service, petitioner, and others to take appropriate action.
Submit comments electronically by accessing the “Filing Online” link in the banner at the top of the Commission's Web site (
Stephen L. Sharfman, General Counsel, at 202-789-6820 (case-related information) or
Notice is hereby given that, pursuant to 39 U.S.C. 404(d), on September 13, 2011, the Commission received a petition for review of the Postal Service's determination to close the Hailesboro post office in Hailesboro, New York. The petition was filed by Natalie J. Spilman (Petitioner) and is postmarked September 7, 2011. The Commission hereby institutes a proceeding under 39 U.S.C. 404(d)(5) and establishes Docket No. A2011-72 to consider Petitioner's appeal. If Petitioner would like to further explain her position with supplemental information or facts, Petitioner may either file a Participant Statement on PRC Form 61 or file a brief with the Commission no later than October 18, 2011.
After the Postal Service files the administrative record and the
The appeal and all related documents are also available for public inspection in the Commission's docket section. Docket section hours are 8 a.m. to 4:30 p.m., eastern time, Monday through Friday, except on Federal government holidays. Docket section personnel may be contacted via electronic mail at
The Commission reserves the right to redact personal information which may infringe on an individual's privacy rights from documents filed in this proceeding.
1. The Postal Service shall file the applicable administrative record regarding this appeal no later than September 28, 2011.
2. Any responsive pleading by the Postal Service to this notice is due no later than September 28, 2011.
3. The procedural schedule listed below is hereby adopted.
4. Pursuant to 39 U.S.C. 505, Jeremy L. Simmons is designated officer of the Commission (Public Representative) to represent the interests of the general public.
5. The Secretary shall arrange for publication of this notice and order in the
By the Commission.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), the Securities and Exchange Commission (“Commission”) has submitted to the Office of Management and Budget a request for extension of the previously approved collection of information discussed below.
Rule 31a-1 (17 CFR 270.31a-1) under the Investment Company Act of 1940 (the “Act”) (15 U.S.C. 80a) is entitled “Records to be maintained by registered investment companies, certain majority-owned subsidiaries thereof, and other persons having transactions with registered investment companies.” Rule 31a-1 requires registered investment companies (“funds”), and every underwriter, broker, dealer, or investment adviser that is a majority-owned subsidiary of a fund, to maintain and keep current accounts, books, and other documents which constitute the record forming the basis for financial statements required to be filed pursuant to section 31 of the Act (15 U.S.C. 80a-30) and of the auditor's certificates relating thereto. The rule lists specific records to be maintained by funds. The rule also requires certain underwriters, brokers, dealers, depositors, and
There are approximately 4218 investment companies registered with the Commission, all of which are required to comply with rule 31a-1. For purposes of determining the burden imposed by rule 31a-1, the Commission staff estimates that each fund is divided into approximately four series, on average, and that each series is required to comply with the recordkeeping requirements of rule 31a-1. Based on conversations with fund representatives, it is estimated that rule 31a-1 imposes an average burden of approximately 1750 hours annually per series for a total of 7000 annual hours per fund. The estimated total annual burden for all 4218 investment companies subject to the rule therefore is approximately 29,526,000 hours. Based on conversations with fund representatives, however, the Commission staff estimates that even absent the requirements of rule 31a-1, 90 percent of the records created pursuant to the rule are the type that generally would be created as a matter of normal business practice and to prepare financial statements, estimated to be approximately 26,573,400 annual hours. Thus, the Commission staff estimates that the total annual burden associated with rule 31a-1 is 2,952,600 hours.
The estimate of average burden hours is made solely for the purposes of the Paperwork Reduction Act, and is not derived from a comprehensive or even a representative survey or study. The collection of information required by rule 31a-1 is mandatory. Responses will not be kept confidential. The records required by rule 31a-1 are required to be preserved pursuant to rule 31a-2 under the Investment Company Act (17 CFR 270.31a-2). Rule 31a-2 requires that certain of these records be preserved permanently, and that others be preserved six years from the end of the fiscal year in which any transaction occurred. In both cases, the records should be kept in an easily accessible place for the first two years. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
The public may view the background documentation for this information collection at the following Web site,
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (“PRA”) (44 U.S.C. 3501
Rule 17a-19 requires national securities exchanges and registered national securities associations to file a Form X-17A-19 with the Commission within 5 days of the initiation, suspension or termination of a member in order to notify the Commission that a change in designated examining authority may be necessary.
It is anticipated that ten national securities exchanges and registered national securities associations collectively will make 1,200 total filings annually pursuant to Rule 17a-19 and that each filing will take approximately 15 minutes. The total burden is estimated to be approximately 300 total annual hours.
The Commission may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Background documentation for this information collection may be viewed at the following link,
Open Meeting.
100 F Street, NW., Washington, DC.
September 19, 2011 at 10 a.m.
Deletion of an Item.
The following item will not be considered during the Commission's Open Meeting on September 19, 2011 at 10 a.m.
The Commission will consider whether to propose new rules under Section 764(a) of the Dodd-Frank Wall Street Reform and Consumer Protection Act to provide for the registration of security-based swap dealers and major security-based swap participants.
At times, changes in Commission priorities require alterations in the scheduling of meeting items. For further information and to ascertain what, if
On July 11, 2011, NYSE Arca, Inc. (“Exchange” or “NYSE Arca”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to list and trade shares (“Shares”) of the Teucrium Wheat Fund, the Teucrium Soybean Fund, and the Teucrium Sugar Fund (each a “Fund” and, collectively, “Funds”)
The investment objective of the Teucrium Wheat Fund is to have the daily changes in percentage terms of the Shares' net asset value (“NAV”) reflect the daily changes in percentage terms of a weighted average of the closing settlement prices for three futures contracts for wheat (wheat futures contracts generally referred to herein as “Wheat Futures Contracts”) that are traded on the Chicago Board of Trade (“CBOT”), specifically: (1) The second-to-expire CBOT Wheat Futures Contract, weighted 35%; (2) the third-to-expire CBOT Wheat Futures Contract, weighted 30%; and (3) the CBOT Wheat Futures Contract expiring in the December following the expiration month of the third-to-expire contract, weighted 35%. The weighted average of the three above-referenced Wheat Futures Contracts is referred to herein as the “Wheat Benchmark,” and the three Wheat Futures Contracts that at any given time make up the Wheat Benchmark are referred to herein as the “Wheat Benchmark Component Futures Contracts.”
The Fund seeks to achieve its investment objective by investing under normal market conditions in Wheat Benchmark Component Futures Contracts or, in certain circumstances, in other Wheat Futures Contracts traded on the CBOT, the Kansas City Board of Trade (“KCBT”), or the Minneapolis Grain Exchange (“MGEX”), or Wheat Futures Contracts traded on foreign exchanges. In addition, and to a limited extent, the Fund also may invest in exchange-traded options on Wheat Futures Contracts, and in wheat-based swap agreements that are cleared through the CBOT or its affiliated provider of clearing services (“Cleared Wheat Swaps”) in furtherance of the Fund's investment objective. Specifically, once position limits in CBOT Wheat Futures Contracts are reached, the Fund's intention is to invest first in Cleared Wheat Swaps to the extent permitted under the position limits applicable to Cleared Wheat Swaps and appropriate in light of the liquidity in the Cleared Wheat Swaps market, and then, using its commercially reasonable judgment, in other Wheat Futures Contracts (
The Fund seeks to achieve its investment objective primarily by investing in Wheat Interests such that daily changes in the Fund's NAV will be expected to closely track the changes in the Wheat Benchmark. The Fund's positions in Wheat Interests will be changed or “rolled” on a regular basis in order to track the changing nature of the Wheat Benchmark. For example, five times a year (on the date on which a Wheat Futures Contract expires), the second-to-expire Wheat Futures Contract will become the next-to-expire Wheat Futures Contract and will no longer be a Wheat Benchmark Component Futures Contract, and the Fund's investments will have to be changed accordingly.
Consistent with achieving the Fund's investment objective of closely tracking the Wheat Benchmark, the Sponsor may for certain reasons cause the Fund to enter into or hold Cleared Wheat Swaps and/or Other Wheat Interests. For example, certain Cleared Wheat Swaps have standardized terms similar to, and are priced by reference to, a corresponding Wheat Benchmark
The Fund will invest in Wheat Interests to the fullest extent possible without being leveraged or unable to satisfy its expected current or potential margin or collateral obligations with respect to its investments in Wheat Interests.
The investment objective of the Teucrium Soybean Fund is to have the daily changes in percentage terms of the Shares' NAV reflect the daily changes in percentage terms of a weighted average of the closing settlement prices for three futures contracts for soybeans (soybean futures contracts generally referred to herein as “Soybean Futures Contracts”) that are traded on the CBOT. Generally, the three Soybean Futures Contracts will be: (1) Second-to-expire CBOT Soybean Futures Contract, weighted 35%; (2) the third-to-expire CBOT Soybean Futures Contract, weighted 30%; and (3) the CBOT Soybean Futures Contract expiring in the November following the expiration month of the third-to-expire contract, weighted 35%. The weighted average of the three above-referenced Soybean Futures Contracts is referred to herein as the “Soybean Benchmark,” and the three Soybean Futures Contracts that at any given time make up the Soybean Benchmark are referred to herein as the “Soybean Benchmark Component Futures Contracts.”
The Fund seeks to achieve its investment objective by investing under normal market conditions in Soybean Benchmark Component Futures Contracts or, in certain circumstances, in other Soybean Futures Contracts traded on CBOT or Soybean Futures Contracts traded on foreign exchanges. In addition, and to a limited extent, the Fund also may invest in exchange-traded options on Soybean Futures Contracts and in soybean-based swap agreements that are cleared through the CBOT or its affiliated provider of clearing services (“Cleared Soybean Swaps”) in furtherance of the Fund's investment objective. Specifically, once CBOT position limits in Soybean Futures Contracts are reached, the Fund's intention is to invest first in Cleared Soybean Swaps to the extent permitted under the CBOT position limits applicable to Cleared Soybean Swaps and appropriate in light of the liquidity in the Cleared Soybean Swaps market, and then, using its commercially reasonable judgment, in other Soybean Futures Contracts (
The Fund seeks to achieve its investment objective primarily by investing in Soybean Interests such that daily changes in the Fund's NAV will be expected to closely track the changes in the Soybean Benchmark. The Fund's positions in Soybean Interests will be changed or “rolled” on a regular basis in order to track the changing nature of the Soybean Benchmark. For example, five times a year (on the date on which certain Soybean Futures Contracts expire), a particular Soybean Futures Contract will no longer be a Soybean Benchmark Component Futures Contract, and the Fund's investments will have to be changed accordingly.
Consistent with achieving the Fund's investment objective of closely tracking the Soybean Benchmark, the Sponsor may for certain reasons cause the Fund to enter into or hold Cleared Soybean Swaps and/or Other Soybean Interests. For example, certain Cleared Soybean Swaps have standardized terms similar to, and are priced by reference to, a corresponding Soybean Benchmark Component Futures Contract. Additionally, Other Soybean Interests that do not have standardized terms and are not exchange-traded (“over-the-counter” Soybean Interests) can generally be structured as the parties desire. Therefore, the Fund might enter into multiple Cleared Soybean Swaps and/or over-the-counter Soybean Interests intended to exactly replicate the performance of each of the three Soybean Benchmark Component Futures Contracts, or a single over-the-counter Soybean Interest designed to replicate the performance of the Soybean Benchmark as a whole. Assuming that there is no default by a counterparty to an over-the-counter Soybean Interest, the performance of the over-the-counter Soybean Interest will necessarily correlate exactly with the performance of the Soybean Benchmark or the applicable Soybean Benchmark Component Futures Contract. The Fund might also enter into or hold over-the-counter Soybean Interests to facilitate effective trading, consistent with the discussion of the Fund's “roll” strategy in the preceding paragraph. In addition, the Fund might enter into or hold over-the-counter Soybean Interests that would be expected to alleviate overall deviation between the Fund's
The Fund will invest in Soybean Interests to the fullest extent possible without being leveraged or unable to satisfy its expected current or potential margin or collateral obligations with respect to its investments in Soybean Interests.
The investment objective of the Teucrium Sugar Fund is to have the daily changes in percentage terms of the Shares' NAV reflect the daily changes in percentage terms of a weighted average of the closing settlement prices for three futures contracts for sugar (sugar futures contracts generally referred to herein as “Sugar Futures Contracts”) that are traded on ICE Futures US (“ICE Futures”), specifically: (1) The second-to-expire Sugar No. 11 Futures Contract (a “Sugar No. 11 Futures Contract”), weighted 35%; (2) the third-to-expire Sugar No. 11 Futures Contract, weighted 30%; and (3) the Sugar No. 11 Futures Contract expiring in the March following the expiration month of the third-to-expire contract, weighted 35%. The weighted average of the three above-referenced Sugar No. 11 Futures Contracts is referred to herein as the “Sugar Benchmark,” and the three Sugar No. 11 Futures Contracts that at any given time make up the Sugar Benchmark are referred to herein as the “Sugar Benchmark Component Futures Contracts.”
The Fund seeks to achieve its investment objective by investing under normal market conditions in Sugar Benchmark Component Futures Contracts or, in certain circumstances, in other Sugar Futures Contracts traded on ICE Futures or the New York Mercantile Exchange (“NYMEX”), or Sugar Futures Contracts traded on foreign exchanges. In addition, and to a limited extent, the Fund also may invest in exchange-traded options on Sugar Futures Contracts and in sugar-based swap agreements that are cleared through ICE Futures or its affiliated provider of clearing services (“Cleared Sugar Swaps”) in furtherance of the Fund's investment objective. Specifically, once accountability levels in Sugar No. 11 Futures Contracts traded on ICE Futures are reached, the Fund's intention is to invest first in Cleared Sugar Swaps to the extent permitted under the accountability levels applicable to Cleared Sugar Swaps and appropriate in light of the liquidity in the Cleared Sugar Swaps market, and then, using its commercially reasonable judgment, in other Sugar Futures Contracts (
The Fund seeks to achieve its investment objective primarily by investing in Sugar Interests such that daily changes in the Fund's NAV will be expected to closely track the changes in the Sugar Benchmark. The Fund's positions in Sugar Interests will be changed or “rolled” on a regular basis in order to track the changing nature of the Sugar Benchmark. For example, four times a year (on the date on which a Sugar No. 11 Futures Contract expires), a particular Sugar No. 11 Futures Contract will no longer be a Sugar Benchmark Component Futures Contract, and the Fund's investments will have to be changed accordingly.
Consistent with achieving the Fund's investment objective of closely tracking the Sugar Benchmark, the Sponsor may for certain reasons cause the Fund to enter into or hold Cleared Sugar Swaps and/or Other Sugar Interests. For example, certain Cleared Sugar Swaps have standardized terms similar to, and are priced by reference to, a corresponding Sugar Benchmark Component Futures Contract. Additionally, Other Sugar Interests that do not have standardized terms and are not exchange-traded, referred to as “over-the-counter” Sugar Interests, can generally be structured as the parties desire. Therefore, the Fund might enter into multiple Cleared Sugar Swaps and/or over-the-counter Sugar Interests intended to exactly replicate the performance of each of the three Sugar Benchmark Component Futures Contracts, or a single over-the-counter Sugar Interest designed to replicate the performance of the Sugar Benchmark as a whole. Assuming that there is no default by a counterparty to an over-the-counter Sugar Interest, the performance of the over-the-counter Sugar Interest will necessarily correlate exactly with the performance of the Sugar Benchmark or the applicable Sugar Benchmark Component Futures Contract. The Fund might also enter into or hold over-the-counter Sugar Interests other than Sugar Benchmark Component Futures Contracts to facilitate effective trading, consistent with the discussion of the Fund's “roll” strategy in the preceding paragraph. In addition, the Fund might enter into or hold over-the-counter Sugar Interests that would be expected to alleviate overall deviation between the Fund's performance and that of the Sugar Benchmark that may result from certain market and trading inefficiencies or other reasons.
The Fund will invest in Sugar Interests to the fullest extent possible without being leveraged or unable to satisfy its expected current or potential margin or collateral obligations with respect to its investments in Sugar Interests.
The Exchange represents that the Funds will meet the initial and continued listing requirements applicable to Trust Issued Receipts in NYSE Arca Equities Rule 8.200 and Commentary .02 thereto. The Exchange further represents that, with respect to application of Rule 10A-3 under the Act,
Additional details regarding the Trust; Funds; Shares; trading policies of the Funds; creations and redemptions of the Shares; Wheat, Soybean, and Sugar Futures Contracts; position, accountability, price fluctuation, and other limits on Wheat, Soybean, and
After careful review, the Commission finds that the proposed rule change to list and trade the Shares of the Funds is consistent with the requirements of Section 6 of the Act and the rules and regulations thereunder applicable to a national securities exchange.
The Commission finds that the proposal to list and trade the Shares on the Exchange is consistent with Section 11A(a)(1)(C)(iii) of the Act,
The Commission further believes that the proposal to list and trade the Shares is reasonably designed to promote fair disclosure of information that may be necessary to price the Shares appropriately and to prevent trading when a reasonable degree of transparency cannot be assured. If the Exchange becomes aware that the NAV with respect to the Shares is not disseminated to all market participants at the same time, it will halt trading in the Shares until such time as the NAV is available to all market participants. Further, the Exchange represents that it may halt trading during the day in which an interruption to the dissemination of the ITV or the value of the underlying futures contracts or the applicable benchmark occurs. If the interruption to the dissemination of the ITV, the value of the underlying futures contracts or the applicable benchmark persists past the trading day in which it occurred, the Exchange will halt trading no later than the beginning of the trading day following the interruption. In addition, the website disclosure of the portfolio composition of each Fund will occur at the same time as the disclosure by the Sponsor of the portfolio composition to Authorized Participants so that all market participants are provided portfolio composition information at the same time. Therefore, the same portfolio information will be provided on the public website as well as in electronic files provided to Authorized Participants. Accordingly, each investor will have access to the current portfolio composition of the Funds through the Funds' Web sites. The Exchange may halt trading in the Shares if trading is not occurring in the underlying futures contracts or if other unusual conditions or circumstances detrimental to the maintenance of a fair and orderly
The Exchange has represented that the Shares are deemed to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. In support of this proposal, the Exchange has made representations, including:
(1) The Funds will meet the initial and continued listing requirements applicable to Trust Issued Receipts in NYSE Arca Equities Rule 8.200 and Commentary .02 thereto.
(2) The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions.
(3) The Exchange's surveillance procedures are adequate to properly monitor Exchange trading of the Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable federal securities laws.
(4) With respect to the Funds' futures contracts traded on exchanges, not more than 10% of the weight of such futures contracts in the aggregate shall consist of components whose principal trading market is not a member of the Intermarket Surveillance Group or is a market with which the Exchange does not have a comprehensive surveillance sharing agreement.
(5) Prior to the commencement of trading, the Exchange will inform its ETP Holders in an Information Bulletin of the special characteristics and risks associated with trading the Shares. Specifically, the Information Bulletin will discuss the following: (a) The risks involved in trading the Shares during the Opening and Late Trading Sessions when an updated ITV will not be calculated or publicly disseminated; (b) the procedures for purchases and redemptions of Shares in creation baskets and redemption baskets (and that Shares are not individually redeemable); (c) NYSE Arca Equities Rule 9.2(a), which imposes a duty of due diligence on its ETP Holders to learn the essential facts relating to every customer prior to trading the Shares; (d) how information regarding the ITV is disseminated; (e) that a static ITV will be disseminated, between the close of trading on the applicable futures exchange and the close of the NYSE Arca Core Trading Session; (f) the requirement that ETP Holders deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; and (g) trading information.
(6) A minimum of 100,000 Shares will be outstanding as of the start of trading on the Exchange.
(7) With respect to the application of Rule 10A-3 under the Act, the Trust will rely on the exception contained in Rule 10A-3(c)(7).
This approval order is based on all of the Exchange's representations.
For the foregoing reasons, the Commission finds that the proposed rule change is consistent with Section 6(b)(5) of the Act
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
CHX proposes to amend its Fee Schedule to retroactively waive its order cancellation fee for a limited duration. The text of this proposed rule change is available on the Exchange's Web site at (
In its filing with the Commission, the CHX included statements concerning the purpose of and basis for the proposed rule changes and discussed any comments it received regarding the proposal. The text of these statements may be examined at the places specified in Item IV below. The CHX has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Through this proposal, the Exchange seeks to retroactively waive the order cancellation fees as provided in Section E.8. of its Schedule of Fees and Assessments (“Fee Schedule”) for the period of September 1 to September 9, 2011, inclusive. On August 25, 2011, the Exchange filed a proposal to amend its Fee Schedule to replace the prior order cancellation fee with a new version, effective September 1, 2011.
The Exchange submitted a filing to the Commission on August 25, 2011 to make these changes with a proposed effective date of September 1, 2011. The Exchange posted a Legal Notice dated August 26, 2011 detailing the proposed changes to the cancellation fee and posted it to its public Web site.
The Commission published the Notice of Filing and Immediate Effectiveness of the proposed cancellation fee change on its public Web site on September 6, 2011. Pursuant to Commission rules, the Exchange updated the Fee Schedule to reflect the changes in the calculation of the order cancellation fee on its Web site on September 8, 2011. Since the Fee Schedule was not updated until after the September 1st effective date, however, the Exchange believes that certain Participants may not have received actual notice of the changes.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act in general,
The Exchange also believes that the proposed rule change is consistent with Section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days after the date of the filing, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend its Options Fee Schedule (the “Schedule”) by adjusting the message ratio used to calculate the Messages to Contracts Traded Ratio Fee (“Messages Fee”). Changes to the Schedule are shown in Exhibit 5. The text of the proposed rule change is available at the Exchange, the Commission's Public Reference Room, and
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend the Schedule by adjusting the message ratio used to calculate the Messages Fee.
The Exchange recently adopted the Messages Fee to help encourage efficient usage of systems capacity by all ATP firms.
The Messages Fee takes into consideration quotes as well as orders entered and looks at the number of contracts traded as a result. ATP firms that enter excessive amounts of orders and quotes that produce little or no volume are assessed the Messages Fee based on the ratio of quotes and orders to contracts traded. The Messages Fee is only assessed against ATP firms who exceed one billion quotes and/or orders (collectively, “messages”) in a given month in determining whether inefficient utilization of systems capacity has occurred. For those ATP firms exceeding one billion messages in a month, the Exchange currently assesses a fee for those ATP firms that do not execute at least one contract for every 1,500 messages entered. An ATP firm failing to meet that execution ratio is charged $.01 for every 1,000 messages in excess of one billion messages.
The Exchange proposes to amend the message ratio in the Schedule to reflect a range, namely one contract for every 1,500 to 3,000 messages entered. Under the proposal, the Exchange would be permitted to select the precise number of messages within that range that would be used to calculate the Messages Fees. Any change to the number of messages to be used in setting the Messages Fee would be announced in an Information Memo at least one business day in advance of its implementation and would be applicable in the next calendar month and thereafter until changed. The fee would not be changed mid-month. Thus, for example, if the Exchange determined to change the message ratio as of September 1, 2011, the Exchange would announce the newly selected ratio in an Information Memo not later than August 31, 2011 and that ratio would apply in September 2011 and each succeeding month until changed in accordance with the notice described above. Under the proposed rule change, the Exchange also would be authorized to exclude one or more days of data for purposes of calculating the Messages Fee for an ATP firm if the Exchange determined, in its sole discretion, that one or more ATP Firms or the Exchange was experiencing a bona fide systems problem.
Since implementing the Messages Fee on June 1, 2011, the Exchange has heard from several liquidity providers who raised concerns about the potential for inadvertently incurring a large Messages Fee as a result of a systems problem. Further, several liquidity providers indicated that, as month end approached, they were providing less aggressive liquidity to avoid any possibility of incurring the Messages Fee, particularly when markets are volatile.
After considering recent market conditions, the Exchange believes that the current ratio of 1,500 messages may not be sufficiently flexible and could inadvertently result in higher than anticipated fees being charged to ATP firms that are providing liquidity in volatile, high volume markets. The Exchange does not want to discourage such liquidity provision and believes that it should be able to adjust the message ratio on a monthly basis within the proposed fixed range of 1,500 to 3,000 messages with the notice described above.
The Exchange believes that the proposed rule change is consistent with the provisions of Section 6(b)
The proposed Messages Fee is equitable and not unfairly discriminatory because it will apply equally to all members who send quotes and/or orders. Additionally, the proposed Messages Fee is reasonable and justified because it will encourage efficient utilization of system bandwidth; unfettered growth in bandwidth consumption can have a detrimental effect on all participants who are potentially compelled to upgrade capacity as a result of the bandwidth usage of other participants.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, 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.
U.S. Small Business Administration.
Amendment 2.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of Texas (FEMA—1999—DR), dated 08/15/2011.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of Texas, dated 08/15/2011, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 1.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the Commonwealth of Virginia (FEMA-4024-DR), dated 09/03/2011.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the Commonwealth of Virginia, dated 09/03/2011, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 5.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of New York (FEMA-4020-DR), dated 08/31/2011.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of New York, dated 08/31/2011, is hereby amended to include the following areas as adversely affected by the disaster.
U.S. Small Business Administration.
Amendment 1.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of New Hampshire (FEMA-4026-DR), dated 09/03/2011.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of New Hampshire, dated 09/03/2011, is hereby amended to establish the incident period for this disaster as beginning 08/26/2011 and continuing through 09/06/2011.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 1.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the Commonwealth of Massachusetts (FEMA-4028-DR), dated 09/03/2011.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the Commonwealth of Massachusetts, dated 09/03/2011, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 2.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of Vermont (FEMA-4022-DR), dated 09/01/2011.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of Vermont, dated 09/01/2011, is hereby amended to establish the incident period for this disaster as beginning 08/27/2011 and continuing through 09/02/2011.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 4.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of New York (FEMA-4020-DR), dated 08/31/2011.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of New York, dated 08/31/2011, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 2.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of New Hampshire (FEMA-4026-DR), dated 09/03/2011.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of New Hampshire, dated 09/03/2011, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 1.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of Connecticut (FEMA-4023-DR), dated 09/02/2011.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of Connecticut, dated 09/02/2011, is hereby amended to establish the incident period for this disaster as beginning 08/27/2011 and continuing through 09/01/2011.
All other information in the original declaration remains unchanged.
(Catalog of Federal Domestic Assistance Numbers 59002 and 59008)
U.S. Small Business Administration.
Amendment 2.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of North Carolina (FEMA-4019-DR), dated 09/01/2011.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of North Carolina, dated 09/01/2011, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 6.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of New York (FEMA-4020-DR), dated 08/31/2011.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of New York, dated 08/31/2011, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
Social Security Administration.
Notice of Senior Executive Service Performance Review Board Membership.
Title 5, U.S. Code, 4314 (c)(4), requires that the appointment of Performance Review Board members be published in the
The following persons will serve on the Performance Review Board which oversees the evaluation of performance appraisals of Senior Executive Service members of the Social Security Administration:
* New Member.
In accordance with Part 211 of Title 49 of the Code of Federal Regulations (CFR), this document provides the public notice that by documents dated July 21 and July 27, 2011, the American Association of Private Railroad Car Owners, Inc. (AAPRCO) has petitioned the Federal Railroad Administration (FRA) for a waiver of compliance from certain provisions of the Federal railroad safety regulations contained at 49 CFR parts 232 and 238. FRA assigned the petition Docket Number FRA-2011-0070.
AAPRCO seeks a waiver of compliance from certain requirements of 49 CFR part 232,
In addition, AAPRCO requests a waiver from the maintenance requirement of 49 CFR 238.307(c)(9) requiring that “an extensive inspection of all center castings shall be conducted * * * at each COT&S cycle provided in [Section] 238.309 for the equipment.” AAPRCO states that the “Amtrak required 200,000 mile/10-year inspection (‘PC2/PC2A’) of the center castings” provides for a more frequent inspection in terms of operating mileage than that required for Amtrak and commuter-operated equipment, which typically travel 360,000 miles per year. Therefore, AAPRCO requests consideration of the PC2/PC2A inspection as an alternate compliance with 49 CFR 238.307(c)(9).
A copy of the petition, as well as any written communications concerning the petition, is available for review online at
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number and may be submitted by any of the following methods:
•
•
•
•
Communications received by November 7, 2011 will be considered by FRA before final action is taken. Comments received after that date will be considered as far as practicable.
Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union,
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
List of Applications for Modification of Special Permits.
In accordance with the procedures governing the application for, and the processing of, special permits from the Department of Transportation's Hazardous Material Regulations (49 CFR part 107, Subpart B), notice is hereby given that the Office of Hazardous Materials Safety has received the applications described herein. This notice is abbreviated to expedite docketing and public notice. Because the sections affected, modes of transportation, and the nature of application have been shown in earlier
Comments must be received on or before October 6, 2011.
Copies of the applications are available for inspection in the Records Center, East Building, PHH-30, 1200 New Jersey Avenue, SE., Washington, DC or at
This notice of receipt of applications for modification of special permit is published in accordance with Part 107 of the Federal hazardous materials transportation law (49 U.S.C. 5117(b), 49 CFR 1.53(b)).
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork burdens, invites the general public and other Federal agencies to comment on an information collection that is due for renewed approval by the Office of Management and Budget. The Office of International Affairs within the Department of the Treasury is soliciting comments concerning recordkeeping requirements associated with Reporting of International Capital and Foreign Currency Transactions and Positions—31 CFR part 128.
Written comments should be received on or before November 21, 2011 to be assured of consideration.
Direct all written comments on international capital transactions and positions to: Dwight Wolkow, International Portfolio Investment Data Systems, Department of the Treasury, Room 5422, 1500 Pennsylvania Avenue, NW., Washington, DC 20220. In view of possible delays in mail delivery, please also notify Mr. Wolkow by e-mail (
Requests for additional information on international capital transactions and positions should be directed to Mr. Wolkow. Requests for additional information on foreign currency transactions and positions should be directed to Mr. Seel.
Office of Foreign Assets Control, Treasury.
Notice.
The U.S. Department of the Treasury's Office of Foreign Assets Control (“OFAC”) is publishing the names of 5 entities whose property and interests in property have been blocked pursuant to the Foreign Narcotics Kingpin Designation Act (“Kingpin Act”) (21 U.S.C. 1901-1908, 8 U.S.C. 1182).
The designation by the Director of OFAC of the 5 entities identified in this notice pursuant to section 805(b) of the Kingpin Act is effective on September 15, 2011.
Assistant Director, Compliance Outreach & Implementation, Office of Foreign Assets Control, Department of the Treasury, Washington, DC 20220, tel.: 202-622-2490.
This document and additional information concerning OFAC are available on OFAC's Web site (
The Kingpin Act became law on December 3, 1999. The Kingpin Act establishes a program targeting the activities of significant foreign narcotics traffickers and their organizations on a worldwide basis with the objective of denying their businesses and agents access to the U.S. financial system and the benefits of trade and transactions involving U.S. companies and individuals.
The Kingpin Act blocks all property and interests in property, subject to U.S. jurisdiction, owned or controlled by significant foreign narcotics traffickers as identified by the President. In addition, the Secretary of the Treasury in consultation with the Attorney General, the Director of the Central Intelligence Agency, the Director of the Federal Bureau of Investigation, the Administrator of the Drug Enforcement Administration, the Secretary of Defense, the Secretary of State, and the Secretary of Homeland Security may designate and block the property and interests in property, subject to U.S. jurisdiction, of foreign persons who are found to be: (1) Materially assisting in, or providing financial or technological support for or to, or providing goods or services in support of, the international narcotics trafficking activities of a person designated pursuant to the Kingpin Act; (2) owned, controlled, or directed by, or acting for or on behalf of, a person designated pursuant to the Kingpin Act; or (3) playing a significant role in international narcotics trafficking.
On September 15, 2011, the Director of OFAC designated 5 entities whose property and interests in property are blocked pursuant to section 805(b) of the Foreign Narcotics Kingpin Designation Act. The list of designees is as follows:
1. JR CONTROLADORA DE RESTAURANTES, S.A. DE C.V., Martin L. Guzman 259-3, Colonia Villa de Cortes, Delegacion Benito Juarez, Mexico City, Distrito Federal, Mexico; Folio Mercantil No. 325909 (Mexico); (ENTITY) [SDNTK].
2. TATES DESARROLLO, S.A. DE C.V., Avenida San Jeronimo No. 630 Trc. 16, Colonia Barrio San Jeronimo Lidice, Delegacion La Magdalena Contreras, Mexico City, Distrito Federal, Mexico; Folio Mercantil No. 345497 (Mexico); (ENTITY) [SDNTK].
3. FLORBEL OPERADORA DE RESTAURANTES, S.A. DE C.V., Mexico City, Distrito Federal, Mexico; Folio Mercantil No. 310801 (Mexico); (ENTITY) [SDNTK].
4. LUZAAIR, S.A. DE C.V., Mexico City, Distrito Federal, Mexico; Folio Mercantil No. 354246 (Mexico); (ENTITY) [SDNTK].
5. LORENA DEL MAR, S.A. DE C.V., Mexico City, Distrito Federal, Mexico; Folio Mercantil No. 324168 (Mexico); (ENTITY) [SDNTK].
Office of Foreign Assets Control, Treasury.
Notice.
The U.S. Department of the Treasury's Office of Foreign Assets Control (“OFAC”) is publishing the names of four individuals whose property and interests in property have been blocked pursuant to the Foreign Narcotics Kingpin Designation Act (“Kingpin Act”) (21 U.S.C. 1901-1908, 8 U.S.C. 1182).
The designation by the Director of OFAC of the four individuals identified in this notice pursuant to section 805(b) of the Kingpin Act is effective on September 15, 2011.
Assistant Director, Sanctions Compliance & Evaluation, Office of Foreign Assets Control, Department of the Treasury, Washington, DC 20220, tel.: 202/622-2490.
This document and additional information concerning OFAC are available on OFAC's Web site (
The Kingpin Act became law on December 3, 1999. The Kingpin Act establishes a program targeting the activities of significant foreign narcotics traffickers and their organizations on a worldwide basis with the objective of denying their businesses and agents access to the U.S. financial system and the benefits of trade and transactions involving U.S. companies and individuals.
The Kingpin Act blocks all property and interests in property, subject to U.S. jurisdiction, owned or controlled by significant foreign narcotics traffickers as identified by the President. In addition, the Secretary of the Treasury in consultation with the Attorney General, the Director of the Central Intelligence Agency, the Director of the Federal Bureau of Investigation, the Administrator of the Drug Enforcement Administration, the Secretary of Defense, the Secretary of State, and the Secretary of Homeland Security may designate and block the property and
On September 15, 2011, the Director of OFAC designated four individuals whose property and interests in property are blocked pursuant to section 805(b) of the Kingpin Act. The list of the designees is as follows:
United States Sentencing Commission.
Notice of final action regarding technical and conforming amendments to Federal sentencing guidelines effective November 1, 2011.
On April 28, 2011, the Commission submitted to the Congress amendments to the sentencing guidelines and official commentary, which become effective on November 1, 2011, unless Congress acts to the contrary. Such amendments and the reasons for amendment subsequently were published in the
The Commission has specified an effective date of November 1, 2011, for the amendments set forth in this notice.
Jeanne Doherty, Office of Legislative and Public Affairs, (202) 502-4502.
The United States Sentencing Commission, an independent commission in the judicial branch of the United States government, is authorized by 28 U.S.C. 994(a) to promulgate sentencing guidelines and policy statements for Federal courts. Section 994 also directs the Commission to review and revise periodically promulgated guidelines and authorizes it to submit guideline amendments to Congress not later than the first day of May each year.
Unlike amendments made to sentencing guidelines, amendments to commentary may be made at any time and are not subject to congressional review. To the extent practicable, the Commission endeavors to include amendments to commentary in any submission of guideline amendments to Congress. Occasionally, however, the Commission determines that technical and conforming changes to commentary are necessary. This notice sets forth technical and conforming amendments to commentary that will become effective on November 1, 2011.
USSC Rules of Practice and Procedure 4.1.
1.
The Commentary to § 2J1.1 captioned “Application Notes” is amended in each of Note 2 and Note 3 by striking “§ 2B1.1(b)(8)(C)” and inserting “§ 2B1.1(b)(9)(C)”.
The Commentary to § 2K2.4 captioned “Application Notes” is amended in Note 4 in the third paragraph by striking “§ 2K2.1(b)(6)” and inserting “§ 2K2.1(b)(6)(B)” in both places.
The Commentary following § 3D1.5 captioned “Illustrations of the Operation of the Multiple-Count Rules” is amended in Note 3 by striking “§ 2B1.1(b)(9)” and inserting “§ 2B1.1(b)(10)”.
(1) Amendment 1 renumbered specific offense characteristics in § 2B1.1 (Theft, Property Destruction, and Fraud), including the specific offense characteristic for violation of a prior, specific order (from (b)(8)(C) to (b)(9)(C)) and the specific offense characteristic for sophisticated means (from (b)(9) to (b)(10)). To reflect these renumberings, conforming changes are made to Application Notes 2 and 3 to § 2J1.1 (Contempt) and to the Commentary following § 3D1.5 (Determining the Total Punishment).
(2) Amendment 2 amended § 2D2.1 (Unlawful Possession; Attempt or Conspiracy) to delete a cross-reference at subsection (b)(1). To reflect this deletion, a conforming change is made to Application Note 3(A) to § 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy).
(3) Amendment 5 renumbered the specific offense characteristic in § 2K2.1 (Unlawful Receipt, Possession, or
United States Sentencing Commission.
Notice of final priorities.
In July 2011, the Commission published a notice of possible policy priorities for the amendment cycle ending May 1, 2012. See 76 FR 45007 (July 17, 2011). After reviewing public comment received pursuant to the notice of proposed priorities, the Commission has identified its policy priorities for the upcoming amendment cycle and hereby gives notice of these policy priorities.
Jeanne Doherty, Office of Legislative and Public Affairs, 202-502-4502.
The United States Sentencing Commission is an independent agency in the judicial branch of the United States Government. The Commission promulgates sentencing guidelines and policy statements for Federal sentencing courts pursuant to 28 U.S.C. 994(a). The Commission also periodically reviews and revises previously promulgated guidelines pursuant to 28 U.S.C. 994(o) and submits guideline amendments to the Congress not later than the first day of May each year pursuant to 28 U.S.C. 994(p).
As part of its statutory authority and responsibility to analyze sentencing issues, including operation of the Federal sentencing guidelines, the Commission has identified its policy priorities for the amendment cycle ending May 1, 2012. The Commission recognizes, however, that other factors, such as the enactment of any legislation requiring Commission action, may affect the Commission's ability to complete work on any or all of its identified priorities by the statutory deadline of May 1, 2012. Accordingly, it may be necessary to continue work on any or all of these issues beyond the amendment cycle ending on May 1, 2012.
As so prefaced, the Commission has identified the following priorities:
(1) Continuation of its work on statutory mandatory minimum penalties, including (A) its study of and, pursuant to the directive in section 4713 of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009, Public Law 111-84, report to Congress on statutory mandatory minimum penalties, including a review of the operation of the “safety valve” provision at 18 U.S.C. 3553(e); and (B) its study of and, pursuant to the directive in section 107(b) of the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010, Public Law 111-195, report to Congress regarding violations of section 5(a) of the United Nations Participation Act of 1945 (22 U.S.C. 287c(a)), sections 38, 39, and 40 of the Arms Export Control Act (22 U.S.C. 2778, 2779, and 2780), and the Trading with the Enemy Act (50 U.S.C. App. 1
(2) Continuation of its work on implementation of the directives in section 1079A of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 111-203, regarding securities fraud offenses and fraud offenses relating to financial institutions or Federally related mortgage loans; and implementation of any other crime legislation enacted during the 111th or 112th Congress warranting a Commission response.
(3) Continuation of its work with the congressional, executive, and judicial branches of government, and other interested parties, to study the manner in which
(4) Continuation of its multi-year review of § 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) and possible consideration of amendments to the Federal sentencing guidelines for drug offenses.
(5) Continuation of its review of child pornography offenses and report to Congress as a result of such review. It is anticipated that any such report would include (A) A review of the incidence of, and reasons for, departures and variances from the guideline sentence; (B) a compilation of studies on, and analysis of, recidivism by child pornography offenders; and (C) possible recommendations to Congress on any statutory changes that may be appropriate.
(6) Continuation of its multi-year study of the statutory and guideline definitions of “crime of violence”, “aggravated felony”, “violent felony”, and “drug trafficking offense”, including (A) Possible consideration of an amendment to specify the types of documents to be considered under the “categorical approach”,
(7) Continuation of its review of departures within the guidelines, including provisions in Parts H and K of Chapter Five of the
(8) Continuation of its multi-year review of the guidelines and their application to human rights offenses, including genocide under 18 U.S.C. 1091, war crimes under 18 U.S.C. 2441, torture and maiming to commit torture under 18 U.S.C. 2340A and 114, respectively, and child soldier offenses under 18 U.S.C. 2442, and possible promulgation of guidelines or guideline amendments with respect to these offenses.
(9) Resolution of circuit conflicts, pursuant to the Commission's continuing authority and responsibility, under 28 U.S.C. 991(b)(1)(B) and
(10) Consideration of (A) § 5K2.19 (Post-Sentencing Rehabilitative Efforts) (Policy Statement) in light of
28 U.S.C. 994(a), (o); USSC Rules of Practice and Procedure 5.2.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), 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 November 21, 2011.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Nancy J. Kessinger at (202) 461-9769 or FAX (202) 275-5947.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3521), 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.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), 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 November 21, 2011.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Nancy J. Kessinger at (202) 461-9769 or FAX (202) 275-5947.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3521), 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
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an 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 November 21, 2011.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Nancy J. Kessinger at (202) 461-9769 or FAX (202) 275-5947.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501—3521), 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.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), 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 November 21, 2011.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Nancy J. Kessinger at (202) 461-9769 or FAX (202) 275-5947.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501—3521), 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:
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), 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 November 21, 2011.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Nancy J. Kessinger at (202) 461-9769 or FAX (202) 275-5947.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501—3521), 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:
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to partially approve and partially disapprove a revision to the North Dakota State Implementation Plan (SIP) addressing regional haze submitted by the Governor of North Dakota on March 3, 2010, along with SIP Supplement No. 1 submitted on July 27, 2010, and part of SIP Amendment No. 1 submitted on July 28, 2011. These SIP revisions were submitted to address the requirements of the Clean Air Act (CAA or Act) and our rules that require states to prevent any future and remedy any existing man-made impairment of visibility in mandatory Class I areas caused by emissions of air pollutants from numerous sources located over a wide geographic area (also referred to as the “regional haze program”). EPA is proposing a Federal Implementation Plan (FIP) to address the deficiencies identified in our proposed partial disapproval of North Dakota's regional haze SIP. In lieu of this proposed FIP, or a portion thereof, we are proposing approval of a SIP revision if the State submits such a revision in a timely way, and the revision matches the terms of our proposed FIP.
In addition, EPA is proposing to disapprove a revision to the North Dakota SIP addressing the interstate transport of pollutants that the Governor submitted on April 6, 2009. We are proposing to disapprove it because it does not meet the Act's requirements concerning non-interference with programs to protect visibility in other states. To address this deficiency, we are proposing a FIP.
The public hearing will provide interested parties the opportunity to present information and opinions to EPA concerning our proposal. Interested parties may also submit written comments, as discussed in the proposal. Written statements and supporting information submitted during the comment period will be considered with the same weight as any oral comments and supporting information presented at the public hearing. We will not respond to comments during the public hearing. When we publish our final action, we will provide written responses to all oral and written comments received on our proposal.
At the public hearing, the hearing officer may limit the time available for each commenter to address the proposal to 5 minutes or less if the hearing officer determines it to be appropriate. We will not be providing equipment for commenters to show overhead slides or make computerized slide presentations. Any person may provide written or oral comments and data pertaining to our proposal at the public hearing. Verbatim transcripts, in English, of the hearing and written statements will be included in the rulemaking docket.
Submit your comments, identified by Docket ID No. EPA-R08-OAR-2010-0406, by one of the following methods:
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Gail Fallon, EPA Region 8, at (303) 312-6281, or
For the purpose of this document, we are giving meaning to certain words or initials as follows:
(i) The words or initials
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We propose to partially approve and partially disapprove North Dakota's regional haze State Implementation Plan (Regional Haze SIP) revision that was submitted on March 3, 2010, SIP Supplement No. 1 that was submitted on July 27, 2010, and part of SIP Amendment No. 1 that was submitted on July 28, 2011. Specifically, we propose to disapprove the following:
• North Dakota's NO
• North Dakota's determination under the reasonable progress requirements found at 40 CFR 51.308(d)(1) that no additional NO
• North Dakota's Reasonable Progress Goals (RPGs).
• Portions of North Dakota's long-term strategy that rely on or reflect other aspects of the Regional Haze SIP we are proposing to disapprove.
We are proposing to approve the remaining aspects of North Dakota's Regional Haze SIP revision that was submitted on March 3, 2010 and SIP Supplement No. 1 that was submitted on July 27, 2010. We are proposing to approve the following parts of SIP Amendment No. 1 that the State submitted on July 28, 2011: (1) Amendments to Section 10.6.1.2 pertaining to Coyote Station, and (2) amendments to Appendix A.4, the Permit to Construct of Coyote Station. We are not proposing action on the remainder of the July 28, 2011 submittal at this time.
We are proposing the promulgation of a FIP to address the deficiencies in the North Dakota Regional Haze SIP that we have identified in this proposal.
The proposed FIP includes the following elements:
• NO
• NO
• A reasonable progress determination and NO
• Monitoring, record-keeping, and reporting requirements for the above seven units to ensure compliance with these emission limitations.
• Reasonable progress goals consistent with the SIP limits proposed for approval and the proposed FIP limits.
• Long-term strategy elements that reflect the other aspects of the proposed FIP.
In lieu of this proposed FIP, or portion thereof, we are proposing approval of a SIP revision if the State submits such a revision in a timely way, and the revision matches the terms of our proposed FIP, or relevant portion thereof.
We are proposing to disapprove a portion of the SIP revision North Dakota submitted on April 6, 2009, for the purpose of addressing the “good neighbor” provisions of CAA section 110(a)(2)(D)(i) for the 1997 8-hour ozone NAAQS and the PM
The State's April 6, 2009 SIP submission suggested that North Dakota intended to address the requirements of section 110(a)(2)(D)(i)(II) by a timely submission of its Regional Haze SIP by December of 2007, but the State did not make that submission until March 3, 2010. Moreover, while North Dakota ultimately submitted a Regional Haze SIP revision that addresses visibility and reasonable progress goals directly, North Dakota did not explicitly specify that it was submitting the Regional Haze SIP revision to satisfy the visibility prong of 110(a)(2)(D)(i)(II). Most importantly, however, EPA must review the April 6, 2009 submission in light of the current facts and circumstances, and the Regional Haze SIP revision that the State ultimately submitted does not fully meet the substantive requirements of the regional haze program. The State made no other SIP submission in which it indicated that it intended to meet the visibility prong of section 110(a)(2)(D)(i)(II) in any other way. Accordingly, we are proposing to disapprove North Dakota's April 6, 2009 SIP submittal for the visibility prong of section 110(a)(2)(D)(i)(II), because that submittal neither contains adequate measures to eliminate emissions that would interfere with the required visibility programs in other states, nor a demonstration that the existing North Dakota SIP already includes measures sufficient to eliminate such prohibited impacts.
We are proposing the promulgation of a FIP to address the deficiency in North Dakota's April 6, 2009 SIP submission that we have identified in this proposal, in order to meet the interstate transport requirements of section 110(a)(2)(D)(i)(II) for visibility. Specifically, the proposed FIP consists of a finding that the combination of our proposed partial approval of North Dakota's Regional Haze SIP and our proposed partial FIP for regional haze for North Dakota will satisfy the interstate transport requirements of section 110(a)(2)(D)(i)(II) with respect to visibility. The emissions reductions resulting from the combination SIP/FIP and other provisions contained in the SIP will ensure non-interference with the required visibility programs of other states, as well as simultaneously meet the substantive requirements of the regional haze program. Simultaneous action on both the section 110(a)(2)(D)(i)(II) and regional haze program requirements will also be the most efficient approach to ensure that sources in North Dakota are controlled adequately to meet both requirements, and to avoid the possibility that sources might be required to implement two successive levels of controls in order to meet both requirements.
The CAA requires each state to develop plans to meet various air quality requirements, including protection of visibility. CAA sections 110(a), 169A, and 169B. The plans developed by a state are referred to as SIPs. A state must submit its SIPs and SIP revisions to us for approval. Once approved, a SIP is enforceable by EPA and citizens under the CAA, also known as being federally enforceable. If a state fails to make a required SIP submittal or if we find that a state's required submittal is incomplete or unapprovable, then we must promulgate a FIP to fill this regulatory gap. CAA section 110(c)(1). As discussed elsewhere in this notice, we are proposing to disapprove aspects of North Dakota's Regional Haze SIP. We are also proposing to disapprove, as not meeting the requirements of section 110(a)(2)(D)(i)(II) of the CAA regarding visibility, North Dakota's interstate transport SIP. We are proposing FIPs to address the deficiencies in North Dakota's regional haze and interstate transport SIPs.
Regional haze is visibility impairment that is produced by a multitude of sources and activities which are located across a broad geographic area and emit PM
Data from the existing visibility monitoring network, the “Interagency Monitoring of Protected Visual Environments” (IMPROVE) monitoring network, show that visibility impairment caused by air pollution occurs virtually all the time at most national park and wilderness areas. The average visual range
In section 169A of the 1977 Amendments to the CAA, Congress created a program for protecting visibility in the nation's national parks and wilderness areas. This section of the CAA establishes as a national goal the “prevention of any future, and the remedying of any existing, impairment of visibility in mandatory Class I Federal areas
Congress added section 169B to the CAA in 1990 to address regional haze issues, and we promulgated regulations addressing regional haze in 1999. 64 FR 35714 (July 1, 1999), codified at 40 CFR part 51, subpart P. The Regional Haze Rule revised the existing visibility regulations to integrate into them provisions addressing regional haze impairment and establish a comprehensive visibility protection program for Class I areas. The requirements for regional haze, found at 40 CFR 51.308 and 51.309, are included in our visibility protection regulations at 40 CFR 51.300-309. Some of the main regional haze requirements are summarized in section IV of this action. The requirement to submit a Regional Haze SIP applies to all 50 states, the District of Columbia and the Virgin Islands. States were required to submit a SIP addressing regional haze visibility impairment no later than December 17, 2007.
Few States submitted a Regional Haze SIP prior to the December 17, 2007 deadline, and on January 15, 2009, EPA found that 37 states, including North Dakota, and the District of Columbia and the Virgin Islands, had failed to submit SIPs addressing the regional haze requirements. 74 FR 2392. Once EPA has found that a State has failed to make a required submission, EPA is required to promulgate a FIP within two years unless the State submits a SIP and the Agency approves it within the two year period. CAA § 110(c)(1).
Successful implementation of the regional haze program will require long-term regional coordination among states, tribal governments and various federal agencies. Pollution affecting the air quality in Class I areas can be transported over long distances, even hundreds of kilometers. Therefore, to address effectively the problem of visibility impairment in Class I areas, states need to develop strategies in coordination with one another, taking into account the effect of emissions from one jurisdiction on the air quality in another.
Because the pollutants that lead to regional haze can originate from sources located across broad geographic areas, we have encouraged the states and tribes across the United States to address visibility impairment from a regional perspective. Five regional planning organizations (RPOs) were formed to address regional haze and related issues. The regional planning organizations first evaluated technical information to better understand how their states and tribes impact Class I areas across the country, and then pursued the development of regional strategies to reduce emissions of particulate matter (PM) and other pollutants leading to regional haze.
The Western Regional Air Program (WRAP) is a collaborative effort of state governments, tribal governments, and various federal agencies established to conduct data analyses, conduct pollutant transport modeling, and coordinate planning activities among the western states. Member state governments include: Alaska, Arizona, California, Colorado, Idaho, Montana, New Mexico, North Dakota, Oregon, South Dakota, Utah, Washington, and Wyoming. Tribal members include Campo Band of Kumeyaay Indians, Confederated Salish and Kootenai Tribes, Cortina Indian Rancheria, Hopi Tribe, Hualapai Nation of the Grand Canyon, Native Village of Shungnak, Nez Perce Tribe, Northern Cheyenne Tribe, Pueblo of Acoma, Pueblo of San Felipe, and Shoshone-Bannock Tribes of Fort Hall.
On July 18, 1997, we promulgated the 1997 8-hour ozone NAAQS and the 1997 PM
On April 25, 2005, we published a “Finding of Failure to Submit SIPs for Interstate Transport for the 8-hour Ozone and PM
On August 15, 2006, we issued our “Guidance for State Implementation Plan (SIP) Submissions to Meet Current Outstanding Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and PM
As identified in the 2006 Guidance, the “good neighbor” provisions in section 110(a)(2)(D)(i) of the CAA require each state to have a SIP that prohibits emissions that adversely affect another state in the ways contemplated in the statute. Section 110(a)(2)(D)(i) contains four distinct requirements or “prongs” related to the impacts of interstate transport. The SIP must prevent sources in the state from emitting pollutants in amounts which will: (1) Contribute significantly to nonattainment of the NAAQS in other states; (2) interfere with maintenance of the NAAQS in other states; (3) interfere with provisions to prevent significant deterioration of air quality in other states; or (4) interfere with efforts to protect visibility in other states.
Acknowledging that the Regional Haze SIPs were still under development and were not due until December 17, 2007, the 2006 Guidance recommended that states could make a simple SIP submission confirming that it was not possible at that point in time to assess whether there was any interference with
On June 2, 2009, WildEarth Guardians sued EPA for our failure to take action to promulgate FIPs, or to act on submitted SIPs in lieu thereof, to satisfy the requirements of section 110(a)(2)(D)(i) for the 1997 8-hour ozone NAAQS and 1997 PM
On April 6, 2009, we received a SIP revision from North Dakota to address the interstate transport provisions of CAA 110(a)(2)(D)(i) for the 1997 8-hour ozone NAAQS and the 1997 PM
The following is a summary of the requirements of the Regional Haze Rule. See 40 CFR 51.308 for further detail regarding the requirements of the rule.
Regional Haze SIPs must assure reasonable progress towards the national goal of achieving natural visibility conditions in Class I areas. Section 169A of the CAA and our implementing regulations require states to establish long-term strategies for making reasonable progress toward meeting this goal. Implementation plans must also give specific attention to certain stationary sources that were in existence on August 7, 1977, but were not in operation before August 7, 1962, and require these sources, where appropriate, to install BART controls for the purpose of eliminating or reducing visibility impairment. The specific Regional Haze SIP requirements are discussed in further detail below.
The Regional Haze Rule establishes the deciview (dv) as the principal metric for measuring visibility.
The deciview is used in expressing reasonable progress goals (which are interim visibility goals towards meeting the national visibility goal), defining baseline, current, and natural conditions, and tracking changes in visibility. The Regional Haze SIPs must contain measures that ensure “reasonable progress” toward the national goal of preventing and remedying visibility impairment in Class I areas caused by manmade air pollution by reducing anthropogenic emissions that cause regional haze. The national goal is a return to natural conditions,
To track changes in visibility over time at each of the 156 Class I areas covered by the visibility program (40 CFR 81.401-437), and as part of the process for determining reasonable progress, states must calculate the degree of existing visibility impairment at each Class I area at the time of each Regional Haze SIP submittal and periodically review progress every five years midway through each 10-year implementation period. To do this, the Regional Haze Rule requires states to determine the degree of impairment (in deciviews) for the average of the 20 percent least impaired (“best”) and the average of the 20 percent most impaired (“worst”) visibility days over a specified time period at each of their Class I areas. In addition, states must also develop an estimate of natural visibility conditions for the purpose of comparing progress toward the national goal. Natural visibility is determined by estimating the natural concentrations of pollutants that cause visibility impairment and then calculating total light extinction based on those estimates. We have provided guidance to states regarding how to calculate baseline, natural and current visibility conditions.
For the first Regional Haze SIPs that were due by December 17, 2007, “baseline visibility conditions” were the starting points for assessing “current” visibility impairment. Baseline visibility conditions represent the degree of visibility impairment for the 20 percent least impaired days and 20 percent most impaired days for each calendar year from 2000 to 2004. Using monitoring data for 2000 through 2004, states are required to calculate the average degree of visibility impairment for each Class I area, based on the average of annual values over the five-year period. The comparison of initial baseline visibility conditions to natural visibility conditions indicates the amount of improvement necessary to attain natural
The vehicle for ensuring continuing progress towards achieving the natural visibility goal is the submission of a series of Regional Haze SIPs from the states that establish two reasonable progress goals (
In establishing reasonable progress goals, states are required to consider the following factors established in section 169A of the CAA and in our Regional Haze Rule at 40 CFR 51.308(d)(1)(i)(A): (1) The costs of compliance; (2) the time necessary for compliance; (3) the energy and non-air quality environmental impacts of compliance; and (4) the remaining useful life of any potentially affected sources. States must demonstrate in their SIPs how these factors are considered when selecting the reasonable progress goals for the best and worst days for each applicable Class I area. In setting the reasonable progress goals, states must also consider the rate of progress needed to reach natural visibility conditions by 2064 (referred to hereafter as the “Uniform Rate of Progress”) and the emission reduction measures needed to achieve that rate of progress over the 10-year period of the SIP. Uniform progress towards achievement of natural conditions by the year 2064 represents a rate of progress, which states are to use for analytical comparison to the amount of progress they expect to achieve. If a state establishes a reasonable progress goal that provides for a slower rate of improvement in visibility than the rate that would be needed to attain natural conditions by 2064, the state must demonstrate, based on the reasonable progress factors, that the rate of progress for the implementation plan to attain natural conditions by 2064 is not reasonable, and that the progress goal adopted by the state is reasonable. In setting reasonable progress goals, each state with one or more Class I areas (“Class I State”) must also consult with potentially “contributing states,”
Section 169A of the CAA directs states to evaluate the use of retrofit controls at certain larger, often uncontrolled, older stationary sources with the potential to emit 250 tons or more per year of any pollutant in order to address visibility impacts from these sources. Specifically, section 169A(b)(2)(A) of the Act requires states to revise their SIPs to contain such measures as may be necessary to make reasonable progress towards the natural visibility goal, including a requirement that certain categories of existing major stationary sources
On July 6, 2005, we published the
The process of establishing BART emission limitations can be logically broken down into three steps: first, states identify those sources which meet the definition of “BART-eligible source” set forth in 40 CFR 51.301;
States must address all visibility-impairing pollutants emitted by a source in the BART determination process. The most significant visibility-impairing pollutants are SO
Under the BART Guidelines, states may select an exemption threshold value for their BART modeling, below which a BART-eligible source would not be expected to cause or contribute to visibility impairment in any Class I area. The state must document this exemption threshold value in the SIP and must state the basis for its selection of that value. Any source with emissions that model above the threshold value would be subject to a BART determination review. The BART Guidelines acknowledge varying circumstances affecting different Class I areas. States should consider the number of emission sources affecting the Class I areas at issue and the magnitude of the individual sources'
In their SIPs, states must identify “BART-eligible sources” and “subject-to-BART sources” and document their BART control determination analyses. The term “BART-eligible source” used in the BART Guidelines means the collection of individual emission units at a facility that together comprises the BART-eligible source. In making BART determinations, section 169A(g)(2) of the CAA requires that states consider the following factors: (1) The costs of compliance; (2) the energy and non-air quality environmental impacts of compliance; (3) any existing pollution control technology in use at the source; (4) the remaining useful life of the source; and (5) the degree of improvement in visibility which may reasonably be anticipated to result from the use of such technology.
A Regional Haze SIP must include source-specific BART emission limits and compliance schedules for each source subject to BART. Once a state has made its BART determination, the BART controls must be installed and in operation as expeditiously as practicable, but no later than five years after the date of our approval of the Regional Haze SIP. CAA section 169(g)(4) and 40 CFR 51.308(e)(1)(iv). In addition to what is required by the Regional Haze Rule, general SIP requirements mandate that the SIP must also include all regulatory requirements related to monitoring, recordkeeping, and reporting for the BART controls on the source.
Consistent with the requirement in section 169A(b) of the CAA that states include in their Regional Haze SIP a 10- to 15-year strategy for making reasonable progress, section 51.308(d)(3) of the Regional Haze Rule requires that states include a long-term strategy in their Regional Haze SIPs. The long-term strategy is the compilation of all control measures a state will use during the implementation period of the specific SIP submittal to meet applicable reasonable progress goals. The long-term strategy must include “enforceable emissions limitations, compliance schedules, and other measures as necessary to achieve the reasonable progress goals” for all Class I areas within, or affected by emissions from, the state. 40 CFR 51.308(d)(3).
When a state's emissions are reasonably anticipated to cause or contribute to visibility impairment in a Class I area(s) located in another state or states, the Regional Haze Rule requires the state to consult with the other state(s) in order to develop coordinated emissions management strategies. 40 CFR 51.308(d)(3)(i). Also, a state with a Class I area impacted by emissions from another state must consult with such contributing state, (id.) and must also demonstrate that it has included in its SIP all measures necessary to obtain its share of the emission reductions needed to meet the reasonable progress goals for the Class I area.
States should consider all types of anthropogenic sources of visibility impairment in developing their long-term strategy, including stationary, minor, mobile, and area sources. At a minimum, states must describe how each of the following seven factors listed below are taken into account in developing their long-term strategy: (1) Emission reductions due to ongoing air pollution control programs, including measures to address reasonably attributable visibility impairment; (2) measures to mitigate the impacts of construction activities; (3) emissions limitations and schedules for compliance to achieve the reasonable progress goals; (4) source retirement and replacement schedules; (5) smoke management techniques for agricultural and forestry management purposes including plans as currently exist within the state for these purposes; (6) enforceability of emissions limitations and control measures; and (7) the anticipated net effect on visibility due to projected changes in point, area, and mobile source emissions over the period addressed by the long-term strategy. 40 CFR 51.308(d)(3)(v).
As part of the Regional Haze Rule, we revised 40 CFR 51.306(c) regarding the long-term strategy for reasonably attributable visibility impairment to require that the reasonably attributable visibility impairment plan must provide for a periodic review and SIP revision not less frequently than every three years until the date of submission of the state's first plan addressing regional haze visibility impairment, which was due December 17, 2007, in accordance with 40 CFR 51.308(b) and (c). On or before this date, the state must revise its plan to provide for review and revision of a coordinated long-term strategy for addressing reasonably attributable visibility impairment and regional haze, and the state must submit the first such coordinated long-term strategy with its first Regional Haze SIP. Future coordinated long-term strategy and periodic progress reports evaluating progress towards reasonable progress goals, must be submitted consistent with the schedule for SIP submission and periodic progress reports set forth in 40 CFR 51.308(f) and 51.308(g), respectively. The periodic review of a state's long-term strategy must report on both regional haze and reasonably attributable visibility impairment and must be submitted to us as a SIP revision.
Section 51.308(d)(4) of the Regional Haze Rule includes the requirement for a monitoring strategy for measuring, characterizing, and reporting of regional haze visibility impairment that is representative of all mandatory Class I Federal areas within the state. The strategy must be coordinated with the monitoring strategy required in section 51.305 for reasonably attributable visibility impairment. Compliance with this requirement may be met through “participation” in the IMPROVE network,
Under section 51.308(d)(4), the SIP must also provide for the following:
• Procedures for using monitoring data and other information in a state with mandatory Class I areas to determine the contribution of emissions from within the state to regional haze visibility impairment at Class I areas both within and outside the state;
• Procedures for using monitoring data and other information in a state with no mandatory Class I areas to determine the contribution of emissions from within the state to regional haze
• Reporting of all visibility monitoring data to the Administrator at least annually for each Class I area in the state, and where possible, in electronic format;
• Developing a statewide inventory of emissions of pollutants that are reasonably anticipated to cause or contribute to visibility impairment in any Class I area. The inventory must include emissions for a baseline year, emissions for the most recent year for which data are available, and estimates of future projected emissions. A state must also make a commitment to update the inventory periodically; and
• Other elements, including reporting, recordkeeping, and other measures necessary to assess and report on visibility.
The Regional Haze Rule requires control strategies to cover an initial implementation period extending to the year 2018, with a comprehensive reassessment and revision of those strategies, as appropriate, every 10 years thereafter. Periodic SIP revisions must meet the core requirements of section 51.308(d), with the exception of BART. The requirement to evaluate sources for BART applies only to the first Regional Haze SIP. Facilities subject to BART must continue to comply with the BART provisions of section 51.308(e). Periodic SIP revisions will assure that the statutory requirement of reasonable progress will continue to be met.
The Regional Haze Rule requires that states consult with Federal Land Managers before adopting and submitting their SIPs. 40 CFR 51.308(i). States must provide Federal Land Managers an opportunity for consultation, in person and at least 60 days prior to holding any public hearing on the SIP. This consultation must include the opportunity for the Federal Land Managers to discuss their assessment of impairment of visibility in any Class I area and to offer recommendations on the development of the reasonable progress goals and on the development and implementation of strategies to address visibility impairment. Further, a state must include in its SIP a description of how it addressed any comments provided by the Federal Land Managers. Finally, a SIP must provide procedures for continuing consultation between the state and Federal Land Managers regarding the state's visibility protection program, including development and review of SIP revisions, five-year progress reports, and the implementation of other programs having the potential to contribute to impairment of visibility in Class I areas.
On March 3, 2010, the State of North Dakota submitted a Regional Haze SIP revision for approval into the North Dakota SIP. North Dakota provided two other submittals—SIP Supplement No. 1 on July 27, 2010 (provisions pertaining to Heskett Station) and SIP Amendment No. 1 on July 28, 2011 (provisions pertaining to Coyote Station and materials relating to the Prevention of Signification Deterioration (PSD) BACT determination for Milton R. Young Station).
As part of Amendment No. 1, the State submitted the entire administrative record for its BACT determination for Milton R. Young Station. The administrative record consists of at least 259 documents comprising over 850 megabytes of information. Given our September 1, 2011 deadline to sign this notice of proposed rulemaking under the consent decree discussed in section III.C, we lack sufficient time to act on or consider this aspect of Amendment No. 1. Under CAA section 110(k)(2), EPA is not required to act on a SIP submittal until 12 months after it is determined to be or deemed complete. We have considered some of the documents related to the State's BACT determination for Milton R. Young Station and have included those documents in the docket for this proposed action.
We are proposing action on the aspects of Amendment No. 1 that pertain to Coyote Station because such provisions were amenable to our evaluation in the available time.
The following is a discussion of our evaluation of the relevant submittals.
In accordance with 40 CFR 51.308(d), North Dakota identified two Class I areas within its borders: Theodore Roosevelt National Park (Theodore Roosevelt or TRNP) and Lostwood National Wildlife Refuge Wilderness Area (Lostwood or LWA). North Dakota is responsible for developing reasonable progress goals for these two Class I areas. North Dakota has also determined that North Dakota emissions have or may reasonably be expected to have impacts at Class I areas in other states including: Boundary Waters Canoe Area Wilderness Area and Voyageurs National Park in Minnesota, Isle Royale National Park and Seney National Wildlife Refuge Wilderness Area in Michigan, Medicine Lake National Wildlife Refuge Wilderness Area and U.L. Bend National Wildlife Refuge Wilderness Area in Montana, and Badlands National Park and Wind Cave National Park in South Dakota. North Dakota consulted with the appropriate state air quality agency in each of these states through their involvement with the WRAP. Assessment of North Dakota's contribution to haze in these Class I areas is based on technical analyses developed by WRAP.
As required by section 51.308(d)(2)(i) of the Regional Haze Rule and in accordance with our 2003 Natural Visibility Guidance, North Dakota calculated baseline/current and natural visibility conditions for its Class I areas, Theodore Roosevelt and Lostwood, on the most impaired and least impaired days, as summarized below (and further described in the Technical Support Document (TSD)). The natural visibility conditions, baseline visibility conditions, and visibility impact reductions needed to achieve the uniform rate of progress in 2018 for both North Dakota Class I areas are presented in Table 1 and further explained in this section. More detail is available in Sections 5 and 8 of the North Dakota SIP.
Natural background visibility, as defined in our 2003 Natural Visibility Guidance, is estimated by calculating the expected light extinction using default estimates of natural concentrations of fine particle components adjusted by site-specific estimates of humidity. This calculation uses the IMPROVE equation, which is a formula for estimating light extinction from the estimated natural concentrations of fine particle components (or from components measured by the IMPROVE monitors). As documented in our 2003 Natural Visibility Guidance, EPA allows states to use “refined” or alternative approaches to this guidance to estimate the values that characterize the natural visibility conditions of Class I areas. One alternative approach is to develop and justify the use of alternative estimates of natural concentrations of fine particle components. Another alternative is to use the “new IMPROVE equation” that was adopted for use by the IMPROVE Steering Committee in December 2005.
For Theodore Roosevelt and Lostwood, North Dakota opted to use WRAP calculations in which the default estimates for the natural conditions were combined with the “new IMPROVE equation.” This is an acceptable approach under our 2003 Natural Visibility Guidance. For Theodore Roosevelt, the default natural visibility value for the 20 percent worst days is 7.31 deciviews and for the 20 percent best days is 2.19 deciviews. For Lostwood, the default natural visibility value for the 20 percent worst days is 7.33 deciviews and for the 20 percent best days is 2.21 deciviews. For Theodore Roosevelt, North Dakota also referred to WRAP calculations using the new IMPROVE equation, finding the “refined” natural visibility value for the 20 percent worst days to be 7.8 deciviews and for the 20 percent best days to be 3.0 deciviews. For Lostwood, the “refined” natural visibility result for the 20 percent worst days is 8.0 deciviews and for the 20 percent best days is 2.9 deciviews. We have reviewed North Dakota's estimate of the natural visibility conditions and propose to find it acceptable using the new IMPROVE equation.
The new IMPROVE equation takes into account the most recent review of the science
As required by section 51.308(d)(2)(i) of the Regional Haze Rule and in accordance with our 2003 Natural Visibility Guidance, North Dakota calculated baseline visibility conditions for Theodore Roosevelt and Lostwood. The baseline condition calculation begins with the calculation of light extinction, using the IMPROVE equation. The IMPROVE equation sums the light extinction
The period for establishing baseline visibility conditions is 2000-2004, and baseline conditions must be calculated using available monitoring data. 40 CFR 51.308(d)(2). The North Dakota Regional Haze SIP employed visibility monitoring data collected by IMPROVE monitors located in both North Dakota Class I areas for the years 2000 through 2004 and the resulting baseline conditions represent an average for 2000-2004. North Dakota calculated the baseline conditions at Theodore Roosevelt as 17.8 deciviews on the 20
To address the requirements of 40 CFR 51.308(d)(2)(iv)(A), North Dakota also calculated the number of deciviews by which baseline conditions exceed natural visibility conditions at Theodore Roosevelt and Lostwood: for the 20 percent worst days, 10.0 deciviews (17.8−7.8) and 11.6 deciviews (19.6−8.0), respectively; for the 20 percent best days, 4.8 deciviews (7.8−3.0) and 5.3 deciviews (8.2−2.9), respectively. We have reviewed North Dakota's estimate of the natural visibility impairment and propose to find it acceptable.
In setting the reasonable progress goals, North Dakota analyzed and determined the uniform rate of progress needed to reach natural visibility conditions by the year 2064. In so doing, North Dakota compared the baseline visibility conditions in Theodore Roosevelt and Lostwood to the natural visibility conditions in Theodore Roosevelt and Lostwood (as described above) and determined the uniform rate of progress needed in order to attain natural visibility conditions by 2064 in both Class I areas. North Dakota constructed the uniform rate of progress consistent with the requirements of the Regional Haze Rule and consistent with our 2003 Tracking Progress Guidance by plotting a straight graphical line from the baseline level of visibility impairment for 2000-2004 to the level of visibility conditions representing no anthropogenic impairment in 2064 for Theodore Roosevelt and Lostwood. The uniform rate of progress are summarized in Table 2 and further described below.
Using a baseline visibility value at Theodore Roosevelt of 17.8 deciviews and a “refined” natural visibility value of 7.8 deciviews for the 20 percent worst days, North Dakota calculated the uniform rate of progress to be approximately 0.17 deciviews per year (dv/year or dv/yr). This results in a total reduction of 10.0 deciviews to reach the natural visibility condition of 7.8 deciviews in 2064. The uniform rate of progress results in a visibility improvement of 2.3 deciviews needed for the period covered by this SIP revision submittal (up to and including 2018).
Using a baseline visibility value at Lostwood of 19.6 deciviews and a “refined” natural visibility value of 8.0 deciviews for the 20 percent worst days, North Dakota calculated the uniform rate of progress to be approximately 0.19 deciviews per year. This results in a total reduction of 11.6 deciviews to reach the natural visibility condition of 8.0 deciviews in 2064. The uniform rate of progress results in a visibility improvement of 2.7 deciviews needed for the period covered by this SIP revision submittal (up to and including 2018).
We propose to find that North Dakota has appropriately calculated the uniform rate of progress.
BART is an element of North Dakota's long-term strategy for the first implementation period. As discussed in more detail in section IV.D of this preamble, the BART evaluation process consists of three components: (1) An identification of all the BART-eligible sources; (2) an assessment of whether those BART-eligible sources are in fact subject to BART; and (3) a determination of any BART controls. North Dakota addressed these steps as follows:
The first step of a BART evaluation is to identify all the BART-eligible sources within the state's boundaries. North Dakota identified the BART-eligible sources in North Dakota by utilizing the approach set out in the BART Guidelines (70 FR 39158); this approach provides three criteria for identifying BART-eligible sources: (1) One or more emission units at the facility fit within one of the 26 categories listed in the BART Guidelines; (2) the emission unit(s) began operation on or after August 6, 1962, and was in existence on August 6, 1977; and (3) potential emissions of any visibility-impairing pollutant from subject units are 250 tons or more per year. North Dakota initially screened its emissions inventory and permitting database to identify major facilities with emission units in one or more of the 26 BART categories. Following this, North Dakota used its databases and records to identify facilities in these source categories with potential emissions of 250 tons per year or more for any visibility-impairing pollutant from any unit that was in existence on August 7, 1977 and began operation on or after August 7, 1962. North Dakota contacted the sources, when necessary, to obtain or confirm this information.
The BART Guidelines direct states to address SO
North Dakota identified BART-eligible sources in North Dakota as shown in Table 3. This information is presented in Section 7 of North Dakota's SIP.
The second step of the BART evaluation is to identify those BART-eligible sources that may reasonably be anticipated to cause or contribute to any visibility impairment at any Class I area,
The BART Guidelines provide that states may use the CALPUFF
The BART Guidelines also recommend that states develop a modeling protocol for making individual source attributions, and suggest that states may want to consult with us and their RPO to address any issues prior to modeling. North Dakota used the CALPUFF model for North Dakota BART sources in accordance with a protocol it developed entitled “Protocol for BART-Related Visibility Impairment Modeling Analyses in North Dakota, November 2005,” which was approved by EPA and the Federal Land Managers and is included in Appendix A.1 of the SIP. The North Dakota protocol follows recommendations for long range transport described in appendix W to 40 CFR part 51, “Guideline on Air Quality Models,” and in EPA's “Interagency Workgroup on Air Quality Modeling (IWAQM) Phase 2 Summary Report and Recommendations for Modeling Long Range Transport Impacts,” as recommended by the BART Guidelines. 40 CFR part 51, appendix Y, section III.A.3.
To determine if each BART-eligible source has a significant impact on visibility, North Dakota used the CALPUFF model to estimate daily visibility impacts above estimated natural conditions at each Class I area within 300 km of any BART-eligible facility, based on maximum actual 24-hour emissions over a three year period (2000-2002).
North Dakota opted to conduct supplemental modeling for some sources using its own unique modeling approach. Further discussion on this is provided in section V.D and in the Technical Support Document.
For states using modeling to determine the applicability of BART to single sources, the BART Guidelines note that the first step is to set a contribution threshold to assess whether the impact of a single source is sufficient to cause or contribute to visibility impairment at a Class I area. The BART Guidelines state that, “[a] single source that is responsible for a 1.0 deciview change or more should be considered to `cause' visibility impairment.” 70 FR 39104, 39161. The BART Guidelines also state that “the appropriate threshold for determining whether a source contributes to visibility impairment may reasonably differ across states,” but, “[a]s a general matter, any threshold that you use for determining whether a source `contributes' to visibility impairment should not be higher than 0.5 deciviews.”
North Dakota used a contribution threshold of 0.5 deciviews for determining which sources are subject to BART. The State's decision was based on the following factors: (1) 0.5 Deciviews equates to the 5% extinction threshold for new sources under the Prevention of Signification Deterioration New Source Review rules, (2) 0.5 deciviews represents the limit of perceptible change, (3) most of North Dakota's major point sources are over 100 miles away from Class I areas and are located downwind in the prevailing wind direction, and (4) BART screening modeling indicates the visibility impact of these point sources is either much greater than both 1.0 deciviews and 0.5 deciviews or less than 0.5 deciviews. Although we do not agree that all of the factors considered by North Dakota's Department of Health are relevant in determining whether a source can be considered to cause or contribute to visibility impairment, we propose to approve the State's threshold of 0.5 deciviews. As shown in Table 4, North Dakota exempted four of the seven BART-eligible sources in the state from further review under the BART requirements. The visibility impacts attributable to each of these four sources fell well below 0.5 deciviews. Given the relatively limited impact on visibility from these four sources, we propose to agree with North Dakota's Department of Health that 0.5 deciviews is a reasonable threshold for North Dakota in determining whether its BART-eligible sources are subject to BART.
Because our recommended modeling approach already incorporates choices that tend to lower peak daily visibility impact values,
The results of the CALPUFF modeling are summarized in Table 4. Those facilities listed with demonstrated impacts at all Class I areas less than 0.5 deciviews were determined by North Dakota to not be subject to BART; those with impacts greater than 0.5 deciviews were determined to be subject to
The third step of a BART evaluation is to perform the BART analysis. The BART Guidelines (70 FR 39164) describe the BART analysis as consisting of the following five steps:
• Step 1: Identify All Available Retrofit Control Technologies,
• Step 2: Eliminate Technically Infeasible Options,
• Step 3: Evaluate Control Effectiveness of Remaining Control Technologies,
• Step 4: Evaluate Impacts and Document the Results, and
• Step 5: Evaluate Visibility Impacts.
All of the sources presented in Table 4 that are subject to BART are fossil-fuel-fired EGUs. North Dakota performed BART determinations for all of the sources subject to BART for NO
Coal Creek Station is a two-unit, 1,100 gross MW mine-mouth electrical generating plant located near Underwood, North Dakota. It consists primarily of two steam generators (both with a 550 MW capacity) and associated coal and ash handling systems. Both units are identical Combustion Engineering boilers that tangentially fire pulverized lignite coal. The expected remaining useful life for each is at least 20 years. In addition, the State concluded that there are 24 BART-eligible material handling transfer operations that are negligible sources of PM and five BART-eligible units—consisting of auxiliary or emergency equipment—that are negligible sources of PM, SO
The State identified the following SO
North Dakota determined BART to be modifications to the existing wet scrubbers so as to achieve scrubbing of 100% of the flue gas stream and adding a new coal dryer serving both units (the addition of a coal dryer is clarified in Section 7.4.2 of the SIP). North Dakota specified a BART limit as a minimum control efficiency of 95% (30-day rolling average) based on the inlet SO
We are proposing to approve the State's SO
North Dakota determined BART to be no additional controls. The State predicted the incremental visibility improvement from any of the three control options would be less than 0.027 deciviews. The alternative with the least cost for reducing filterable PM is the polishing wet ESP. This system has a cost effectiveness of $4,961 per ton of particulate when compared to the current emission control system (ESP operating at 99.5% efficiency). Considering the negligible improvement in visibility that would be achieved by adding a polishing wet ESP, the State considers this cost, as well as the costs of the more expensive options, to be excessive. The State established a BART emission limit of 0.07 lb/MMBtu.
We are proposing to approve the State's filterable PM BART determination for Coal Creek Units 1 and 2. The State's assessment of costs and other impacts was reasonable. The existing ESP already reduces PM emissions by approximately 99.5%, and North Dakota reasonably determined that the costs of additional PM controls would be excessive given the negligible improvement in visibility that would result.
We are proposing to approve the State's condensable PM BART determination for Coal Creek Units 1 and 2. Upgrades to the wet scrubbers required as part of SO
The State analyzed and determined BART for these small emissions sources at the plant and determined that BART is existing controls with no additional controls. The State based its conclusion on the fact that further controls would not be cost effective and would have virtually no impact on visibility. For further detail, see the State's BART analysis.
We agree with the State's conclusion and are proposing to approve its BART determination for these sources.
Stanton Station is a 188 MW electrical generating plant located on the bank of the Missouri River in eastern Mercer County near Stanton, North Dakota. The plant's one main turbine generator is run by the Unit 1 and Unit 10 boilers. Unit 1, which is the only BART eligible unit at Stanton Station, began operation in 1966. An auxiliary boiler was added in 1982. Unit 1 has a dry bottom front-wall-fired configuration and is permitted to burn both lignite and sub-bituminous Powder River Basin (PRB) coal. Unit 1 has an expected remaining useful life of at least 20 years. Because Great River Energy does not intend to
For use of lignite coal, North Dakota determined BART to be a spray dryer with a fabric filter. North Dakota specified a BART limit as a minimum control efficiency of 90% (30-day rolling average) on the inlet SO
For use of Powder River Basin coal, North Dakota determined BART to be a spray dryer with a fabric filter to achieve a minimum control efficiency of 90% (30-day rolling average) on the inlet SO
We are proposing to approve the State's SO
For use of lignite coal, North Dakota determined BART to be LNB + OFA + SNCR. North Dakota specified a BART limit as a minimum control efficiency of 45% and an emission limit of 0.29 lb/MMBtu (30-day rolling average). The estimated average cost effectiveness of the selected control combination is $3,052 per ton of NO
NO
For use of Powder River Basin coal, North Dakota determined BART to be LNB + OFA + SNCR with a minimum control efficiency of 45% and an emission limit of 0.23 lb/MMBtu (30-day rolling average). The estimated cost of the selected control combination is $3,778 per ton of NO
We are proposing to approve the State's NO
We are proposing to approve the State's filterable PM BART determination for Stanton Unit 1. The State's assessment of costs and other impacts was reasonable. Existing controls, ESP, already reduce PM emissions by approximately 99.5%, and North Dakota reasonably determined that the costs of additional PM controls would be excessive given the negligible improvement in visibility that would result.
We are proposing to approve the State's condensable PM BART determination for Stanton Unit 1. The spray dryer with a fabric filter required for SO
Auxiliary Boiler, Emergency Generator, Emergency Fire Pump, Material Handling and Fugitive Sources
The State analyzed and determined BART for these small emissions sources at the plant and determined that BART is existing controls with no additional controls. The State based its conclusion on the fact that further controls would not be cost effective and would have virtually no impact on visibility. For further detail, see the State's BART analysis.
We agree with the State's conclusion and are proposing to approve its BART determination for these sources.
Milton R. Young Station is a two-unit 794 MW electrical generating plant located near Center, North Dakota. Both units are Babcock & Wilcox cyclone boilers burning lignite coal. Commercial operation commenced for Unit 1 (277 MW) in 1970 and for Unit 2 (517 MW) in 1977. Both units have an expected remaining useful life of at least 20 years. In addition, there are ten BART-eligible material handling transfer operations that are negligible sources of PM and four other BART-eligible units consisting of auxiliary or emergency equipment that are negligible sources of PM, SO
The State evaluated the following SO
North Dakota determined BART to be a wet scrubber, the most efficient control alternative, operating at a minimum 95% control efficiency (30-day rolling average). Since the wet scrubber is the most efficient
We are proposing to approve the State's SO
We are proposing to approve the State's filterable PM BART determination for Milton R. Young Station Unit 1. The State's assessment of costs and other impacts was reasonable. Existing controls, ESP, already reduce PM emissions by approximately 99%, and North Dakota reasonably determined that the costs of additional PM controls would be excessive given the negligible improvement in visibility that would result.
We are proposing to approve the State's condensable PM BART determination for Milton R. Young Station Unit 1. The wet scrubber required for SO
The State evaluated the following SO
North Dakota determined BART to be the improvements to the wet scrubber to achieve a 95% control efficiency (from scrubber inlet to outlet, 30-day rolling average). Minnkota would have to comply with either the 95% reduction requirement or the 0.15 lb/MMBtu limit, but not both. The 90% control efficiency requirement from the consent decree resolving the alleged new source review violations is also incorporated into the BART permit, which is part of the SIP.
We are proposing to approve the State's SO
We are proposing to approve the State's filterable PM BART determination for Milton R. Young Station Unit 2. The State's assessment of costs and other impacts was reasonable. Existing controls, ESP, already reduce PM emissions by approximately 99%, and North Dakota reasonably determined that the costs of additional PM controls would be excessive given the negligible improvement in visibility that would result.
We are proposing to approve the State's condensable PM BART determination for Milton R. Young Station Unit 2. The wet scrubber required for SO
Auxiliary Boiler, Emergency Generator, Emergency Fire Pumps, and Material Handling and Fugitive Sources
The State analyzed and determined BART for these small emissions sources at the plant and determined that BART is existing controls with no additional controls. The State based its conclusion on the fact that further controls would not be cost effective and would have virtually no impact on visibility. For further detail, see the State's BART analysis.
We agree with the State's conclusion and are proposing to approve its BART determination for these sources.
This is a 656 MW coal-fired electrical generating plant located in Stanton, North Dakota with two boiler units. Unit 1 is a Babcock & Wilcox wall-fired, dry-bottom, pulverized coal-fired boiler serving a turbine generator with a nameplate rating of 216 MW. Unit 2 is a Babcock & Wilcox cyclone-fired unit burning crushed coal, with a turbine-
North Dakota determined BART to be the most efficient control option, a wet scrubber operating at 95% control efficiency or below an emission limit of 0.15 lb/MMBtu (30-day rolling average). Basin Electric would have to comply with either the 95% reduction requirement or the 0.15 lb/MMBtu limit, but not both. The estimated average cost effectiveness of a wet scrubber was $586 per ton of SO
We are proposing to approve the State's SO
• Selective catalytic reduction (SCR).
• Electro-catalytic oxidation (ECO).
• Selective non-catalytic reduction (SNCR).
• Hydrocarbon enhanced SNCR (HE-SNCR).
• Rich reagent injection (RRI).
• Rotomix (ROFA + SNCR).
• Conventional gas reburn (CGR).
• CGR + SNCR with SOFA.
• Coal reburn.
• Coal reburn + SNCR.
• Fuel-lean gas reburn (FLGR).
• FLGR + SNCR.
• Rotating overfire air (ROFA).
• Separated overfire air (SOFA).
• New low NO
• Combustion improvements.
The State agreed with Basin Electric's determination that high dust SCR is not technically feasible but found that low-dust SCR (LDSCR) and tail-end SCR (TESCR) would be technically feasible. North Dakota also identified ECO, coal reburn plus SNCR, and RRI as technically infeasible for Unit 1. The State determined the average cost effectiveness of the four most efficient options to be excessive with estimates ranging from $4,400 to $13,600 per ton of NO
North Dakota determined BART to be SNCR + basic SOFA with an emission limit of 0.19 lb/MMBtu (30-day rolling average). The estimated average cost effectiveness for SNCR + SOFA was $2,487 per ton of NO
Basin Electric did not provide the modeled visibility impacts of SNCR + basic SOFA for Unit 1 individually. Instead, for this control option, Basin Electric provided the visibility impacts for Unit 1 and Unit 2 combined, with the emissions from Unit 2 held constant. The resulting visibility improvement, when compared to no controls at Unit 1, is estimated to be 0.160 deciviews at Theodore Roosevelt.
We are proposing to approve the State's NO
We are proposing to approve the State's condensable PM BART determination for Leland Olds Station Unit 1. The wet scrubber required for SO
North Dakota determined BART to be the most efficient control option, a wet scrubber operating at 95% control efficiency or below an emission limit of 0.15 lb/MMBtu (30-day rolling average). Basin Electric would have to comply with either the 95% reduction requirement or the 0.15 lb/MMBtu limit, but not both. The estimated average cost effectiveness of a wet scrubber was $463 per ton of SO
We are proposing to approve the State's SO
We are proposing to approve the State's filterable PM BART determination for Leland Olds Station Unit 2. The State's assessment of costs and other impacts was reasonable. Existing controls, ESP, already reduce PM emissions by approximately 99%, and North Dakota reasonably determined that the costs of additional PM controls would be excessive given the negligible improvement in visibility that would result.
We are proposing to approve the State's condensable PM BART determination for Leland Olds Station Unit 2. The wet scrubber required for SO
The State analyzed and determined BART for these small emissions sources at the plant and determined that BART is existing controls with no additional controls. The State based its conclusion on the fact that further controls would not be cost effective and would have virtually no impact on visibility. For further detail, see the State's BART analysis.
We agree with the State's conclusion and are proposing to approve its BART determination for these sources.
We have summarized North Dakota's BART determinations that we are proposing to approve in Table 21 for SO
North Dakota's Regional Haze Rule requires each source subject to BART to install and operate BART no later than 5 years after we approve this Regional Haze SIP. NDAC 33-15-25-02.2. This satisfies the requirement under 40 CFR 51.308(e)(1)(iv), that “each source subject to BART be required to install and operate BART as expeditiously as practicable, but in no event later than 5 years after approval of the implementation plan revision.”
As noted previously, to be approvable, the Regional Haze SIP must include monitoring, recordkeeping, and reporting requirements to ensure that the BART limits are enforceable. North Dakota has included individual source permits in its Regional Haze SIP that contain such requirements.
For the reasons discussed above, we propose to find that, with the exception of the NO
The discussion below is limited to the NO
At the time Minnkota made its BART submittal upon which the State based its analysis, Milton R. Young Station Unit 1 had no existing NO
The State has asserted that the Milton R. Young Station units do not exceed the 750 MW threshold for mandatory application of the BART guidelines and the presumptive NO
The State identified the following as potential control options: SCR, ECO, SNCR, HE-SNCR, RRI, Rotomix (ROFA + SNCR), CGR, CGR + SNCR + SOFA, coal reburn, coal reburn + SNCR, FLGR, FLGR + SOFA, ROFA, SOFA, advanced separated overfire air (ASOFA), combustion improvements (included with SOFA and ASOFA), and oxygen enhanced combustion (OEC). The State eliminated the following from further consideration as technically infeasible: High dust SCR, ECO, HE-SNCR, RRI, Rotomix (ROFA + SNCR), CGR + SNCR, coal reburn + SNCR, FLGR + SNCR, and OEC.
A summary of the State's analysis for NO
The State determined that the cost of all control options was reasonable with the exception of both SCR configurations. The State considered the average cost effectiveness and incremental cost effectiveness of LDSCR
At the time Minnkota made its BART submittal upon which the State based its analysis, Milton R. Young Station Unit 2 was equipped with an OFA NO
The State determined the average cost effectiveness of all control options was reasonable with the exception of both SCR configurations. The State considered the average cost effectiveness and incremental cost effectiveness of LDSCR and TESCR to be excessive and unreasonable. These control options, when combined with wet scrubbing for SO
At the time Basin Electric made its BART submittal upon which the State based its analysis, Unit 2 had no existing NO
A summary of the State's analysis for NO
The State determined that the average and incremental cost effectiveness of SCR + ASOFA was excessive given its finding that visibility improvement would be negligible. SCR + ASOFA, when combined with wet scrubbing for SO
A summary of the pertinent information related to the State's NO
As noted above, North Dakota found that the costs of SCR at Milton R. Young Station Units 1 and 2 and Leland Olds Station Unit 2 were excessive and eliminated it as a control option. We propose to find that North Dakota did not properly follow the requirements of 40 CFR 51.308(e)(1)(ii)(A) in determining NO
ERG Minnkota SCR Cost Summaries, May 2010 and August 2011 and EPA Region 8's Letter to Mr. Terry O'Clair dated May 10, 2010 regarding “EPA's Comments on the NDDH's [North Dakota's] April 2010 Draft BACT Determination for NO
Table 27, below, contrasts North Dakota's low-end cost effectiveness values for tail end SCR (TESCR) at the three units with our estimates.
Our Technical Support Document provides a detailed comparison between the costing methodologies. However, a few general points can be made that explain why our costs differ so dramatically from North Dakota's. Both North Dakota and we used the facilities' BART evaluations as the starting points for the assessments,
Letter from Cris Miller, Senior Environmental Project Administrator, Basin Electric Power Cooperative, to Terry L. O'Clair, North Dakota Department of Health, Attaching Letter from William DePriest, Senior Vice President, Environmental Services, to Cris Miller, Re: BART Evaluation Update—Tail End SCR, May 27, 2009 (5/27/09 S&L Cost Analysis).
In addition to deviating in significant and unjustified ways from the Control Cost Manual, the companies adopted unreasonable assumptions related to catalyst size and life, catalyst cost, and outage requirements for catalyst replacement. Our analyses replaced these unreasonable assumptions with reasonable ones.
In the case of Minnkota's analyses for Milton R. Young Station Units 1 and 2, conducted by Minnkota's consultant, Burns & McDonnell, the estimated total capital costs are higher by a factor of about 1.8 than would be calculated using the Control Cost Manual,
For indirect capital costs, Table 28 identifies the deviations from the Control Cost Manual in the Burns & McDonnell estimates.
While
From these tables, it is clear that Burns & McDonnell included contingencies and accounting items that deviate significantly from the Control Cost Manual and which it did not justify by reference to any need unique to Milton R. Young Station. Although North Dakota asked Burns & McDonnell to provide a detailed explanation regarding its high indirect capital cost estimates, Burns & McDonnell's February 11, 2010, response to this request (see SIP Appendix C.4) fails to justify why the Burns & McDonnell cost methodology should be allowed for the Milton R. Young Station analysis, when it is not part of the Control Cost Manual and is not the standardized methodology used by other sources.
While the Control Cost Manual does contemplate some flexibility in some contingencies (such as degree of retrofit difficulty), Burns & McDonnell has not substantiated the need to go beyond standard contingencies provided by the Control Cost Manual. As stated in the Control Cost Manual, “[c]ontingencies is a catch-all category that covers unforeseen costs that may arise, such as possible redesign and modification of equipment, escalation increases in cost of equipment, increase in field labor costs, and delays encountered in start-up.”
Also, in Table 2.5 of the SCR chapter of the Control Cost Manual, the “Allowance for Funds During Construction” (inflation) is specifically listed as zero. Therefore, Burns & McDonnell should not have added what amounts to 20% of the direct capital costs to cover inflation. Including “owner's costs” and “owner's contingency” is also not consistent with the Control Cost Manual methodology and appears to be redundant.
Burns & McDonnell mentioned that it anticipated that significant retrofit work would be required that would affect the scope and price of the project. However, there have been many SCR retrofits facing much more difficult challenges with space limitations and boiler modifications than Milton R. Young Station can be expected to face installing a LDSCR or TESCR
Our estimate of total installed capital costs with adjusted indirect capital costs for TESCR at Milton R. Young Station Unit 1 is $120,629,000 in 2009 dollars, compared to Burns & McDonnell's estimate of $192,830,000. For Unit 2 our estimate is $216,870,000 and Burns & McDonnell's is $329,150,000.
When it calculated annual costs for SCR at Milton R. Young Station, Burns & McDonnell also deviated from the Control Cost Manual without reasonable justification and relied on unreasonable operation and design assumptions. For example, the Control Cost Manual provides an annual maintenance factor of 1.5% of the total capital investment. Burns & McDonnell assumed 3%. The Control Cost Manual does not allow annual operation and maintenance costs to be “levelized”—
Regarding operation and design assumptions, Burns & McDonnell assumed that the SCR catalyst might have to be replaced as frequently as three or four times per year. Given that catalyst poisons will be removed by the ESP, or ESP and SO
Burns & McDonnell's estimate for total annual costs for TESCR at Milton R. Young Station Unit 1 was $43,290,000; using the Control Cost Manual factors and other reasonable assumptions, our estimate is $24,176,000. Burns & McDonnell's estimate for Unit 2 was $73,245,000 and ours is $40,570,000.
Sargent & Lundy, Basin Electric's consultant, also employed numerous unreasonable assumptions in estimating costs and cost effectiveness for NO
We also question Sargent & Lundy's estimated capital cost of $373/kW (2010 dollars) to retrofit SCR at Leland Olds Station. Sargent & Lundy provided no documentation for this figure, and it is higher than the actual installed cost for existing retrofit SCRs, including those with extreme retrofit difficulty and those requiring flue gas reheat. Despite our concern about Sargent & Lundy's capital cost estimate, we used it in our cost analysis. Thus, we consider our resulting cost effectiveness value to be conservative in Basin Electric's favor and to represent an upper bound for a reasonable cost effectiveness value for SCR (
Sargent & Lundy's estimate for total annual costs for TESCR at Leland Olds Station Unit 2 was $43,830,000; using the Control Cost Manual factors and other reasonable assumptions, our estimate is $22,098,000.
North Dakota's estimates for TESCR ($4,100—$7,100), based on company-supplied estimates, are roughly two to three times higher than estimates that are based on accepted estimating practices.
Generally, to evaluate visibility improvements associated with potential BART control options, North Dakota conducted or relied on CALPUFF modeling that was consistent with the recommended approach in the BART Guidelines and the State's EPA-approved protocol included in Appendix A.1 of its Regional Haze SIP. Such modeling assumes natural background conditions—
The State attached considerable weight to the results of this alternative modeling when it determined NO
The perceived change in visibility from controls on a single source is reduced when background contributions from other sources are included in the modeling. In other words, cumulative modeling reduces the predicted visibility benefit in deciviews from any level of control considered. For three units and one pollutant only, North Dakota relies on its supplemental cumulative modeling as a partial basis to reject SCR as BART. Not only is North Dakota's approach arbitrary, it is inconsistent with the purpose of BART and the regional haze program generally, as well as the BART modeling approach used by other states and EPA.
The CAA establishes a National goal of eliminating man-made visibility impairment from all mandatory Class I Federal areas. Use of natural background (
Because North Dakota relied on a visibility modeling method that is inconsistent with the BART Guidelines, its own EPA-approved protocol, and the purpose of the Regional Haze Rule, we do not consider North Dakota's analysis of visibility improvement for NO
We are proposing a FIP for NO
Each unit is already equipped with LNB and SOFA. The State identified the following NO
North Dakota determined BART to be modified and additional SOFA plus LNB with emission limits of 0.15 lb/MMBtu on an annual average basis and 0.17 lb/MMBtu on a 30-day rolling average basis. North Dakota provided that Unit 1 and Unit 2 emissions may be averaged provided the average does not exceed the limit. The estimated cost of modified and additional SOFA plus LNB was $411 per ton of NO
During review of North Dakota's NO
That analysis, dated June 16, 2011, indicated that the average cost effectiveness for SNCR at Coal Creek Station Units 1 and 2 would be $2,318 per ton of NO
Because of the significant error underlying the State's cost analysis, we are proposing to disapprove the State's NO
As noted above, North Dakota selected SNCR + ASOFA as NO
Step 1: Identify All Available Technologies.
Our analysis only considers SNCR + ASOFA and SCR + ASOFA. Because the State selected SNCR +ASOFA as BART, and our concern is that the State did not properly evaluate SCR as BART, there is no need to consider lower-performing technologies.
Step 2: Eliminate Technically Infeasible Options.
We are not eliminating either SNCR or SCR as being technically infeasible. Both technologies have been widely employed to control NO
The seven BART sources determined SCR is not technically feasible for installation on boilers in North Dakota burning lignite coal. The Department agrees that high dust SCR is not technically feasible; however, LDSCR and TESCR are considered technically feasible.
The State based its conclusion on an analysis contained in Appendix B.5 that the State submitted with its Regional Haze SIP.
According to our BART Guidelines, a demonstration of technical infeasibility must be documented and must show, “based on physical, chemical, or engineering principles, why technical difficulties would preclude the successful use of the control option on the emissions unit under review.” 40 CFR part 51, appendix Y, section IV.D, Step 2. Only then may a control technology be eliminated from further consideration in the BART analysis.
A technology is considered available if the source owner may obtain it through commercial channels, or it is otherwise available in the common sense meaning of the word.
A technology is considered applicable if it can reasonably be installed and operated on the source type under consideration. EPA must exercise its technical judgment in making this determination.
While Minnkota, the owner of Milton R. Young Station, and more recently the State of North Dakota,
We also note that in the BACT context, the State gives great weight to the fact that two catalyst vendors queried by Minnkota indicated an unwillingness to provide typical catalyst life guarantees without first performing catalyst deactivation field
Additional support for our finding that SCR is not technically infeasible is contained in Appendix B.5 of the State's SIP. There, the State concluded that low-dust and tail-end SCR were technically feasible. A LDSCR would be located after the electrostatic precipitator (ESP), which removes particulates. Alternatively, a TESCR would be located after both the ESP and SO
North Dakota reviewed PM stack tests at Milton R. Young Station Unit 2 (August 2007 and May 2008) that indicated an average sodium and potassium removal efficiency of greater than 99% by the ESP and wet scrubber, with resulting emission rates at 0.78 milligrams sodium sulfate and 0.20 milligrams potassium sulfate per normal cubic meter. See Appendix B.5 to the SIP submittal. The State found that these loadings of sodium and potassium aerosols, which would enter a LDSCR or TESCR at Milton R. Young Station, were significantly lower than the concentrations present in the gas streams of boilers burning peat and wood that were the subject of experimental and pilot scale testing of SCR catalyst life. The State carefully evaluated the results of such testing and concluded that a reasonable catalyst life could be achieved at Milton R. Young Station.
Also, Microbeam Technologies, Inc. (Microbeam) performed PM emissions testing for Milton R. Young Station Unit 2 in March of 2009. The Microbeam results demonstrate the high removal efficiency of PM and the primary catalyst poisons of interest (sodium and potassium) by the ESP and scrubber at Milton R. Young Station. The results reflected a PM removal efficiency of 99.76%, and that the amount of sodium oxide plus potassium oxide was approximately 50-90 times greater entering the ESP than exiting the ESP. The results were similar for sodium oxide plus potassium oxide entering the ESP versus exiting the wet scrubber. This means the loading of sodium oxide plus potassium oxide on a high-dust SCR at Milton R. Young Station would be approximately 50-90 times higher than on a LDSCR or TESCR. Put another way, the Microbeam results showed that the ESP removes at least 98% of the catalyst poisons, which would be before the flue gas reaches a LDSCR or TESCR. Thus, any differences in fuel quality (especially concentrations of catalyst poisons in the ash) of North Dakota lignite compared to other types of coal in the United States would be offset at the control percentages described because Milton R. Young Station would employ a LDSCR or TESCR, whereas the vast majority of SCR installations in the United States are configured as high-dust SCRs.
Step 3: Evaluate Control Effectiveness of Remaining Control Technology.
For the purposes of our SNCR + ASOFA cost analysis, we used a control efficiency of 58% and an emission rate of 0.355 lb/MMBtu, the same control efficiency that North Dakota used. For our TESCR + ASOFA cost analysis we used the control efficiency of 93.8% that Minnkota used in its BART analysis and an emission rate of 0.05 lb/MMBtu, instead of North Dakota's 90% control efficiency and 0.085 lb/MMBtu emission rate. We find that SCR technology, by itself, can achieve 90% control efficiency and that the overall NO
Step 4: Evaluate Impacts and Document Results.
Factor 1: Costs of compliance.
SNCR + ASOFA.
We are not relying on North Dakota's costs for SNCR. Though the North Dakota costs derived by Burns & McDonnell are generally consistent with the Control Cost Manual, at least one cost, related to lost revenue due to outage, is not. The North Dakota costs are also based on lower reagent costs which we acknowledge do fluctuate. To ensure a fair comparison between the two competing technologies, we have re-worked the costs for SNCR. We relied on Minnkota's Burns & McDonnell estimate for total capital equipment costs for SNCR. However, we have then generally used factors and assumptions provided by the Control Cost Manual for the remainder of the SNCR analysis. In the absence of a Control Cost Manual method for combustion controls, we have used all the costs provided by North Dakota for ASOFA. This approach is similar to the one we used to analyze the costs for SCR at Milton R. Young Station Unit 1, which enables us to compare the costs of the two technologies on a consistent basis. This was not an exhaustive effort, but it did result in a downward adjustment in the cost estimate for SNCR. We deem the analysis adequate for comparing the cost effectiveness values of the two top control options—SCR and SNCR.
Regarding specific elements in our cost analysis, we used $475 per ton to estimate urea costs and did not allow for lost revenue due to outage (consistent with Control Cost Manual). To estimate the average cost effectiveness (dollars per ton of emissions reductions), we divided the total annual cost by the estimated NO
SCR + ASOFA.
Our contractor, ERG, prepared a cost analysis for SCR for Milton R. Young Station Units 1 and 2. As explained below, ERG started with some of the cost information in the Burns & McDonnell (Minnkota's contractor) BACT cost analyses provided in the NO
ERG used Burns & McDonnell's original SCR equipment costs and other costs that were not independently verified by EPA (auxiliaries/balance of plant, construction costs, natural gas pipeline, reagent costs, natural gas costs), but then calculated total capital costs and annual costs for SCR using the applicable Control Cost Manual methodology and factors and certain information supplied by EPA. While EPA could not independently verify many of the Burns & McDonnell-estimated costs, and believes they may overestimate actual costs, the result is a cost estimate that should represent the upper end of likely costs for these items. EPA provided ERG with information regarding catalyst volume, catalyst cost, catalyst replacement frequency, and estimated additional outage time for replacing spent catalyst. EPA provided a reasonable value for catalyst cost of $6,000 per cubic meter based on vendor data. This cost could be significantly reduced if regenerated catalyst were used. Contingencies were calculated using the Control Cost Manual assumptions. The maintenance costs were adjusted using the cost factor in the Control Cost Manual, and annual costs were not “levelized.”
To be conservative, ERG calculated four different catalyst replacement scenarios. Scenarios 1 through 3 assume catalyst replacement of one layer per year, one layer every two years, and one layer every three years. ERG's Scenarios 1 through 3 do not include additional outage time that Minnkota claimed would be necessary for boiler maintenance for solidified slag removal specifically attributable to the installation of ASOFA. For Scenario 3, which we find most reasonable for reasons further described below, there would be no additional unit outage time (and associated electricity costs) for catalyst replacement, because all of this work could be completed during a regularly scheduled major unit outage event. Despite our disagreement about the extent of additional outage time due to ASOFA, we had ERG run Scenario 4 as a “worst-case” scenario that assumes the accuracy of Burns & McDonnell's estimate of additional outage time needed for solidified slag removal due to the installation of ASOFA.
We find that Scenario 3 is the most reasonable based on the following considerations regarding catalyst life:
• An SCR catalyst must be changed out periodically. The catalyst lifetime is a function of catalyst activity and NH
• SCR catalyst is typically specified to last 16,000 to 24,000 hours for hot-side (or high dust) SCRs (after the boiler), the worst-case location for catalyst life. In the tail-end position, after ash and catalyst poisons have been significantly reduced by pollution control devices, SCR catalyst typically lasts 50,000 to over 100,000 hours.
• We have assumed the SCR at Milton R. Young Station 1 would be located at the tail end, after the ESP and new wet scrubber. As noted, these control devices remove the majority of the ash and catalyst poisons. Flue gas composition data collected at Milton R. Young Station 2, which has an inefficient, older wet scrubber, proves that the amount of submicron alkali aerosols is so small that catalyst deactivation would not occur rapidly.
ERG derived the annual cost of $2,161,000 (2009 dollars) for installation, operation, and maintenance of ASOFA for Unit 1 from tables 4-6-SF of Minnkota's February 2010 Supplemental BACT Analysis for Milton R. Young Station. As we noted above relative to the ASOFA slag issue and associated costs due to additional unit outage time assumed by Minnkota in calculating annual operating costs, EPA does not concur that this cost is entirely representative, but the ERG analysis relied on this cost due to time constraints. As with the annual costs for SCR, ERG did not “levelize” these annual costs for SNCR. ERG added the annual costs for ASOFA to the annual costs for SCR to arrive at a total cost for the combined controls.
To estimate the average cost effectiveness (dollars per ton of emissions reductions), ERG divided the total annual cost by the estimated NO
We summarize our costs from the ERG cost analysis in Tables 36, 37 and 38. See our Technical Support Document for the full analyses, in particular, our letter to Mr. Terry O'Clair, North Dakota Department of Health, dated May 10, 2010, and attached spreadsheet.
Factor 2: Energy impacts.
The additional energy requirements involved in installation and operation of the evaluated controls are not significant enough to warrant eliminating either SNCR or SCR.
Factor 3: Non-air quality environmental impacts.
The non-air quality environmental impacts are not significant enough to warrant eliminating either SNCR or SCR.
Factor 4: Remaining useful life.
The remaining useful life of Milton R. Young Station Unit 1 is at least 20 years. Thus, this factor does not impact our BART determination.
Factor 5: Evaluate visibility impacts.
Minnkota modeled the visibility benefits for SNCR + ASOFA using natural background per the BART Guidelines. North Dakota then performed additional modeling for the SCR + ASOFA control option. Minnkota and North Dakota both provided single-source modeling results using natural background conditions, complying with the BART Guidelines. The SCR + ASOFA option, when combined with wet scrubbing for SO
More information on our interpretation of the State's and source's modeling information is included in the Technical Support Document.
Step 5: Select BART.
We propose to find that BART is SCR + ASOFA at Milton R. Young Station 1 with an emission limit of 0.07 lb/MMBtu (30-day rolling average). Of the five BART factors, cost and visibility improvement were the critical ones in our analysis of controls for this source. We agree with the State that the other three factors are not relevant to this BART determination.
In our BART analysis for NO
We have concluded that SNCR + ASOFA and SCR + ASOFA are both cost effective control technologies and that both would provide substantial visibility benefits. SNCR + ASOFA has a cost effectiveness value of $687 per ton. While SCR + ASOFA is more expensive than SNCR + ASOFA, it has a cost effectiveness value of $2,569 per ton of NO
We have weighed costs against the anticipated visibility impacts at Milton R. Young Station 1, as modeled by Minnkota and the State. Both sets of controls would have a positive impact on visibility. As compared to SNCR + ASOFA, SCR + ASOFA would provide an additional visibility benefit 0.553 deciviews and 18 fewer days above 0.5 deciviews at Theodore Roosevelt. We consider these impacts to be substantial, especially in light of the fact that neither of these Class I areas is projected to meet the uniform rate of progress. We also note that the 0.553 deciview improvement at Theodore Roosevelt is greater than the improvement in visibility that North Dakota found reasonable to support other NO
In proposing a BART emission limit of 0.07 lb/MMBtu, we adjusted the annual design rate of 0.05 lb/MMBtu upwards to allow for a sufficient margin of compliance for a 30-day rolling average limit that would apply at all times, including startup, shutdown, and malfunction.
As we have noted previously, under section 51.308(e)(1)(iv), “each source subject to BART [is] required to install and operate BART as expeditiously as practicable, but in no event later than 5 years after approval of the implementation plan revision.” Based on the retrofit of other SCR installations we have reviewed, we propose a compliance deadline of five (5) years from the date our final FIP becomes effective.
Step 1: Identify All Available Technologies.
Our analysis only considers SNCR + ASOFA and SCR + ASOFA. Because the State selected SNCR + ASOFA as BART, and our concern is that the State did not properly evaluate SCR as BART, there is no need to consider lower-performing technologies.
Step 2: Eliminate Technically Infeasible Options.
For the reasons described in our BART analysis and determination for Milton R. Young Station Unit 1, we are not eliminating either SNCR or SCR as being technically infeasible.
Step 3: Evaluate Control Effectiveness of Remaining Control Technology.
For the purposes of our SNCR + ASOFA cost analysis, we used a control efficiency of 58% and an emission rate of 0.355 lb/MMBtu, the same control efficiency that North Dakota used. For our TESCR + ASOFA cost analysis we used the control efficiency of 93.8% that Minnkota used in its BART analysis and an emission rate of 0.05 lb/MMBtu, instead of North Dakota's 90% control efficiency and 0.085 lb/MMBtu emission rate. We find that SCR technology, by itself, can achieve 90% control efficiency and that the overall NO
Step 4: Evaluate Impacts and Document Results.
Factor 1: Costs of compliance.
SNCR + ASOFA.
For the reasons described in our BART analysis and determination for Milton R. Young Station Unit 1, we are not relying on North Dakota's costs for SNCR. We have adjusted North Dakota's costs using the same methodology we describe in our BART analysis and determination for Milton R. Young Station Unit 1.
We summarize our costs from our SNCR cost analysis in Tables 41, 42, and 43.
SCR + ASOFA.
Our contractor, ERG, prepared a cost analysis for SCR for Milton R. Young Station Units 1 and 2. For a description of the approach/assumptions ERG used in preparing its cost analysis, please see our BART analysis and determination for Milton R. Young Station Unit 1. For further detail, please refer to our Technical Support Document.
For the reasons discussed with respect to Milton R. Young Station Unit 1 in section V.E.2., we find that Scenario 3 with a 3-year catalyst life is the most reasonable assumption for Milton R. Young Station Unit 2.
ERG derived the annual cost of $3,843,000 (2009 dollars) for installation, operation, and maintenance of ASOFA from tables 4-6SF of Minnkota's February 2010 Supplement BACT Analysis for Milton R. Young Station. As we noted above relative to the ASOFA slag issue, EPA does not concur that this cost is representative, but the ERG analysis relied on this cost due to time constraints. ERG added the annual costs for ASOFA to the annual costs for SCR to arrive at a total cost for the combined controls.
We summarize our costs from the ERG cost analysis in Tables 44 and 45. See our Technical Support Document for the full analyses, in particular, our letter to Mr. Terry O'Clair, North Dakota Department of Health, dated May 10, 2010, and attached spreadsheet.
Factor 2: Energy impacts.
The additional energy requirements involved in installation and operation of the evaluated controls are not significant enough to warrant eliminating either SNCR or SCR.
Factor 3: Non-air quality environmental impacts.
The non-air quality environmental impacts are not significant enough to warrant eliminating either SNCR or SCR.
Factor 4: Remaining useful life.
The remaining useful life of Milton R. Young Station Unit 2 is at least 20 years. Thus, this factor does not impact our BART determination.
Factor 5: Evaluate visibility impacts.
Minnkota modeled the visibility benefits for SNCR + ASOFA using natural background per the BART Guidelines, North Dakota then performed additional modeling for the SCR + ASOFA control option. Minnkota and North Dakota both provided single-source modeling results using natural background conditions, complying with the BART Guidelines. The SCR + ASOFA option, when combined with wet scrubbing for SO
Step 5: Select BART.
We propose to find that BART is SCR + ASOFA at Milton R. Young Station 2 with an emission limit of 0.07 lb/MMBtu (30-day rolling average). Of the five BART factors, cost and visibility improvement were the critical ones in our analysis of controls for this source. We agree with the State that the other three factors are not relevant to this BART determination.
In our BART analysis for NO
As discussed in more detail in the Technical Support Document, we have concluded that SNCR + ASOFA and SCR + ASOFA are both cost effective control technologies and that both would provide substantial visibility benefits. SNCR + ASOFA has a cost effectiveness value of $703 per ton. While SCR + ASOFA is more expensive than SNCR + ASOFA, it has a cost effectiveness value of $2,740 per ton of NO
We have weighed costs against the anticipated visibility impacts at Milton R. Young Station Unit 2, as modeled by Minnkota and the State. Both sets of controls would have a positive impact on visibility. As compared to SNCR + ASOFA, SCR + ASOFA would provide an additional visibility benefit of 0.566 deciview at Theodore Roosevelt and 21 fewer days above 0.5 deciviews. We consider these impacts to be substantial, especially in light of the fact that neither of these Class I areas is projected to meet the uniform rate of progress. We also note that the 0.566 deciview improvement at Theodore Roosevelt is greater than the improvement in visibility that North Dakota found reasonable to support other NO
In proposing a BART emission limit of 0.07 lb/MMBtu, we adjusted the annual design rate of 0.05 lb/MMBtu upwards to allow for a sufficient margin of compliance for a 30-day rolling average limit that would apply at all times, including during startup, shutdown, and malfunction.
As we have noted previously, under section 51.308(e)(1)(iv), “each source subject to BART [is] required to install and operate BART as expeditiously as practicable, but in no event later than 5 years after approval of the implementation plan revision.” Based on the retrofit of other SCR installations we have reviewed, we propose a compliance deadline of five (5) years from the date our final FIP becomes effective.
Step 1: Identify All Available Technologies.
As with the Milton R. Young Station Units, our analysis for Leland Olds Unit 2 only considers SNCR + ASOFA and SCR + ASOFA. Because the State selected SNCR + ASOFA as BART, and our concern is that the State did not properly evaluate SCR as BART, there is no need to consider lower-performing technologies.
Step 2: Eliminate Technically Infeasible Options.
We are not eliminating either SNCR or SCR as being technically infeasible. Both technologies have been widely employed to control NO
For further discussion concerning the technical feasibility of SCR, please see our NO
Step 3: Evaluate Control Effectiveness of Remaining Control Technologies.
For the purposes of our SNCR + ASOFA cost analysis, we used a control efficiency of 54% and an emission rate of 0.305 lb/MMBtu, the same control efficiency that North Dakota used. For our TESCR + ASOFA cost analysis we used a control efficiency of 93% and an emission rate of 0.05 lb/MMBtu, instead of North Dakota's 90% control efficiency and 0.07 lb/MMBtu emission
Step 4: Evaluate Impacts and Document Results.
Factor 1: Cost of compliance.
SNCR + ASOFA.
We are not relying on North Dakota's costs for SNCR. Though the North Dakota costs, developed by Sargent & Lundy on behalf of Basin Electric, are generally consistent with the Control Cost Manual, at least one cost, related to lost revenue due to outage, is not. To ensure a fair comparison between the two competing technologies, we have re-worked the costs for SNCR.
We relied on Sargent & Lundy's estimate for total capital investment costs but adjusted them for 2009 dollars.
This is the same approach we used to analyze the costs for TESCR at Leland Olds Station 2, which enables us to compare the costs of SNCR and TESCR on a consistent basis. Our effort to re-estimate the costs for SNCR was not exhaustive, but it did result in a downward adjustment in the cost estimate for SNCR. We deem the analysis adequate for comparing the cost effectiveness values of the two top control options—SCR and SNCR.
Regarding specific elements in our cost analysis, we used $475 per ton to estimate urea costs and did not allow for lost revenue due to outage because the Control Cost Manual does not allow for lost revenue due to outage. To estimate the average cost effectiveness (dollars per ton of emissions reductions), we divided the total annualized cost by the estimated NO
TESCR + ASOFA.
Dr. Phyllis Fox, PhD, PE, as subcontractor to our contractor, RTI, prepared a cost analysis for TESCR for Leland Olds Station Unit 2. Dr. Fox started with the cost information in the Sargent & Lundy letter report dated May 27, 2009 with Basin Electric cover letter dated May 29, 2009. See SIP Appendix C.1. As described in greater detail below, while Dr. Fox relied on Sargent & Lundy's estimate for total capital investment for TESCR equipment and for the unit cost for catalyst, she adjusted Sargent & Lundy's assumptions for various other costs to make them consistent with the Control Cost Manual and reasonable costing assumptions.
TESCR + ASOFA Capital Costs.
The May 27, 2009 Sargent & Lundy Cost Analysis reports a capital cost range of $165,800,000 to $170,800,000 for installed capital costs for TESCR + ASOFA in 2009 dollars.
For our analysis, we used a total installed capital cost estimate of $164,676,000 in 2009 dollars. This includes the cost of ASOFA but not the cost of a dry sorbent injection control system. This estimate is based primarily on the Sargent & Lundy lump sum unit capital cost estimate expressed in dollars per kilowatt of electricity generated, $350/kW, in 2009 dollars.
TESCR + ASOFA Annual Costs.
As previously discussed, the total capital cost is annualized using a capital recovery factor. This value is then summed with estimated annual operating and maintenance costs to arrive at a value for total annual costs.
Using an appropriate capital recovery factor of 0.08718, Dr. Fox calculated an annualized capital cost of $14,356,000 in 2009 dollars. Dr. Fox estimated that total annual operating and maintenance costs would be $22,090,000. Sargent & Lundy's estimate of variable operating and maintenance costs (NH
Below, we provide further detail regarding some of the major assumptions and reasoning underlying our estimate of annual operating and maintenance costs.
As noted already, an SCR catalyst must be changed out periodically. Information regarding catalyst life that we relied on for our cost analysis for Milton R. Young Station Units 1 and 2 is also relevant here. Leland Olds Station Unit 2 burns similar North Dakota lignite in a similar cyclone boiler. We note that Dr. Fox examined information related to catalyst life at Milton R. Young Station and independently considered relevant data and information to conclude that 24,000 hours is a reasonable assumption for catalyst life at Leland Olds Station. This is what Dr. Fox used for her cost analysis for Leland Olds Station Unit 2. Dr. Fox rejected Sargent & Lundy's estimate that catalyst life would only be six to 12 months; she found that Sargent & Lundy's estimate was based on a number of faulty assumptions. For further detail regarding catalyst life, please see our BART analysis and determination for Milton R. Young Station Unit 1 and our Technical Support Document.
Although we are confident that 24,000 hours represents a conservative assumption for catalyst life at Leland Olds Station Unit 2, we have also prepared cost estimates using 8,000 and 16,000 hours as assumptions for catalyst life in order to determine the sensitivity of costs to this variable. Further information is provided below.
The catalyst volume required to achieve a given NO
We assumed an initial configuration of two filled and one empty layer of catalyst in our cost analysis, which is consistent with the design of modern SCRs. The empty layer would be filled after 24,000 hours, the assumed catalyst life.
The Control Cost Manual explains that the future worth factor should be used to amortize catalyst cost over the years preceding the actual catalyst purchase. As money is allocated in advance of purchase, the sum of the
We have assumed a cost of $7,500 per cubic meter of catalyst ($/m
Sargent & Lundy assumed a catalyst volume of 530 m
As we commented on the draft Regional Haze SIP, the value of 530 m
First, a special outage to change out the catalyst would not be required. The catalyst can be changed out during scheduled major outages, which occur every 3 years. The first catalyst change would occur 3 years after installation. Thus, careful planning would align the first and subsequent changes with major outages, requiring no lost generation charges.
Second, the estimated catalyst exchange rate for a TESCR on the similar Milton R. Young Station units was 2.2 days for Unit 1 (257 MW) and 3.8 days for Unit 2 (477 MW).
Thus, we assumed there would be no lost generation during catalyst replacement because it would be prudent design and operating practice to schedule these events during routinely scheduled maintenance outages.
We have included costs for NH
Recent BART analyses have used values in the range of $450 per ton. Black & Veatch, an engineering firm that designs SCRs, used an anhydrous ammonia cost of $450 per ton in a September 2010 BART analysis for Boardman.
The temperature of the flue gas exiting the wet scrubber must be raised to SCR operating temperature. There is more than one method for doing this. One method uses natural gas. The other uses steam. The cost of reheating the flue gas is typically one of the most significant operating costs for a TESCR.
Steam has important advantages over natural gas for use in flue gas reheating: lower cost, no increase in flue gas flow rate from gas combustion byproducts, no moisture condensation on the catalyst, and no risk of re-vaporization of catalyst poisons in the flame of a duct burner. Most TESCRs in Europe use steam for reheating.
Operating experience with numerous TESCRs in Europe over the past 20 years indicates that an increase of 20 to 25 degrees F is adequate for reheat.
Next, we determined an appropriate price assumption for natural gas. As noted, BART cost effectiveness analyses are based on the best estimate of current costs at the time of the analysis and do not consider future escalation. As cost effectiveness is determined relative to other similar sources, future escalation in gas prices would affect all natural gas users, not just Leland Olds Station.
The most recent data reported to the Energy Information Agency (EIA) indicates that the cost of natural gas to electric power consumers in North Dakota has ranged from $4.48/MMBtu (October 2010) to $5.37/MMBtu (June 2010).
An SCR increases power demand for auxiliary equipment, including the induced draft fans used to overcome the increase in backpressure from the SCR plus electricity to run the NH
This cost is estimated by multiplying the electricity demand in kilowatts by the cost of electricity in dollars per megawatt hour (MWh). Cost effectiveness analyses are based on the cost to the owner to generate electricity, or the busbar cost, not market retail rates. The unit cost of electricity used by Sargent & Lundy, $50/MWh, is high for a lignite-fired boiler built near its fuel source. Burns & McDonnell assumed $38/MWh in the 2005 Feasibility Analysis for Leland Olds
The capacity factor is the fraction of the available capacity that is actually used. It is calculated as the ratio of the actual electrical output to its full capacity, typically over a year. The emission reductions and variable operating and maintenance costs are both directly proportional to the capacity factor. The higher the capacity factor, the larger the emission reductions and the higher the variable operating and maintenance costs.
The BART Guidelines indicate that: “in the absence of enforceable limitations, you calculate baseline emissions based upon continuation of past practice.”
Dr. Fox calculated a capacity factor of 86.5%. This was based on a comparison of Leland Olds Station Unit 2's actual electrical output for a baseline period, obtained from monthly Clean Air Markets data, to its rated capacity (440 MW).
In our calculations, we assumed TESCR + ASOFA reduced baseline NO
We added the annual costs for ASOFA to the annual costs for TESCR to arrive at a total annual cost for the combined controls. To estimate the average cost effectiveness (dollars per ton of emissions reductions), we then divided the total annual cost by the estimated NO
Factor 2: Energy impacts.
The additional energy requirements involved in installation and operation of the evaluated controls are not significant enough to warrant eliminating either SNCR or SCR.
Factor 3: Non-air quality environmental impacts.
The non-air quality environmental impacts are not significant enough to warrant eliminating either SNCR or SCR.
Factor 4: Remaining useful life.
The remaining useful life of Leland Olds Station Unit 2 is at least 20 years. Thus, this factor does not impact our BART determination.
Average cost effectiveness for each option.
To estimate the average annual cost effectiveness (dollars per ton of emissions reductions), we divided the total annual cost by the estimated NO
Step 5: Evaluate Visibility Impacts.
Basin Electric modeled the visibility benefits for SNCR + ASOFA using natural background per the BART Guidelines. North Dakota then performed additional modeling for the SCR + ASOFA control option. Basin Electric and North Dakota both provided single-source modeling results using natural background conditions, complying with the BART Guidelines. The SCR + ASOFA option, when combined with FGD at 95% for SO
More information on our interpretation of the State's and source's modeling information is included in the Technical Support Document.
Step 6: EPA BART Determination for Leland Olds Station 2.
We propose to find that BART is SCR + ASOFA at Leland Olds Station 2 with an emission limit of 0.07 lb/MMBtu (30-day rolling average). Of the five BART factors, cost and visibility improvement were the critical ones in our analysis of controls for this source. We agree with the State that the other three factors are not relevant to this BART determination.
The comparison between our SNCR + ASOFA analysis and our TESCR + ASOFA Scenario 3 analysis is provided in Table 55.
We have concluded that SNCR + ASOFA and SCR + ASOFA are both cost effective control technologies and that both would provide substantial visibility benefits. SNCR + ASOFA has a cost effectiveness value of $700 per ton. While SCR + ASOFA is more expensive than SNCR + ASOFA, it has a cost effectiveness value of $1,833 per ton of NO
We have weighed costs against the anticipated visibility impacts at Leland Olds Station 2. Both sets of controls would have a positive impact on visibility. As compared to SNCR + ASOFA, SCR + ASOFA would provide an additional visibility benefit 0.512 deciviews and 25 fewer days above 0.5 deciviews at Theodore Roosevelt. We consider these impacts to be substantial, especially in light of the fact that neither of these Class I areas are projected to meet the uniform rate of progress. We also note that the 0.512 deciview improvement at Theodore Roosevelt is greater than the improvement in visibility that North Dakota found reasonable to support other NO
In proposing a BART emission limit of 0.07 lb/MMBtu, we adjusted the annual design rate of 0.05 lb/MMBtu upwards to allow for a sufficient margin of compliance for a 30-day rolling average limit that would apply at all times, including during startup, shutdown, and malfunction.
As we have noted previously, under section 51.308(e)(1)(iv), “each source subject to BART [is] required to install and operate BART as expeditiously as practicable, but in no event later than 5 years after approval of the implementation plan revision.” Based on the retrofit of other SCR installations we have reviewed, we propose a compliance deadline of five (5) years from the date our final FIP becomes effective.
Our proposal that SCR is BART at Milton R. Young Station Units 1 and 2 and Leland Olds Station Unit 2 has been thoroughly analyzed and considered. As we indicate above, the sources and the State believe that SCR is technically infeasible, based on their views regarding catalyst deactivation and the lack of firm vendor guarantees of catalyst life. We disagree with the sources and the State and have adopted assumptions we and our consultants consider reasonable regarding SCR catalyst life at these units. We note that, should we finalize our FIP as proposed, Minnkota, Basin Electric, and/or the State may request reconsideration of our final action based on the potential outcomes of any field testing regarding catalyst life they may choose to undertake prior to the date the emission limits in our FIP become effective.
As noted above, North Dakota selected SOFA + LNB as NO
Since Coal Creek Units 1 and 2 are identical, we are considering average historical data for each unit and then proposing a single BART determination that applies to each unit.
Step 1: Identify All Available Technologies.
Our analysis for Coal Creek Units 1 and 2 considers SOFA + LNB (combustion controls), and combustion controls in combination with SNCR, SCR, and LTO.
Step 2: Eliminate Technically Infeasible Options.
For the reasons described in our BART analysis and determination for Milton R. Young Station Units 1 and 2 and Leland Olds Station 2, we are not eliminating either SNCR or SCR as being technically infeasible. We are not eliminating any of the other control options as being technically infeasible. For ease of comparison, we are evaluating LDSCR (downstream of the particulate control device). This is the option that North Dakota and Great River Energy (GRE) evaluated, and this location for the SCR equipment is preferable to a high-dust location (upstream of the particulate control device) for minimizing the amount of ash and catalyst poisons that would otherwise be present in the flue gases, thus increasing catalyst life and decreasing operating costs. A tail-end location (downstream of the particulate control and the SO
Step 3: Evaluate Control Effectiveness of Remaining Control Technology.
For the purposes of our SOFA + LNB cost analysis, we used a control efficiency of 29% and an emission rate of 0.15 lb/MMBtu. In our SNCR + ASOFA cost analysis, we used a control efficiency of 49% and an emission rate of 0.108 lb/MMBtu. For our LDSCR + ASOFA cost analysis we used a control efficiency of 80% and an emission rate of 0.043 lb/MMBtu. We used the same emission rates as North Dakota and calculated slightly different efficiency ratings based on an emissions baseline for years 2000 through 2004. Due to limited time, we did not perform a separate cost analysis for LTO and are accepting the Great River Energy cost estimates that North Dakota used. These were based on a control efficiency of 90% and an emission rate of 0.022 lb/MMBtu. A summary of emissions and control options is provided in Table 56.
Step 4: Evaluate Impacts and Document Results.
Factor 1: Costs of compliance.
SOFA + LNB.
We relied on North Dakota's and Great River Energy's cost analysis for SOFA + LNB. (See SIP, Appendices B.2 and C.2.) Great River Energy evaluated two slightly different emissions rates. We find that the lower emission rate (higher control efficiency) and associated costs are reasonable, and we rely on this information to supplement our other control option cost analyses. We used an emission rate of 0.151 lb/MMBtu, with a resulting capital cost of $5.37 million, a total annual cost of $673,100, and an average cost effectiveness of $412 per ton of NO
SNCR+ SOFA + LNB.
We are not relying on North Dakota's costs for SNCR due to the erroneous fly ash cost information used by Great River Energy, which the State relied on in its analyses. We prepared a cost analysis for SNCR for Coal Creek Station Units 1 and 2. As explained below, we have used some of the cost information provided in a Great River Energy letter from Ms. Mary Jo Roth to Mr. Terry O'Clair dated July 15, 2011. The original price for fly ash in Great River Energy's analysis was $36.00 per ton. (See SIP, Appendix C.2). In its July 15, 2011 letter, Great River Energy corrected this value to $5.00 per ton. We have used this value in our analyses.
Regarding this value for fly ash sales, North Dakota concluded that SCR and SNCR use at Coal Creek would likely result in NH
We also relied on Great River Energy's estimate for direct capital equipment costs for SNCR. We then generally used factors and assumptions provided by the Control Cost Manual for the remainder of our SNCR analysis, as well as cost estimates we consider to be reasonable for certain recurring costs. This is the same approach we used to analyze the costs for SCR and SNCR at Leland Olds Station Unit 2 and Milton R. Young Station Units 1 and 2. This enables us to compare the costs of the various technologies on a consistent basis. We summarize our costs from our SNCR cost analysis in Tables 57, 58, and 59.
SCR+ SOFA + LNB.
We are not relying on North Dakota's costs for SCR + SOFA + LNB due to the erroneous fly ash cost information used by Great River Energy, which the State relied on in its analyses. Here again, we used the source's corrected sales price for fly ash of $5.00 per ton. As with SNCR, we relied on Great River Energy's estimate for direct capital equipment costs for SCR. We then generally used factors and assumptions provided by the Control Cost Manual for the remainder of our SCR analysis, as well as cost estimates we consider to be reasonable for certain recurring costs. This is the same approach we used to analyze the costs for SCR and SNCR at Leland Olds Station Unit 2 and Milton R. Young Station Units 1 and 2. This enables us to compare the costs of the various technologies on a consistent basis. We summarize our costs from our SCR cost analysis in Tables 60, 61, and 62.
Factor 2: Energy impacts.
The additional energy requirements involved in installation and operation of the evaluated controls are not significant enough to warrant eliminating any of the control options.
Factor 3: Non-air quality environmental impacts.
The non-air quality environmental impacts are not significant enough to warrant eliminating any of the options. It is possible that fly ash will need to be landfilled if it cannot be sold due to NH
Factor 4: Remaining useful life.
The remaining useful life of Coal Creek Station Units 1 and 2 is at least 20 years. Thus, this factor does not impact our BART determination.
Factor 5: Evaluate visibility impacts.
Great River Energy modeled the visibility benefits for all the control options using natural background per the BART Guidelines. The SO
Based on Great River Energy's modeling, we anticipate that SNCR + SOFA + LNB would provide additional visibility improvement compared to SOFA + LNB (higher control option) of about 0.105 deciviews at Theodore Roosevelt, Northern Unit, and 0.088 deciviews at Theodore Roosevelt, Southern Unit. Also, when compared to SOFA + LNB, SNCR + SOFA + LNB would provide six fewer days above 0.5 deciviews at Lostwood, three fewer days at Theodore Roosevelt, Northern Unit, and one less day at Theodor Roosevelt, Southern Unit.
Step 5: Select BART.
We propose to find that BART is SNCR + SOFA + LNB at Coal Creek Station Units 1 and 2 with an emission limit of 0.12 lb/MMBtu (30-day rolling average). Of the five BART factors, cost and visibility improvement were the critical ones in our analysis of controls for this source. As indicated above, we find that the other three factors are not significant for this BART determination.
Our evaluation of the four control options is summarized in Table 63.
We have concluded that SOFA + LNB and SNCR + SOFA + LNB are both cost effective control technologies and that both would provide incremental visibility benefits. SOFA + LNB has a cost effectiveness value of $445 per ton of NO
We find the cost effectiveness values for LTO + SOFA + LNB and LDSCR + SOFA + LNB to be excessive and are proposing to eliminate these options as BART. While the incremental visibility improvement of 0.35 to 0.25 deciviews compared to the SNCR option is not insignificant, both the average and incremental cost effectiveness values associated with these options are high. The average cost effectiveness value for LTO + SOFA + LNB is $11,608 per ton. We find it is not reasonable to impose this cost given the predicted visibility improvement.
Using the value Great River Energy supplied for installed capital cost, we calculated an average cost effectiveness value for SCR + SOFA + LNB of $4,116 per ton. Given the anticipated visibility improvement, and the incremental cost effectiveness value of $6,653, we are not prepared to impose this option as BART. We also conducted some further analysis of costs. We determined that Great River Energy's value for installed capital cost equates to approximately $110/kW. This value appears to be low based on actual industry experience. For comparison, we performed an additional analysis for LDSCR + SOFA + LNB using an installed capital cost of $280/kW. We derived this value from EPA's Integrated Planning Model.
SNCR, when combined with scrubber modifications achieving 95% control, would result in a significant improvement in visibility at Theodore Roosevelt, estimated to be 1.507 deciviews and 50 fewer days above 0.5 deciviews. As the State did not provide discrete modeling for individual pollutants, it is not possible to describe the incremental visibility benefits of SNCR, or other NO
In proposing a BART emission limit of 0.12 lb/MMBtu, we adjusted the annual design rate of 0.108 lb/MMBtu upwards to allow for a sufficient margin of compliance for a 30-day rolling average limit that would apply at all times, including during startup, shutdown, and malfunction.
As we have noted previously, under section 51.308(e)(1)(iv), “each source subject to BART [is] required to install and operate BART as expeditiously as practicable, but in no event later than 5 years after approval of the implementation plan revision.” Based on the retrofit of other SNCR installations we have reviewed, we propose a compliance deadline of five (5) years from the date our final FIP becomes effective.
We are also proposing monitoring, recordkeeping, and reporting requirements in regulatory text at the end of this proposal.
In order to establish reasonable progress goals for Theodore Roosevelt and Lostwood and to determine the controls needed for the long-term strategy, North Dakota followed the process established in the Regional Haze Rule. First, North Dakota identified the anticipated visibility improvement in 2018 in both North Dakota Class I areas using the WRAP Community Multi-Scale Air Quality (CMAQ) modeling results. This modeling identified the extent of visibility improvement from the baseline by pollutant for each Class I area. The modeling relied on projected source emission inventories, which included enforceable Federal and state regulations already in place and anticipated BART controls.
North Dakota then identified sources and source categories (other than BART sources) in North Dakota that are major contributors to visibility impairment and considered whether these sources should be controlled based on a consideration of the factors identified in the CAA and EPA's regulations.
The primary tool WRAP relied upon for modeling regional haze improvements by 2018, and for estimating North Dakota's Reasonable Progress Goals, was the CMAQ model. The CMAQ model was used to estimate 2018 visibility conditions in North Dakota and all western Class I areas, based on application of anticipated regional haze strategies in the various states' regional haze plans, including assumed controls on BART sources.
The Regional Modeling Center (RMC) at the University of California Riverside conducted the CMAQ modeling under the oversight of the WRAP Modeling Forum. The Regional Modeling Center developed air quality modeling inputs including annual meteorology and emissions inventories for: (1) A 2002 actual emissions base case, (2) a planning case to represent the 2000-2004 regional haze baseline period using averages for key emissions categories, and (3) a 2018 base case of projected emissions determined using factors known at the end of 2005. All emission inventories were spatially and temporally allocated using the Sparse Matrix Operator Kernel Emissions (SMOKE) modeling system. Each of these inventories underwent a number of revisions throughout the development process to arrive at the final versions used in CMAQ modeling. A more detailed description of the CMAQ modeling performed by WRAP can be found in Appendix A.5 of the SIP and in the EPA Technical Support Document.
To supplement the WRAP modeling effort, North Dakota conducted further analyses using a hybrid modeling approach to address its concerns regarding weight of evidence and spatial resolution issues. The North Dakota hybrid modeling approach involved nesting a local North Dakota CALPUFF domain within the WRAP National CMAQ domain, and is explained in detail in Section 8 of the SIP.
North Dakota indicates its modeling methodology more realistically defines plume geometry for local large point sources and discounts the impacts of international sources in Canada over which North Dakota has no control. North Dakota is the only WRAP State which opted to develop its own reasonable progress modeling methodology. Appendix W outlines specific criteria for the use of alternate models and it does not appear that those criteria have been satisfied for the use of North Dakota's hybrid modeling.
In determining the measures necessary to make reasonable progress, States must take into account the following four factors and demonstrate how they were taken into consideration in selecting reasonable progress goals for a Class I area:
• Costs of Compliance,
• Time Necessary for Compliance,
• Energy and Non-air Quality Environmental Impacts of Compliance, and
• Remaining Useful Life of any Potentially Affected Sources. CAA § 169A(g)(1) and 40 CFR 308(d)(1)(i)(A).
As the purpose of the reasonable progress analysis is to evaluate the potential of controlling certain sources or source categories for addressing visibility from manmade sources, the four-factor analysis conducted by North Dakota addresses only anthropogenic sources, on the assumption that the focus should be on sources that can be “controlled.” In its evaluation of potential sources or source categories for reasonable progress, North Dakota primarily considered point sources. North Dakota also only considered controls for emissions of SO
To identify the point sources in North Dakota that potentially affect visibility in Class I areas, North Dakota started with the list of sources subject to Title V permitting requirements. Based on 2007 data, the State determined that Title V source emissions represent a very high percentage of the point source SO
For the reasons described below, the State eliminated from further consideration several sources that met the Q/D criteria. After the 2000-2004 baseline period, Bear Paw Energy began injecting acid gas at its Grasslands and Lignite Gas Plants. This has eliminated SO
North Dakota undertook a more detailed analysis of the remaining sources that exceeded a Q/D of 10. These sources are shown below in Table 65.
The control options and costs that North Dakota considered were derived, in part, from WRAP's report,
Table 66 shows the current controls in place at each reasonable progress source.
Because upgrades of the spray dryers at Antelope Valley Units 1 and 2 are already in progress, the State did not consider this option for these units during this planning period. The State expects the spray dryers to achieve 90% removal efficiency but doesn't expect a reduction in emissions because of an anticipated increase in coal sulfur content. At the Coyote Station, the State evaluated replacing the existing spray dryer. The boilers at Great Plains Synfuels Plant are equipped with an NH
Table 67 shows the cost of compliance for the control technologies evaluated for each of the reasonable progress sources.
The State found that the following control options have excessive cost effectiveness values:
• Antelope Valley 1 & 2—Wet scrubber; SCR w/reheat; and LNB + SCR w/reheat.
• Coyote—SCR w/reheat and ASOFA + SCR w/reheat.
• Heskett—Wet scrubber; circulating dry scrubber, with or without limestone injection; spray dryer, with or without limestone injection; SCR; and SNCR .
• Tioga Gas Plant—Tail Gas Cleanup.
• Great Plains Synfuels Plant—SNCR and SCR.
Also, at Heskett, the State found that SNCR plus staged combustion is not technically feasible. The State expressed concerns that SCR and SNCR may not be technically feasible at Great Plains Synfuels Plant. The State did not further evaluate the controls that it found had excessive cost effectiveness values or that it found were not technically feasible.
Relying on the EC/R report, the State found that up to 6.5 years after SIP approval would be necessary to achieve compliance with some of the control options and that additional time might be necessary if normal maintenance outages did not coincide with projected schedules.
The State found that all of the control technologies for the various sources would consume energy and that enhancement of the lb/MMBtu scrubbing system at Coyote Station would increase the amount of solid waste generated. However, the State concluded that the energy and non-air impacts would not preclude the selection of any of the technologies identified at any of the facilities.
With the exception of the engines at Tioga Gas Plant, the State found that the remaining useful life of the sources would be at least 20 years and would not preclude the selection of any of the control options. The State anticipated that the engines at Tioga may need to be refurbished before 20 years but that this would extend their remaining useful life indefinitely.
In addition to evaluating the four statutory factors, North Dakota also considered the visibility impacts associated with the control options for each RP source. However, in modeling visibility impacts, North Dakota used a hybrid cumulative modeling approach that is inappropriate for determining the visibility impact for individual sources. As with the modeling North Dakota conducted for its NO
The State determined that requiring additional controls on the reasonable progress sources will not substantially improve visibility in the Class I Federal Areas. Based on its cumulative modeling for the average of the 20% worst days, the State determined that the maximum combined improvement from use of the most efficient control options carried forward in the analysis for each source would be 0.11 deciviews at Lostwood and 0.03 deciviews at Theodore Roosevelt. According to the State, this amounts to a 0.17% improvement at Theodore Roosevelt over the baseline condition for the most impaired days and 0.56% improvement at Lostwood National Wildlife Refuge Wilderness Area. The State determined that the cost effectiveness value was over 618 million dollars per deciview of improvement at Lostwood and 2.3 billion dollars per deciview at Theodore Roosevelt. For all reasonable progress sources, the State determined that the cost ($/deciviews) was excessive, both on an individual and a cumulative basis. Therefore, the State concluded that no additional controls are warranted under reasonable progress during this planning period.
While the State concluded that additional controls are not warranted for purposes of meeting reasonable progress, the State nonetheless included controls for Coyote Station and Heskett Station in the SIP. For Coyote Station, the State reached an agreement with the owner/operator to reduce NO
For Heskett Station, the State reached an agreement with the owner/operator to use limestone injection into the boiler to reduce SO
40 CFR 308(d)(1) of the Regional Haze Rule requires States to “establish goals (in deciviews) that provide for reasonable progress towards achieving natural visibility conditions” for each Class I area of the State. These reasonable progress goals are interim goals that must provide for incremental visibility improvement for the most impaired visibility days, and ensure no degradation for the least impaired visibility days. The reasonable progress goals for the first planning period are goals for the year 2018.
Based on (1) The results of the WRAP CMAQ modeling, (2) the results of the four-factor analysis of major North Dakota sources, and (3) the emission controls on North Dakota BART sources, North Dakota established reasonable progress goals for the most impaired days for both of North Dakota's Class I areas, as identified in Table 69 below. Also shown in Table 69 is a comparison of the reasonable progress goals to the uniform rate of progress for both Class I areas. The reasonable progress goals for the 20% worst days fall short of the uniform rate of progress by 1.77 and 2.25 deciviews for Theodore Roosevelt and Lostwood, respectively. In Sections 8 and 9 of the SIP, the State presented additional scenarios that compared the State's hybrid modeling results to the WRAP modeling results. The State's hybrid modeling approach results in more optimistic estimations of visibility improvements. However, even when the State set all North Dakota SO
North Dakota's reasonable progress goals for Theodore Roosevelt for 2018 for the 20% worst days represents a 0.6 deciviews improvement over baseline and its reasonable progress goals for Lostwood for 2018 represents a 0.5 deciviews improvement over baseline. North Dakota's reasonable progress goals establish a slower rate of progress than the uniform rate of progress. North Dakota has calculated that under the rate of progress represented by its reasonable progress goals, North Dakota would attain natural visibility conditions in 156 years at Theodore Roosevelt and 232 years at Lostwood.
Table 70 provides a comparison of North Dakota's reasonable progress goals to baseline conditions on the least impaired days. This comparison demonstrates that North Dakota's reasonable progress goals will result in no degradation in visibility conditions in the first planning period; instead, for the 20% best days, there would be a slight improvement in visibility from the baseline for both Class I areas.
North Dakota believes the reasonable progress goals it established for the North Dakota Class I areas are reasonable, and that it is not reasonable to achieve the glide path in 2018, for the following reasons:
1. Findings from the four-factor analysis along with the State's visibility analyses resulted in excessive dollar per deciview costs for additional controls.
2. Sources outside of the modeling domain and in Canada contribute 50-67% of the sulfate or nitrate to North Dakota's Class I areas. These are the pollutants that cause the greatest visibility impairment in such areas. Canadian sources are not under the control of North Dakota or the surrounding States and will not be significantly controlled by 2018. North Dakota conducted modeling to emulate 100% control of all in-state sources and demonstrated that the uniform rate of progress would still not be met.
3. After sulfate and nitrate, the next largest contributor to visibility impairment in North Dakota's Class I areas is organic carbon. Much of the organic carbon emissions, which account for approximately 15% and 18% of the extinction at Lostwood and Theodore Roosevelt, respectively, on the 20% worst days, are from natural fires that cannot be controlled.
North Dakota consulted directly with neighboring states and through the WRAP, and relied on the technical tools, policy documents, and other products that all western states used to develop their regional haze plans. The WRAP Implementation Work Group was one of the primary collaboration mechanisms. In addition, North Dakota consulted directly with the State of Minnesota through the Minnesota Pollution Control Agency. Discussions with neighboring states included the review of major contributing sources of air pollution, as documented in numerous WRAP reports and projects. The focus of this review process was interstate transport of emissions, major sources believed to be contributing, and whether any mitigation measures were needed. All the states relied upon similar emission inventories, results from source apportionment studies and BART modeling, review of IMPROVE monitoring data, existing state smoke management programs, and other information in assessing the extent to which each state contributes to visibility impairment other states' Class I areas.
40 CFR 51.308(d)(3)(ii) of the Regional Haze Rule requires a state to demonstrate that its regional haze plan includes all measures necessary to obtain its fair share of emission reductions needed to meet reasonable progress goals. Based on the consultation described above, North Dakota identified no major contributions that supported developing new interstate strategies, mitigation measures, or emission reduction obligations. Both North Dakota and neighboring states agreed that the implementation of BART and other existing measures in state regional haze plans were sufficient for the states to meet the reasonable progress goals for their Class I areas, and that future consultation would address any new strategies or measures needed.
We agree with North Dakota's conclusion that it is not reasonable to meet the uniform rate of progress for Theodore Roosevelt and Lostwood by 2018. In particular, North Dakota's modeling showed that even if all in-State emissions were reduced to zero, North Dakota could still not achieve the uniform rate of progress at its Class I areas. We also agree with North Dakota's conclusion that it appropriately consulted with other states and determined that it needed no further controls beyond those already contained in the SIP to address impacts on Class I areas in other states. However, we disagree with North Dakota's conclusion that no additional controls on non-BART sources are reasonable and disagree with North Dakota's selected reasonable progress goals.
Because the reasonable progress goals fall short of the uniform rate of progress, North Dakota must demonstrate that its reasonable progress goals and rejection of reasonable progress controls is reasonable, based on the four factors. 40 CFR 51.308(d)(1)(ii).
As an initial matter, we disagree with the State's assessment of visibility improvement at individual reasonable progress sources. While it is reasonable for a state to consider visibility improvement as an additional factor in its reasonable progress analysis when evaluating visibility benefits from potential control options at individual sources, it is not appropriate to assume degraded background conditions, as the State did. As we note above, using degraded rather than natural background in the modeling produces estimates that greatly underestimate the benefits of potential control options. The ultimate goal of the regional haze program is to achieve natural visibility conditions, not to preserve degraded conditions.
As a result of North Dakota's inappropriate visibility modeling approach, North Dakota greatly understated visibility improvements in deciviews.
Below we discuss each reasonable progress source and EPA's conclusions regarding the State's reasonable progress determination.
EPA is proposing to approve the State's conclusion that no additional SO
EPA does not agree with the State's conclusion that no additional controls are reasonable for NO
EPA is proposing to approve the State's conclusion that no additional SO
EPA does not agree with the State's conclusion that no additional NO
Based on the relatively small predicted emissions reductions and the cost effectiveness values, we are proposing to approve the State's determination that no additional SO
EPA agrees with the State that the current SO
We find reasonable the State's conclusion that some of the higher performing SO
EPA is proposing to approve the State's determination that no additional NO
Because we are proposing to disapprove North Dakota's reasonable progress determination for NO
As discussed above, we propose to disapprove North Dakota's reasonable progress conclusion that no additional controls at Antelope Valley Station Units 1 and 2 are warranted during this planning period. To correct the deficiencies identified in our proposed disapproval, we are proposing a FIP. Because we are proposing to disapprove North Dakota's reasonable progress goals, we are also proposing a FIP to replace them.
In proposing a FIP to address reasonable progress emission reductions
As noted above in section V.G.2., North Dakota conducted an analysis of potential NO
The BART Guidelines recommend that states utilize a five-step process for determining BART for EGU sources above 750 MW in size. Although this five-step process is not required for making reasonable progress determinations, we have elected to largely follow it in our reasonable progress analysis because there is some overlap in the statutory BART and reasonable progress factors and because it provides a reasonable structure for evaluating potential control options.
Units 1 and 2 are tangentially-fired boilers, each having a generating capacity of 435 MW. These boilers are not BART-eligible because they commenced operation in the 1980s, after the 15-year period specified in the Regional Haze Rule. The boilers burn North Dakota lignite.
Step 1: Identify All Available Technologies.
Our analysis considers LNB, SNCR, SNCR + LNB, SCR, and SCR + LNB. Both boilers are already equipped with OFA systems.
Step 2: Eliminate Technically Infeasible Options.
We are not eliminating any of the control options as being technically infeasible.
Step 3: Evaluate Control Effectiveness of Remaining Control Technology.
A summary of emissions projections for the various control options is provided in Table 71.
Step 4: Evaluate Impacts and Document Results.
Factor 1: Costs of compliance.
Table 72 provides a summary of estimated annual costs for the various control options. These values are based on North Dakota's estimates in Section 9 of the SIP.
Factor 2: Energy impacts.
The additional energy requirements involved in installation and operation of the evaluated controls are not significant enough to warrant eliminating any of the control options.
Factor 3: Non-air quality environmental impacts.
The non-air quality environmental impacts are not significant enough to warrant eliminating any of the control options.
Factor 4: Remaining useful life.
The remaining useful life of Antelope Valley Units 1 and 2 is at least 20 years. Thus, this factor does not impact our reasonable progress determination.
Optional Factor 5: Evaluate visibility impacts.
Although visibility impact is not one of the four statutory factors, North Dakota opted to include the visibility impacts in its reasonable progress analysis in Section 9 of the SIP. As explained in section V.D.1.e, above, we are disregarding these modeling results because the State did not conduct its modeling in a manner that properly represents impacts from individual
Step 6: Select Reasonable Progress Controls.
Based on our examination of North Dakota's cost estimates and the predicted visibility benefit of 0.754 deciviews, we propose to find that LNB + SOFA are reasonable controls to address reasonable progress for the initial planning period, with an emission limit of 0.17 lb/MMBtu (30-day rolling average). Of the four reasonable progress factors and the optional factor of visibility improvement, cost and visibility improvement were the critical ones in our analysis of controls for this source. We agree with the State that the other three factors are not relevant to this reasonable progress determination. The average cost effectiveness values for LNB at each unit are $586 and $661 per ton. These values are very reasonable and far less than many of the cost effectiveness values the State found reasonable in making its BART determinations. Also, the Antelope Valley Station units are comparable in size to other large EGUs in North Dakota for which the State selected SNCR or combustion controls in the BART context. And, North Dakota predicted that installation of LNB would achieve NO
We have eliminated higher performing options—SNCR + LNB, SCR, and SCR + LNB—because their cost effectiveness values are significantly higher and/or the emission reductions are not that much higher than LNB. Considering the statutory factors, we find that it is not reasonable to insist on these higher control levels in this first planning period. However, we expect the State to consider such controls in the next planning period.
We are proposing an emission limit of 0.17 lb/MMBtu (30-day rolling average) based on a baseline emission rate of 0.35 lb/MMBtu and a predicted control efficiency of 51%. We also note that this is the presumptive limit in the BART Guidelines for this type of large boiler using combustion controls. We find the BART Guidelines' analysis of cost effective control technologies/emission limits for similar sources useful in assessing achievable emission limits. The emission limit would apply on a continuous basis, including during startup, shutdown, and malfunction.
We propose to require that Basin Electric start meeting our proposed emission limit at Antelope Valley Station Units 1 and 2 as expeditiously as practicable, but no later than July 31, 2018. This is consistent with the requirement that the SIP cover an initial planning period that ends July 31, 2018. We invite comment on whether a different deadline would be appropriate.
We are proposing monitoring, recordkeeping, and reporting requirements for Antelope Valley that are the same as those we are proposing for BART for Milton R. Young Station, Leland Olds Station, and Coal Creek Station.
We are proposing to impose reasonable progress controls on Antelope Valley Station Units 1 and 2 as described above, as well as more stringent BART controls on Milton R. Young Station Units 1 and 2, Leland Olds Station Unit 2, and Coal Creek Station Units 1 and 2 than North Dakota and WRAP assumed in modeling North Dakota's reasonable progress goals. Also, we assume that controls included in the SIP for Heskett Station and Coyote Station were not modeled when the reasonable progress goals were determined.
We could not re-run the WRAP modeling due to time and resource constraints, but anticipate that the additional controls would result in an increase in visibility improvement during the 20% worst days. As noted in our analyses, many of our proposed controls would result in significant incremental visibility benefits when modeled against natural background. We anticipate that this would translate into some measurable improvement if modeled on the 20% worst days as well. We are confident that this improvement would not be sufficient to achieve the uniform rate of progress at Theodore Roosevelt and Lostwood in 2018. We expect the State to quantify the visibility improvement in its next Regional Haze SIP revision.
For purposes of this action, we are proposing reasonable progress goals that are consistent with the additional controls we are proposing and the Heskett and Coyote controls included in the SIP. While we would prefer to quantify the reasonable progress goals, we note that the reasonable progress goals themselves are not enforceable values. The more critical elements for our FIP are the emissions limits we are proposing to impose, which will be enforceable.
As described in section IV.E of this action, the long-term strategy is a compilation of state-specific control measures relied on by the state for achieving its reasonable progress goals. The long-term strategy must include “enforceable emissions limitations, compliance schedules, and other measures as necessary to achieve the reasonable progress goals” for all Class I areas within, or affected by emissions from, the state. 40 CFR 51.308(d)(3). North Dakota's long-term strategy for the first implementation period addresses the emissions reductions from federal, state, and local controls that take effect in the state from the end of the baseline period starting in 2004 until 2018. The North Dakota long-term strategy was developed by North Dakota, in coordination with the WRAP, through an evaluation of the following components: (1) WRAP emission inventories for a 2002 baseline and a 2018 projection (including reductions from WRAP member state controls required or expected under federal and state regulations (including BART)); (2) modeling to determine visibility improvement and apportion individual state contributions; (3) state consultation; and (4) application of the long-term strategy factors. The State's detailed long-term strategy is included in Section 10 of the Regional Haze SIP.
40 CFR 51.308(d)(3)(iii) requires that North Dakota document the technical basis, including modeling, monitoring, and emissions information, on which it relied to determine its apportionment of emission reduction obligations necessary for achieving reasonable progress in each mandatory Class I Federal area it affects. North Dakota must identify the baseline emissions inventory on which its strategies are based. 40 CFR 51.308(d)(3)(iv) requires that North Dakota identify all anthropogenic (human-caused) sources of visibility impairment it considered in developing its long-term strategy. This includes major and minor stationary
Emissions within North Dakota are both naturally occurring and man-made. Two primary sources of naturally occurring emissions include wildfires and windblown dust. In North Dakota, the primary sources of anthropogenic emissions include electric utility steam generating units, energy production and processing sources, agricultural production and processing sources, prescribed burning, and fugitive dust sources. The North Dakota inventory includes emissions of SO
An emissions inventory for each pollutant was developed by WRAP for North Dakota for the baseline year 2002 and for 2018, which is the first reasonable progress milestone. The 2018 emissions inventory was developed by projecting 2002 emissions and applying reductions expected from federal and state regulations. The emission inventories developed by WRAP were calculated using approved EPA methods. North Dakota made some adjustments to area oil and gas to include SO
There are ten different emission inventory source categories identified in the North Dakota regional haze Plan: Point, area, area oil and gas, on-road, off-road, all fire, biogenic, road dust, fugitive dust, and windblown dust. Tables 73 through 78 show the 2002 baseline emissions, the 2018 projected emissions, and net changes of emissions for SO
SO
NO
Most of the organic carbon emissions in North Dakota are from fires as shown in Table 75. Natural (non-anthropogenic) wildfire can fluctuate greatly from year to year. 2002 was an average year for wildfires in North Dakota. Another sizable source is anthropogenic fire (human-caused), such as forestry prescribed burning, agricultural field burning, and outdoor residential burning. Overall, organic carbon emissions are estimated to decline by 19% by 2018.
The primary source of elemental carbon is off-road mobile sources as shown in Table 76. Another contributor is fire. Other emissions of note are area and on-road mobile sources. Elemental carbon emissions are estimated to decrease by 52% by 2018 due mostly to new Federal mobile source regulations.
As detailed in Tables 77 and 78, the primary sources of PM (both PM
In order to determine the significant sources contributing to haze in North Dakota's Class I areas, North Dakota relied upon two source apportionment analysis techniques developed by the WRAP. The first technique was regional modeling using the Comprehensive Air Quality Model (CAMx) and the PM Source Apportionment Technology (PSAT) tool, used for the attribution of sulfate and nitrate sources only. The second technique was the Weighted Emissions Potential (WEP) tool, used for attribution of sources of organic carbon, elemental carbon, PM
PSAT uses the CAMx air quality model to show nitrate-sulfate-ammonia chemistry and apply this chemistry to a system of tracers or “tags” to track the chemical transformations, transport, and removal of NO
WEP is a screening tool that helps to identify source regions that have the potential to contribute to haze formation at specific Class I areas. Unlike PSAT, this method does not account for chemistry or deposition. The WEP combines emissions inventories, wind patterns, and residence times of air masses over each area where emissions occur, to estimate the percent contribution of different pollutants. Like PSAT, the WEP tool compares baseline values (2000-2004) to 2018 values, to show the improvement expected by 2018, for sulfate, nitrate, organic carbon, elemental carbon, PM
The PSAT and WEP results presented in Tables 79 and 80 were derived from Section 6 of the SIP. Table 79 shows the contribution of different pollutant species from North Dakota sources. Sulfates and nitrates are the primary pollutants contributing to extinction.
Table 80 shows influences from sources both inside and outside of North Dakota. The results for sulfates and nitrates indicate that the 20% worst days at Lostwood and at Theodore Roosevelt are mostly impacted by a combination of sources in North Dakota and Canada, as well as sources outside the modeling domain.
See the Technical Support Document for details on how the 2018 emissions inventory was constructed. WRAP and North Dakota used this inventory and other states' 2018 emission inventories to construct visibility projection modeling for 2018.
The Regional Modeling Center at the University of California Riverside, under the oversight of the WRAP Modeling Forum, performed modeling for the regional haze long-term strategy for the WRAP member states, including North Dakota. The modeling analysis is a complex technical evaluation that began with selection of the modeling system. Regional Modeling Center primarily used the CMAQ photochemical grid model to estimate 2018 visibility conditions in North Dakota and all western Class I areas, based on application of the regional haze strategies in the various state plans, including assumed controls on BART sources.
The Regional Modeling Center developed air quality modeling inputs, including annual meteorology and emissions inventories for: (1) A 2002 actual emissions base case, (2) a planning case to represent the 2000-2004 regional haze baseline period using averages for key emissions categories, and (3) a 2018 base case of projected emissions determined using factors known at the end of 2005. All emission inventories were spatially and temporally allocated using the SMOKE modeling system. Each of these inventories underwent a number of revisions throughout the development process to arrive at the final versions used in CMAQ modeling. The WRAP states' modeling was developed in accordance with our guidance.
The photochemical modeling of regional haze for the WRAP states for 2002 and 2018 was conducted on the 36-km resolution national regional planning organization domain that covered the continental United States, portions of Canada and Mexico, and portions of the Atlantic and Pacific Oceans along the east and west coasts. The Regional Modeling Center examined the model performance of the regional modeling for the areas of interest before determining whether the CMAQ model results were suitable for use in the regional haze assessment of the long-term strategy and for use in the modeling assessment. The 2002
To supplement the WRAP modeling effort, North Dakota conducted further analyses using a hybrid modeling approach to address concerns pertaining to weight of evidence and spatial resolution issues. The North Dakota hybrid modeling approach involved nesting a local North Dakota CALPUFF domain within the WRAP National CMAQ domain. This approach is explained in detail in Section 8 of the SIP.
North Dakota believes its modeling methodology more realistically defines plume geometry for local large point sources and discounts the impacts of international sources in Canada over which North Dakota has no control. North Dakota is the only WRAP State which opted to develop its own reasonable progress modeling methodology. Appendix W outlines specific criteria for the use of alternate models and it does not appear that those criteria have been satisfied for the use of North Dakota's hybrid modeling. In addition, as modeling science has improved, there have been a number of technical changes in the CALPUFF modeling system and EPA/Federal Land Managers recommended default settings, changes that have been implemented since North Dakota proposed the CMAQ/CALPUFF hybrid modeling approach in 2007. In the Reasonable Progress modeling, the hybrid CALPUFF/CMAQ modeling results were adjusted based on IMPROVE monitoring data, and it is not clear whether the use of these obsolete settings affected the weight of evidence factors or the Reasonable Progress demonstration. The settings North Dakota used in the CALPUFF model within the hybrid modeling system would not be considered technically sound if contained in a regulatory modeling protocol in future projects. However, in this instance it did not make a difference since North Dakota is not able to meet the uniform rate of progress with either the WRAP analysis or North Dakota's hybrid modeling system.
40 CFR 51.308(d)(3)(i) requires that North Dakota consult with another state if its emissions are reasonably anticipated to contribute to visibility impairment at that state's Class I area(s), and that North Dakota consult with other states if those other states' emissions are reasonably anticipated to contribute to visibility impairment at Theodore Roosevelt or Lostwood. North Dakota's consultations with other states are described in section V.G.5 above. After evaluating whether emissions from North Dakota sources contribute to visibility impairment in other states' Class I areas, North Dakota concluded there was no contribution sufficient to require consultation. North Dakota's evaluation relied upon NO
40 CFR 51.308(d)(3)(ii) requires that if North Dakota emissions cause or contribute to impairment in another state's Class I area, North Dakota must demonstrate that it has included in its Regional Haze SIP all measures necessary to obtain its share of the emission reductions needed to meet the progress goal for that Class I area. Section 51.308(d)(3)(ii) also requires that, since North Dakota participated in a regional planning process, it must ensure it has included all measures needed to achieve its apportionment of emission reduction obligations agreed upon through that process. As we state in the Regional Haze Rule, North Dakota's commitments to participate in WRAP bind it to secure emission reductions agreed to as a result of that process, unless it proposes a separate process and performs its consultations on the basis of that process. See 64 FR 35735,
North Dakota accepted and incorporated the WRAP-developed visibility modeling into its Regional Haze SIP, and the Regional Haze SIP includes the controls assumed in the modeling. North Dakota satisfied the Regional Haze Rule's requirements for consultation and included controls in the SIP sufficient to address the relevant requirements of the Regional Haze Rule related to impacts on Class I areas in other states. However, we are proposing to disapprove the long-term strategy for other reasons, as described below.
40 CFR 51.308(d)(3)(v) requires that North Dakota, at a minimum, consider certain factors in developing its long-term strategy (the long-term strategy factors). These are: (a) Emission reductions due to ongoing air pollution control programs, including measures to address reasonably attributable visibility impairment; (b) measures to mitigate the impacts of construction activities; (c) emissions limitations and schedules for compliance to achieve the reasonable progress goal; (d) source retirement and replacement schedules; (e) smoke management techniques for agricultural and forestry management purposes including plans as currently exist within the state for these purposes; (f) enforceability of emissions limitations and control measures; and (g) the anticipated net effect on visibility due to projected changes in point, area, and mobile source emissions over the period addressed by the long-term strategy.
In addition to its BART determinations, North Dakota's long-term strategy incorporates emission reductions due to a number of ongoing air pollution control programs.
The two primary regulatory tools for addressing visibility impairment from industrial sources are BART and the Prevention of Signification Deterioration New Source Review rules. The Prevention of Signification Deterioration rules protect visibility in Class I areas from new industrial sources and major changes to existing sources. North Dakota's Air Pollution Control Rules (NDAC Chapter 33-15-19) contain requirements for visibility impact assessment and mitigation associated with emissions from new and modified major stationary sources. A primary responsibility of North Dakota under these rules is visibility protection. Chapter 33-15-19 describes mechanisms for visibility impact assessment and review by North Dakota, as well as impact modeling methods and requirements. Typically, this modeling is conducted for sources within 300 kilometers of a Class I area. North Dakota will not issue an air quality permit to any new major source
In 1987 North Dakota adopted NDAC Chapter 33-15-19 for visibility protection to address EPA's Phase I visibility rules. Also in 1987, North Dakota adopted NDAC Chapter 33-15-04 for open burning restrictions; it provides that, except in an emergency, the visibility of any class I area cannot be adversely impacted.
Mobile source annual emissions show a major decrease in NO
Diesel fuel intended for locomotive, marine, and non-road (farming and construction) engines and equipment was required to meet a low sulfur diesel fuel maximum specification of 500 ppm sulfur in 2007 (down from 5000 ppm). By 2010, the ultra-low sulfur diesel fuel standard of 15 ppm sulfur applied to all non-road diesel fuel. Locomotive and marine diesel fuel will be required to meet the ultra-low sulfur diesel standard beginning in 2012, resulting in further reductions of diesel emissions.
In developing its long-term strategy, North Dakota has considered the impact of construction activities. Based on general knowledge of construction activity in the State, and without conducting extensive research on the contribution of emissions from construction activities to visibility impairment in North Dakota Class I areas, North Dakota found that current State regulations adequately address construction activities.
Current rules addressing impacts from construction activities in North Dakota include NDAC 33-15-17, which regulates fugitive dust emissions. The rule addresses “fugitive emissions” from a variety of sources applicable to construction activities. This regulation requires “reasonable precautions” be taken to prevent PM from becoming airborne from activities such as construction projects. Types of actions to be taken include the use of water or chemicals for control of dust from demolition, construction operations, unpaved roads at construction sites, and material stockpiles. North Dakota requires permits for asphalt and concrete plants and rock, sand, and gravel plants. The State has committed to re-evaluating emissions from construction activities related to the oil and gas industry, including construction of oil well pads, compressor stations, and gas plants, in future Regional Haze SIP planning periods since this has the potential to be a growing source category.
The SIP contains emission limits and schedules of compliance for those sources subject to BART: Milton R. Young Station, Leland Olds Station, Coal Creek Station, and Stanton Station. The schedules for implementation of BART for these sources are identified in Section 7.5 of the SIP and in permits included in Appendix D of the SIP. While the State did not impose any emission limits to meet reasonable progress requirements, the State did include emission limits for Coyote Station and Heskett Station in the SIP. These “other” emission reductions are discussed in the long-term strategy under Section 10.6.1 of the SIP and the limits and compliance schedules are included in permits contained in Appendix A of the SIP. See section V.G.3 of this action for further discussion of these limits and schedules.
The State does not anticipate major source retirements or replacements. Replacement of existing facilities will be managed according to the existing Prevention of Signification Deterioration program. The 2018 modeling that WRAP conducted included three new power plants in North Dakota. Two are now unlikely to be built. Construction of new power plants or replacement of existing plants prior to 2018 is unlikely.
North Dakota has an area of approximately 44.16 million acres. Of this total, 26.5 million acres is cropland, 11 million acres is pasture/rangeland, and 236,000 acres is woodland/forest, with five State forests comprising 13,300 acres. Prescribed burning is governed by State rules in NDAC 33-15-04-02 and must be approved in advance. Although agricultural crop burning does not require advance approval, most agricultural cropland burning takes place in the eastern two-thirds of the State away from the State's Class I areas. In general, prevailing winds carry smoke from cropland burning away from North Dakota Class I areas. Table 81, below, shows WRAP's estimate of emissions from fire in North Dakota for the 2000-2004 baseline period.
40 CFR 308(d)(3)(v)(E) of the Regional Haze Rule requires the long-term strategy to address smoke management techniques for agricultural and forestry burning. These two sources generally have a very small contribution to visibility impairment in North Dakota Class I areas except during the worst days in late July and August when organic carbon, an indicator of fire emissions, replaces sulfate and nitrate as the dominant contributor to
40 CFR 51.308(d)(3)(v)(F) of the Regional Haze Rule requires States to ensure that emission limitations and control measures used to meet reasonable progress goals are enforceable. In addition to what is required by the Regional Haze Rule, general SIP requirements mandate that the SIP must also include adequate monitoring, recordkeeping, and reporting requirements for the regional haze emission limits and requirements. See CAA section 110(a). As noted, the SIP specifies BART and other emission limits and compliance schedules, and North Dakota has included such limits and compliance schedules in State-enforceable air quality permits that North Dakota has included in the SIP.
In addition to these permits, various requirements that are relevant to regional haze are codified in North Dakota's regulations, including North Dakota's Regional Haze Rule (NDAC 33-15-25, contained in Appendix H of the SIP) and its Prevention of Signification Deterioration and other provisions mentioned above.
The anticipated net effect on visibility due to projected changes in point, area, and mobile source emissions during this planning period is addressed in sections V.J.3 above.
Consistent with 40 CFR 51.308(g), North Dakota committed to submit to EPA a progress report, in the form of a SIP revision, every five years following the initial submittal of the SIP. The report will evaluate progress towards the reasonable progress goal for each mandatory Class I Federal area located within the State and in each mandatory Class I Federal area located outside the State that may be affected by emissions from within the State. These requirements and commitment are discussed in detail in section 11.2 of the North Dakota SIP.
We propose to partially approve and partially disapprove North Dakota's long-term strategy. Because we are proposing to disapprove the NO
We are proposing regulatory language as part of our FIP that specifies emission limits, compliance schedules, and monitoring, recordkeeping, and reporting requirements for the following sources, requirements, and pollutants:
a. Milton R. Young Station Units 1 and 2, BART, NO
b. Leland Olds Station Unit 2, BART, NO
c. Coal Creek Units 1 and 2, BART, NO
d. Antelope Valley Station Units 1 and 2, reasonable progress, NO
We are proposing this regulatory language to fill the gap in the long-term strategy that would be left by our proposed partial disapproval of the long-term strategy. Our monitoring, recordkeeping, and reporting requirements generally mirror those imposed by North Dakota, except that all cross-references are to federal regulations only, we have modified some of the requirements from 40 CFR part 75, and we are not providing a separate limit for startup for Milton R. Young Station Units 1 and 2. We note that no other source or unit has requested or received a separate limit for startup, and we conclude that such a limit is not warranted. The 30-day averaging period for the limit already accounts for potential fluctuations due to properly-conducted startups, and nothing in North Dakota's record convinces us that Milton R. Young Station will be unable to comply with the BART limits we have selected.
Our visibility regulations direct states to coordinate their reasonably attributable visibility impairment long-term strategy and monitoring provisions with those for regional haze, as explained in section IV.F, above. Under our reasonably attributable visibility impairment regulations, the reasonably attributable visibility impairment portion of a state SIP must address any integral vistas identified by the Federal Land Managers pursuant to 40 CFR 51.304.
40 CFR 51.308(d)(4) requires that the SIP contain a monitoring strategy for measuring, characterizing, and reporting regional haze visibility impairment that is representative of all mandatory Class I Federal areas within the state. This monitoring strategy must be coordinated with the monitoring strategy required in 40 CFR 51.305 for reasonably attributable visibility impairment. As 40 CFR 51.308(d)(4) notes, compliance with this requirement may be met through participation in the IMPROVE network. 40 CFR 51.308(d)(4)(i) further requires the establishment of any additional monitoring sites or equipment needed to assess whether reasonable progress goals to address regional haze for all mandatory Class I Federal areas within the state are being achieved. Consistent with EPA's monitoring regulations for reasonably attributable visibility impairment and regional haze, North Dakota indicates in Section 4.2 of the Regional Haze SIP that it will rely on the IMPROVE network for compliance purposes, in addition to any reasonably attributable visibility impairment monitoring that may be needed in the future. The IMPROVE monitors at the North Dakota Class I Areas also described in Section 4.2 of the SIP. We propose to find that North Dakota has satisfied the requirements in 40 CFR 51.308(d)(4) enumerated in this paragraph.
40 CFR 51.308(d)(4)(ii) requires that North Dakota establish procedures by which monitoring data and other information are used in determining the contribution of emissions from within North Dakota to regional haze visibility impairment at mandatory Class I Federal areas both within and outside the state. The IMPROVE monitoring program is national in scope, and other states have similar monitoring and data reporting procedures, ensuring a consistent and robust monitoring data collection system. As 40 CFR 51.308(d)(4) indicates, participation in the IMPROVE program constitutes compliance with this requirement. We therefore propose that North Dakota has satisfied this requirement.
40 CFR 51.308(d)(4)(iv) requires that the SIP provide for the reporting of all visibility monitoring data to the Administrator at least annually for each mandatory Class I Federal area in the state. To the extent possible, North Dakota should report visibility monitoring data electronically. 40 CFR 51.308(d)(4)(vi) also requires that the SIP provide for other elements, including reporting, recordkeeping, and other measures, necessary to assess and report on visibility. We propose that North Dakota's participation in the IMPROVE network ensures that the monitoring data is reported at least annually and is easily accessible; therefore, such participation complies with this requirement.
40 CFR 51.308(d)(4)(v) requires that North Dakota maintain a statewide inventory of emissions of pollutants that are reasonably anticipated to cause or contribute to visibility impairment in any mandatory Class I Federal area. The inventory must include emissions for a baseline year, emissions for the most recent year for which data are available, and estimates of future projected emissions. The state must also include a commitment to update the inventory periodically. Please refer to section V.J.1, above, where we discuss North Dakota's emission inventory. North Dakota states in Section 4 of the SIP that it intends to update the North Dakota statewide emissions inventories periodically and review periodic emissions information from other states and future emissions projections. We propose that this satisfies the requirement.
Lostwood is managed by the Fish and Wildlife Service, and Theodore Roosevelt is managed by the National Park Service; these are the respective Federal Land Managers for these North Dakota Class I areas. Although the Federal Land Managers are very active in participating in the regional planning organizations, the Regional Haze Rule grants the Federal Land Managers a special role in the review of the regional haze SIPs, summarized in section IV.H, above. The Federal Land Managers and the state environmental agencies are our partners in the regional haze process.
Under 40 CFR 51.308(i)(2), North Dakota was obligated to provide the Fish and Wildlife Service and the National Park Service with an opportunity for consultation, in person and at least 60 days prior to holding a public hearing on the Regional Haze SIP. North Dakota sent a draft of its Regional Haze SIP to the Fish and Wildlife Service and the National Park Service on August 9, 2009 and at the same time notified the Federal Land Managers of the State's January 7, 2010 public hearing.
40 CFR 51.308(i)(3) requires that North Dakota provide in its Regional Haze SIP a description of how it addressed any comments provided by the Federal Land Managers. The Federal Land Managers communicated to the State (and EPA) their dissatisfaction with the BART determinations for Milton R. Young Station Units 1 and 2 and Leland Olds Station Unit 2 among other issues. They expressed their view that SCR, instead of SNCR, is NO
Lastly, 40 CFR 51.308(i)(4) specifies the regional haze SIP must provide procedures for continuing consultation between the State and Federal Land Managers on the implementation of the visibility protection program required by 40 CFR 51.308, including development and review of implementation plan revisions and 5-year progress reports, and on the implementation of other programs having the potential to contribute to impairment of visibility in mandatory Class I Federal areas. North Dakota commits in Section 11 of its Regional Haze SIP to continue to coordinate and consult with the Federal Land Managers as required by 40 CFR 51.308(i)(4). North Dakota states that it intends to consult the Federal Land Managers in the development and review of implementation plan revisions; review of progress reports; and development and implementation of other programs that may contribute to impairment of visibility at North Dakota and other Class I areas.
While we disagree with the substance of North Dakota's decisions regarding NO
North Dakota commits in Section 11 of the SIP to complete items required in the future by the Regional Haze Rule. North Dakota acknowledged its obligation under 40 CFR 51.308(f) to submit periodic progress reports and Regional Haze SIP revisions, with the first report due by July 31, 2018 and every ten years thereafter.
North Dakota acknowledged its obligation under 40 CFR 51.308(g) to submit a progress report in the form of a SIP revision to us every five years following the initial submittal of the Regional Haze SIP. The report will evaluate the progress made towards the reasonable progress goals for each mandatory Class I area located within North Dakota and in each mandatory Class I area located outside North Dakota that may be affected by emissions from within North Dakota.
In July 1997, EPA promulgated the 1997 8-hour ozone NAAQS and the 1997 PM
States, including North Dakota, did not meet the statutory July 2000 deadline for submission of these SIPs. Accordingly, on April 25, 2005, EPA made findings of failure to submit, notifying all states, including North Dakota, of their failure to make the required SIP submission to address interstate transport under section 110(a)(2)(D)(i). 70 FR 21147. This finding started a 24-month FIP clock under section 110(c). Pursuant to section 110(c), EPA is required to promulgate a FIP to address the applicable interstate transport requirements, unless a state makes the required submission and EPA fully approves such submission, within the 24-month period. As noted earlier, EPA was sued by WildEarth Guardians for failing to meet its statutory FIP obligation for North Dakota by the applicable deadline in April of 2007, and is thus under a consent decree deadline to take the necessary SIP approval or FIP action.
EPA issued the 2006 Guidance to make recommendations to states about how to make SIP submissions for purposes of section 110(a)(2)(D)(i), including the visibility prong. Acknowledging that the regional haze SIPs were still under development and were not due until December 17, 2007, we recommended that states could make a SIP submission confirming that it was not possible at that point in time to assess whether there was any interference with measures in the applicable SIP for another state designed to “protect visibility” for the 1997 8-hour ozone NAAQS and the 1997 PM
North Dakota submitted a SIP on April 6, 2009, intended to address all four prongs of the interstate transport requirements of CAA 110(a)(2)(D)(i) for the 1997 8-hour ozone NAAQS and the 1997 PM
The visibility prong, contained in CAA section 110(a)(2)(D)(i)(II), requires that states submit a SIP revision containing provisions “prohibiting any source or other type of emission activity within the state from emitting any air pollutant in amounts which will * * * interfere with measures required to be included in the applicable implementation plan for any other State under part C [of the CAA] to protect visibility.” Because of the impacts on visibility from the interstate transport of pollutants, we interpret the “good neighbor” provisions of section 110 of the Act described above as requiring states to include in their SIPs either measures to prohibit emissions that would interfere with the reasonable progress goals required to be set to protect Class I areas in other states, or a demonstration that emissions from North Dakota sources and activities will not have the prohibited impacts.
The State's April 6, 2009 SIP submission did contain some statements concerning the requirements of the
“In the review process for new or modified stationary sources, or other types of emissions activities, the Department will assess the impact on neighboring states. * * * With respect to visibility, an assessment on Prevention of Signification Deterioration Class I area's visibility will be made when a significant impact is suspected.”
It is evident that the State intended this provision to address interstate visibility impacts of emissions from new or modified sources. This provision was not intended, and is not sufficient, to satisfy the requirements of the visibility prong regarding the interstate impacts on visibility of emissions from existing North Dakota sources.
Section 7.8.1.D of the SIP specifically addresses interstate visibility impacts from existing sources. First, it cites language from EPA's 2006 Guidance regarding CAA section 110(a)(2)(D)(i)
“At this point in time, EPA has made no determination that emissions from any State interfere with measures required to be included in a plan to address reasonably attributable visibility impairment. Further, EPA is not aware of any certification of existing reasonably attributable impairments of visibility by a Federal Land Manager that has not already been resolved. The EPA accordingly believes that States should be able to make a relatively simple SIP submission verifying that no source within the State emits pollutants that interfere with measures included in the visibility SIPs under the 1980 regulations.”
The State responded to EPA's 2006 Guidance by concluding in Section 7.8.1.D, that “there are no North Dakota sources of emissions that interfere with implementation of visibility SIP [sic] under the 1980 regulations.” We find North Dakota's conclusion to be reasonable in so far as it addressed the issue of potential adverse visibility impacts as contemplated in the 1980 regulations. However, EPA's 2006 Guidance also recommended that states address regional haze SIPs under EPA's regional haze regulations, and the statute requires a determination with respect to measures required in the SIPs of other states.
Noting that the regional haze SIPs were not due until December 17, 2007 (over a year after the 2006 Guidance was issued), EPA stated that “[t]he States and Regional Planning Organizations are currently engaged in the task of identifying those Class I areas impacted by each State's emissions and developing strategies for addressing regional haze to be included in the States' regional haze SIPs.” Thus, EPA indicated that “it is currently premature” to determine whether a state's SIP contains adequate provisions to prohibit emissions that interfere with measures in other states' regional haze SIPs. EPA concluded by saying, “Accordingly, EPA believes that States may make a simple SIP submission confirming that it is not possible at this time to assess whether there is any interference with measures in the applicable SIP for another State designed to ‘protect visibility’ for the 8-hour ozone and PM
Apparently keying off this recommendation, North Dakota included the following statement regarding visibility transport and regional haze in Section 7.8.1.D:
“The State of North Dakota is working with the Western Regional Air Partnership, including associated States and stakeholders, to prepare a SIP to address the EPA Regional Haze regulation (40 CFR 51.308). Until regional haze SIPs are submitted and approved, North Dakota believes it is not possible at this time to assess whether there is any interference with measures in the applicable SIP for another state for regional haze.”
The State's April 6, 2009 SIP submission contains no other statements or analysis regarding the impact of emissions from North Dakota sources on visibility programs in other states, and in particular no other statements concerning impacts on the regional haze program in other states.
North Dakota's April 6, 2009 SIP submission thus suggested that the State intended to address the requirements of section 110(a)(2)(D)(i)(II) by a timely submission of its regional haze SIP by December of 2007, but due to intervening circumstances the State did not in fact make that submission until March 3, 2010. Moreover, while North Dakota ultimately did submit the Regional Haze SIP to address the requirements of the regional haze program directly, North Dakota did not explicitly specify that it was submitting the Regional Haze SIP revision to satisfy the visibility prong of 110(a)(2)(D)(i)(II). Most importantly, however, EPA must review the April 6, 2009 submission in light of the current facts and circumstances, and the Regional Haze SIP revision that the State ultimately submitted does not fully meet the substantive requirements of the regional haze program. The State made no other SIP submission in which it indicated that it intended to meet the visibility prong of section 110(a)(2)(D)(i)(II) in any other way.
Accordingly, we are proposing to disapprove North Dakota's April 6, 2009 SIP submittal for the visibility prong of section 110(a)(2)(D)(i)(II), because that submittal neither contains adequate measures to eliminate emissions that would interfere with the required visibility programs in other states, nor a demonstration that the existing North Dakota SIP already includes measures sufficient to eliminate such prohibited impacts. To the extent that the State intended to meet the requirement of section 110(a)(2)(D)(i)(II) with the Regional Haze SIP, the Regional Haze SIP submission itself is not fully approvable.
Because we are proposing to disapprove North Dakota's April 6, 2009 SIP submission with respect to the visibility prong of section 110(a)(2)(D)(i)(II), we are proposing a FIP to fill the gap that would be left by our proposed disapproval. As an initial matter, we note that section 110(a)(2)(D)(i)(II) does not explicitly specify how we should ascertain whether a state's SIP contains adequate provisions to prevent emissions from sources in that state from interfering with measures required in another state to protect visibility. Thus, the statute is ambiguous on its face, and we must interpret that provision.
Our 2006 Guidance recommended that a state could meet the visibility prong of the transport requirements of section 110(a)(2)(D)(i)(II) of the CAA by submission of the regional haze SIP, due in December 2007. Our reasoning was that the development of the regional haze SIPs was intended to occur in a collaborative environment among the states. In fact, in developing their respective reasonable progress goals, WRAP states consulted with each other through WRAP's work groups. As a result of this process, the common understanding was that each state would take action to achieve the emissions reductions relied upon by other states in their reasonable progress
North Dakota's Regional Haze SIP submission includes BART determinations and reasonable progress conclusions that are consistent with the information and assumptions North Dakota provided to the WRAP and that other states will have relied upon in the development of their own regional haze SIPs. Therefore, North Dakota's Regional Haze SIP, as submitted to us, would have been sufficient to obtain North Dakota's needed share of emission reductions for interstate transport purposes for visibility, if it had been submitted to us for that purpose and if it were fully approvable. However, as already noted, North Dakota did not specify that it intended to submit its Regional Haze SIP to meet the visibility prong of CAA section 110(a)(2)(D)(i)(II). In addition, we are proposing to disapprove North Dakota's NO
We are proposing to partially approve and partially disapprove North Dakota's Regional Haze SIP revision that was submitted on March 3, 2010, SIP Supplement No. 1 that was submitted on July 27, 2010, and part of SIP Amendment No. 1 that was submitted on July 28, 2011. Specifically, we are proposing to disapprove the following:
○ North Dakota's NO
○ North Dakota's determination under the reasonable progress requirements found at section 40 CFR 51.308(d)(1) that no additional NO
○ North Dakota's reasonable progress goals.
○ Portions of North Dakota's long-term strategy that rely on or reflect other aspects of the Regional Haze SIP we are proposing to disapprove.
We are proposing to approve the remaining aspects of North Dakota's Regional Haze SIP revision that was submitted on March 3, 2010 and SIP Supplement No. 1 that was submitted on July 27, 2010. We are proposing to approve the following parts of SIP Amendment No. 1 that the State submitted on July 28, 2011: (1) Amendments to Section 10.6.1.2 pertaining to Coyote Station, and (2) amendments to Appendix A.4, the Permit to Construct of Coyote Station. We are not proposing action on the remainder of the July 28, 2011 submittal at this time.
We are proposing the promulgation of a FIP to address the deficiencies in the North Dakota Regional Haze SIP that we have identified in this proposal.
The proposed FIP includes the following elements:
• NO
• NO
• A reasonable progress determination and NO
• Monitoring, recordkeeping, and reporting requirements for the above seven units to ensure compliance with these emission limitations.
• Reasonable progress goals consistent with the SIP limits proposed for approval and proposed FIP limits.
• Long-term strategy elements that reflect the other aspects of the proposed FIP.
In lieu of this proposed FIP, or portion thereof, we are proposing approval of a SIP revision if the State submits such a revision in a timely way, and the revision matches the terms of our proposed FIP, or relevant portion thereof.
We are also proposing to disapprove a portion of a SIP revision submitted by the State of North Dakota for the purpose of addressing the “good neighbor” provisions of the CAA section 110(a)(2)(D)(i) for the 1997 8-hour ozone NAAQS and the 1997 PM
This proposed action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011). As discussed in detail in section C below, the proposed FIP applies to only four facilities. It is therefore not a rule of general applicability.
This proposed action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.
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 Office of Management and Budget (OMB) control number. The OMB control numbers for our regulations in 40 CFR are listed in 40 CFR Part 9.
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's proposed rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
After considering the economic impacts of this proposed action on small entities, I certify that this proposed action will not have a significant economic impact on a substantial number of small entities. The FIP that EPA is proposing for purposes of the visibility prong of section 110(a)(2)(D)(i)(II) consists of the combination of the proposed approval of the state's Regional Haze SIP submission and the proposed Regional Haze FIP by EPA that adds additional controls to certain sources. The Regional Haze FIP that EPA is proposing for purposes of the regional haze program consists of imposing federal controls to meet the BART requirement for NO
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under section 202 of UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and Tribal governments, in the aggregate, or to the private sector, of $100 million or more (adjusted for inflation) in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 of UMRA do not apply when they are inconsistent with applicable law. Moreover, section 205 of UMRA allows EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments, it must have developed under section 203 of UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.
Under Title II of UMRA, EPA has determined that this proposed rule does not contain a Federal mandate that may result in expenditures that exceed the inflation-adjusted UMRA threshold of $100 million by State, local, or Tribal governments or the private sector in any 1 year. In addition, this proposed rule does not contain a significant Federal intergovernmental mandate as described by section 203 of UMRA nor does it contain any regulatory requirements that might significantly or uniquely affect small governments.
This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it merely addresses the State not fully meeting its obligation to prohibit emissions from interfering with other states measures to protect visibility established in the CAA. Thus, Executive Order 13132 does not apply to this action. In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicits comment on this proposed rule from State and local officials.
Executive Order 13175, entitled
Executive Order 13045:
This action is not subject to Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not a significant regulatory action under Executive Order 12866.
Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.
The EPA believes that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use of VCS.
Executive Order 12898 (59 FR 7629, February 16, 1994), establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.
We have determined that this proposed rule, if finalized, will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it increases the level of environmental protection for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income population. This proposed rule limits emissions of NO
Environmental protection, Air pollution control, Intergovernmental relations, Nitrogen dioxides, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide, Volatile organic compounds.
40 CFR part 52 is proposed to be amended as follows:
1. The authority citation for part 52 continues to read as follows:
42 U.S.C. 7401
2. Section 52.1820 is amended as follows:
a. In paragraph (c) by adding entries to the end of the table.
b. In paragraph (d) by adding entries to the end of the table.
c. Adding paragraphs (e)(23) through (e)(25).
(c) * * *
(d) * * *
(e) * * *
3. New § 52.1825 is added to read as follows:
(a)
(b)
(c)
(2) These emission limitations shall apply at all times, including startups, shutdowns, emergencies, and malfunctions.
(d)
(e)
(2)
(ii) An hourly average NO
(iii) Data reported to meet the requirements of this section shall not include data substituted using the missing data substitution procedures of subpart D of 40 CFR part 75, nor shall the data have been bias adjusted according to the procedures of 40 CFR part 75.
(f)
(1) All CEMS data, including the date, place, and time of sampling or measurement; parameters sampled or measured; and results.
(2) Records of quality assurance and quality control activities for emissions measuring systems including, but not limited to, any records required by 40 CFR part 75.
(3) Records of all major maintenance activities conducted on emission units, air pollution control equipment, and CEMS.
(4) Any other records required by 40 CFR part 75.
(g)
(1) Owner/operator shall submit quarterly excess emissions reports no later than the 30th day following the end of each calendar quarter. Excess emissions means emissions that exceed the emissions limits specified in paragraph (c) of this section. The reports shall include the magnitude, date(s),
(2) Owner/operator shall submit quarterly CEMS performance reports, to include dates and duration of each period during which the CEMS was inoperative (except for zero and span adjustments and calibration checks), reason(s) why the CEMS was inoperative and steps taken to prevent recurrence, any CEMS repairs or adjustments, and results of any CEMS performance tests required by 40 CFR part 75 (Relative Accuracy Test Audits, Relative Accuracy Audits, and Cylinder Gas Audits).
(3) When no excess emissions have occurred or the CEMS has not been inoperative, repaired, or adjusted during the reporting period, such information shall be stated in the report.
(h)
(2) Owner/operator shall submit semi-annual progress reports on construction of any such equipment.
(3) Owner/operator shall submit notification of initial startup of any such equipment.
(i)
(j)
Fish and Wildlife Service, Interior.
Notice of 12-month petition finding.
We, the U.S. Fish and Wildlife Service, announce a 12-month finding on a petition to list van Rossem's gull-billed tern (
The finding announced in this document was made on September 21, 2011.
This finding is available on the Internet at
Jim Bartel, Field Supervisor, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, Suite 101, Carlsbad, California 92011; by telephone at 760-431-9440; or by facsimile to 760-431-9624. If you use a telecommunications device for the deaf (TDD), you may call the Federal Information Relay Service (FIRS) at 800-877-8339.
Section 4(b)(3)(B) of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531
In our November 15, 1994, Candidate Notice of Review (59 FR 58982), we included van Rossem's gull-billed tern as a Category 2 candidate. Category 2 taxa were defined as those taxa for which information in the possession of the Service, at that time, indicated that proposing to list as endangered or threatened was possibly appropriate but for which persuasive data on biological vulnerability and threats were not available to support proposed rules. In our February 28, 1996, Candidate Notice of Review (61 FR 7596), we announced our decision to discontinue recognition of Category 2 candidates, including van Rossem's gull-billed tern. This decision was finalized on December 5, 1996 (61 FR 64481). Since that time, van Rossem's gull-billed tern has not been treated as a candidate for Federal listing under the Act.
On June 8, 2009, we received a petition from the Center for Biological Diversity dated June 3, 2009, requesting that we list the “western” or “van Rossem's” subspecies of gull-billed tern (
In response to the Center for Biological Diversity's June 3, 2009, petition to list van Rossem's gull-billed tern as endangered or threatened throughout its range, we sent a letter to Center for Biological Diversity, dated August 18, 2009, acknowledging receipt of the petition and informing the petitioner that we concluded the petition did not indicate that an emergency situation existed for this subspecies and that emergency listing was not warranted. We also stated that we were addressing a significant number of listing and critical habitat actions in Fiscal Year 2009 (October 1, 2008, through September 30, 2009) pursuant to court orders, judicially approved settlement agreements, or other statutory deadlines; however, we noted that we had secured funding to begin reviewing the petition in that fiscal year. Further, we said we anticipated publishing our 90-day finding in Fiscal Year 2010.
We published our 90-day finding on the petition to list van Rossem's gull-billed tern as endangered or threatened in the
Van Rossem's gull-billed tern (
Van Rossem's gull-billed tern is a seabird in the avian order Charadriiformes (shorebirds, gulls and terns, auks, and allies) and family Laridae (skuas, gulls, terns, and skimmers) (AOU 1998, pp. 141 and 181), although terns are sometimes considered a separate family, Sternidae (
The gull-billed tern (the species as a whole) has a worldwide distribution, albeit discontinuous, and may comprise up to six subspecies (Parnell
Bancroft (1929, pp. 283-286) described
Individual gull-billed terns are typically not identifiable to subspecies under field conditions, and because the two North American subspecies are distinguished on the basis of
In contrast, other authors have not questioned the distinctiveness of
The Service is currently funding the U.S. Geological Survey to conduct a genetics-based study that may yield additional information regarding the distinctiveness between the eastern and western North American subspecies of the gull-billed tern, but only those two subspecies. As of the preparation of this status review and 12-month finding, the results of this work are not yet available. Although we anticipate the information from this study will be helpful in understanding the relationship between the eastern and western subspecies of gull-billed terns in North America, a comprehensive, rangewide review is needed to address fully the distinctiveness of all of the subspecies, including
In summary, the available scientific information presents differing opinions regarding the distinctiveness of
Van Rossem's gull-billed terns are migratory (Molina
Nesting of what would later be described as the van Rossem's subspecies of gull-billed tern was first noted at the Salton Sea in 1927 (Pemberton 1927, pp. 253-258). Reports of historical observations and museum specimen data suggested van Rossem's gull-billed terns bred in Mexico (van Rossem and Hachisuka 1937, p. 333; Friedmann
As detailed below, the current breeding range for van Rossem's gull-billed tern is western North America from extreme southern California in the United States to the State of Guerrero in Mexico. Within this general range, the subspecies occurs in discrete nesting locations predominantly along the Pacific coast of Mexico including the Gulf of California (Molina and Erwin 2006, p. 273) (Table 1, Figure 1). An additional coastal nesting colony is located in San Diego Bay, San Diego County, California (Molina 2008, p. 188). Nest colonies are also located at inland localities in northeastern Baja California, Mexico (Molina and Garrett 2001, p. 25; Palacios and Mellink 2007, p. 215), and at the Salton Sea, Imperial County, California (Pembarton 1927, p. 253; Molina 2004, p. 94; Molina 2009b, p. 5). The Salton Sea and San Diego Bay are currently the only locations where the subspecies nests in the United States (Molina and Erwin 2006, p. 273), and together they define the northern extent of the breeding range of van Rossem's gull-billed tern. However, as this document was being finalized, a pair of van Rossem's gull-billed terns attempted to nest at the San Joaquin Marsh and Wildlife Sanctuary in Irvine, Orange County, California (Daniels 2011,
The southern limit to the breeding range of van Rossem's gull-billed tern is not precisely known. The southernmost location where van Rossem's gull-billed terns have been observed nesting is Laguna Potosí in the Mexican State of Guerrero (Table 1, Figure 1). Information in the literature shows that gull-billed terns occur during the breeding season in small numbers in Mexico south of Laguna Potosí (Binford 1989, p. 115; Mellink
Additionally, Table 1 only includes locations where actual nesting has been observed, but breeding behavior (such as courtship) has been noted at other locations, suggesting nesting may be more widespread. These other locations with observed breeding behavior but without observation of actual nests include locations in the Mexican States of Sonora (historically) (van Rossem and Hachisuka 1937, p. 333) and Jalisco (Mellink
Although some gull-billed tern specimens from south of Guerrero have been identified as van Rossem's gull-billed terns (Hellmayr and Conover 1948, p. 297; Binford 1989, p. 115), the majority of the occurrences reported in the available literature are field observations; thus, these records have not been identified to subspecies. Gull-billed terns also nest farther south along the Pacific coast of South America; however, specimen data suggest that at least some of these birds are the “eastern” subspecies of gull-billed tern,
The winter range of the subspecies includes the Gulf of California and the Pacific coast of mainland Mexico, possibly Pacific coastal Central America and coastal northwestern South America (Molina and Erwin 2006, p. 272; Molina
Such behavior has been documented for other species of terns and gulls (Molina and Erwin 2006, p. 84). As such, “eastern” gull-billed terns potentially intermingle with van Rossem's gull-billed terns within the southern portion of the latter's range. However, we do not know how prevalent this is. Moreover, the available literature has evolved through time. Contrary to earlier accounts (for example, AOU 1957, p. 233; Molina and Erwin 2006, p. 282), Molina
The best available information indicates the breeding range of the subspecies has expanded in recent years. The first record for coastal California (and the first record for the Pacific coast north of the southern tip of the Baja California Peninsula) was of an adult detected along San Diego Bay in July 1985 (McCaskie 1985, p. 962). Evidence of nesting was noted there two years later (McCaskie 1987, p. 1488; Unitt 2004, p. 248). Initially, the population grew slowly and sporadically, but after 1999 the population increased much more quickly and steadily, totaling approximately 59 pairs in 2010 (R. Patton,
Such range expansions are not unprecedented; other colonial waterbird species have similarly expanded their range along the Pacific coast and established nesting colonies, such as the elegant tern (
There is some indication that van Rossem's gull-billed terns may potentially continue to expand their range northward along the California coast. Birds that migrate long distances, such as van Rossem's gull-billed terns, have the potential to occur outside their expected range (
Such movements of van Rossem's gull-billed terns, though not unexpected, occur too infrequently to consider these areas as part of the subspecies' range. However, the number of detections of van Rossem's gull-billed terns farther north along the coast of California has increased as the San Diego Bay breeding population has increased (see discussion below in the “Population Size” section). As such, areas where other species of terns nest along the coast north of San Diego should be monitored for nesting gull-billed terns. Confirmation of van
In summary, the current breeding range of van Rossem's gull-billed tern extends from San Diego and the Salton Sea along the Pacific and Gulf of California coasts to at least as far south as the State of Guerrero in Mexico. Actual nesting locations are discontinuously distributed within that range (Table 1). However, survey information is limited for most of the Pacific coast of Mexico; additional efforts may yet detect other nesting locations in this region, including south of Guerrero. The current winter range of the subspecies includes the west coast of mainland Mexico, potentially as far south as Central America and coastal northwestern South America, plus a few inland locations.
Historical data on population sizes are generally lacking for the subspecies, especially in western Mexico and farther south into Central and South America. As noted above, historical information shows that van Rossem's gull-billed terns occurred in Mexico, but these data largely consist of anecdotal observations or museum collections (specimens); there are few data to indicate the size of historical populations of van Rossem's gull-billed terns. Available literature that include information on the historical avifauna of western Mexico, such as Bryant (1889 pp. 237-320), Brewster (1902, pp. 1-241), Salvin and Godman (1904, pp. 1-505), Ridgway (1919 pp. 1-852), Mailliard (1923, pp. 443-456), Huey (1927, pp. 239-243), Grinnell (1928, pp. 1-300), van Rossem and Hachisuka (1937, p. 333), van Rossem (1945, p. 93), Hellmayr and Conover (1948, p. 297), Friedmann
In the United States, when Pemberton first discovered the nesting colony of gull-billed terns at the Salton Sea in 1927, he estimated that there were approximately 500 active nests (Pemberton 1927, p. 256), which would translate into a similar number of pairs. It is not clear when this population became established, but the Salton Sea was created in its present form between 1905 and 1907 when Colorado River floodwaters filled the dry lakebed known as the Salton Sink; however, previous historical and prehistorical floods also periodically filled the Salton Sink from time to time (with intervening dry periods), forming an intermittent body of water within the Salton Sink now referred to as Lake Cahuilla (see Patten
Today in Mexico, in addition to the new, small colony at Laguna Ojo de Liebre, van Rossem's gull-billed terns have colonized the islands in the impoundments associated with the Campo Geotérmico Cerro Prieto (Cerro Prieto geothermal generation facility) in northeast Baja California. The facility started operation in 1973 (Gutiérrez-Galindo
As mentioned in the “Range and Distribution” section, gull-billed terns have been known to occur in western Mexico for more than a century (see Molina and Erwin 2006, p. 294) and breeding there was likely; however, nesting has only been documented recently. Surveys at nesting locations throughout the remainder of the breeding range of van Rossem's gull-billed tern in Mexico have been sporadic and essentially consist of “snapshots” of nesting efforts over time. During the breeding seasons of 2003 and 2005, Palacios and Mellink (2003, pp. 1-66; 2006, pp. 1-84; 2007, pp. 214-222) surveyed at least 367 potential nesting areas along the Pacific and Gulf of California coasts of Mexico. Additionally, of the nine known nesting locations in Mexico (Table 1), all but Laguna Potosí were resurveyed in June and early July 2010 (Palacios 2010, pp. 1-28). However, the level of survey effort compared with the number of potential nesting locations along the coast of Mexico suggests additional
As summarized by Molina
Population data for most of the subspecies' range are incomplete over time; thus, population trends are difficult to assess. Data from the Salton Sea, which are fairly complete, shows a marked decline in population compared to the historical high in 1927, but this population has remained fairly stable since the 1990s (Molina
Van Rossem's gull-billed tern is predominantly a coastal nesting species, but it also nests at, or near, certain inland saline lakes (Parnell
(1) Gull-billed terns capture flying insects during foraging flights (Parnell
(2) They swoop down and snatch up terrestrial prey (such as small crabs, lizards, insects, or small chicks of other bird species) and aquatic prey (such as small fish) near the water's surface (Parnell
(3) They land to capture small prey items from the water's surface (Parnell
Moreover, gull-billed terns—the species as a whole, including van Rossem's gull-billed terns—are opportunistic foragers (Parnell
Thus, van Rossem's gull-billed terns are generalist predators whose food appears to be determined more by size and availability of prey items rather than strictly by the type of prey. The foraging habitat of van Rossem's gull-billed terns consists of open mudflats in tidal estuaries, river margins, beaches, salt marshes, freshwater marshes, aquacultural impoundments (such as shrimp ponds), and a variety of upland habitats including open scrub, pasturelands and irrigated agricultural fields and associated canals and drains, and the airspace over such areas (Molina and Erwin 2006, p. 284; Parnell
Gull-billed terns, including van Rossem's gull-billed terns, nest in colonies of 20 to 50 pairs, although numbers may vary (Parnell
The term “nest colony” may refer to the group of birds or a geographic location. A nesting location (as used in Table 1) may contain more than one colony. In general, a colony consists of
Nests of van Rossem's gull-billed terns consist of shallow scrapes with simple adornments, such as rocks, shells, or fish bones (Parnell
Nesting habitat for van Rossem's gull-billed terns consists of low, open areas on natural and artificial beaches, islands, and levees, usually with no or sparse vegetation (Parnell
At San Diego Bay and the Salton Sea, van Rossem's gull-billed terns typically lay two to three eggs per clutch (Parnell
Terns that survive to become adults are generally long-lived (Gochfeld and Burger 1996, p. 640) with lifespans of 10 to 20 years or even more (such as Thompson
Through our Division of Migratory Birds Management, the Service is the lead Federal agency for managing and conserving migratory birds in the United States under the Migratory Bird Treaty Act (MBTA). We provide national and international leadership in the conservation and management of migratory birds by promoting, among the Service and its partners, science-based management of both populations and habitat on and off Service lands in support of national and international bird plans and initiatives.
In 2002 and 2008, pursuant to the Fish and Wildlife Conservation Act of 1980, as amended (16 U.S.C. 2901
Conservation and management of van Rossem's gull-billed tern is one of the Service's regional priorities and includes the following activities:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
Section 4 of the Act and implementing regulations (50 CFR part 424) set forth procedures for adding species to, removing species from, or reclassifying species on the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of the Act, a species may be determined to be endangered or threatened based on any of the following five factors:
(A) The present or threatened destruction, modification, or curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued existence.
In making this 12-month finding, information pertaining to van Rossem's gull-billed tern in relation to the five factors provided in section 4(a)(1) of the Act is discussed below. In making our 12-month finding on the petitioned action, we considered and evaluated the best available scientific and commercial information.
In considering what factors might constitute threats to a species, we must look beyond the exposure of the species to a factor to evaluate whether the species may respond to the factor in a way that causes actual impacts to the species. If there is exposure to a factor and the species responds negatively, the factor may be a threat and we attempt to determine how significant a threat it is. The threat is significant if it drives, or contributes to, the risk of extinction of the species such that the species warrants listing as an endangered or threatened species as those terms are defined in the Act.
For this factor, we evaluate the present (current) or threatened (anticipated) impacts that may affect the habitat or range of van Rossem's gull-billed tern. This factor does not address historical or past actions that resulted in destruction, modification, or curtailment of the species' habitat or range. Past actions that destroyed, modified, or curtailed the species' habitat or range are not threats in and of themselves. Any persisting ramifications of such past actions that may be threats to the species would be addressed under
As used here, habitat (in its general sense) is an area that contains the physical or biological features that are important to the species' biological needs, such as breeding, feeding, or sheltering. As highly mobile, migratory birds, van Rossem's gull-billed terns are not necessarily confined to one particular area that contains those physical or biological features; that is, individuals may move between or among areas of habitat. Moreover, as a subspecies of bird that migrates seasonally, it breeds in certain areas during the Northern Hemisphere spring and summer; it then moves to other areas where it spends the winter (although, in some areas, there may be overlap). Generally, the habitat needs of van Rossem's gull-billed tern can be addressed by grouping its habitat into two habitat types, (1) Foraging habitat, which it needs all year, whether during the breeding season (and within its breeding range) or during the times it is not breeding (within its winter range or while migrating); and (2) nesting habitat, which it needs for laying eggs and raising young during the breeding season.
Van Rossem's gull-billed tern foraging habitat, as discussed in the “Biology” section, comprises upland and aquatic areas, including open mudflats in tidal estuaries, river margins, beaches, salt marshes, freshwater marshes, aquacultural impoundments (such as shrimp ponds), and a variety of upland habitats including open scrub, pasturelands and irrigated agricultural fields and associated canals and drains, and the airspace over such areas. Nesting habitat consists of low, open areas on natural and artificial beaches, islands, and levees, usually with no or sparse vegetation and are typically located on islands or other remote areas where the risk of predation is low.
As highly mobile, migratory birds, van Rossem's gull-billed terns can choose among potential nesting locations and specific nest sites within those locations. For a nest site to be suitable, it must have suitable foraging habitat nearby, among other considerations. Although it is not known how gull-billed terns, including
However, the amount of water being used for agriculture has declined because of an agreement to transfer water out of the Imperial Valley and some fields in agricultural production are being intentionally fallowed to reduce the amount of water used in the Imperial Valley (IID 2006, p. 1; IID 2009, p. 71). Which fields are fallowed is determined randomly (IID 2006, p. 1), so we expect fallowed fields to occur over a wide area in the Imperial Valley and not concentrated near areas of van Rossem's gull-billed tern foraging activity. Moreover, the practice of fallowing as a water conservation measure is temporary; fallowing will end after 2018 (IID 2009, p. 72). Over the time fallowing is to be phased out other water conservation measures will likely be enacted in the Imperial Valley, some of which may affect some areas of foraging habitat for van Rossem's gull-billed terns. For example, to conserve water, there may be increased use of sprinklers or other irrigation techniques rather than the predominant current practice of flooding fields (which makes crickets, an important food source (Molina 2009a, p. 1), and other terrestrial prey items more accessible as they flee the rising water), even where van Rossem's gull-billed terns forage (IID 2007, pp. 17-19; Schoneman 2010,
Van Rossem's gull-billed terns nest at several different sites (primarily islands) in the Salton Sea or nearby water bodies. The subspecies' use of particular nest sites varies between and within years, depending on local conditions. Nest site conditions within the Salton Sea vary because the Salton Sea has no outflow and the elevation of the lake's surface depends upon the amount of water input and loss. Input of water into the Salton Sea is primarily from agricultural runoff from nearby Imperial Valley and, to a lesser extent, Coachella Valley, with some input also from natural precipitation, which is variable and typically scant. Water loss is through evaporation, which is high in the desert environment.
Through recent history, shoreline elevations of the Salton Sea have fluctuated. As water levels rose, which was the case through much of the mid-twentieth century (Cohen
We expect water levels of the Salton Sea to continue to drop in the foreseeable future because the amount of water used for irrigation in the Imperial Valley (California) has declined and has been transferred (sold) to urban areas outside the region, thus limiting the amount of agricultural runoff entering the Salton Sea (IID 2006, p. 1). As such, even the large Mullet Island is expected to become attached to the mainland in the near future (Molina 2010a, p. 9). As the water level drops in the foreseeable future, it is likely that most of the historical areas of topographical relief that were once islands will not again reemerge because most of those areas eroded while inundated (see Molina 2001, p. 97). However, the dropping water level of the Salton Sea may allow for new islands to become exposed, allowing for novel nest sites for van Rossem's gull-billed terns, such as one south of Obsidian Butte used by van Rossem's gull-billed terns in 2010 (Molina 2010a, p. 6).
In addition to those nesting islands that are or were isolated because of the waters of the Salton Sea, van Rossem's gull-billed terns opportunistically use nesting habitat on intentionally or accidentally created islands in artificial impoundments along the edge or near the Salton Sea (Molina 2004, p. 93). For example, the creation of the “saline habitat ponds” near Hazard Road at the southeastern corner of the Salton Sea in 2006 (Miles
Additionally, a few nest sites located on or near the Salton Sea are managed for nesting waterbirds, including van Rossem's gull-billed tern, especially those on the Sonny Bono Salton Sea National Wildlife Refuge (Salton Sea Refuge) (Schoneman 2010,
In summary, at the Salton Sea, even if some of the available foraging habitat is destroyed or modified, it will likely not affect a substantial amount of van Rossem's gull-billed tern foraging habitat because the subspecies uses a wide range of areas as foraging habitat and the birds are capable of flying to those areas. We anticipate some loss of existing nesting habitat at the Salton Sea because the Sea's decreasing water level will reduce the number of nesting islands that the subspecies has traditionally used over the past 10 to 20 years. However, the lowering water level may result in the exposure of new islands that may serve as nesting habitat, as was shown in 2010. Additionally, van Rossem's gull-billed terns have opportunistically used suitable nesting habitat in artificial impounds near the Salton Sea, even though such habitat may only occur from time to time. Thus, we expect some reduction in the amount of nesting habitat (
Potential nesting habitat for van Rossem's gull-billed terns occurs in undeveloped areas in and around San Diego Bay; nearly all occupied nest sites are located on the saltworks dikes on San Diego Bay National Wildlife Refuge lands (Patton 2009, p. 8). These nesting sites are protected and managed to benefit several species of colonial waterbirds, including van Rossem's gull-billed terns (USFWS 2006, pp. 1-36). Thus, destruction or modification of nesting habitat by urban development is not a significant threat to the San Diego Bay colony of van Rossem's gull-billed terns.
The availability of information on specific nesting locations in Mexico (Table 1; Figure 1) is variable and generally less detailed than what is available for nesting locations in the United States. Using the information available, the following discussion provides our assessment of the status of van Rossem's gull-billed tern foraging and nesting habitat at the locations in Mexico. We are not aware of any van Rossem's gull-billed tern nesting locations south of Mexico in Central America.
Van Rossem's gull-billed terns nest on islands in artificial ponds created by the dumping of wastewater (brine) from the geothermal electrical generation facility. Since 1996, Cerro Prieto has grown to be one of the larger populations of van Rossem's gull-billed terns (Molina and Garrett 2001, p. 25; Palacios and Mellink 2007, pp. 215-216). Recent information suggests the facility is managing its brine differently, reducing the amount of water in the ponds, thereby reducing the available nesting habitat for van Rossem's gull-billed terns (Molina 2010b,
The conditions at Cerro Prieto illustrate the difficulty in accurately assessing long-term threats to van
Since 1992, when nesting was first confirmed at Isla Montague, incomplete though somewhat consistent data show that the nesting habitat on this island has supported as few as 30 and up to as many as 200 breeding pairs of nesting van Rossem's gull-billed terns (Palacios and Mellink 2007, p. 217; Molina
Foraging habitat in the region is likely within the greater lagoon area, including portions of the saltworks, and the nearby coastal areas and uplands. Although some future development is possible, especially near the community of Guerrero Negro, we do not anticipate substantial destruction or modification of van Rossem's gull-billed tern foraging habitat in this area because much of the area away from Guerrero Negro and the saltworks is largely uninhabited and the area is designated a biosphere reserve, which may limit any potential future development. Even if some development occurs, it will likely not affect a substantial amount of van Rossem's gull-billed tern foraging habitat because the subspecies uses a wide range of areas as foraging habitat.
As suggested by the ponds at Cerro Prieto, we should not consider the islands associated with the saltworks permanent; however, the available information suggests that significant changes in management are unlikely over the foreseeable future (Palacios and Mellink 2006, p. 54; Palacios 2010, p. 16).
The lagoon is artificially channelized, which has increased siltation in the southeast portion of the lagoon (Hernández-Cornejo and Ruiz-Luna 2000, p. 604), which in turn may have contributed to the formation of the mudflat-island nest sites. Such islands likely flood during high tides in winter (Palacios and Mellink 2006, p. 66), which may increase habitat quality because vegetation growth is inhibited. However, high tides may also inundate the nest sites during the breeding season (Palacios 2010, p. 22), washing away eggs or young chicks. Additionally, fishermen used the 2005 mudflat-island nest site to beach small boats, and they erected a small, palapa-like shade structure in the vicinity (Palacios and Mellink 2006, p. 66). Given the limited information we have regarding the current and future human activities within this nesting location and variability of use by the van Rossem's gull-billed tern, we determine that the destruction or modification of nesting or foraging habitat is not a significant threat at this location now or in the foreseeable future.
The Laguna Pericos nesting area is within a portion of the lagoon that has been altered to promote shrimp harvest, including the creation of ponds for shrimp aquaculture (Hernández-Cornejo and Ruiz-Luna 2000, p. 604). Further alteration of the area is possible for development of shrimp fisheries and aquaculture. Although such potential alterations may affect van Rossem's gull-billed tern nesting habitat, individual van Rossem's gull-billed terns readily move between and among specific nest sites, including manmade areas that provide habitat. Because the Marismas Nacionales area is very large with multiple small islands, sand bars, and manmade levees and thus suitable alternative nest sites, we expect this nesting population has the option to move to other available sites to nest, if necessary. Therefore, we determine that destruction or modification of nesting habitat is not a significant threat to the van Rossem's gull-billed tern at this location now or in the foreseeable future.
We are not aware of any current (confirmed) nesting locations south of Laguna Potosí, Mexico. Although areas of far-southern Mexico and Central America may potentially be within the breeding range of the species, Molina
During the nonbreeding season, when the subspecies is migrating or is within its winter range, van Rossem's gull-billed terns may use other sites along the Pacific coasts of Mexico and (possibly) Central America. Foraging habitat may include a wide array of areas. As noted in the “Biology” section, above, van Rossem's gull-billed terns are opportunistic, often focusing on easy-to-catch prey items. For example, in western Mexico, wintering van Rossem's gull-billed terns were observed foraging at aquacultural shrimp ponds where prey is concentrated (Molina
It is unclear whether or to what extent van Rossem's gull-billed terns actually winter in Central America. Even if they do occur there, Molina
Van Rossem's gull-billed tern foraging habitat includes a wide range of areas, including wetlands and uplands, and van Rossem's gull-billed terns forage opportunistically within these areas. Moreover, van Rossem's gull-billed terns are highly mobile, capable of locating and utilizing different foraging areas. Loss or modification of foraging habitat does not appear to be a significant threat to van Rossem's gull-billed tern for the south San Diego Bay population, and a wide range of foraging habitat at Salton Sea will be maintained such that losses or modification of some foraging habitat areas do not constitute a significant threat to the Salton Sea population. The assessment of loss or modification of foraging habitat in Mexico and Central America is more difficult to determine because the quantity and specificity of the available information is variable across the region. It is even questionable whether the subspecies occurs south of the Isthmus of Tehuantepec in southern Mexico. However, because of the subspecies' ability to forage in a wide range of areas, including areas developed for aquacultural shrimp ponds, the subspecies is less susceptible to destruction and modification of its foraging habitat. Additionally, it is not likely that the foraging areas in Mexico and Central America will be substantially affected by development, in part because many areas have some level of legal protection. Therefore, we conclude that destruction or modification of foraging habitat is not a significant threat to van Rossem's gull-billed tern throughout its range now or in the foreseeable future.
The amount of nesting habitat for van Rossem's gull-billed tern is more limited. In the United States, nesting habitat in San Diego Bay is protected and managed by the San Diego Bay National Wildlife Refuge. The population of van Rossem's gull-billed terns in the San Diego Bay nesting location has increased since the early 1990s and is now expanding to other areas of protected nesting habitat outside of the Refuge. At the Salton Sea, the amount and distribution of nesting habitat has varied through time with nest sites being lost and added with changing conditions (primarily the water level of the Salton Sea, but also the availability of manmade impoundments that intentionally or accidentally have areas suitable for nesting). Although the continued existence of individual nest sites into the foreseeable future is unknown, the evidence suggests that, even under changing conditions, it is unlikely that all nesting habitat would be lost. Moreover, the Sonny Bono Salton Sea National Wildlife Refuge, which has regularly harbored several colonies of nesting van Rossem's gull-billed terns, including the consistently productive D pond, has been actively managing for the benefit of van Rossem's gull-billed tern by creating and maintaining areas of nesting habitat, including artificial nesting platforms. Although we acknowledge that Salton Sea Refuge may not always be able to provide the same type or same level of management every year, its record of accomplishment for more than 15 years suggests that continued beneficial management will likely continue into the foreseeable future. Therefore, we determine that nesting habitat for the Salton Sea population of the van Rossem's gull-billed tern is not significantly threatened by permanent loss or destruction.
In Mexico, the available information on nesting habitat is not as extensive and is less detailed than U.S. data, but it suggests that many nesting habitat areas are located in protected areas and are not likely to be destroyed or substantially modified, while other areas are subject to loss from habitat destruction or modification. The nest sites at Isla Montague, Marismas Nacionales, and Bahía Santa María are located within protected areas. Moreover, the nest sites at these nesting locations, along with the nest sites at Isla Montague, Laguna Ojo de Liebre, Bahía de Ceuta, Laguna del Caimanero, and Laguna Potosí, are situated on low islands that are subject to flooding during winter storms or high tides; as a result, substantial manmade developments on the islands are unlikely. The nest sites at Cerro Prieto are dependent on the management of waste water at the geothermal generation facility, which is uncertain at this time; some van Rossem's gull-billed terns from this nesting location may have moved and nested at Isla Montague in 2010 in response to changes in the amount of available habitat at Cerro Prieto. Portions of Laguna Cuyutlán near port operations may be subject to dredging activities, which may destroy existing areas of nesting habitat for van Rossem's gull-billed terns but may also
Based on our review of the best available scientific and commercial information, we conclude that van Rossem's gull-billed tern is not threatened by the present or threatened destruction, modification, or curtailment of its habitat or range now or in the foreseeable future.
Within the context of this factor, overutilization is the capture or collection of individuals of a species, including its eggs or young, to an extent (at a high enough rate) that it affects the conservation status of the species. We are not aware of any information suggesting that adult van Rossem's gull-billed terns are utilized (collected, harvested) or will likely be utilized in the foreseeable future for commercial, recreational, scientific, or educational purposes anywhere in the subspecies' range (but see the “Intentional Killing” section under
In western Mexico, egging, the collection of wild bird eggs by people for subsistence or other uses, has occurred historically (for example, see Mailliard 1923, pp. 443-456). More recently, egging activities at Guerrero Negro in the 1970s, prior to the first known nesting of van Rossem's gull-billed terns at this location, was so severe that nesting waterbirds were extirpated from several islands (Castellanos
Mellink
Thus, in Mexico, egging and other forms of utilization have not been specifically documented to impact van Rossem's gull-billed tern; however, egging has affected, to varying extents, other species of birds that can and do nest close to where van Rossem's gull-billed terns nest. This suggests egging and other forms of utilization, regardless of purpose, are a potential threat to van Rossem's gull-billed terns. We expect such utilization—should it occur at a van Rossem's gull-billed tern nest colony—would result in complete reproductive failure for the affected nest colony. However, like a nest depredation event, the adult terns would likely survive to nest again in the future nesting seasons or, potentially, to renest that same season (see
Therefore, based on our review of the best scientific and commercial information available, we conclude that van Rossem's gull-billed is not threatened by overutilization for commercial, recreational, scientific, or educational purposes now or in the foreseeable future.
Diseases occur naturally in wildlife populations. The occurrence of a disease within the range of a species does not necessarily mean that it is deleterious to that species. However, if one or more diseases are virulent enough, the conservation status of a species may be affected. The susceptibility of van Rossem's gull-billed tern to disease has not been well studied, but multiple diseases impacting avian populations are present in the areas where van Rossem's gull-billed terns nest. Avian botulism, avian cholera, and other diseases have impacted thousands of fish-eating birds at the Salton Sea (Friend 2002, pp. 295, 303), including an outbreak of avian botulism that killed more than 14,000 birds in the mid-1990s (Roberts 1997, p. 2). Throughout those and other disease outbreaks at the Salton Sea, the population of van Rossem's gull-billed terns at this location appeared to be unaffected (Molina 2004, p. 98; Molina
A serious disease threat to avian populations in North America is West Nile Virus (WNV). WNV has caused significant declines in bird populations since its arrival in the United States in 1999 (LaDeau
As noted above, WNV has been present at the two U.S. van Rossem's gull-billed tern nesting locations (Salton Sea and San Diego Bay) since 2003. Although van Rossem's gull-billed tern numbers at the Salton Sea have fluctuated over the past decade, their overall population size has remained fairly stable since the arrival of WNV to the region (K. Molina,
The amount of information on the prevalence of WNV in western Mexico is limited, but there is some indication that the disease has been recorded there (Komar and Clark 2006, p. 114). Although the population data for van Rossem's gull-billed terns in Mexico is limited, there is no indication of marked population decline. Nevertheless, as in the United States where evidence of substantial effects of the disease on van Rossem's gull-billed tern is lacking, we similarly expect no significant effects to populations of the subspecies in western Mexico from WNV.
Unlike other bird species that are sensitive to WNV, such as American crow (
Therefore, we conclude that disease, including WNV, is not a significant threat to van Rossem's gull-billed tern now, and we have no indication that it will be in the foreseeable future.
Predation of eggs or flightless young (nest predation) is frequently observed at monitored van Rossem's gull-billed tern nest sites, but predation of adults is rarely observed (Molina 2000, p. 7; 2001, p. 8; 2004, p. 96; 2006, p. 7; 2007, p. 11; 2008, p. 189; 2009, p. 8; Patton 2002, p. 7; 2006, p. 7; 2008, p. 8; 2009, p. 10; Molina
Another adaptation to nest predation is for birds to renest; that is, to nest again in the same breeding season, which typically occurs at a different nest site. Although renesting is energetically demanding on the adults, it increases the likelihood that a colony will have some level of reproduction (productivity) that year. However, the number of birds that renest is typically fewer than the number of birds that initially nested, and the later in the season a nest is lost, the lower the likelihood that a pair will attempt to renest (Thompson
Although we have some information on the level of nest predation at certain van Rossem's gull-billed tern nesting locations, and we expect it to occur at other locations, we do not know how prevalent nest predation is rangewide. Of the two nesting locations that are monitored regularly (Salton Sea and San Diego Bay), nest predation has been noted at nest sites at the Salton Sea, including some that are managed by the Sonny Bono Salton Sea National Wildlife Refuge in an effort to reduce the likelihood of this threat (Molina 2009b, p. 8). The frequency of nest predation by mammalian predators may be increasing at certain nest sites at the Salton Sea because the lowering water level of the Sea is allowing once-isolated nesting islands to become accessible (Molina 2009b, p. 8; Molina
In contrast, at San Diego Bay, the population of van Rossem's gull-billed terns has steadily increased in part because active anti-predator management has limited the amount of nest predation since 1999 (USFWS 2006, Appendix M, p. 2; Patton 2009, Table 2). The primary nest site for van Rossem's gull-billed terns (and other species of colonial, ground-nesting waterbirds) in San Diego Bay is rarely substantially affected by terrestrial predators because (1) The nests are located on an extensive network of dikes where access by terrestrial predators is limited by barriers and fences that have been intentionally erected; and (2) nonlethal and, if necessary, lethal predator control methods are used against those predators that do venture to the nesting areas (USFWS 2006, Appendix M).
Thus, nest predation is not a significant threat at the San Diego Bay nesting location because predators are managed to benefit nesting colonial waterbirds, including van Rossem's gull-billed terns. Nest predation at the Salton Sea is less clear. The available information suggests the Salton Sea colony of van Rossem's gull-billed terns is being affected by nest predation at some nest sites, but other nest sites are productive, including a recently emerged nest site. The apparent reduction in the total number of nest sites where nest predation is unlikely may mean fewer van Rossem's gull-billed terns nest at the Salton Sea in the foreseeable future, but it is unlikely that the nesting location will be completely abandoned in the foreseeable future. Additionally, even though the Salton Sea is an important nesting location, there are other nesting locations for the subspecies.
Because van Rossem's gull-billed terns are long-lived birds that are not limited to any particular nesting location, the individual adult van Rossem's gull-billed terns that have traditionally nested at sites in the Salton Sea area may move to other nesting locations to nest. However, such shifts in nesting locations would likely result in increased intraspecific competition for nest sites at existing nest colonies, the establishment of new nesting locations, or both. As a result, some birds may be forced to nest in lower quality habitat where they may be subject to increased interspecific competition (
In Mexico, nest predation has occurred or was suspected at some nest sites (for example, Peresbarbosa and Mellink 2001, p. 267; Palacios and Mellink 2007, p. 216). Although information from nest sites over multiple years is limited, we have no information to suggest that there are sustained, elevated levels of nest predation occurring at any of the nesting locations. Some nest sites have been found to be inactive in some years (Palacios and Mellink 2007, p. 217). Although not atypical for this subspecies, inactivity in some years may indicate predation events or other disturbances that have caused nest site abandonment, although abandoned or unused nest sites could potentially be used again in other years. In some cases, other nesting locations are found nearby, suggesting the colony successfully relocated. Thus, although nest predation likely occurs in Mexico, it does not appear to be at above-normal levels.
Despite the behaviors that van Rossem's gull-billed terns use to reduce the effects of nest predation (
Disease, including avian botulism and WNV, occurs within the range of van Rossem's gull-billed tern. In the well-monitored nesting locations of San Diego Bay and the Salton Sea, the populations of the subspecies are growing or are reasonably stable, despite the presence of WNV. Moreover, the Salton Sea population of van Rossem's gull-billed terns was not significantly affected by substantial outbreaks of avian botulism or avian cholera. Thus, the available information suggests that disease is not a significant threat to the subspecies throughout its range now or within the foreseeable future.
Predation of adults is not a significant threat to the subspecies. Predation of eggs or young at nest sites (nest predation) is a concern for ground-nesting birds such as van Rossem's gull-billed tern. Many colonial waterbirds have adapted to this threat by nesting on islands and remote areas to reduce the risk of predation or by responding to predation events by renesting during the same breeding season. Within the United States, nest predation does not appear to pose a significant threat to the San Diego Bay van Rossem's gull-billed tern population; however, the Salton Sea appears to be experiencing high levels of nest predation, at least in some years. While the Salton Sea is an important nesting location, the adult van Rossem's gull-billed terns that have traditionally nested there are not confined to the Salton Sea and may move to other locations to nest. Although such shifts in nesting may result in increased use of lower quality habitat, which may result in lower reproductive success at those locations, we determine such potential impacts
The Act requires us to examine the adequacy of existing regulatory mechanisms with respect to threats that may place van Rossem's gull-billed tern in danger of extinction or likely to become so in the foreseeable future. Existing regulatory mechanisms that may have an effect on potential threats to van Rossem's gull-billed tern can be placed into three general categories: (1) U.S. Federal laws, (2) State laws, and (3) Mexico Federal laws.
The Migratory Bird Treaty Act of 1918 (MBTA) (16 U.S.C. 703-712) states that it is unlawful “to pursue, hunt, take, capture, kill, or attempt to take, capture or kill, possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import, cause to be shipped, exported, or imported, deliver for transportation, transport or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export, any migratory bird, any part, nest, or eggs of any such bird, or any product, whether or not manufactured.” Mexico is also a signatory of the MBTA. Van Rossem's gull-billed tern is included in the list of migratory birds internationally protected by the MBTA (50 CFR 10.13). The MBTA makes it unlawful to kill or take eggs or nests of van Rossem's gull-billed terns, but it does not provide protection for habitat.
As described in the “Intentional Killing” section under
All Federal agencies are required to adhere to the National Environmental Policy Act (NEPA) of 1970 (42 U.S.C. 4321
The Fish and Wildlife Conservation Act of 1980 (16 U.S.C. 2901-2911) encourages States and Federal departments and agencies to conserve and promote conservation of nongame fish and wildlife and their habitats. The 1988 amendment to the Fish and Wildlife Conservation Act mandates the Service to “identify species, subspecies, and populations of all migratory nongame birds that, without additional conservation actions, are likely to become candidates for listing under the Endangered Species Act (ESA) of 1973.” Our Division of Migratory Bird Management published the Birds of Conservation Concern in 2008 (USFWS 2008, pp. 1-87). We identified the gull-billed tern (the species as a whole) as a Bird of Conservation Concern (see the “Management Actions” section above). The species was included as a Bird of Conservation Concern both nationally and in certain specific Bird Conservation Regions, including the U.S. portions of Bird Conservation Regions 32 (Coastal California) and 33 (Sonoran and Mojave Deserts) (USFWS 2008, pp. 48 and 49). Because we identified the gull-billed tern as a Bird of Conservation Concern, we have denied depredation permit requests under the MBTA (USFWS 2010, p. 1) (see “Intentional Killing” section under
The National Wildlife Refuge System Improvement Act of 1997 (Pub. L. 105-57) establishes the protection of biodiversity as the primary purpose of the national wildlife refuge system. This has led to various management actions that have directly benefited van Rossem's gull-billed tern. For example, at the Sonny Bono Salton Sea National Wildlife Refuge, nesting islands and artificial nesting platforms have been created and maintained (see
Van Rossem's gull-billed tern is not a listed species under the California Endangered Species Act (CESA), the State's primary regulatory mechanism to protect species. However, the van Rossem's gull-billed tern is considered a bird species of special concern in California (Molina 2008, p. 188), an administrative designation that carries no formal legal status. According to Comrack
Van Rossem's gull-billed tern also receives protection through the State migratory bird provisions of the
The California Environmental Quality Act (CEQA) (Public Resources Code 21000-21177) and the CEQA Guidelines (California Code of Regulations, Title 14, Division 6, Chapter 3, Sections 15000-15387) requires State and local agencies to identify the significant environmental impacts of their actions and to avoid or mitigate those impacts, if feasible. CEQA applies to projects in California proposed to be undertaken or requiring approval by State and local government agencies. The lead agency must complete the environmental review process required by CEQA, including conducting an Initial Study to identify the environmental impacts of the project and determine whether the identified impacts are “significant.” If significant impacts are determined, then an Environmental Impact Report must be prepared to provide State and local agencies and the general public with detailed information on the potentially significant environmental effects (California Environmental Resources Evaluation System, 2010).
“Thresholds of Significance” are comprehensive criteria used to define environmentally significant impacts based on quantitative and qualitative standards. They include impacts to biological resources such as candidate, sensitive, or special status species in local or regional plans, policies, or regulations, or by the CDFG or the Service; or any riparian habitat or other sensitive natural community identified in local or regional plans, policies, regulations or by the CDFG or Service (CEQA Handbook, Appendix G, 2010). Defining these significance thresholds helps ensure a “rational basis for significance determinations” and provides support to the final determination and appropriate revisions or mitigation actions to a project in order to develop a mitigated negative declaration rather than an Environmental Impact Report (Governor's Office of Planning and Research, 1994, p. 5).
Section 15380 of the CEQA Guidelines indicates that species designated as “Species of Special Concern” should be included in an analysis of project impacts (Comrack
In Mexico, van Rossem's gull-billed tern is protected by what is known as the Ecology Law (Ley General del Equilibrio Ecológico y la Protección al Ambiente, or LGEEPA). This law, first enacted in 1988 and amended in 1996, is designed to preserve ecosystems and allow for sustainable use of biodiversity and development of working groups to organize management and protection of the environment in designated Natural Protected Areas (Gonzales and Gastelum 2000, p. 50; Bezaury-Creel 2005, p. 1031). Although management of protected areas has typically been inadequate in Mexico, the situation has been greatly improved through the establishment of The National Protected Area Commission (Comisión Nacional de Áreas Naturales Protegidas, or CONANP) (Bezaury-Creel 2005, p. 1034). Many management plans for protected areas are under development, including one for Bahía Santa María (Bezaury-Creel 2005, pp. 1021, 1034), a nesting location for van Rossem's gull-billed terns. However, enforcement continues to be problematic in Mexico due to the lack of collaboration between different Federal agencies, and between Federal and local governments (Fraga and Jesus 2008, p. 21). Furthermore, local reserve managers often lack the legal authority to enforce environmental laws (Fraga and Jesus 2008, p. 21).
LGEEPA does not necessarily preserve lands in protected areas; instead, areas are considered more as “multiple use zones” where thresholds are imposed on sustainable use of natural resources to limit activities (Bezaury-Creel 2005, pp. 1030-1031). One form of Natural Protected Areas, the “biosphere reserve,” includes established core areas where land alteration is limited (Figueroa and Sanchez-Cordero 2008, p. 3232). Two of the largest nesting populations of van Rossem's gull-billed terns are within biosphere reserves, including Isla Montague and Marismas Nacionales. Additionally, the small population of van Rossem's gull-billed terns at Laguna Ojo de Liebre, including the Guerrero Negro saltworks, is within the El Vizcaíno Biosphere Reserve (Palacios 2010, pp. 6 and 16), but the level of protection afforded by the reserve is likely limited within the salt production facility. Yet LGEEPA, as implemented with the aid of the CONANP, provides benefits to van Rossem's gull-billed tern and its habitat, benefits the subspecies would not have in the absence of such regulatory mechanisms.
In the United States, the National Wildlife Refuge System Improvement Act benefits breeding populations of van Rossem's gull-billed tern at San Diego Bay National Wildlife Refuge and the Sonny Bono Salton Sea National Wildlife Refuge. Additional Federal and State regulations provide benefits to the subspecies, through its migratory bird status (Federal and State), and to its habitat, through its designation as a species of special concern (Federal and State).
In Mexico, two of the largest nesting populations of van Rossem's gull-billed terns are located within biosphere reserves and a third, smaller population is in a biosphere reserve where other uses (salt production) is occurring. Development is somewhat limited by the LGEEPA, especially in core areas of biosphere reserves. The CONANP was established to assist in preserving ecosystems and organizing management and protection of the environment in these Natural Protected Areas. While enforcement continues to be a concern regarding regulatory mechanisms in Mexico and active management is lacking in many areas, these regulatory mechanisms provide benefits to the van Rossem's gull-billed tern, benefits that the subspecies would not have otherwise.
Based on our review of the best scientific and commercial information available, we conclude that van Rossem's gull-billed tern is not threatened by inadequate regulatory mechanisms now, nor is it likely to become so in the foreseeable future.
Van Rossem's gull-billed terns generally nest on small, low islands with little or no vegetation. Many other species also use these islands for nesting and loafing, where they compete with van Rossem's gull-billed terns for space; van Rossem's gull-billed terns, especially eggs and young, may be inadvertently crushed, injured, or affected by agonistic behavior from other species. These interactions, discussed below, may affect the productivity of nesting van Rossem's gull-billed terns, but such competition is primarily natural, and many colonial, ground-nesting species are able to adapt to colonial nesting dynamics.
Van Rossem's gull-billed terns are known to compete for nesting sites with other shorebirds and waterbirds (Molina 2004, p. 98). At San Diego Bay and the Salton Sea, territorial behavior between van Rossem's gull-billed tern and species such as black skimmer and elegant tern result in the loss of van Rossem's gull-billed tern nests on a near-yearly basis (
Competition for space from nonbreeding waterbirds can also cause damage to van Rossem's gull-billed tern nests. For example, loafing Caspian terns, double-crested cormorants (
Inter-specific interactions often occur naturally at colonies of ground-nesting birds. As discussed in the “Biology” section above, van Rossem's gull-billed terns often adapt to such interactions by renesting at the same or other nearby nest sites after disturbances. Although the productivity of an affected nest colony of van Rossem's gull-billed terns may be reduced or prevented in a given year if such disturbances occur repeatedly, it is unlikely that a substantial proportion of nesting locations will be significantly affected repeatedly from year to year. Therefore, we do not expect any deleterious effects associated with these events to be a significant threat to van Rossem's gull-billed tern.
Colonial nesting waterbirds are sensitive to disturbance from the actions of humans and domesticated animals (Sears 1978, p. 9; Safina and Burger 1983, p. 168, Blanc
In the United States, most van Rossem's gull-billed tern nesting areas occur in areas that are managed for the benefit of wildlife species, including van Rossem's gull-billed terns and other colonial nesting waterbirds, which limits the level of human disturbance. However, because nesting occurs at different sites within and between years, including nest sites located outside of protected or managed areas, the subspecies is subject to disturbance in some areas. For example, regular visits from boaters and fishermen on Mullet Island in the Salton Sea may have caused van Rossem's gull-billed terns to move from that nest site (Molina 2001, p. 14). Also at the Salton Sea, lower water levels have allowed some nesting islands to become reconnected to the mainland, and feral dogs have intruded onto an area used by van Rossem's gull-billed tern for nesting, causing the colony to permanently abandon this nest site (Molina 2000, p. 7). Similarly, nest sites in San Diego Bay have been disturbed in the past (Patton 2001, p. 9), but predator management actions, including fencing, at this site have decreased the incidence of such disturbances (USFWS 2006, pp. 1-36). Researchers may cause disturbance of nesting birds, though monitors and researchers typically conduct their activities in such a way as to disturb the population as little as possible (Patton 2009, pp. 4-5). Nonetheless, Palacios and Mellink (2007, p. 216) suspected that researcher activity may have been a disturbance at some nest sites in Mexico, but this appears to have been events associated with individual studies and not from monitoring, which involves repeated visits within and between years. Therefore, we do not anticipate this to be an ongoing, significant threat.
In Mexico, many nest sites are protected from human disturbance by beneficial or benign land uses, or because the nest sites are not easily accessed by humans (Molina and Garrett 2001, p. 27; Palacios and Mellink 2006, pp. 71, 78), such as at the Guerrero Negro saltworks (Palacios and Mellink 2007, p. 217). However, human disturbance has been noted near van
Human-related actions that result in the death of individual van Rossem's gull-billed terns have the potential to affect the continuing existence of the species if the number of individuals killed substantially affects the mortality rate of the subspecies. The mortality rate in a population may substantially affect a population if it continually exceeds the rate of increase (or birth rate) (Thomas 1994). Intentional killing activities may include take authorized under existing laws or unauthorized depredation. Because either action, by definition, results in the death of individual van Rossem's gull-billed terns (or, in certain cases, destruction of eggs) we assess these potential actions in this section; however, we note that the motives and level of oversight differ between the two categories. Below we assess the effects of intentional killing of van Rossem's gull-billed terns as a potential threat to the subspecies.
In the San Diego Bay region, three van Rossem's gull-billed terns have been intentionally killed as part of the U.S. Navy's Bird/Animal Aircraft Strike Hazard (BASH) program. The Navy deemed it necessary to kill three adult van Rossem's gull-billed terns near active runways for human safety reasons, two in 2004 on Naval Base Coronado and one in 2007 at Naval Outlying Landing Field, Imperial Beach (Molina
Additionally, six (or possibly seven) adult van Rossem's gull-billed terns were killed between 1993 and 1995 in San Diego because they were considered potential threats to federally endangered California least terns and federally threatened western snowy plovers (Patton 2002,
As the level of depredation of California least terns and western snowy plovers by van Rossem's gull-billed terns has increased in the San Diego Bay region, local land managers have considered methods other than direct lethal control of adults to reduce the impact of van Rossem's gull-billed terns on the other listed species. For example, as published in a draft Environmental Assessment under the National Environmental Policy Act, we proposed in an experiment at the San Diego Bay National Wildlife Refuge to gather data that would help us answer the following management questions: (1) Could we reduce the loss of California least tern and western snowy plover chicks to predation by van Rossem's gull-billed terns in the vicinity of San Diego Bay by lowering the productivity within the van Rossem's gull-billed tern colony at San Diego Bay; and (2) could productivity within the van Rossem's gull-billed tern colony at San Diego Bay be reduced without causing significant direct impacts to San Diego Bay's breeding population of adult van Rossem's gull-billed terns (USFWS 2009, p. 4). In part, the experiment proposed to addle eggs of van Rossem's gull-billed terns nesting at the San Diego Bay National Wildlife Refuge to determine if population size of van Rossem's gull-billed terns in San Diego Bay could be controlled while avoiding a decline of the overall population of van Rossem's gull-billed terns (USFWS 2009, pp. 8-9). Although initially proposed for the 2009 nesting season, no further action on the proposed project was taken. No additional compliance with the National Environmental Policy Act was prepared related to the proposed project, and we are not planning to implement this proposed project now or in the foreseeable future.
The killing of van Rossem's gull-billed terns as predator control has only occurred in San Diego Bay, and no van Rossem's gull-billed terns have been killed there for predator control since 1995. We are not aware of any killing of van Rossem's gull-billed terns as BASH management anywhere except San Diego Bay, and only three individuals were killed there, two in 2004 and one in 2007. The population of van Rossem's gull-billed terns remains in the San Diego Bay area and has consistently grown since 1999 (Patton 2009, Figure 1, no page number). Given the continued level of growth of the San Diego Bay population of van Rossem's gull-billed terns over the same time period as the three individuals were killed under the BASH program, the level of take under this program has not significantly affected the San Diego Bay population of van Rossem's gull-billed terns, or the subspecies rangewide. Thus, lethal control of van Rossem's gull-billed terns for predator control and BASH prevention is currently not a significant threat to the subspecies throughout its range and, because we do not anticipate an increase in the lethal control measure associated with the Navy's BASH program, this is not a significant threat to the subspecies in the foreseeable future.
In Mexico, van Rossem's gull-billed terns forage at commercial shrimp aquaculture farms. Although lethal
High levels of pesticides and heavy metals are known to cause reproductive harm in breeding birds (Longcore
Birds accrue contaminants mainly through the food they eat, with fish-eating birds commonly accumulating higher levels of contaminants than birds that feed on seeds or invertebrates (Frank
Although few studies have measured effects of contaminants on van Rossem's gull-billed tern, the available information from a small number of samples, as summarized in Molina
During periods when the subspecies is not nesting, including migration and while wintering, van Rossem's gull-billed terns, as highly mobile birds, can cover wide areas to search for food. In contrast, food availability near nesting sites is critical for successfully raising young. However, the availability of food (prey items) is naturally variable. Moreover, unlike other tern species that are dependent on fish as their sole food source, van Rossem's gull-billed terns opportunistically eat a variety of prey items found over a range of aquatic and terrestrial areas (Parnell
However, the adult van Rossem's gull-billed terns would likely survive because they are highly mobile and can find food elsewhere, even if it means abandoning the nesting attempt and flying to other nesting or foraging locations within the subspecies' range. Additionally, because van Rossem's gull-billed terns are long-lived, most individual adults will survive to nest the following year—at the original nesting location, or perhaps even moving to a different nesting location. For example, evidence suggests van Rossem's gull-billed terns regularly move between the Salton Sea, Cerro Prieto, Isla Montague, and San Diego Bay nesting locations within or between years, although food availability is not suspected as the motivation for such relocations (Molina and Garrett 2001, p. 26; Patton 2001, p. 8; Molina 2004, p. 98; Palacios 2010, p. 12 and 15). Thus, we do not consider a lack of food availability to be a significant threat to the subspecies now or in the foreseeable future.
Small populations are disproportionately affected by demographic, genetic, and environmental stochastic (random) events, and natural catastrophes (Caughley 1994, pp. 217-227; Asquith 2001, pp. 345-352). Genetic stochastic events can further influence population demographics through inbreeding depression and genetic drift (Lande 1988, pp. 624-635; Whitlock and Bürger 2004, pp. 155-170). The point at which
Thus, we do not consider rarity alone to meet the information threshold indicating that the species may warrant listing. In the absence of information identifying threats to the species and linking those threats to the rarity of the species, the Service does not consider rarity or small populations alone to be a threat. A species that has always had small population sizes or been rare, yet continues to survive, could be well equipped to continue to exist into the future. Many naturally rare species have persisted for long periods within small geographic areas, and many naturally rare species exhibit traits that allow them to persist despite their small population sizes. Consequently, the fact that a species is rare or has small populations does not necessarily indicate that it may be in danger of extinction now or in the foreseeable future.
Although surveys were conducted through much of the subspecies' breeding range in 2010, the surveys were conducted fairly late in the nesting season, and, thus, the most complete (best available) estimated breeding population size of van Rossem's gull-billed tern is from the 2003 to 2005 period at approximately 800 pairs of adults rangewide. That translates to approximately 1,600 individual adults. This rough estimate of population size is largely based on counts of adults at nesting locations; as such, this figure approximates the number of breeding adults but does not include nonbreeding individuals. However, as discussed in the “Population Size” section, the data we have suggests the overall population of this subspecies has never been particularly large. Although Pemberton (1927, p. 256) estimated that there were about 500 pairs (1,000 individuals) at the Salton Sea in 1927, there are no estimates of population sizes from any other location in western North America within that timeframe.
The Salton Sea now supports roughly 100 to 200 pairs (200 to 400 individuals); thus, the Salton Sea population has decreased since the 1920s. However, the Salton Sea (or Lake Cahuilla) has existed only intermittently through recent history and prehistory, which means that over time it has not served as a persistent and consistent nesting location. The available historical information suggests that the population of the subspecies in Mexico has been small since at least the early 1900s. Additionally, many of the places that van Rossem's gull-billed terns nest currently were not occupied historically, including San Diego Bay, Laguna Ojo de Liebre (Guerrero Negro saltworks), and Cerro Prieto geothermal plant (which opened in 1973), suggesting the breeding range of the subspecies has expanded recently. However, we lack the information to determine if these additional nesting sites are the result of an actual increase in total population or just a redistribution of the breeding population.
Additionally, inbreeding depression and genetic drift are less likely in a subspecies in which individuals regularly move between and among other nesting locations, allowing opportunities for genetic mixing. Also, the wide geographic range over which the subspecies breeds suggests that it would be unlikely that all van Rossem's gull-billed tern nesting locations would be simultaneously affected by a catastrophic environmental event (such as a drought, flood, or extreme weather). Even if a large storm event, such as a hurricane, during the breeding season were to move through the northern end of the Gulf of California to the Salton Sea area, where several large nesting populations occur (Table 1, Figure 1), it may have an effect on the subspecies' reproductive efforts for that year; however, it is unlikely to result in the death of a significant number of adult van Rossem's gull-billed terns because they are capable flyers. Therefore, although the small population size may possibly be cause for concern, threats associated with small population sizes (
Direct observations of recent climate change include increases in global average air and ocean temperatures, widespread melting of snow and ice, and rising global average sea levels, and provide unequivocal evidence for global warming of the Earth's climate system (Intergovernmental Panel on Climate Change or IPCC 2007, p. 5). These changes in climate are expected to have an effect on many ecosystems; however, wetlands are likely to be particularly affected given their sensitivity to changes in precipitation and evapotranspiration (MacIean
Climate change-related impacts were recently evaluated for the San Diego region, which includes the San Diego Bay van Rossem's gull-billed tern nesting location, in a paper prepared by the California Energy Commission's Public Interest Energy Research Program's California Climate Change Center (CCCC). This paper used three climate models and two greenhouse gas emissions scenarios (A2 and B1, from the IPCC 2007, p. 18) to develop downscaled global predictions for climate change impacts to the San Diego region by 2050. The report concluded that temperatures for San Diego County would increase 1.5 °F to 4.5 °F (0.8 °C to 2.5 °C), but warming along the coast was likely to be more moderate than inland locations (approximately 50 km (30 mi) inland) due to the influence of the Pacific Ocean (CCCC 2009, p. 12). However, it is not clear whether or how much this will affect van Rossem's gull-billed terns that nest at the San Diego Bay nesting location. We did locate one published study addressing climate change and the phenology (the timing of climate-related annual patterns in wildlife) of migration for the “eastern” subspecies of gull-billed tern and other summer- and winter-resident coastal birds along the Texas coast (Foster
We are not aware of similar downscaled regional climate models for the inland van Rossem's gull-billed tern nesting locations, but as suggested above, inland temperatures are expected to rise. The region containing the Salton Sea and Cerro Prieto nesting locations is very hot during the nesting season. Eggs left unattended during the heat of the day in this environment can exceed 50 °C (122 °F), some 5 to 10 degrees hotter than the temperature range for embryo development (Grant 1982, pp. 56 and 60). Thus, even under current temperature regimes, ground-nesting birds in this region must attentively cool their eggs during the day. Van Rossem's gull-billed terns soak their belly feathers in water and use other techniques to cool their eggs (and themselves) when daytime temperatures peak (Grant 1982, p. 39). We do not know the maximum temperature the subspecies can endure while nesting; however, it is clear that the subspecies has natural behavioral adaptations to keep its eggs within an acceptable temperature range for development in very hot environments. Because the remaining nesting locations are coastal—and thus the existing temperatures are milder and the potential temperature increases are more likely to be moderate—increasing temperatures associated with global climate change is not likely to be a significant threat to the subspecies.
Additionally, in the CCCC study, future precipitation projections for this region were mixed, with three simulations indicating drier conditions and three simulations indicating wetter conditions; however, all agreed on a high degree of variability of annual precipitation, which the authors suggest as indicating high likelihood of drought (CCCC 2009, p. 13). Substantial changes in the amount of precipitation could potentially affect terrestrial prey availability for van Rossem's gull-billed tern in the San Diego region, but because the modeled forecasts were inconclusive, there is little evidence to suggest that van Rossem's gull-billed terns in the San Diego Bay region would be significantly affected. Moreover, van Rossem's gull-billed terns in the San Diego Bay region can and often do forage on marine prey and prey items that depend on marine systems, which are less likely to be substantially affected by changes in precipitation (Molina and Marschalek 2003, p. 8 and Figure 8). Similarly, changes in precipitation (increase or decrease) are not likely to affect van Rossem's gull-billed tern at the other coastal nesting locations.
However, prolonged drought could potentially affect the amount of water in the Colorado River (Karl
Further, three simulation scenarios in the CCCC study were used to model sea level rise for the San Diego region and results indicate an increase in sea level of 12 to 18 inches (30 to 46 centimeters) by 2050 (CCCC 2009, p. 14). The study also looked at the effects of sea level rise in combination with wave activity for six already flood-prone areas in San Diego County, estimating sea level with both tide and wave run-up elevation recurrences (CCCC 2009, pp. 14-18). South San Diego Bay, the current nesting location of the van Rossem's gull-billed tern population, was not included in the results; however, coastal areas from South Imperial Beach to Oceanside Beach were evaluated (CCCC 2009, pp. 16-18). Tidal fluctuations alone were found to inundate sandy beaches in many areas, including the Tijuana River mouth (CCCC 2009, p. 16), and incorporating a moderately common frequency of wave events for this location resulted in flooding of most of the sandy beaches here and in other coastal areas in San Diego County (CCCC 2009, p. 16).
However, in south San Diego Bay, van Rossem's gull-billed terns predominantly nest on certain artificial dikes within a network of dikes that form salt evaporation ponds (saltworks) (USFWS 2006, p. 3-67; Patton 2009, Summary [no page number]). The nesting dikes are within the outer perimeter of the saltworks, which means they are not directly exposed to the tidal waters of San Diego Bay, and the dikes in the saltworks range from about 3 to 8 feet (1 to 2.5 meters) above the water level (USFWS 2006, p. 3-64). Although the San Diego Bay National Wildlife Refuge is considering several potential alternatives for managing south San Diego Bay in the future, they all include maintaining colonial waterbird nest sites, including for van Rossem's gull-billed tern (USFWS 2006, pp. 2-47 to 2-107). Therefore, we do not expect sea-level rise associated with anthropogenic climate change to be a significant threat to van Rossem's gull-billed tern in San Diego Bay.
While we lack information regarding the specifics of the saltworks nest sites in Mexico, it seems reasonable to assume that the nest sites at these locations will be similarly insulated from sea-level rise by a system of dikes that will be maintained for salt production. Inland nesting locations in Mexico (Cerro Prieto) and the United States (the Salton Sea) are also not threatened by sea-level rise resulting from climate change. Additionally, coastal areas of Mexico generally do not face the same magnitude of “coastal squeeze” scenarios that are predicted to occur with sea-level rise in coastal California because coastlines in Mexico are not as developed and new nest sites and foraging areas may be created as coastline migrates inland and current upland areas are converted to saltmarsh or intertidal flats (Galbraith
Other available information on the potential effects of anthropogenic global climate change on van Rossem's gull-billed tern includes a vulnerability assessment for migratory waterbirds within the African-Eurasian Flyway (MacIean
While we recognize that climate change is an important issue with potential effects to listed species and their habitats, we lack adequate information to make precise oceanographic and atmospheric predictions regarding its effects to van Rossem's gull-billed tern, its prey, or its
We identified that both inter-specific and manmade nest site disturbance may have an effect on the productivity of van Rossem's gull-billed terns. However, their ability to relocate and renest following disturbance combined with the minimal amount of human disturbance to nest sites in both Mexico and the United States indicates that nest site disturbance is not a significant threat to the subspecies now or within the foreseeable future.
Intentional killing of van Rossem's gull-billed terns has been very limited in the past and currently only occurs for human safety reasons in the United States. There is no indication that it will increase in the future. Illegal killing of birds at aquaculture facilities in Mexico has been observed but the extent to which it occurs and what effect this may have on the subspecies is not known. Although it is likely to occur at some level, the lack of documentation that van Rossem's gull-billed terns are affected by this practice suggests that it does not occur frequently. Thus, intentional killing is not a significant threat to the subspecies throughout its range, nor is it likely to become a significant threat within the foreseeable future.
Contaminants, particularly DDT/DDE and selenium, can negatively affect bird species including van Rossem's gull-billed tern and have been found at elevated levels at certain nesting locations, although very little data are available with respect to van Rossem's gull-billed terns and their nest sites. Based on the locations for which we have information, contaminant levels were below known thresholds for other species. Moreover, van Rossem's gull-billed terns are less likely to be exposed to high levels of contaminants because they eat a variety of foods, including invertebrates, and contaminants levels are less concentrated in invertebrates. Therefore, contaminants are not likely a significant threat to the subspecies now or in the foreseeable future. Food availability was also identified as a potential threat. However, food availability is naturally variable for most species and van Rossem's gull-billed terns are highly opportunistic and readily eat a wide variety of prey, making them less vulnerable to changes in available prey items than species with more specialized diets. As such, food availability is not likely to be a significant threat to van Rossem's gull-billed tern now or within the foreseeable future.
Small population size is a threat that could leave van Rossem's gull-billed terns more vulnerable to stochastic environmental events and natural disasters, as well as genetic or demographic problems. The best available information suggests that the population size of this subspecies was likely always small, and it would appear that the range has recently expanded, suggesting that the overall population of the subspecies is not limited. Therefore, it is unlikely that small population size is a significant threat now or within the foreseeable future. Van Rossem's gull-billed terns move readily between and among populations between and potentially within years, and their wide range further ensures that small population size is currently not a significant threat, nor likely to become one in the foreseeable future.
Sea-level rise resulting from climate change is generally predicted to impact coastal-nesting waterbirds like van Rossem's gull-billed tern; however, impacts are likely to vary from species to species and from nesting location to nesting location. While climate change could potentially affect van Rossem's gull-billed tern or its habitat, information that is currently available fails to provide evidence to support a premise that climate change is a significant threat to van Rossem's gull-billed tern. Climate change-related sea-level rise is not expected to be a significant threat on the U.S. nesting locations in the foreseeable future, and we have no evidence to suggest it will significantly threaten the subspecies' habitat in Mexico. Additionally, potential temperature increases associated with global climate change are not likely to significantly affect the subspecies throughout its range because van Rossem's gull-billed terns have behavioral adaptations to keep eggs within an acceptable temperature range for development even under very high environmental temperatures. Also, severe drought would likely not constitute a significant threat to the subspecies because most of its breeding range is coastal and marine food resources would likely be unaffected.
Based on our review of the best scientific and commercial information available, we conclude that van Rossem's gull-billed tern is not threatened by other natural or manmade factors including nest site disturbance, intentional killing, contaminants, food availability, small population size, or climate change now or in the foreseeable future.
As required by the Act, we considered the five factors in assessing whether van Rossem's gull-billed tern is threatened or endangered throughout all or a significant portion of its range. We examined the best scientific and commercial information available regarding the past, present, and future threats faced by the van Rossem's gull-billed tern. We reviewed the petition, information available in our files, and other available published and unpublished information. In considering what factors might constitute threats, we must look beyond the mere exposure of the species to the factor to determine whether the species responds to the factor in a way that causes actual impacts to the species. If there is exposure to a factor, but no response, or only a positive response, that factor is not a threat. If there is exposure and the species responds negatively, the factor may be a threat and we then attempt to determine how significant a threat it is. If the threat is significant, it may drive or contribute to the risk of extinction of the species such that the species warrants listing as threatened or endangered as those terms are defined by the Act. This does not necessarily require empirical proof of a threat. The combination of exposure and some corroborating evidence of how the species is likely impacted could suffice. The mere identification of factors that could impact a species negatively is not sufficient to compel a finding that listing is appropriate; we require evidence that these factors, alone or in combination, are operative threats that act on the species to the point that the species meets the definition of threatened or endangered under the Act.
Although foraging and nesting habitat has been lost in the past within the range of van Rossem's gull-billed tern, the subspecies' flexibility in foraging and nesting reduces the impact such losses have on the subspecies. Unlike most tern species, the foraging habitat for the subspecies includes both upland habitat and wetland areas. Additionally, because the subspecies is a capable flyer, it can quickly and effectively move between areas in search of food. Nest sites for van Rossem's gull-billed terns are more restrictive; they nest on islands and other remote areas where the risk of predation, especially from terrestrial predators, is low. However, nest site fidelity is low, meaning van Rossem's gull-billed terns can and may move from one nest site to another, both
Although there is the potential for eggs and young of ground-nesting colonial waterbirds to be harvested in some areas in Mexico, the activity has never been reported to affect van Rossem's gull-billed terns. If it occurs now or in the foreseeable future, it is unlikely to occur at levels (temporally, geographically, or both) that pose a significant threat to the subspecies throughout its range or at any particular nesting location. Therefore, overutilization (
Nest predation (
Managers of other species have targeted Van Rossem's gull-billed terns because they are predators. In the past, a few gull-billed terns were killed to protect California least tern and western snowy plover nest colonies (
Van Rossem's gull-billed terns are generalist predators, opportunistically consuming a variety of available prey items. As a result, van Rossem's gull-billed terns may shift to other types of prey items should one become unavailable because of natural or human-influenced changes. This is in contrast to most other tern species that depend on fish as their primary prey. It is unlikely that all potential prey items for van Rossem's gull-billed tern will be affected at the same time. However, should this occur, van Rossem's gull-billed terns are capable of flying to different locations to forage. If reduced abundance of prey was to occur in breeding areas, it would likely result in the loss of productivity for that year, but because van Rossem's gull-billed terns are long-lived, most individuals would be expected to survive to nest the following year. We have no information to suggest that van Rossem's gull-billed terns are facing food shortages. Therefore, food availability (
With an estimated minimum breeding population of approximately 1,600 adults, the population size of van Rossem's gull-billed tern is one of the smallest of any tern taxon in North America. Compared to larger populations, small populations may be more likely to be affected disproportionately by demographic, genetic, or environmental factors. Although the population of van Rossem's gull-billed tern may be relatively small, its range appears to have recently expanded. This suggests that the population is not markedly affected by demographic or genetic bottlenecks. Additionally, inbreeding depression and genetic drift is less likely in a subspecies comprised of individuals that regularly move long distances and occur at different nesting locations from time to time, which van Rossem's gull-billed terns are known to do. Moreover, the wide range over which the subspecies breeds suggests that not all of the nesting areas would be simultaneously affected by catastrophic environmental events (droughts, floods, hurricanes). Therefore, although the small population size is a potential cause for concern, it does not appear that the threats associated with small population sizes (
Sea-level rise resulting from climate change is generally predicted to impact coastal-nesting waterbirds like van Rossem's gull-billed tern (
A species may be affected by more than one threat in combination. Within the preceding review of the five listing factors, we have identified multiple threats that may have interrelated impacts on the subspecies. For example, the productivity of van Rossem's gull-billed terns may be reduced because of the effects of predators (especially terrestrial predators) (
Based on our review of the best available scientific and commercial information pertaining to the five factors, we find that the threats, alone or in combination, are not of sufficient imminence, intensity, or magnitude to indicate that van Rossem's gull-billed
After assessing whether the subspecies is endangered or threatened throughout its range, we next consider whether a distinct vertebrate population segment (DPS) exists and meets the definition of endangered or is likely to become endangered in the foreseeable future (threatened). We also consider whether the subspecies is endangered or threatened within a significant portion of its range. These assessments are discussed below.
Under the joint DPS policy (61 FR 4722; February 7, 1996) of the Service and National Marine Fisheries Service, three elements are considered in the decision concerning the establishment and classification of a possible DPS. These are applied similarly for additions to or removal from the Federal List of Endangered and Threatened Wildlife. These elements include:
(1) The discreteness of a population in relation to the remainder of the species to which it belongs;
(2) The significance of the population segment to the species to which it belongs; and
(3) The population segment's conservation status in relation to the Act's standards for listing, delisting, or reclassification (
Under the DPS policy, a population segment of a vertebrate taxon may be considered discrete if it satisfies either one of the following conditions:
(1) It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors. Quantitative measures of genetic or morphological discontinuity may provide evidence of this separation.
(2) It is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the Act.
We reviewed available information to determine whether there are population segments of van Rossem's gull-billed tern that meet the first discreteness condition of our 1996 DPS policy. We found no evidence that population segments existed that were markedly separated from each other as a consequence of physical, physiological, ecological, or behavioral factors. We are not aware of measures of genetic or morphological discontinuity that provide evidence of marked separation. As noted previously, van Rossem's gull-billed terns are highly mobile. They are migratory and regularly move between breeding and wintering areas every year. In the subspecies' winter range, individuals can mix and mingle with other individuals. At the northern end of the subspecies' range, individuals have been observed to move between nesting locations between years (Molina and Garrett 2001, p. 26; Patton 2001, p. 8; Molina 2004, p. 98), and the information we have suggests that such movements occur elsewhere within the subspecies' range. Even though a superficial examination of nesting locations (Figure 1) shows clusters of nesting locations somewhat geographically distant from other clusters, the biology of the subspecies suggests that interchange of individuals occurs between and among these clusters. In other words, an individual van Rossem's gull-billed tern that occurs within a given cluster of nesting locations during a given breeding season may occur within a different cluster of nesting locations the next year. As such, these geographically separated clusters are not biologically separate from each other. Therefore, no population of van Rossem's gull-billed tern meets the first discreteness condition of our 1996 DPS policy.
We next evaluated whether any population segments meet the second discreteness condition of our 1996 DPS policy. Nest locations at San Diego Bay and Salton Sea can be delimited from all other nest locations in Mexico by an international governmental boundary (Figure 1). However, after evaluating available information, we have concluded that breeding populations at San Diego Bay and Salton Sea do not meet the second discreteness condition because differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms between the U.S. and Mexican populations are not significant in light of section 4(a)(1)(D) of the Act. Mexico and the United States are both signatories to the Migratory Bird Treaty Act, and two of the largest nesting populations of van Rossem's gull-billed terns in Mexico are located within biosphere reserves where development is limited by the LGEEPA (see
We determined, based on a review of the best available information, that there are no populations of van Rossem's gull-billed tern that meet the discreteness conditions of the 1996 DPS policy. The DPS policy is clear that significance is analyzed only when a population segment has been identified as discrete. Because we found no population segments that meet the discreteness element under the Service's DPS policy, we will not conduct an evaluation of significance under that policy. We conclude that no population segment qualifies as a listable DPS under the Act.
Having determined that the van Rossem's gull-billed tern is not endangered or threatened throughout its range, we must next consider whether there are any significant portions of the range where the van Rossem's gull-billed tern is in danger of extinction or is likely to become endangered in the foreseeable future.
Decisions by the Ninth Circuit Court of Appeals in
The available literature provides little information on the historical breeding range of van Rossem's gull-billed tern. The only historical nesting location where nesting was confirmed was the Salton Sea (Pemberton 1927, p. 253). However, nesting was suspected at various locations along the west coast of mainland Mexico, possibly as far south as the state of Oaxaca (see Molina and Erwin 2006, pp. 273-274; see also the “Range and Distribution” section, above). Although nesting has been confirmed in modern times at certain nesting locations in western mainland Mexico—thereby validating the suspicions of historical observers at some, but not all, potential nesting locations—the historical breeding range of van Rossem's gull-billed tern everywhere except the Salton Sea is
With the exception of the Salton Sea nesting location (which was known historically, but could not have existed before the Salton Sea's creation in its modern form in 1907), the confirmation of all other van Rossem's gull-billed tern nesting locations occurred in modern times (1987 and later). Available information on modern nesting locations is summarized in Table 1, with additional discussion in the “Range and Distribution” section, above. As noted in that section, the current southernmost
Although we acknowledge that there is ambiguity in the historical and modern breeding ranges, the ambiguities are from essentially the same geographical area, the southern Pacific coast of Mexico (and possibly the Pacific coast of Central America). The ambiguity in the modern breeding range is essentially a perpetuation of the ambiguity in the historical breeding range. Thus, the best available information indicates that the current breeding range of van Rossem's gull-billed tern—with the modern colonizations of San Diego Bay and Laguna Ojo de Liebre—is larger than the subspecies' historical breeding range. Thus, we conclude that no portions of the subspecies' breeding range have been lost.
Little information is available on the historical winter range of van Rossem's gull-billed tern. Even today, the current winter range is not well defined. The lack of historical and modern information, especially for the southern portion of the subspecies' range, results in historical and current winter ranges that are ambiguous (see the “Range and Distribution” section for details), much in the way the breeding ranges are ambiguous. After reviewing the available information, the historical and current winter ranges of van Rossem's gull-billed tern can be characterized as follows: Coastal western Mexico and possibly western Central America. We are not aware of any differences between the subspecies' current winter range compared to its historical winter range. Thus, we conclude that no portions of the subspecies' winter range have been lost.
Information on the areas over which van Rossem's gull-billed terns migrate is also limited. That area has likely had a corresponding increase associated with the modern colonization of nesting sites along the Pacific coast of the Baja California Peninsula, Mexico, and extreme southwestern United States. Thus, we conclude that no portions of the subspecies' range used for migration have been lost. Therefore, there is no lost historical range of van Rossem's gull-billed tern that could constitute a significant portion of the range of the subspecies.
The Act defines “endangered species” as any species which is “in danger of extinction throughout all or a significant portion of its range,” and “threatened species” as any species which is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The definition of “species” is also relevant to this discussion. The Act defines “species” as follows: “The term `species' includes any subspecies of fish or wildlife or plants, and any distinct population segment [DPS] of any species of vertebrate fish or wildlife which interbreeds when mature.” The phrase “significant portion of its range” (SPR) is not defined by the statute, and we have never addressed in our regulations: (1) The consequences of a determination that a species is either endangered or likely to become so throughout a significant portion of its range, but not throughout all of its range; or (2) what qualifies a portion of a range as “significant.”
Two recent district court decisions have addressed whether the SPR language allows the Service to list or protect less than all members of a defined “species”:
Consistent with that interpretation, and for the purposes of this finding, we interpret the phrase “significant portion of its range” in the Act's definitions of “endangered species” and “threatened species” to provide an independent basis for listing; thus there are two situations (or factual bases) under which a species would qualify for listing: A species may be endangered or threatened throughout all of its range; or a species may be endangered or threatened in only a significant portion of its range. If a species is in danger of extinction throughout an SPR, it, the species, is an “endangered species.” The same analysis applies to “threatened species.” Based on this interpretation and supported by existing case law, the consequence of finding that a species is endangered or threatened in only a significant portion of its range is that the entire species shall be listed as endangered or threatened, respectively, and the Act's protections shall be applied across the species' entire range.
We conclude, for the purposes of this finding, that interpreting the SPR phrase as providing an independent basis for listing is the best interpretation of the Act because it is consistent with the purposes and the plain meaning of the key definitions of the Act; it does not conflict with established past agency practice (
Although there are potentially many ways to determine whether a portion of a species' range is “significant,” we conclude, for the purposes of this finding, that the significance of the portion of the range should be determined based on its biological contribution to the conservation of the species. For this reason, we describe the threshold for “significant” in terms of an increase in the risk of extinction for the species. We conclude that a biologically based definition of “significant” best conforms to the purposes of the Act, is consistent with judicial interpretations, and best ensures species' conservation. Thus, for the purposes of this finding, and as explained further below, a portion of the range of a species is “significant” if its contribution to the viability of the species is so important that without that portion, the species would be in danger of extinction.
We evaluate biological significance based on the principles of conservation biology using the concepts of redundancy, resiliency, and representation.
For the purposes of this finding, we determine if a portion's biological contribution is so important that the portion qualifies as “significant” by asking whether
We recognize that this definition of “significant” (a portion of the range of a species is “significant” if its contribution to the viability of the species is so important that without that portion, the species would be in danger of extinction) establishes a threshold that is relatively high. On the one hand, given that the consequences of finding a species to be endangered or threatened in an SPR would be listing the species throughout its entire range, it is important to use a threshold for “significant” that is robust. It would not be meaningful or appropriate to establish a very low threshold whereby a portion of the range can be considered “significant” even if only a negligible increase in extinction risk would result from its loss. Because nearly any portion of a species' range can be said to contribute some increment to a species' viability, use of such a low threshold would require us to impose restrictions and expend conservation resources disproportionately to conservation benefit: listing would be rangewide, even if only a portion of the range of minor conservation importance to the species is imperiled. On the other hand, it would be inappropriate to establish a threshold for “significant” that is too high. This would be the case if the standard were, for example, that a portion of the range can be considered “significant” only if threats in that portion result in the entire species' being currently endangered or threatened. Such a high bar would not give the SPR phrase independent meaning, as the Ninth Circuit held in
The definition of “significant” used in this finding carefully balances these concerns. By setting a relatively high threshold, we minimize the degree to which restrictions will be imposed or resources expended that do not contribute substantially to species conservation. But we have not set the threshold so high that the phrase “in a significant portion of its range” loses independent meaning. Specifically, we have not set the threshold as high as it was under the interpretation presented by the Service in the
The range of a species can theoretically be divided into portions in an infinite number of ways. However, there is no purpose to analyzing portions of the range that have no reasonable potential to be significant or to analyzing portions of the range in which there is no reasonable potential for the species to be endangered or threatened. To identify only those portions that warrant further consideration, we determine whether there is substantial information indicating that: (1) The portions may be “significant,”
After reviewing the potential threats throughout the range of van Rossem's gull-billed tern, we determine that there may be two portions of the tern's breeding range that could be considered to have concentrated threats for the subspecies there. Below, we outline the elevated threats found at two nesting locations, the Salton Sea in California and the islands in the impoundments associated with Campo Geotérmico Cerro Prieto (Cerro Prieto geothermal generation facility) in northeast Baja California (Table 1, Figure 1). We then assess whether these portions of the subspecies' breeding range may meet the biologically based definition of “significant,” that is, whether the contributions of these portions of the gull-billed tern's range to the viability of the subspecies is so important that without those portions, the species would be in danger of extinction.
The decreasing water levels at the nesting location at Salton Sea and changing water storage practices at the nesting location at Cerro Prieto have the potential to be considered as concentrations of threats at each of these nesting locations (see Summary of Information Pertaining to the Five Factors). The observed and anticipated reduction in water levels at these locations may lead to an increase in nest predation (
In general, for taxa that are sessile (anchored) or of limited mobility, loss of habitat would typically translate into some concurrent loss of individuals, which in turn would translate into some concomitant effect on the overall population. However, individual adult van Rossem's gull-billed terns are highly mobile; they can and do move, both in terms of their seasonal migratory movements and in terms of their ability to move between nesting locations from year to year and within years. For example, if van Rossem's gull-billed terns returning from their wintering areas found that a particular nesting location no longer provided nesting habitat, the available information suggests that the birds can and would move to a different nesting location. Thus, habitat loss at either of these nesting locations would not necessarily result in a direct reduction in the subspecies' overall population. However, we expect that moving to a different nesting location would not be without consequences. Instead, we expect that the relocated birds would concentrate in other existing nesting locations (in potentially lower quality nest sites within existing nesting locations) or that they would occupy new, potentially less-suitable (lower quality) nesting locations. Consequently, the effects of the loss of nesting habitat would likely result in reduced reproductive output by the subspecies.
Because the van Rossem's gull-billed tern faces elevated threats at the Salton Sea and Cerro Prieto nesting locations, we next assess whether these portions of the subspecies' breeding range may meet the biologically based definition of “significant.” For both areas, we evaluate whether the portion's biological contribution is so important that the portion qualifies as “significant” by asking whether
Although each nesting location has features that make it unique, we have no evidence, whether based on the locations' geography or the subspecies' biology, that suggests these nesting locations are markedly different from any other nesting location. For example, the nesting habitat is essentially the same at all nesting locations. As with nesting habitat, the subspecies' foraging habitat is similar throughout its range, whether during the breeding season, winter, or migration. Although coastal nesting locations are more common than the inland nesting locations that Salton Sea and Cerro Prieto represent, van Rossem's gull-billed terns essentially nest in the same types of areas inland as they do in coastal nesting locations. Gull-billed terns (subspecies unknown) have also been observed nesting at other inland locations in Mexico (Gómez de Silva 2005, p. 501; Molina and Erwin 2006, p. 274) (see the “Range and Distribution” section, above).
As mobile birds, individual van Rossem's gull-billed terns are not tied to any particular nesting location, and often move between nesting locations. Van Rossem's gull-billed terns that nest at either the Salton Sea or Cerro Prieto are not permanent occupants of either location. Van Rossem's gull-billed terns leave each of these areas to winter farther south. As stated under “Biology” in the
Elimination of the Salton Sea and Cerro Prieto nesting locations would not result in the elimination of the individual van Rossem's gull-billed terns that would have otherwise nested at those locations. The loss of both or either of the Salton Sea or Cerro Prieto portions of the subspecies' range would not directly result in a reduction in the subspecies' overall population, but there may be a temporary reduction in the local populations' reproductive output compared to what it would have been. This potential reduction of reproductive output is not expected to reduce the subspecies' range of variation or adaptive capabilities to such a level that they would be in danger of extinction. Without these two nesting locations, we expect that the resiliency of van Rossem's gull-billed tern would not be appreciably impacted; the subspecies would continue to be able to recover from periodic disturbance and
In summary, although there are elevated threats related to potential changes in water level at Cerro Prieto and Salton Sea, these portions of the van Rossem's gull-billed tern's range are not significant portions of its range. Even if these nesting colonies were abandoned at some time in the future, it is likely that van Rossem's gull-billed terns would move and nest elsewhere, as they are not tied to any particular nesting location. As noted above, there is little that biologically distinguishes either Cerro Prieto or the Salton Sea from other nesting locations for van Rossem's gull-billed tern. They each happen to be inland, which undoubtedly contributes to the shared threat of changes in water levels, but the nesting and foraging areas at each of these sites do not differ notably from those in the subspecies' entire range. Existing and potential nesting locations are distributed along a 2,250-km (1,400-mi) stretch of the subspecies' breeding range from southern California to Guerrero, Mexico. Neither Cerro Prieto nor the Salton Sea, nor even the two nesting locations combined, is a “significant” portion of the species' range because their contribution to the viability of the subspecies is not so important that the subspecies would be in danger of extinction without those portions.
We find that van Rossem's gull-billed tern is not in danger of extinction now, nor is it likely to become endangered within the foreseeable future throughout all or a significant portion of its range. Therefore, listing van Rossem's gull-billed tern as endangered or threatened under the Act is not warranted at this time.
We request that you submit any new information concerning the status of, or threats to, van Rossem's gull-billed tern to our Carlsbad Fish and Wildlife Office (see
A complete list of references cited is available on the Internet at
The primary authors of this notice are staff members of the Carlsbad Fish and Wildlife Office.
The authority for this section is section 4 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Final rule.
The Fish and Wildlife Service (Service or we) prescribes final late-season frameworks from which States may select season dates, limits, and other options for the 2011-12 migratory bird hunting seasons. These late seasons include most waterfowl seasons, the earliest of which commences on September 24, 2011. The effect of this final rule is to facilitate the States' selection of hunting seasons and to further the annual establishment of the late-season migratory bird hunting regulations.
This rule takes effect on September 21, 2011.
States should send their season selections to: Chief, Division of Migratory Bird Management, U.S. Fish and Wildlife Service, ms MBSP-4107-ARLSQ, 1849 C Street, NW., Washington, DC 20240. You may inspect comments received on the migratory bird hunting regulations during normal business hours at the Service's office in room 4107, Arlington Square Building, 4501 N. Fairfax Drive, Arlington, VA. You may obtain copies of referenced reports from the street address above, or from the Division of Migratory Bird Management's Web site at
Ron W. Kokel, U.S. Fish and Wildlife Service, Department of the Interior, MS MBSP-4107-ARLSQ, 1849 C Street, NW., Washington, DC 20240; (703) 358-1714.
On April 8, 2011, we published in the
On June 22, 2011, we published in the
On June 22 and 23, 2011, we held open meetings with the Flyway Council Consultants at which the participants reviewed information on the current status of migratory shore and upland game birds and developed recommendations for the 2011-12 regulations for these species plus regulations for migratory game birds in Alaska, Puerto Rico, and the Virgin Islands; special September waterfowl seasons in designated States; special sea duck seasons in the Atlantic Flyway; and extended falconry seasons. In addition, we reviewed and discussed preliminary information on the status of waterfowl as it relates to the development and selection of the regulatory packages for the 2011-12 regular waterfowl seasons. On July 26, 2011, we published in the
On July 27-28, 2011, we held open meetings with the Flyway Council Consultants at which the participants reviewed the status of waterfowl and developed recommendations for the 2011-12 regulations for these species. Proposed hunting regulations were discussed for late seasons. On August 26, 2011, we published in the
The following paragraphs provide preliminary information on the status of waterfowl and information on the status and harvest of migratory shore and upland game birds excerpted from various reports. For more detailed information on methodologies and results, you may obtain complete copies of the various reports at the address indicated under
The preliminary proposed rulemaking, which appeared in the April 8, 2011,
We received recommendations from all four Flyway Councils. Some recommendations supported continuation of last year's frameworks. Due to the comprehensive nature of the annual review of the frameworks performed by the Councils, support for continuation of last year's frameworks is assumed for items for which no recommendations were received. Council recommendations for changes in the frameworks are summarized below. Wherever possible, they are discussed under headings corresponding to the numbered items in the April 8 and June 22, 2011,
Categories used to discuss issues related to duck harvest management are: (A) Harvest Strategy Considerations, (B) Regulatory Alternatives, (C) Zones and Split Seasons, and (D) Special Seasons/Species Management. The categories correspond to previously published issues/discussion, and only those containing substantial recommendations are discussed below.
For the 2011 hunting season, we are continuing to consider the same regulatory alternatives as those used last year. The nature of the “restrictive,” “moderate,” and “liberal” alternatives has remained essentially unchanged since 1997, except that extended framework dates have been offered in the “moderate” and “liberal” regulatory alternatives since 2002. Also, in 2003, we agreed to place a constraint on closed seasons in the Mississippi and Central Flyways whenever the midcontinent mallard breeding-population size (as defined prior to 2008; traditional survey area plus Minnesota, Michigan, and Wisconsin) was ≥ 5.5 million.
Optimal AHM strategies for the 2011-12 hunting season were calculated using: (1) Harvest-management objectives specific to each mallard stock; (2) the 2011 regulatory alternatives; and (3) current population models and associated weights for midcontinent, western, and eastern mallards. Based on this year's survey results of 9.46 million midcontinent mallards (traditional survey area minus Alaska plus Minnesota, Wisconsin, and Michigan), 4.89 million ponds in Prairie Canada, 798,413 western mallards (382,588 and 415,825 respectively in California-Oregon and Alaska) and 746,000 eastern mallards (strata 51-54, 56 and the northeastern United States), the prescribed regulatory choice for all four Flyways is the “liberal” alternative.
Therefore, we concur with the recommendations of the Atlantic, Mississippi, Central, and Pacific Flyway Councils regarding selection of the “liberal” regulatory alternative and will adopt the “liberal” regulatory alternative, as described in the June 22, 2011,
In 2008, U.S. and Canadian waterfowl managers developed an interim harvest strategy that will be employed by both countries until a formal strategy based on the principles of AHM is completed. We detailed this interim strategy in the July 24, 2008,
Each year in November, Canada publishes its proposed migratory bird hunting regulations for the upcoming hunting season. Thus, last fall the Canadian Wildlife Service (CWS) used the interim strategy to establish its proposed black duck regulations for the 2011-12 season, based on the most current data available at that time: breeding population estimates for 2008, 2009, and 2010, and an assessment of parity based on harvest estimates for the 2005-09 hunting seasons. Although updates of both breeding population estimates and harvest estimates are now available, the United States will base its 2011-12 black duck regulations on the same data CWS used, to ensure comparable application of the strategy. The long-term (1998-2007) breeding population mean estimate is 929,100, and the 2008-10, 3-year running mean estimate is 858,300. From 2005-09, 45 percent of the black duck harvest occurred in Canada and 55 percent in the United States; this falls within the accepted parity bounds of 40 and 60 percent. Based on these estimates, no restriction or liberalization of black duck harvest is warranted.
This year's spring survey resulted in an estimate of 692,000 canvasbacks. This was statistically similar to the 2010 estimate of 585,000 canvasbacks and 21 percent above the 1955-2010 average. The estimate of ponds in Prairie Canada was 4.9 million, which was 31 percent above last year and 43 percent above the long-term average. Based on updated harvest predictions using data from recent hunting seasons, the canvasback harvest strategy predicts a 2012 canvasback population of 756,000 birds under a liberal duck season with a 1-bird daily bag limit and 697,000 with a 2-bird daily bag limit. Because the predicted 2012 population under the 1-bird daily bag limit is greater than 500,000, while the prediction under the 2-bird daily bag limit is less than 725,000, the canvasback harvest strategy stipulates a full canvasback season with a 1-bird daily bag limit for the upcoming season.
The 2011 breeding population estimate for scaup is 4.32 million, up 2 percent from, but statistically similar to, the 2010 estimate of 4.24 million. Total estimated scaup harvest for the 2010-11 season was 358,000 birds. Based on updated model parameter estimates, the optimal regulatory choice for scaup is the “moderate” package in all four Flyways.
The Pacific Flyway Council recommended several changes to dark goose season frameworks. More specifically, they recommended:
1. Within the basic dark goose bag limit for California, Oregon, and Washington: Remove the dark goose bag limit exception for Oregon of not more than one cackling Canada or Aleutian Canada geese per day.
2. Within the Northwest Special Permit Zone for Oregon: Increase the dark goose bag limit exception of not more than 2 cackling Canada or Aleutian Canada geese per day to not more than 3 cackling Canada or Aleutian Canada geese per day.
3. Within the Tillamook County Management Area of the Northwest Special Permit Zone for Oregon: Increase the dark goose bag limit from not more than 3 per day, including not more than 2 cackling Canada or Aleutian Canada geese, to not more than 4 per day, provided this total include not more than 3 cackling Canada or Aleutian Canada geese.
4. Within the Northwest Zone for Oregon: Restrict the bag limit for cackling Canada and Aleutian Canada geese to not more than 3 cackling Canada or Aleutian Canada geese per day within the overall daily dark goose bag limit of not more than 4 per day.
5. Within the South Coast Zone for Oregon: Remove the dark goose bag limit exception, within the basic dark goose bag limit, of up to 4 cackling Canada and Aleutian Canada geese per day.
6. Within the Southwest Zone for Oregon: Remove the dark goose bag limit exception, within the basic dark goose bag limit, of up to 4 cackling Canada and Aleutian Canada geese per day.
7. In Washington's Areas 2A and 2B (Southwest Quota Zone): Increase the daily bag limit from 2 to 3 cackling geese.
8. In California's Northeastern Zone: Remove the restrictions on small Canada geese (Aleutian and cackling geese).
9. Increase the daily bag limit for Canada geese in the Pacific Flyway portion of Colorado from 3 birds to 4 birds, and possession limit from 6 to 8 birds.
10. In Idaho, consolidate the current goose zones to correspond with duck hunting zones.
We support all of the Pacific Flyway goose recommendations. Originally, Oregon's Tillamook County Management Area was established to provide protection for Aleutian Canada geese originating from Semidi Island, Alaska. Modification of the closure area, as proposed by the Council, will reduce the closure area by approximately 22 percent. However, the Council notes that the original closure area included non-goose use areas and the refuge recommended reducing the closure area as the Semidi Island birds do not use the entire closure area. Most of the proposed newly open area constitutes agricultural lands, primarily dairy pastures and hay fields, and opening these lands to goose hunting is expected to help relieve depredations caused by wintering geese. While we expect goose harvest in the Management Area to increase due to this proposed change, harvest will continue to be monitored by check station and goose distribution and collar surveys, focused on Semidi birds.
The recommendations for removal of small Canada goose restrictions in eastern Oregon and for 1-bird daily bag limit increases to address agricultural damage issues in Oregon and Washington are not expected to increase harvest of these populations substantially. We believe these populations are at levels that can sustain these minor increases in harvest without jeopardy to their long-term sustainability. However, we note that long-term solutions to agricultural depredation issues will not be completely addressed through harvest regulations and encourage the States of the Pacific Flyway to continue to work to implement the other approaches detailed in the Flyway's Canada goose depredation plan.
The removal of within bag limit restrictions on small Canada geese (Aleutian and cackling Canada geese) in California's Northeastern Zone is intended to simplify goose hunting regulations, and we expect little or no increase in harvest. Few, if any, Aleutian geese occur in that portion of California and despite restrictive daily bag limits, the abundance of cackling geese in the Klamath Basin has declined from the tens of thousands in the late 1990s to essentially zero in recent years as cackling goose distribution has shifted northward. However, since that time, the Aleutian Canada goose population has grown from less than 1,000 birds in 1976 to over 110,000 in 2011.
Regarding the proposed increase in the daily bag limit in Colorado from 3 to 4 Canada geese, we note that removal of this more restrictive bag limit makes it consistent with most of the remainder of the flyway. Further, population measurement data support an increase in the bag limit as counts from both the spring breeding survey and post-hunting indices have increased over the last 3 years.
In Idaho, the recommendation to consolidate the current goose zones to correspond with duck hunting zones is intended to reduce regulatory complexity in State and Federal regulations. We have no issue with this recommendation.
The Pacific Flyway Council recommended extending the latest closing date for white-fronted geese in California's Sacramento Valley Special Management Zone to December 28 and in California's Balance of State Zone to March 10.
We also support the Pacific Flyway Council's recommendations to extend the framework closing dates in California's Balance of State Zone and the Sacramento Valley Special Management Area (SMA). In the Balance of State Zone, expanding the framework closing date to March 10 is intended to allow additional hunting opportunity and potentially reduce goose crop depredation complaints. The Council notes that the white-fronted goose population is currently about 700,000 birds and above the population goal of 300,000 birds. In the SMA, extending the closing date to December 28 is expected to increase the harvest of Pacific white-fronted geese while still protecting the less numerous Tule subspecies. Tule greater white-fronted geese currently number approximately 14,578 based on preliminary indirect population estimates. However, over-lapping this relatively small number of Tule geese are burgeoning populations of Pacific greater white-fronted geese within the SMA. The Council estimates that the harvest of Tule geese are low, as determined by measurements of hunter-harvested white-fronted geese at public hunting areas within the SMA; and the range of hunter-harvested adult Tule geese at the public hunt areas in the SMA since 1999 has ranged from a low of 13 (2005-06) to a high of 86 (2000-01). We agree with the Council's assessment.
NEPA considerations are covered by the programmatic document “Final Supplemental Environmental Impact Statement: Issuance of Annual Regulations Permitting the Sport Hunting of Migratory Birds (FSES 88-14),” filed with the Environmental Protection Agency on June 9, 1988. We published a notice of availability in the
In a notice published in the September 8, 2005,
Section 7 of the Endangered Species Act, as amended (16 U.S.C. 1531-1543; 87 Stat. 884), provides that, “The Secretary shall review other programs administered by him and utilize such programs in furtherance of the purposes of this Act” (and) shall “insure that any action authorized, funded, or carried out * * * is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat. * * *.” Consequently, we conducted formal consultations to ensure that actions resulting from these regulations would not likely jeopardize the continued existence of endangered or threatened species or result in the destruction or adverse modification of their critical habitat. Findings from these consultations are included in a biological opinion, which concluded that the regulations are not likely to jeopardize the continued existence of any endangered or threatened species. Additionally, these findings may have caused modification of some regulatory measures previously proposed, and the final frameworks reflect any such modifications. Our biological opinions resulting from this section 7 consultation are public documents available for public inspection at the address indicated under
The Office of Management and Budget has determined that this rule is significant and has reviewed this rule under Executive Order 12866. OMB bases its determination of regulatory significance upon the following four criteria:
(a) Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government.
(b) Whether the rule will create inconsistencies with other Federal agencies' actions.
(c) Whether the rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients.
(d) Whether the rule raises novel legal or policy issues.
An economic analysis was prepared for the 2008-09 season. This analysis was based on data from the 2006 National Hunting and Fishing Survey, the most recent year for which data are available (see discussion in Regulatory Flexibility Act section below). This analysis estimated consumer surplus for three alternatives for duck hunting (estimates for other species are not quantified due to lack of data). The alternatives are (1) Issue restrictive regulations allowing fewer days than those issued during the 2007-08 season, (2) Issue moderate regulations allowing more days than those in alternative 1, and (3) Issue liberal regulations identical to the regulations in the 2007-08 season. For the 2008-09 season, we chose alternative 3, with an estimated consumer surplus across all flyways of $205-$270 million. We also chose alternative 3 for the 2009-10 and the 2010-11 seasons. In the April 8 proposed rule, we proposed no changes to the season frameworks for the 2011-12 season, and as such, we again considered these three alternatives. Population status information discussed in the August 26 proposed rule supported selection of alternative 3 for the 2011-12 season. For these reasons, we have not conducted a new economic analysis, but the 2008-09 analysis is part of the record for this rule and is available at
The annual migratory bird hunting regulations have a significant economic impact on substantial numbers of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule is a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. For the reasons outlined above, this rule would have an annual effect on the economy of $100 million or more. However, because this rule would establish hunting seasons, we do not plan to defer the effective date under the exemption contained in 5 U.S.C. 808(1).
We examined these regulations under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
OMB has also approved the information collection requirements of the Alaska Subsistence Household Survey, an associated voluntary annual household survey used to determine levels of subsistence take in Alaska, and assigned control number 1018-0124 (expires 4/30/2013).
A Federal agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
We have determined and certify, in compliance with the requirements of the Unfunded Mandates Reform Act, 2 U.S.C. 1502
The Department, in promulgating this rule, has determined that this rule will not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of Executive Order 12988.
In accordance with Executive Order 12630, this rule, authorized by the Migratory Bird Treaty Act, does not have significant takings implications and does not affect any constitutionally protected property rights. This rule would not result in the physical occupancy of property, the physical invasion of property, or the regulatory taking of any property. In fact, these rules would allow hunters to exercise otherwise unavailable privileges and, therefore, reduce restrictions on the use of private and public property.
Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. While this rule is a significant regulatory action under Executive Order 12866, it is not expected to adversely affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.
In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and 512 DM 2, we have evaluated possible effects on Federally-recognized Indian tribes and have determined that there are no effects on Indian trust resources. However, in the April 8
Due to the migratory nature of certain species of birds, the Federal Government has been given responsibility over these species by the Migratory Bird Treaty Act. We annually prescribe frameworks from which the States make selections regarding the hunting of migratory birds, and we employ guidelines to establish special regulations on Federal Indian reservations and ceded lands. This process preserves the ability of the States and tribes to determine which seasons meet their individual needs. Any State or Indian tribe may be more restrictive than the Federal frameworks at any time. The frameworks are developed in a cooperative process with the States and the Flyway Councils. This process allows States to participate in the development of frameworks from which they will make selections, thereby having an influence on their own regulations. These rules do not have a substantial direct effect on fiscal capacity, change the roles or responsibilities of Federal or State governments, or intrude on State policy or administration. Therefore, in accordance with Executive Order 13132, these regulations do not have significant federalism effects and do not have sufficient federalism implications to warrant the preparation of a Federalism summary impact statement.
The rulemaking process for migratory game bird hunting must, by its nature, operate under severe time constraints. However, we intend that the public be given the greatest possible opportunity to comment. Thus, when the preliminary proposed rulemaking was published, we established what we believed were the longest periods possible for public comment. In doing this, we recognized that when the comment period closed, time would be of the essence. That is, if there were a delay in the effective date of these regulations after this final rulemaking, States would have insufficient time to select season dates and limits; to communicate those selections to us; and to establish and publicize the necessary regulations and procedures to implement their decisions. We therefore find that “good cause” exists, within the terms of 5 U.S.C. 553(d)(3) of the Administrative Procedure Act, and these frameworks will, therefore, take effect immediately upon publication.
Therefore, under authority of the Migratory Bird Treaty Act (July 3, 1918), as amended (16 U.S.C. 703-711), we prescribe final frameworks setting forth the species to be hunted, the daily bag and possession limits, the shooting hours, the season lengths, the earliest opening and latest closing season dates, and hunting areas, from which State conservation agency officials will select hunting season dates and other options. Upon receipt of season selections from these officials, we will publish a final
Exports, Hunting, Imports, Reporting and recordkeeping requirements, Transportation, Wildlife.
The rules that eventually will be promulgated for the 2011-12 hunting season are authorized under 16 U.S.C. 703-712 and 16 U.S.C. 742 a-j.
Pursuant to the Migratory Bird Treaty Act and delegated authorities, the Department has approved the following frameworks for season lengths, shooting hours, bag and possession limits, and outside dates within which States may select seasons for hunting waterfowl and coots between the dates of September 1, 2011, and March 10, 2012. These frameworks are summarized below.
These Federally authorized, State-issued permits are issued to individuals, and only the individual whose name and address appears on the permit at the time of issuance is authorized to take migratory birds at levels specified in the permit, in accordance with provisions of both Federal and State regulations governing the hunting season. The permit must be carried by the permittee when exercising its provisions and must be presented to any law enforcement officer upon request. The permit is not transferrable or assignable to another individual, and may not be sold, bartered, traded, or otherwise provided to another person. If the permit is altered or defaced in any way, the permit becomes invalid.
Atlantic Flyway—includes Connecticut, Delaware, Florida, Georgia, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, North Carolina, Pennsylvania, Rhode Island, South Carolina, Vermont, Virginia, and West Virginia.
Mississippi Flyway—includes Alabama, Arkansas, Illinois, Indiana, Iowa, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Ohio, Tennessee, and Wisconsin.
Central Flyway—includes Colorado (east of the Continental Divide), Kansas, Montana (Counties of Blaine, Carbon, Fergus, Judith Basin, Stillwater, Sweetgrass, Wheatland, and all counties east thereof), Nebraska, New Mexico (east of the Continental Divide except the Jicarilla Apache Indian Reservation), North Dakota, Oklahoma, South Dakota, Texas, and Wyoming (east of the Continental Divide).
Pacific Flyway—includes Alaska, Arizona, California, Idaho, Nevada, Oregon, Utah, Washington, and those portions of Colorado, Montana, New Mexico, and Wyoming not included in the Central Flyway.
High Plains Mallard Management Unit—roughly defined as that portion of the Central Flyway that lies west of the 100th meridian.
For the purpose of hunting regulations listed below, the collective terms “dark” and “light” geese include the following species:
In the Atlantic Flyway States of Connecticut, Delaware, Maine, Maryland, Massachusetts, New Jersey, North Carolina, Pennsylvania, and Virginia, where Sunday hunting is prohibited statewide by State law, all Sundays are closed to all take of migratory waterfowl (including mergansers and coots).
RP Zone: An 80-day season may be held between November 15 and March 10, with a 5-bird daily bag limit. The season may be split into 3 segments.
AP Zone: A 45-day season may be held between November 15 and January 31, with a 2-bird daily bag limit.
NAP Zone: A 60-day season may be held between October 1 and January 31, with a 2-bird daily bag limit. Additionally, a special season may be held from January 15 to February 15, with a 5-bird daily bag limit.
AP Zone: A 45-day season may be held between October 20 and January 31, with a 3-bird daily bag limit.
Statewide: A 45-day season may be held between the fourth Saturday in October (October 22) and January 31, with a 3-bird daily bag limit.
Special Late Goose Season Area: A special season may be held in designated areas of North and South New Jersey from January 15 to February 15, with a 5-bird daily bag limit.
NAP Zone: Between October 1 and January 31, a 60-day season may be held, with a 2-bird daily bag limit in the High Harvest areas; and between October 1 and February 15, a 70-day season may be held, with a 3-bird daily bag limit in the Low Harvest areas.
Special Late Goose Season Area: A special season may be held between January 15 and February 15, with a 5-bird daily bag limit in designated areas of Suffolk County.
AP Zone: A 45-day season may be held between the fourth Saturday in October (October 22), except in the Lake Champlain Area where the opening date is October 20, and January 31, with a 3-bird daily bag limit.
Western Long Island RP Zone: A 107-day season may be held between the Saturday nearest September 24 (September 24) and March 10, with an 8-bird daily bag limit. The season may be split into 3 segments.
Rest of State RP Zone: An 80-day season may be held between the fourth Saturday in October (October 22) and March 10, with a 5-bird daily bag limit. The season may be split into 3 segments.
SJBP Zone: A 70-day season may be held between October 1 and December 31, with a 5-bird daily bag limit.
RP Zone: An 80-day season may be held between October 1 and March 10, with a 5-bird daily bag limit. The season may be split into 3 segments.
Northeast Hunt Unit: A 7-day season may be held between the Saturday prior to December 25 (December 24) and January 31, with a 1-bird daily bag limit.
SJBP Zone: A 70-day season may be held between the second Saturday in October (October 8) and February 15, with a 3-bird daily bag limit.
RP Zone: An 80-day season may be held between the fourth Saturday in October (October 22) and March 10, with a 5-bird daily bag limit. The season may be split into 3 segments.
AP Zone: A 45-day season may be held between the fourth Saturday in October (October 22) and January 31, with a 3-bird daily bag limit.
SJBP Zone: A 40-day season may be held between November 15 and January 14, with a 3-bird daily bag limit. Additionally, a special late season may be held between January 15 and February 15, with a 5-bird daily bag limit.
AP Zone: A 45-day season may be held between November 15 and January 31, with a 2-bird daily bag limit.
RP Zone: An 80-day season may be held between November 15 and March
In Alabama, Indiana, Iowa, Kentucky, Louisiana, Michigan, Minnesota, Ohio, Tennessee, and Wisconsin, the season may be split into two segments in each zone.
In Arkansas and Mississippi, the season may be split into three segments.
Split Seasons: Seasons for geese may be split into three segments.
Season Lengths, Outside Dates, and Limits: States may select seasons for light geese not to exceed 107 days, with 20 geese daily between the Saturday nearest September 24 (September 24) and March 10; for white-fronted geese not to exceed 74 days with 2 geese daily or 88 days with 1 goose daily between the Saturday nearest September 24 (September 24) and the Sunday nearest February 15 (February 12); and for brant not to exceed 70 days, with 2 brant daily or 107 days with 1 brant daily between the Saturday nearest September 24 (September 24) and January 31. There is no possession limit for light geese. Specific regulations for Canada geese and exceptions to the above general provisions are shown below by State. Except as noted below, the outside dates for Canada geese are the Saturday nearest September 24 (September 24) and January 31.
(a) A special Canada goose season of up to 15 days may be held during February 1-15 in the Late Canada Goose Season Zone. During this special season the daily bag limit cannot exceed 5 Canada geese.
(b) An experimental special Canada goose season of up to 15 days may be held during February 1-15 in the Experimental Late Canada Goose Zone. During this special season the daily bag limit cannot exceed 5 Canada geese.
(a) Western Zone—The season for Canada geese may extend for 70 days (85 days in Fulton County). The season in Fulton County may extend to February 15. The daily bag limit is 2 Canada geese.
(b) Pennyroyal/Coalfield Zone—The season may extend for 70 days. The daily bag limit is 2 Canada geese.
(c) Remainder of the State—The season may extend for 70 days. The daily bag limit is 2 Canada geese.
(a) North Zone—The framework opening date for all geese is September 16 and the season for Canada geese may extend for 45 days. The daily bag limit is 2 Canada geese.
(b) Middle Zone—The framework opening date for all geese is September 16 and the season for Canada geese may extend for 45 days. The daily bag limit is 2 Canada geese.
(c) South Zone—The framework opening date for all geese is September 16 and the season for Canada geese may extend for 45 days. The daily bag limit is 2 Canada geese.
(1) Allegan County and Muskegon Wastewater GMU—The framework opening date for all geese is September 16 and the season for Canada geese may extend for 45 days. The daily bag limit is 2 Canada geese.
(2) Saginaw County and Tuscola/Huron GMUs—The framework opening date for all geese is September 16 and the season for Canada geese may extend for 45 days through December 30 and an additional 30 days may be held between December 31 and February 7. The daily bag limit is 2 Canada geese.
(d) Southern Michigan Late Season Canada Goose Zone—A 30-day special Canada goose season may be held between December 31 and February 7. The daily bag limit may not exceed 5 Canada geese.
(a) Lake Erie Zone—The season may extend for 74 days. The daily bag limit is 2 Canada geese.
(b) North Zone—The season may extend for 74 days. The daily bag limit is 2 Canada geese.
(c) South Zone—The season may extend for 74 days. The daily bag limit is 2 Canada geese.
(a) Northwest Zone—The season for Canada geese may not exceed 72 days, and may extend to February 15. The daily bag limit is 2 Canada geese.
(b) Southwest Zone—The season for Canada geese may extend for 72 days. The daily bag limit is 2 Canada geese.
(c) Kentucky/Barkley Lakes Zone— The season for Canada geese may extend for 72 days. The daily bag limit is 2 Canada geese.
(d) Remainder of the State—The season for Canada geese may extend for 72 days. The daily bag limit is 2 Canada geese.
(a) Horicon Zone—The framework opening date for all geese is September 16. The season may not exceed 92 days. All Canada geese harvested must be tagged. The season limit will be 6 Canada geese per permittee.
(b) Exterior Zone—The framework opening date for all geese is September 16. The season may not exceed 85 days. The daily bag limit is 2 Canada geese.
Additional Limits: In addition to the harvest limits stated for the respective zones above, an additional 4,500 Canada geese may be taken in the Horicon Zone under special agricultural permits.
(1) High Plains Mallard Management Unit (roughly defined as that portion of the Central Flyway which lies west of the 100th meridian): 97 days. The last 23 days must run consecutively and may start no earlier than the Saturday nearest December 10 (December 10).
(2) Remainder of the Central Flyway: 74 days.
In Colorado, Kansas, Montana, Nebraska, New Mexico, North Dakota, Oklahoma, South Dakota, Texas, and Wyoming, the regular season may be split into two segments.
Split Seasons: Seasons for geese may be split into three segments. Three-way split seasons for Canada geese require Central Flyway Council and U.S. Fish and Wildlife Service approval, and a 3-year evaluation by each participating State.
Outside Dates: For dark geese, seasons may be selected between the outside dates of the Saturday nearest September 24 (September 24) and the Sunday nearest February 15 (February 12). For light geese, outside dates for seasons may be selected between the Saturday nearest September 24 (September 24) and March 10. In the Rainwater Basin Light Goose Area (East and West) of Nebraska, temporal and spatial restrictions that are consistent with the late-winter snow goose hunting strategy cooperatively developed by the Central Flyway Council and the Service are required.
Light Geese: States may select a light goose season not to exceed 107 days. The daily bag limit for light geese is 20 with no possession limit.
Dark Geese: In Kansas, Nebraska, North Dakota, Oklahoma, South Dakota, and the Eastern Goose Zone of Texas, States may select a season for Canada geese (or any other dark goose species except white-fronted geese) not to exceed 107 days with a daily bag limit of 3. Additionally, in the Eastern Goose Zone of Texas, an alternative season of 107 days with a daily bag limit of 1 Canada goose may be selected. For white-fronted geese, these States may select either a season of 74 days with a bag limit of 2 or an 88-day season with a bag limit of 1.
In Colorado, Montana, New Mexico and Wyoming, States may select seasons not to exceed 107 days. The daily bag limit for dark geese is 5 in the aggregate.
In the Western Goose Zone of Texas, the season may not exceed 95 days. The daily bag limit for Canada geese (or any other dark goose species except white-fronted geese) is 5. The daily bag limit for white-fronted geese is 1.
The season on coots and common moorhens may be between the outside dates for the season on ducks, but not to exceed 107 days.
Colorado, Montana, and New Mexico may split their seasons into three segments.
Colorado River Zone, California: Seasons and limits shall be the same as seasons and limits selected in the adjacent portion of Arizona (South Zone).
Dark geese: Except as subsequently noted, 100-day seasons may be selected, with outside dates between the Saturday nearest October 1 (October 1), and the last Sunday in January (January 29). The basic daily bag limit is 4 dark geese, except the dark goose bag limit does not include brant.
Light geese: Except as subsequently noted, 107-day seasons may be selected, with outside dates between the Saturday nearest October 1 (October 1), and March 10. The daily bag limit is 6 light geese.
Dark geese: Except as subsequently noted, 107-day seasons may be selected, with outside dates between the Saturday nearest September 24 (September 24), and the last Sunday in January (January 29). The basic daily bag limit is 4 dark geese.
Light geese: Except as subsequently noted, 107-day seasons may be selected, with outside dates between the Saturday nearest September 24 (September 24), and March 10. The basic daily bag limit is 10 light geese.
Split Seasons: Unless otherwise specified, seasons for geese may be split into up to 3 segments. Three-way split
Oregon may select a 16-day season, Washington a 16-day season, and California a 30-day season. Days must be consecutive. Washington and California may select hunting seasons by up to two zones. The daily bag limit is 2 brant and is in addition to dark goose limits. In Oregon and California, the brant season must end no later than December 15.
Northeastern Zone: The daily bag limit is 6 dark geese.
Balance-of-State Zone: A 107-day season may be selected with outside dates between the Saturday nearest October 1 (October 1) and March 10. Limits may not include more than 6 dark geese per day. In the Sacramento Valley Special Management Area, the season on white-fronted geese must end on or before December 28 and the daily bag limit shall contain no more than 2 white-fronted geese. In the North Coast Special Management Area, a 107-day season may be selected, with outside dates between the Saturday nearest October 1 (October 1) and March 10. Hunting days that occur after the last Sunday in January shall be concurrent with Oregon's South Coast Zone.
Zone 3: Hunting days that occur after the last Sunday in January shall be concurrent with Oregon's Malheur County Zone.
Harney and Lake County Zone: For Lake County only, the daily dark goose bag limit may not include more than 1 white-fronted goose.
Klamath County Zone: A 107-day season may be selected, with outside dates between the Saturday nearest October 1 (October 1), and March 10. A 3-way split season may be selected. For hunting days after the last Sunday in January, the daily bag limit may not include Canada geese.
Malheur County Zone: The daily bag limit of light geese is 10. Hunting days that occur after the last Sunday in January shall be concurrent with Idaho's Zone 2.
Northwest Zone: The daily bag limit may not include more than 3 cackling or Aleutian geese.
Northwest Special Permit Zone: Outside dates are between the Saturday nearest October 1 (October 1) and March 10. The daily bag limit may not include more than 3 cackling or Aleutian geese and daily bag limit of light geese is 4.
South Coast Zone: A 107-day season may be selected, with outside dates between the Saturday nearest October 1 (October 1) and March 10. Hunting days that occur after the last Sunday in January shall be concurrent with California's North Coast Special Management Area. A 3-way split season may be selected.
Area 1: Outside dates are between the Saturday nearest October 1 (October 1), and the last Sunday in January (January 29).
Areas 2A and 2B (Southwest Quota Zone): Except for designated areas, there will be no open season on Canada geese. See section on quota zones. In this area, the daily bag limit may include 3 cackling geese. In Southwest Quota Zone Area 2B (Pacific County), the daily bag limit may include 1 Aleutian goose.
Areas 4 and 5: A 107-day season may be selected for dark geese.
Seasons on geese must end upon attainment of individual quotas of dusky geese allotted to the designated areas of Oregon (90) and Washington (45). The September Canada goose season, the regular goose season, any special late dark goose season, and any extended falconry season, combined, must not exceed 107 days, and the established quota of dusky geese must not be exceeded. Hunting of geese in those designated areas will be only by hunters possessing a State-issued permit authorizing them to do so. In a Service-approved investigation, the State must obtain quantitative information on hunter compliance of those regulations aimed at reducing the take of dusky geese. If the monitoring program cannot be conducted, for any reason, the season must immediately close. In the designated areas of the Washington Southwest Quota Zone, a special late goose season may be held between the Saturday following the close of the general goose season and March 10. In the Northwest Special Permit Zone of Oregon, the framework closing date is March 10. Regular goose seasons may be split into 3 segments within the Oregon and Washington quota zones.
In portions of the Pacific Flyway (Montana, Nevada, and Utah), an open season for taking a limited number of swans may be selected. Permits will be issued by the State and will authorize each permittee to take no more than 1 swan per season with each permit. Nevada may issue up to 2 permits per hunter. Montana and Utah may only issue 1 permit per hunter. Each State's season may open no earlier than the Saturday nearest October 1 (October 1). These seasons are also subject to the following conditions:
In addition, the States of Utah and Nevada must implement a harvest-monitoring program to measure the species composition of the swan harvest. The harvest-monitoring program must require that all harvested swans or their species-determinant parts be examined by either State or Federal biologists for the purpose of species classification. The States should use appropriate measures to maximize hunter compliance in providing bagged swans for examination. Further, the States of Montana, Nevada, and Utah must achieve at least an 80-percent compliance rate, or subsequent permits will be reduced by 10 percent. All three
In portions of the Atlantic Flyway (North Carolina and Virginia) and the Central Flyway (North Dakota, South Dakota [east of the Missouri River], and that portion of Montana in the Central Flyway), an open season for taking a limited number of tundra swans may be selected. Permits will be issued by the States that authorize the take of no more than 1 tundra swan per permit. A second permit may be issued to hunters from unused permits remaining after the first drawing. The States must obtain harvest and hunter participation data. These seasons are also subject to the following conditions:
North Zone: That portion of the State north of I-95.
South Zone: Remainder of the State.
North Zone: That portion north of the line extending east along Maine State Highway 110 from the New Hampshire-Maine State line to the intersection of Maine State Highway 11 in Newfield; then north and east along Route 11 to the intersection of U.S. Route 202 in Auburn; then north and east on Route 202 to the intersection of Interstate Highway 95 in Augusta; then north and east along I-95 to Route 15 in Bangor; then east along Route 15 to Route 9; then east along Route 9 to Stony Brook in Baileyville; then east along Stony Brook to the United States border.
South Zone: Remainder of the State.
Western Zone: That portion of the State west of a line extending south from the Vermont State line on I-91 to MA 9, west on MA 9 to MA 10, south on MA 10 to U.S. 202, south on U.S. 202 to the Connecticut State line.
Central Zone: That portion of the State east of the Berkshire Zone and west of a line extending south from the New Hampshire State line on I-95 to U.S. 1, south on U.S. 1 to I-93, south on I-93 to MA 3, south on MA 3 to U.S. 6, west on U.S. 6 to MA 28, west on MA 28 to I-195, west to the Rhode Island State line; except the waters, and the lands 150 yards inland from the high-water mark, of the Assonet River upstream to the MA 24 bridge, and the Taunton River upstream to the Center St.-Elm St. bridge shall be in the Coastal Zone.
Coastal Zone: That portion of Massachusetts east and south of the Central Zone.
Coastal Zone: That portion of the State east of a line extending west from the Maine State line in Rollinsford on NH 4 to the city of Dover, south to NH 108, south along NH 108 through Madbury, Durham, and Newmarket to NH 85 in Newfields, south to NH 101 in Exeter, east to NH 51 (Exeter-Hampton Expressway), east to I-95 (New Hampshire Turnpike) in Hampton, and south along I-95 to the Massachusetts State line.
Inland Zone: That portion of the State north and west of the above boundary and along the Massachusetts State line crossing the Connecticut River to Interstate 91 and northward in Vermont to Route 2, east to 102, northward to the Canadian border.
Coastal Zone: That portion of the State seaward of a line beginning at the New York State line in Raritan Bay and extending west along the New York State line to NJ 440 at Perth Amboy; west on NJ 440 to the Garden State Parkway; south on the Garden State Parkway to the shoreline at Cape May and continuing to the Delaware State line in Delaware Bay.
North Zone: That portion of the State west of the Coastal Zone and north of a line extending west from the Garden State Parkway on NJ 70 to the New Jersey Turnpike, north on the turnpike to U.S. 206, north on U.S. 206 to U.S. 1 at Trenton, west on U.S. 1 to the Pennsylvania State line in the Delaware River.
South Zone: That portion of the State not within the North Zone or the Coastal Zone.
Lake Champlain Zone: That area east and north of a continuous line extending along U.S. 11 from the New York-Canada International boundary south to NY 9B, south along NY 9B to U.S. 9, south along U.S. 9 to NY 22 south of Keesville; south along NY 22 to the west shore of South Bay, along and around the shoreline of South Bay to NY 22 on the east shore of South Bay; southeast along NY 22 to U.S. 4, northeast along U.S. 4 to the Vermont State line.
Long Island Zone: That area consisting of Nassau County, Suffolk County, that area of Westchester County southeast of I-95, and their tidal waters.
Western Zone: That area west of a line extending from Lake Ontario east along the north shore of the Salmon River to I-81, and south along I-81 to the Pennsylvania State line.
Northeastern Zone: That area north of a continuous line extending from Lake Ontario east along the north shore of the Salmon River to I-81, south along I-81 to NY 31, east along NY 31 to NY 13, north along NY 13 to NY 49, east along NY 49 to NY 365, east along NY 365 to NY 28, east along NY 28 to NY 29, east along NY 29 to NY 22, north along NY 22 to Washington County Route 153, east along CR 153 to the New York—Vermont boundary, exclusive of the Lake Champlain Zone.
Southeastern Zone: The remaining portion of New York.
Lake Erie Zone: The Lake Erie waters of Pennsylvania and a shoreline margin along Lake Erie from New York on the east to Ohio on the west extending 150 yards inland, but including all of Presque Isle Peninsula.
Northwest Zone: The area bounded on the north by the Lake Erie Zone and including all of Erie and Crawford Counties and those portions of Mercer and Venango Counties north of I-80.
North Zone: That portion of the State east of the Northwest Zone and north of a line extending east on I-80 to U.S. 220, Route 220 to I-180, I-180 to I-80, and I-80 to the Delaware River.
South Zone: The remaining portion of Pennsylvania.
Lake Champlain Zone: The U.S. portion of Lake Champlain and that area north and west of the line extending from the New York border along U.S. 4 to VT 22A at Fair Haven; VT 22A to U.S.
Interior Zone: That portion of Vermont east of the Lake Champlain Zone and west of a line extending from the Massachusetts border at Interstate 91; north along Interstate 91 to US 2; east along US 2 to VT 102; north along VT 102 to VT 253; north along VT 253 to the Canadian border.
Connecticut River Zone: The remaining portion of Vermont east of the Interior Zone.
South Zone: Mobile and Baldwin Counties.
North Zone: The remainder of Alabama.
North Zone: That portion of the State north of a line extending west from the Indiana border along Peotone-Beecher Road to Illinois Route 50, south along Illinois Route 50 to Wilmington-Peotone Road, west along Wilmington-Peotone Road to Illinois Route 53, north along Illinois Route 53 to New River Road, northwest along New River Road to Interstate Highway 55, south along I-55 to Pine Bluff-Lorenzo Road, west along Pine Bluff-Lorenzo Road to Illinois Route 47, north along Illinois Route 47 to I-80, west along I-80 to I-39, south along I-39 to Illinois Route 18, west along Illinois Route 18 to Illinois Route 29, south along Illinois Route 29 to Illinois Route 17, west along Illinois Route 17 to the Mississippi River, and due south across the Mississippi River to the Iowa border.
Central Zone: That portion of the State south of the North Duck Zone line to a line extending west from the Indiana border along I-70 to Illinois Route 4, south along Illinois Route 4 to Illinois Route 161, west along Illinois Route 161 to Illinois Route 158, south and west along Illinois Route 158 to Illinois Route 159, south along Illinois Route 159 to Illinois Route 3, south along Illinois Route 3 to St. Leo's Road, south along St. Leo's road to Modoc Road, west along Modoc Road to Modoc Ferry Road, southwest along Modoc Ferry Road to Levee Road, southeast along Levee Road to County Route 12 (Modoc Ferry entrance Road), south along County Route 12 to the Modoc Ferry route and southwest on the Modoc Ferry route across the Mississippi River to the Missouri border.
South Zone: That portion of the State south and east of a line extending west from the Indiana border along Interstate 70, south along U.S. Highway 45, to Illinois Route 13, west along Illinois Route 13 to Greenbriar Road, north on Greenbriar Road to Sycamore Road, west on Sycamore Road to N. Reed Station Road, south on N. Reed Station Road to Illinois Route 13, west along Illinois Route 13 to Illinois Route 127, south along Illinois Route 127 to State Forest Road (1025 N), west along State Forest Road to Illinois Route 3, north along Illinois Route 3 to the south bank of the Big Muddy River, west along the south bank of the Big Muddy River to the Mississippi River, west across the Mississippi River to the Missouri border.
South Central Zone: The remainder of the State between the south border of the Central Zone and the North border of the South Zone.
North Zone: That portion of the State north of a line extending east from the Illinois State line along State Road 18 to U.S. Highway 31, north along U.S. 31 to U.S. 24, east along U.S. 24 to Huntington, then southeast along U.S. 224 to the Ohio State line.
Ohio River Zone: That portion of the State south of a line extending east from the Illinois State line along Interstate Highway 64 to New Albany, east along State Road 62 to State Road 56, east along State Road 56 to Vevay, east and north on State 156 along the Ohio River to North Landing, north along State 56 to U.S. Highway 50, then northeast along U.S. 50 to the Ohio State line.
South Zone: That portion of the State between the North and Ohio River Zone boundaries.
North Zone: That portion of the State north of a line extending east from the South Dakota-Iowa border along Interstate 29 southeast to Woodbury County Road D38, east along Woodbury County Road D38 to Woodbury County Road K45, southeast along Woodbury County Road K45 to State Highway 175, east along State Highway 175 to State Highway 37, southeast along State Highway 37 to State Highway 183, northeast along State Highway 183 to State Highway 141, east along State Highway 141 to U.S. Highway 30, and along U.S. Highway 30 to the Illinois border.
South Zone: The remainder of Iowa.
West Zone: All counties west of and including Butler, Daviess, Ohio, Simpson, and Warren Counties.
East Zone: The remainder of Kentucky.
West Zone: That portion of the State west and south of a line extending south from the Arkansas State line along Louisiana Highway 3 to Bossier City, east along Interstate Highway 20 to Minden, south along Louisiana 7 to Ringgold, east along Louisiana 4 to Jonesboro, south along U.S. Highway 167 to Lafayette, southeast along U.S. 90 to the Mississippi State line.
East Zone: The remainder of Louisiana.
North Zone: The Upper Peninsula.
Middle Zone: That portion of the Lower Peninsula north of a line beginning at the Wisconsin State line in Lake Michigan due west of the mouth of Stony Creek in Oceana County; then due east to, and easterly and southerly along the south shore of Stony Creek to Scenic Drive, easterly and southerly along Scenic Drive to Stony Lake Road, easterly along Stony Lake and Garfield Roads to Michigan Highway 20, east along Michigan 20 to U.S. Highway 10 Business Route (BR) in the city of Midland, easterly along U.S. 10 BR to U.S. 10, easterly along U.S. 10 to Interstate Highway 75/U.S. Highway 23, northerly along I-75/U.S. 23 to the U.S. 23 exit at Standish, easterly along U.S. 23 to the centerline of the Au Gres River, then southerly along the centerline of the Au Gres River to Saginaw Bay, then on a line directly east 10 miles into Saginaw Bay, and from that point on a line directly northeast to the Canadian border.
South Zone: The remainder of Michigan.
North Duck Zone: That portion of the State north of a line extending east from the North Dakota State line along State Highway 210 to State Highway 23, east along State Highway 23 to State Highway 39, then east along State Highway 39 to the Wisconsin State line at the Oliver Bridge.
South Duck Zone: The remainder of Minnesota.
North Zone: That portion of Missouri north of a line running west from the Illinois border at Lock and Dam 25; west on Lincoln County Hwy. N to Mo. Hwy. 79; south on Mo. Hwy. 79 to Mo. Hwy.
Middle Zone: The remainder of Missouri not included in other zones.
South Zone: That portion of Missouri south of a line running west from the Illinois border on Mo. Hwy. 74 to Mo. Hwy. 25; south on Mo. Hwy 25 to U.S. Hwy. 62; west on U.S. Hwy. 62 to Mo. Hwy. 53; north on Mo. Hwy. 53 to Mo. Hwy. 51; north on Mo. Hwy. 51 to U.S. Hwy. 60; west on U.S. Hwy. 60 to Mo. Hwy. 21; north on Mo. Hwy. 21 to Mo. Hwy. 72; west on Mo. Hwy. 72 to Mo. Hwy. 32; west on Mo. Hwy. 32 to U.S. Hwy. 65; north on U.S. Hwy. 65 to U.S. Hwy. 54; west on U.S. Hwy. 54 to U.S. Hwy. 71; south on U.S. Hwy. 71 to Jasper County Hwy. M; west on Jasper County Hwy. M to the Kansas border.
Lake Erie Marsh Zone: Includes all land and water within the boundaries of the area bordered by Interstate 75 from the Ohio-Michigan line to Interstate 280 to Interstate 80 to the Erie-Lorain County line extending to a line measuring two hundred (200) yards from the shoreline into the waters of Lake Erie and including the waters of Sandusky Bay and Maumee Bay.
North Zone: That portion of the State north of a line beginning at the Ohio-Indiana border and extending east along Interstate 70 to the Ohio-West Virginia border.
South Zone: The remainder of Ohio.
Reelfoot Zone: All or portions of Lake and Obion Counties.
State Zone: The remainder of Tennessee.
North Zone: That portion of the State north of a line extending east from the Minnesota State line along U.S. Highway 10 into Portage County to County Highway HH, east on County Highway HH to State Highway 66 and then east on State Highway 66 to U.S. Highway 10, continuing east on U.S. Highway 10 to U.S. Highway 41, then north on U.S. Highway 41 to the Michigan State line.
Mississippi River Zone: That area encompassed by a line beginning at the intersection of the Burlington Northern & Santa Fe Railway and the Illinois State line in Grant County and extending northerly along the Burlington Northern & Santa Fe Railway to the city limit of Prescott in Pierce County, then west along the Prescott city limit to the Minnesota State line.
South Zone: The remainder of Wisconsin.
Northeast Zone: All areas east of Interstate 25 and north of Interstate 70.
Southeast Zone: All areas east of Interstate 25 and south of Interstate 70, and all of El Paso, Pueblo, Huerfano, and Las Animas counties.
Mountain/Foothills Zone: All areas west of Interstate 25 and east of the Continental Divide, except El Paso, Pueblo, Huerfano, and Las Animas counties.
High Plains Zone: That portion of the State west of U.S. 283.
Early Zone: That part of Kansas bounded by a line from the Nebraska-Kansas State line south on K-128 to its junction with US-36, then east on US-36 to its junction with K-199, then south on K-199 to its junction with Republic County 30 Rd, then south on Republic County 30 Rd to its junction with K-148, then east on K-148 to its junction with Republic County 50 Rd, then south on Republic County 50 Rd to its junction with Cloud County 40th Rd, then south on Cloud County 40th Rd to its junction with K-9, then west on K-9 to its junction with US-24, then west on US-24 to its junction with US-281, then north on US-281 to its junction with US-36, then west on US-36 to its junction with US-183, then south on US-183 to its junction with US-24, then west on US-24 to its junction with K-18, then southeast on K-18 to its junction with US-183, then south on US-183 to its junction with K-4, then east on K-4 to its junction with I-135, then south on I-135 to its junction with K-61, then southwest on K-61 to McPherson County 14th Avenue, then south on McPherson County 14th Avenue to its junction with Arapaho Rd, then west on Arapaho Rd to its junction with K-61, then southwest on K-61 to its junction with K-96, then northwest on K-96 to its junction with US-56, then southwest on US-56 to its junction with K-19, then east on K-19 to its junction with US-281, then south on US-281 to its junction with US-54, then west on US-54 to its junction with US-183, then north on US-183 to its junction with US-56, then southwest on US-56 to its junction with Ford County Rd 126, then south on Ford County Rd 126 to its junction with US-400, then northwest on US-400 to its junction with US-283, then north on US-283 to its junction with the Nebraska-Kansas State line, then east along the Nebraska-Kansas State line to its junction with K-128.
Late Zone: That part of Kansas bounded by a line from the Nebraska-Kansas State line south on K-128 to its junction with US-36, then east on US-36 to its junction with K-199, then south on K-199 to its junction with Republic County 30 Rd, then south on Republic County 30 Rd to its junction with K-148, then east on K-148 to its junction with Republic County 50 Rd, then south on Republic County 50 Rd to its junction with Cloud County 40th Rd, then south on Cloud County 40th Rd to its junction with K-9, then west on K-9 to its junction with US-24, then west on US-24 to its junction with US-281, then north on US-281 to its junction with US-36, then west on US-36 to its junction with US-183, then south on US-183 to its junction with US-24, then west on US-24 to its junction with K-18, then southeast on K-18 to its junction with US-183, then south on US-183 to its junction with K-4, then east on K-4 to its junction with I-135, then south on I-135 to its junction with K-61, then southwest on K-61 to 14th Avenue, then south on 14th Avenue to its junction with Arapaho Rd, then west on Arapaho Rd to its junction with K-61, then southwest on K-61 to its junction with K-96, then northwest on K-96 to its junction with US-56, then southwest on US-56 to its junction with K-19, then east on K-19 to its junction with US-281, then south on US-281 to its junction with US-54, then west on US-54 to its junction with US-183, then north on US-183 to its junction with US-56, then southwest on US-56 to its junction with Ford County Rd 126, then south on Ford County Rd 126 to its junction with US-400, then northwest on US-400 to its junction with US-283, then south on US-283 to its junction with the Oklahoma-Kansas State line, then east along the Oklahoma-Kansas State line to its junction with US-77, then north on US-77 to its junction with Butler County, NE 150th Street, then east on Butler County, NE 150th Street to its junction with US-35, then northeast on US-35 to its junction with K-68, then east on K-68 to the Kansas-Missouri State line, then north along the Kansas-Missouri State line to its junction with the Nebraska State line, then west along the Kansas-Nebraska State line to its junction with K-128.
Southeast Zone: That part of Kansas bounded by a line from the Missouri-Kansas State line west on K-68 to its junction with US-35, then southwest on US-35 to its junction with Butler County, NE 150th Street, then west on NE 150th Street until its junction with K-77, then south on K-77 to the Oklahoma-Kansas State line, then east
Zone 1: The Counties of Blaine, Carbon, Carter, Daniels, Dawson, Fallon, Fergus, Garfield, Golden Valley, Judith Basin, McCone, Musselshell, Petroleum, Phillips, Powder River, Richland, Roosevelt, Sheridan, Stillwater, Sweet Grass, Valley, Wheatland, Wibaux, and Yellowstone.
Zone 2: The remainder of Montana.
High Plains: That portion of Nebraska lying west of a line beginning at the South Dakota-Nebraska border on U.S. Hwy. 183; south on U.S. Hwy. 183 to U.S. Hwy. 20; west on U.S. Hwy. 20 to NE Hwy. 7; south on NE Hwy. 7 to NE Hwy. 91; southwest on NE Hwy. 91 to NE Hwy. 2; southeast on NE Hwy. 2 to NE Hwy. 92; west on NE Hwy. 92 to NE Hwy. 40; south on NE Hwy. 40 to NE Hwy. 47; south on NE Hwy. 47 to NE Hwy. 23; east on NE Hwy. 23 to U.S. Hwy. 283; and south on U.S. Hwy. 283 to the Kansas-Nebraska border.
Low Plains Zone 1: That portion of Dixon County west of NE Hwy. 26E Spur and north of NE Hwy. 12; those portions of Cedar and Knox Counties north of NE Hwy. 12; that portion of Keya Paha County east of U.S. Hwy. 183; and all of Boyd County. Both banks of the Niobrara River in Keya Paha and Boyd counties east of U.S. Hwy. 183 shall be included in Zone 1.
Low Plains Zone 2: Area bounded by designated Federal and State highways and political boundaries beginning at the Kansas-Nebraska border on U.S. Hwy. 75 to U.S. Hwy. 136; east to the intersection of U.S. Hwy. 136 and the Steamboat Trace (Trace); north along the Trace to the intersection with Federal Levee R-562; north along Federal Levee R-562 to the intersection with the Trace; north along the Trace/Burlington Northern Railroad right-of-way to NE Hwy. 2; west to U.S. Hwy. 75; north to NE Hwy. 2; west to NE Hwy. 43; north to U.S. Hwy. 34; east to NE Hwy. 63; north and west to U.S. Hwy. 77; north to NE Hwy. 92; west to County Rd X; south to County Rd 21 (Seward County Line); west to NE Hwy. 15; north to County Rd 34; west to County Rd J; south to NE Hwy. 92; west to U.S. 81; south to NE 66; west to County Rd C; north to NE Hwy. 92; west to U.S. Hwy. 30; west to NE Hwy. 14; south to County Rd 22 (Hamilton County); west to County Rd M; south to County Rd 21; west to County Rd K; south to U.S. Hwy. 34; west to NE Hwy. 2; south to U.S. Hwy. I-80; west to Gunbarrel Rd (Hall/Hamilton county line); south to Giltner Rd; west to U.S. Hwy. 281; south to U.S. Hwy. 34; west to NE Hwy. 10; north to County Rd “R” (Kearney County) and County Rd #742 (Phelps County); west to County Rd #438 (Gosper County line); south along County Rd #438 (Gosper County line) to County Rd #726 (Furnas County line); east to County Rd #438 (Harlan County line); south to U.S. Hwy. 34; south and west to U.S. Hwy. 136; east to U.S. Hwy. 183; north to NE Hwy. 4; east to NE Hwy. 10; south to U.S. Hwy 136; east to NE Hwy. 14; south to the Kansas-Nebraska border; west to U.S. Hwy. 283; north to NE Hwy. 23; west to NE Hwy. 47; north to U.S. Hwy. 30; east to County Rd 13; north to County Rd O; east to NE Hwy. 14; north to NE Hwy. 52; west and north to NE Hwy. 91; west to U.S. Hwy. 281; south to NE Hwy. 22; west to NE Hwy. 11; northwest to NE Hwy. 91; west to U.S. Hwy. 183; south to Round Valley Rd; west to Sargent River Rd; west to Sargent Rd; west to Milburn Rd; north to Blaine County Line; east to Loup County Line; north to NE Hwy. 91; west to North Loup Spur Rd; north to North Loup Rd; east to Pleasant Valley/Worth Rd; east to Loup County Line; north to Loup-Brown county line; east along northern boundaries of Loup, Garfield and Wheeler counties; south on the Wheeler-Antelope county line to NE Hwy. 70; east to NE Hwy. 14; south to NE Hwy. 39; southeast to NE Hwy. 22; east to U.S. Hwy. 81; southeast to U.S. Hwy. 30; east to U.S. Hwy. 75; north to the Washington County line; east to the Iowa-Nebraska border; south along the Iowa-Nebraska border; to the beginning at U.S. Hwy. 75 and the Kansas-Nebraska border.
Low Plains Zone 3: The area east of the High Plains Zone, excluding Low Plains Zone 1, north of Low Plains Zone 2.
Low Plains Zone 4: The area east of the High Plains Zone and south of Zone 2.
North Zone: That portion of the State north of I-40 and U.S. 54.
South Zone: The remainder of New Mexico.
High Plains Unit: That portion of the State south and west of a line from the South Dakota State line along U.S. 83 and I-94 to ND 41, north to U.S. 2, west to the Williams/Divide County line, then north along the County line to the Canadian border.
Low Plains Unit: The remainder of North Dakota.
High Plains Zone: The Counties of Beaver, Cimarron, and Texas.
Low Plains Zone 1: That portion of the State east of the High Plains Zone and north of a line extending east from the Texas State line along OK 33 to OK 47, east along OK 47 to U.S. 183, south along U.S.183 to I-40, east along I-40 to U.S. 177, north along U.S. 177 to OK 33, east along OK 33 to OK 18, north along OK 18 to OK 51, west along OK 51 to I-35, north along I-35 to U.S. 412, west along U.S. 412 to OK 132, then north along OK 132 to the Kansas State line.
Low Plains Zone 2: The remainder of Oklahoma.
High Plains Zone: That portion of the State west of a line beginning at the North Dakota State line and extending south along U.S. 83 to U.S.14, east on U.S.14 to Blunt, south on the Blunt-Canning Rd to SD 34, east and south on SD 34 to SD 50 at Lee's Corner, south on SD 50 to I-90, east on I-90 to SD 50, south on SD 50 to SD 44, west on SD 44 across the Platte-Winner bridge to SD 47, south on SD 47 to U.S.18, east on U.S. 18 to SD 47, south on SD 47 to the Nebraska State line.
North Zone: That portion of northeastern South Dakota east of the High Plains Unit and north of a line extending east along U.S. 212 to the Minnesota State line.
South Zone: That portion of Gregory County east of SD 47 and south of SD 44; Charles Mix County south of SD 44 to the Douglas County line; south on SD 50 to Geddes; east on the Geddes Highway to U.S. 281; south on U.S. 281 and U.S. 18 to SD 50; south and east on SD 50 to the Bon Homme County line; the Counties of Bon Homme, Yankton, and Clay south of SD 50; and Union County south and west of SD 50 and I-29.
Middle Zone: The remainder of South Dakota.
High Plains Zone: That portion of the State west of a line extending south from the Oklahoma State line along U.S. 183 to Vernon, south along U.S. 283 to Albany, south along TX 6 to TX 351 to Abilene, south along U.S. 277 to Del Rio, then south along the Del Rio International Toll Bridge access road to the Mexico border.
Low Plains North Zone: That portion of northeastern Texas east of the High Plains Zone and north of a line beginning at the International Toll Bridge south of Del Rio, then extending east on U.S. 90 to San Antonio, then
Low Plains South Zone: The remainder of Texas.
Zone C1: The Counties of Converse, Goshen, Hot Springs, Natrona, Platte, and Washakie; and the portion of Park County east of the Shoshone National Forest boundary and south of a line beginning where the Shoshone National Forest boundary meets Park County Road 8VC, east along Park County Road 8VC to Park County Road 1AB, continuing east along Park County Road 1AB to Wyoming Highway 120, north along WY Highway 120 to WY Highway 294, south along WY Highway 294 to Lane 9, east along Lane 9 to Powel and WY Highway 14A, and finally east along WY Highway 14A to the Park County and Big Horn County line.
Zone C2: The remainder of Wyoming.
Game Management Units (GMU) as follows:
South Zone: Those portions of GMUs 6 and 8 in Yavapai County, and GMUs 10 and 12B-45.
North Zone: GMUs 1-5, those portions of GMUs 6 and 8 within Coconino County, and GMUs 7, 9, 12A.
Northeastern Zone: In that portion of California lying east and north of a line beginning at the intersection of Interstate 5 with the California-Oregon line; south along Interstate 5 to its junction with Walters Lane south of the town of Yreka; west along Walters Lane to its junction with Easy Street; south along Easy Street to the junction with Old Highway 99; south along Old Highway 99 to the point of intersection with Interstate 5 north of the town of Weed; south along Interstate 5 to its junction with Highway 89; east and south along Highway 89 to Main Street Greenville; north and east to its junction with North Valley Road; south to its junction of Diamond Mountain Road; north and east to its junction with North Arm Road; south and west to the junction of North Valley Road; south to the junction with Arlington Road (A22); west to the junction of Highway 89; south and west to the junction of Highway 70; east on Highway 70 to Highway 395; south and east on Highway 395 to the point of intersection with the California-Nevada State line; north along the California-Nevada State line to the junction of the California-Nevada-Oregon State lines; west along the California-Oregon State line to the point of origin.
Colorado River Zone: Those portions of San Bernardino, Riverside, and Imperial Counties east of a line extending from the Nevada State line south along U.S. 95 to Vidal Junction; south on a road known as “Aqueduct Road” in San Bernardino County through the town of Rice to the San Bernardino-Riverside County line; south on a road known in Riverside County as the “Desert Center to Rice Road” to the town of Desert Center; east 31 miles on I-10 to the Wiley Well Road; south on this road to Wiley Well; southeast along the Army-Milpitas Road to the Blythe, Brawley, Davis Lake intersections; south on the Blythe-Brawley paved road to the Ogilby and Tumco Mine Road; south on this road to U.S. 80; east 7 miles on U.S. 80 to the Andrade-Algodones Road; south on this paved road to the Mexican border at Algodones, Mexico.
Southern Zone: That portion of southern California (but excluding the Colorado River Zone) south and east of a line extending from the Pacific Ocean east along the Santa Maria River to CA 166 near the City of Santa Maria; east on CA 166 to CA 99; south on CA 99 to the crest of the Tehachapi Mountains at Tejon Pass; east and north along the crest of the Tehachapi Mountains to CA 178 at Walker Pass; east on CA 178 to U.S. 395 at the town of Inyokern; south on U.S. 395 to CA 58; east on CA 58 to I-15; east on I-15 to CA 127; north on CA 127 to the Nevada State line.
Southern San Joaquin Valley Temporary Zone: All of Kings and Tulare Counties and that portion of Kern County north of the Southern Zone.
Balance-of-State Zone: The remainder of California not included in the Northeastern, Southern, and Colorado River Zones, and the Southern San Joaquin Valley Temporary Zone.
Zone 1: All lands and waters within the Fort Hall Indian Reservation, including private inholdings; Bannock County; Bingham County, except that portion within the Blackfoot Reservoir drainage; and Power County east of State Highway 37 and State Highway 39.
Zone 2: Adams, Bear Lake, Benewah, Bingham within the Blackfoot Reservoir drainage, Blaine, Bonner, Bonneville, Boundary, Butte, Camas, Caribou except the Fort Hall Indian Reservation, Clark, Clearwater, Custer, Franklin, Fremont, Idaho, Jefferson, Kootenai, Latah, Lemhi, Lewis, Madison, Nez Perce, Oneida, Power County west of State Highway 37 and State Highway 39, Shoshone, Teton, and Valley Counties.
Zone 3: Ada, Boise, Canyon, Cassia, Elmore, Gem, Gooding, Jerome, Lincoln, Minidoka, Owyhee, Payette, Twin Falls, and Washington Counties.
Northeast Zone: All of Elko and White Pine Counties.
Northwest Zone: All of Carson City, Churchill, Douglas, Esmeralda, Eureka, Humboldt, Lander, Lyon, Mineral, Nye, Pershing, Storey, and Washoe Counties.
South Zone: All of Clark and Lincoln County.
Zone 1: Clatsop, Tillamook, Lincoln, Lane, Douglas, Coos, Curry, Josephine, Jackson, Linn, Benton, Polk, Marion, Yamhill, Washington, Columbia, Multnomah, Clackamas, Hood River, Wasco, Sherman, Gilliam, Morrow and Umatilla Counties.
Columbia Basin Mallard Management Unit: Gilliam, Morrow, and Umatilla Counties.
Zone 2: The remainder of the State.
Zone 1: All of Box Elder, Cache, Daggett, Davis, Duchesne, Morgan, Rich, Salt Lake, Summit, Unitah, Utah, Wasatch, and Weber Counties, and that part of Toole County north of I-80.
Zone 2: The remainder of Utah.
East Zone: All areas east of the Pacific Crest Trail and east of the Big White Salmon River in Klickitat County.
Columbia Basin Mallard Management Unit: Same as East Zone.
West Zone: All areas to the west of the East Zone.
Snake River Zone: Beginning at the south boundary of Yellowstone National Park and the Continental Divide; south along the Continental Divide to Union Pass and the Union Pass Road (U.S.F.S. Road 600); west and south along the Union Pass Road to U.S.F.S. Road 605; south along U.S.F.S. Road 605 to the Bridger-Teton National Forest boundary; along the national forest boundary to the Idaho State line; north along the Idaho State line to the south boundary of Yellowstone National Park; east along the Yellowstone National Park boundary to the Continental Divide.
Balance of State Zone: Balance of the Pacific Flyway in Wyoming outside the Snake River Zone.
AP Unit: Litchfield County and the portion of Hartford County west of a line beginning at the Massachusetts border in Suffield and extending south along Route 159 to its intersection with Route 91 in Hartford, and then extending south along Route 91 to its intersection with the Hartford/Middlesex County line.
AFRP Unit: Starting at the intersection of I-95 and the Quinnipiac River, north on the Quinnipiac River to its intersection with I-91, north on I-91 to I-691, west on I-691 to the Hartford County line, and encompassing the rest of New Haven County and Fairfield County in its entirety.
NAP H-Unit: All of the rest of the State not included in the AP or AFRP descriptions above.
South Zone: Same as for ducks.
North Zone: Same as for ducks.
Same zones as for ducks.
Resident Population (RP) Zone: Garrett, Alleghany, Washington, Frederick, and Montgomery Counties; that portion of Prince George's County west of Route 3 and Route 301; that portion of Charles County west of Route 301 to the Virginia State line; and that portion of Carroll County west of Route 31 to the intersection of Route 97, and west of Route 97 to the Pennsylvania line.
AP Zone: Remainder of the State.
NAP Zone: Central and Coastal Zones (see duck zones).
AP Zone: The Western Zone (see duck zones).
Special Late Season Area: The Central Zone and that portion of the Coastal Zone (see duck zones) that lies north of the Cape Cod Canal, north to the New Hampshire line.
Same zones as for ducks.
North: That portion of the State within a continuous line that runs east along the New York State boundary line to the Hudson River; then south along the New York State boundary to its intersection with Route 440 at Perth Amboy; then west on Route 440 to its intersection with Route 287; then west along Route 287 to its intersection with Route 206 in Bedminster (Exit 18); then north along Route 206 to its intersection with Route 94: then west along Route 94 to the tollbridge in Columbia; then north along the Pennsylvania State boundary in the Delaware River to the beginning point.
South: That portion of the State within a continuous line that runs west from the Atlantic Ocean at Ship Bottom along Route 72 to Route 70; then west along Route 70 to Route 206; then south along Route 206 to Route 536; then west along Route 536 to Route 322; then west along Route 322 to Route 55; then south along Route 55 to Route 553 (Buck Road); then south along Route 553 to Route 40; then east along Route 40 to Route 55; then south along Route 55 to Route 552 (Sherman Avenue); then west along Route 552 to Carmel Road; then south along Carmel Road to Route 49; then east along Route 49 to Route 555; then south along Route 555 to Route 553; then east along Route 553 to Route 649; then north along Route 649 to Route 670; then east along Route 670 to Route 47; then north along Route 47 to Route 548; then east along Route 548 to Route 49; then east along Route 49 to Route 50; then south along Route 50 to Route 9; then south along Route 9 to Route 625 (Sea Isle City Boulevard); then east along Route 625 to the Atlantic Ocean; then north to the beginning point.
Lake Champlain Goose Area: The same as the Lake Champlain Waterfowl Hunting Zone, which is that area of New York State lying east and north of a continuous line extending along Route 11 from the New York-Canada International boundary south to Route 9B, south along Route 9B to Route 9, south along Route 9 to Route 22 south of Keeseville, south along Route 22 to the west shore of South Bay along and around the shoreline of South Bay to Route 22 on the east shore of South Bay, southeast along Route 22 to Route 4, northeast along Route 4 to the New York-Vermont boundary.
Northeast Goose Area: The same as the Northeastern Waterfowl Hunting Zone, which is that area of New York State lying north of a continuous line extending from Lake Ontario east along the north shore of the Salmon River to Interstate 81, south along Interstate Route 81 to Route 31, east along Route 31 to Route 13, north along Route 13 to Route 49, east along Route 49 to Route 365, east along Route 365 to Route 28, east along Route 28 to Route 29, east along Route 29 to Route 22 at Greenwich Junction, north along Route 22 to Washington County Route 153, east along CR 153 to the New York-Vermont boundary, exclusive of the Lake Champlain Zone.
East Central Goose Area: That area of New York State lying inside of a continuous line extending from Interstate Route 81 in Cicero, east along Route 31 to Route 13, north along Route 13 to Route 49, east along Route 49 to Route 365, east along Route 365 to Route 28, east along Route 28 to Route 29, east along Route 29 to Route 147 at Kimball Corners, south along Route 147 to Schenectady County Route 40 (West Glenville Road), west along Route 40 to Touareuna Road, south along Touareuna Road to Schenectady County Route 59, south along Route 59 to State Route 5, east along Route 5 to the Lock 9 bridge, southwest along the Lock 9 bridge to Route 5S, southeast along Route 5S to Schenectady County Route 58, southwest along Route 58 to the NYS Thruway, south along the Thruway to Route 7, southwest along Route 7 to Schenectady County Route 103, south along Route 103 to Route 406, east along Route 406 to Schenectady County Route 99 (Windy Hill Road), south along Route 99 to Dunnsville Road, south along Dunnsville Road to Route 397, southwest along Route 397 to Route 146 at Altamont, west along Route 146 to Albany County Route 252, northwest along Route 252 to Schenectady County Route 131, north along Route 131 to Route 7, west along Route 7 to Route 10 at Richmondville, south on Route 10 to Route 23 at Stamford, west along Route 23 to Route 7 in Oneonta, southwest along Route 7 to Route 79 to Interstate Route 88 near Harpursville, west along Route 88 to Interstate Route 81, north along Route 81 to the point of beginning.
West Central Goose Area: That area of New York State lying within a continuous line beginning at the point where the northerly extension of Route 269 (County Line Road on the Niagara-Orleans County boundary) meets the International boundary with Canada, south to the shore of Lake Ontario at the eastern boundary of Golden Hill State Park, south along the extension of Route 269 and Route 269 to Route 104 at Jeddo, west along Route 104 to Niagara County Route 271, south along Route 271 to Route 31E at Middleport, south along Route 31E to Route 31, west along Route 31 to Griswold Street, south along Griswold Street to Ditch Road, south along Ditch Road to Foot Road, south along Foot Road to the north bank of Tonawanda Creek, west along the north bank of Tonawanda Creek to Route 93, south along Route 93 to Route 5, east along Route 5 to Crittenden-Murrays Corners Road, south on Crittenden-Murrays Corners Road to the NYS
Hudson Valley Goose Area: That area of New York State lying within a continuous line extending from Route 4 at the New York-Vermont boundary, west and south along Route 4 to Route 149 at Fort Ann, west on Route 149 to Route 9, south along Route 9 to Interstate Route 87 (at Exit 20 in Glens Falls), south along Route 87 to Route 29, west along Route 29 to Route 147 at Kimball Corners, south along Route 147 to Schenectady County Route 40 (West Glenville Road), west along Route 40 to Touareuna Road, south along Touareuna Road to Schenectady County Route 59, south along Route 59 to State Route 5, east along Route 5 to the Lock 9 bridge, southwest along the Lock 9 bridge to Route 5S, southeast along Route 5S to Schenectady County Route 58, southwest along Route 58 to the NYS Thruway, south along the Thruway to Route 7, southwest along Route 7 to Schenectady County Route 103, south along Route 103 to Route 406, east along Route 406 to Schenectady County Route 99 (Windy Hill Road), south along Route 99 to Dunnsville Road, south along Dunnsville Road to Route 397, southwest along Route 397 to Route 146 at Altamont, southeast along Route 146 to Main Street in Altamont, west along Main Street to Route 156, southeast along Route 156 to Albany County Route 307, southeast along Route 307 to Route 85A, southwest along Route 85A to Route 85, south along Route 85 to Route 443, southeast along Route 443 to Albany County Route 301 at Clarksville, southeast along Route 301 to Route 32, south along Route 32 to Route 23 at Cairo, west along Route 23 to Joseph Chadderdon Road, southeast along Joseph Chadderdon Road to Hearts Content Road (Greene County Route 31), southeast along Route 31 to Route 32, south along Route 32 to Greene County Route 23A, east along Route 23A to Interstate Route 87 (the NYS Thruway), south along Route 87 to Route 28 (Exit 19) near Kingston, northwest on Route 28 to Route 209, southwest on Route 209 to the New York-Pennsylvania boundary, southeast along the New York-Pennsylvania boundary to the New York-New Jersey boundary, southeast along the New York-New Jersey boundary to Route 210 near Greenwood Lake, northeast along Route 210 to Orange County Route 5, northeast along Orange County Route 5 to Route 105 in the Village of Monroe, east and north along Route 105 to Route 32, northeast along Route 32 to Orange County Route 107 (Quaker Avenue), east along Route 107 to Route 9W, north along Route 9W to the south bank of Moodna Creek, southeast along the south bank of Moodna Creek to the New Windsor-Cornwall town boundary, northeast along the New Windsor-Cornwall town boundary to the Orange-Dutchess County boundary (middle of the Hudson River), north along the county boundary to Interstate Route 84, east along Route 84 to the Dutchess-Putnam County boundary, east along the county boundary to the New York-Connecticut boundary, north along the New York-Connecticut boundary to the New York-Massachusetts boundary, north along the New York-Massachusetts boundary to the New York-Vermont boundary, north to the point of beginning.
Eastern Long Island Goose Area (NAP High Harvest Area): That area of Suffolk County lying east of a continuous line extending due south from the New York-Connecticut boundary to the northernmost end of Roanoke Avenue in the Town of Riverhead; then south on Roanoke Avenue (which becomes County Route 73) to State Route 25; then west on Route 25 to Peconic Avenue; then south on Peconic Avenue to County Route (CR) 104 (Riverleigh Avenue); then south on CR 104 to CR 31 (Old Riverhead Road); then south on CR 31 to Oak Street; then south on Oak Street to Potunk Lane; then west on Stevens Lane; then south on Jessup Avenue (in Westhampton Beach) to Dune Road (CR 89); then due south to international waters.
Western Long Island Goose Area (RP Area): That area of Westchester County and its tidal waters southeast of Interstate Route 95 and that area of Nassau and Suffolk Counties lying west of a continuous line extending due south from the New York-Connecticut boundary to the northernmost end of the Sunken Meadow State Parkway; then south on the Sunken Meadow Parkway to the Sagtikos State Parkway; then south on the Sagtikos Parkway to the Robert Moses State Parkway; then south on the Robert Moses Parkway to its southernmost end; then due south to international waters.
Central Long Island Goose Area (NAP Low Harvest Area): That area of Suffolk County lying between the Western and Eastern Long Island Goose Areas, as defined above.
South Goose Area: The remainder of New York State, excluding New York City.
Special Late Canada Goose Area: That area of the Central Long Island Goose Area lying north of State Route 25A and west of a continuous line extending northward from State Route 25A along Randall Road (near Shoreham) to North Country Road, then east to Sound Road and then north to Long Island Sound and then due north to the New York-Connecticut boundary.
SJBP Hunt Zone: Includes the following Counties or portions of Counties: Anson, Cabarrus, Chatham, Davidson, Durham, Halifax (that portion east of NC 903), Montgomery (that portion west of NC 109), Northampton, Richmond (that portion south of NC 73 and west of US 220 and north of US 74), Rowan, Stanly, Union, and Wake.
RP Hunt Zone: Includes the following Counties or portions of Counties: Alamance, Alleghany, Alexander, Ashe, Avery, Beaufort, Bertie (that portion south and west of a line formed by NC 45 at the Washington Co. line to US 17 in Midway, US 17 in Midway to US 13 in Windsor, US 13 in Windsor to the Hertford Co. line), Bladen, Brunswick, Buncombe, Burke, Caldwell, Carteret, Caswell, Catawba, Cherokee, Clay,
Northeast Hunt Unit: Includes the following Counties or portions of Counties: Bertie (that portion north and east of a line formed by NC 45 at the Washington County line to US 17 in Midway, US 17 in Midway to US 13 in Windsor, US 13 in Windsor to the Hertford Co. line), Camden, Chowan, Currituck, Dare, Hyde, Pasquotank, Perquimans, Tyrrell, and Washington.
Resident Canada Goose Zone: All of Pennsylvania except for SJBP Zone and the area east of route SR 97 from the Maryland State Line to the intersection of SR 194, east of SR 194 to intersection of US Route 30, south of US Route 30 to SR 441, east of SR 441 to SR 743, east of SR 743 to intersection of I-81, east of I-81 to intersection of I-80, and south of I-80 to the New Jersey State line.
SJBP Zone: The area north of I-80 and west of I-79 including in the city of Erie west of Bay Front Parkway to and including the Lake Erie Duck zone (Lake Erie, Presque Isle, and the area within 150 yards of the Lake Erie Shoreline).
AP Zone: The area east of route SR 97 from Maryland State Line to the intersection of SR 194, east of SR 194 to intersection of US Route 30, south of US Route 30 to SR 441, east of SR 441 to SR 743, east of SR 743 to intersection of I-81, east of I-81 to intersection of I-80, south of I-80 to New Jersey State line.
Special Area for Canada Geese: Kent and Providence Counties and portions of the towns of Exeter and North Kingston within Washington County (see State regulations for detailed descriptions).
Canada Goose Area: Statewide except for Clarendon County, that portion of Orangeburg County north of SC Highway 6, and that portion of Berkeley County north of SC Highway 45 from the Orangeburg County line to the junction of SC Highway 45 and State Road S-8-31 and that portion west of the Santee Dam.
Same zones as for ducks.
AP Zone: The area east and south of the following line—the Stafford County line from the Potomac River west to Interstate 95 at Fredericksburg, then south along Interstate 95 to Petersburg, then Route 460 (SE) to City of Suffolk, then south along Route 32 to the North Carolina line.
SJBP Zone: The area to the west of the AP Zone boundary and east of the following line: the “Blue Ridge” (mountain spine) at the West Virginia-Virginia Border (Loudoun County-Clarke County line) south to Interstate 64 (the Blue Ridge line follows county borders along the western edge of Loudoun-Fauquier-Rappahannock-Madison-Greene-Albemarle and into Nelson Counties), then east along Interstate Rt. 64 to Route 15, then south along Rt. 15 to the North Carolina line.
RP Zone: The remainder of the State west of the SJBP Zone.
Same zones as for ducks, but in addition:
SJBP Zone: That portion of Morgan County east of U.S. Highway 31, north of State Highway 36, and west of U.S. 231; that portion of Limestone County south of U.S. 72; and that portion of Madison County south of Swancott Road and west of Triana Road.
Northwest Zone: Baxter, Benton, Boone, Carroll, Conway, Crawford, Faulkner, Franklin, Johnson, Logan, Madison, Marion, Newton, Perry, Pope, Pulaski, Searcy, Sebastian, Scott, Van Buren, Washington, and Yell Counties.
North Zone: That portion of the State north of a line extending west from the Indiana border along Interstate 80 to I-39, south along I-39 to Illinois Route 18, west along Illinois Route 18 to Illinois Route 29, south along Illinois Route 29 to Illinois Route 17, west along Illinois Route 17 to the Mississippi River, and due south across the Mississippi River to the Iowa border.
Central Zone: That portion of the State south of the North Goose Zone line to a line extending west from the Indiana border along I-70 to Illinois Route 4, south along Illinois Route 4 to Illinois Route 161, west along Illinois Route 161 to Illinois Route 158, south and west along Illinois Route 158 to Illinois Route 159, south along Illinois Route 159 to Illinois Route 3, south along Illinois Route 3 to St. Leo's Road, south along St. Leo's road to Modoc Road, west along Modoc Road to Modoc Ferry Road, southwest along Modoc Ferry Road to Levee Road, southeast along Levee Road to County Route 12 (Modoc Ferry entrance Road), south along County Route 12 to the Modoc Ferry route and southwest on the Modoc Ferry route across the Mississippi River to the Missouri border.
South Zone: Same zones as for ducks.
South Central Zone: Same zones as for ducks.
Same zones as for ducks but in addition:
Special Canada Goose Seasons
Late Canada Goose Season Zone: That part of the State encompassed by the following Counties: Steuben, Lagrange, Elkhart, St. Joseph, La Porte, Starke, Marshall, Kosciusko, Noble, De Kalb, Allen, Whitley, Huntington, Wells, Adams, Boone, Hamilton, Madison, Hendricks, Marion, Hancock, Morgan, Johnson, and Shelby.
Experimental Late Canada Goose Season Zone: That part of the State encompassed by the following Counties: Vermillion, Parke, Vigo, Clay, Sullivan, and Greene.
Same zones as for ducks.
Western Zone: That portion of the State west of a line beginning at the Tennessee State line at Fulton and extending north along the Purchase Parkway to Interstate Highway 24, east along I-24 to U.S. Highway 641, north along U.S. 641 to U.S. 60, northeast along U.S. 60 to the Henderson County line, then south, east, and northerly along the Henderson County line to the Indiana State line.
Ballard Reporting Area: That area encompassed by a line beginning at the northwest city limits of Wickliffe in Ballard County and extending westward to the middle of the Mississippi River, north along the Mississippi River and along the low-water mark of the Ohio River on the Illinois shore to the Ballard-McCracken County line, south along the county line to Kentucky Highway 358, south along Kentucky 358 to U.S. Highway 60 at LaCenter, then
Henderson-Union Reporting Area: Henderson County and that portion of Union County within the Western Zone.
Pennyroyal/Coalfield Zone: Butler, Daviess, Ohio, Simpson, and Warren Counties and all counties lying west to the boundary of the Western Goose Zone.
Same zones as for ducks.
(a) North Zone—Same as North duck zone.
(b) Middle Zone—Same as Middle duck zone.
(c) South Zone—Same as South duck zone.
Tuscola/Huron Goose Management Unit (GMU): Those portions of Tuscola and Huron Counties bounded on the south by Michigan Highway 138 and Bay City Road, on the east by Colwood and Bay Port Roads, on the north by Kilmanagh Road and a line extending directly west off the end of Kilmanagh Road into Saginaw Bay to the west boundary, and on the west by the Tuscola-Bay County line and a line extending directly north off the end of the Tuscola-Bay County line into Saginaw Bay to the north boundary.
Allegan County GMU: That area encompassed by a line beginning at the junction of 136th Avenue and Interstate Highway 196 in Lake Town Township and extending easterly along 136th Avenue to Michigan Highway 40, southerly along Michigan 40 through the city of Allegan to 108th Avenue in Trowbridge Township, westerly along 108th Avenue to 46th Street, northerly along 46th Street to 109th Avenue, westerly along 109th Avenue to I-196 in Casco Township, then northerly along I-196 to the point of beginning.
Saginaw County GMU: That portion of Saginaw County bounded by Michigan Highway 46 on the north; Michigan 52 on the west; Michigan 57 on the south; and Michigan 13 on the east.
Muskegon Wastewater GMU: That portion of Muskegon County within the boundaries of the Muskegon County wastewater system, east of the Muskegon State Game Area, in sections 5, 6, 7, 8, 17, 18, 19, 20, 29, 30, and 32, T10N R14W, and sections 1, 2, 10, 11, 12, 13, 14, 24, and 25, T10N R15W, as posted.
Special Canada Goose Seasons:
Southern Michigan Late Season Canada Goose Zone: Same as the South Duck Zone excluding Tuscola/Huron Goose Management Unit (GMU), Allegan County GMU, Saginaw County GMU, and Muskegon Wastewater GMU.
Rochester Goose Zone: That part of the State within the following described boundary: Beginning at the intersection of State Trunk Highway (STH) 247 and County State Aid Highway (CSAH) 4, Wabasha County; thence along CSAH 4 to CSAH 10, Olmsted County; thence along CSAH 10 to CSAH 9, Olmsted County; thence along CSAH 9 to CSAH 22, Winona County; thence along CSAH 22 to STH 74; thence along STH 74 to STH 30; thence along STH 30 to CSAH 13, Dodge County; thence along CSAH 13 to U.S. Highway 14; thence along U.S. Highway 14 to STH 57; thence along STH 57 to CSAH 24, Dodge County; thence along CSAH 24 to CSAH 13, Olmsted County; thence along CSAH 13 to U.S. Highway 52; thence along U.S. Highway 52 to CSAH 12, Olmsted County; thence along CSAH 12 to STH 247; thence along STH 247 to the point of beginning.
Same zones as for ducks.
Lake Erie Goose Zone: That portion of Ohio north of a line beginning at the Michigan border and extending south along Interstate 75 to Interstate 280, south on Interstate 280 to Interstate 80, and east on Interstate 80 to the Pennsylvania border.
North Zone: That portion of Ohio north of a line beginning at the Indiana border and extending east along Interstate 70 to the West Virginia border excluding the portion of Ohio within the Lake Erie Goose Zone.
South Zone: The remainder of Ohio
Southwest Zone: That portion of the State south of State Highways 20 and 104, and west of U.S. Highways 45 and 45W.
Northwest Zone: Lake, Obion, and Weakley Counties and those portions of Gibson and Dyer Counties not included in the Southwest Tennessee Zone.
Kentucky/Barkley Lakes Zone: That portion of the State bounded on the west by the eastern boundaries of the Northwest and Southwest Zones and on the east by State Highway 13 from the Alabama State line to Clarksville and U.S. Highway 79 from Clarksville to the Kentucky State line.
Same zones as for ducks but in addition:
Horicon Zone: That area encompassed by a line beginning at the intersection of State Highway 21 and the Fox River in Winnebago County and extending westerly along State 21 to the west boundary of Winnebago County, southerly along the west boundary of Winnebago County to the north boundary of Green Lake County, westerly along the north boundaries of Green Lake and Marquette Counties to State 22, southerly along State 22 to State 33, westerly along State 33 to Interstate Highway 39, southerly along Interstate Highway 39 to Interstate Highway 90/94, southerly along I-90/94 to State 60, easterly along State 60 to State 83, northerly along State 83 to State 175, northerly along State 175 to State 33, easterly along State 33 to U.S. Highway 45, northerly along U.S. 45 to the east shore of the Fond Du Lac River, northerly along the east shore of the Fond Du Lac River to Lake Winnebago, northerly along the western shoreline of Lake Winnebago to the Fox River, then westerly along the Fox River to State 21.
Exterior Zone: That portion of the State not included in the Horicon Zone.
Mississippi River Subzone: That area encompassed by a line beginning at the intersection of the Burlington Northern & Santa Fe Railway and the Illinois State line in Grant County and extending northerly along the Burlington Northern & Santa Fe Railway to the city limit of Prescott in Pierce County, then west along the Prescott city limit to the Minnesota State line.
Brown County Subzone: That area encompassed by a line beginning at the intersection of the Fox River with Green Bay in Brown County and extending southerly along the Fox River to State Highway 29, northwesterly along State 29 to the Brown County line, south, east, and north along the Brown County line to Green Bay, due west to the midpoint of the Green Bay Ship Channel, then southwesterly along the Green Bay Ship Channel to the Fox River.
Northern Front Range Area: All areas in Boulder, Larimer and Weld Counties from the Continental Divide east along the Wyoming border to U.S. 85, south on U.S. 85 to the Adams County line, and all lands in Adams, Arapahoe, Broomfield, Clear Creek, Denver, Douglas, Gilpin, and Jefferson Counties.
North Park Area: Jackson County.
South Park and San Luis Valley Area: All of Alamosa, Chaffee, Conejos, Costilla, Custer, Fremont, Lake, Park, Rio Grande and Teller Counties, and those portions of Saguache, Mineral and Hinsdale Counties east of the Continental Divide.
Remainder: Remainder of the Central Flyway portion of Colorado.
Eastern Colorado Late Light Goose Area: That portion of the State east of Interstate Highway 25.
Dark Geese
Niobrara Unit: That area contained within and bounded by the intersection of the South Dakota State line and the eastern Cherry County line, south along the Cherry County line to the Niobrara River, east to the Norden Road, south on the Norden Road to U.S. Hwy 20, east along U.S. Hwy 20 to NE Hwy 14, north along NE Hwy 14 to NE Hwy 59 and County Road 872, west along County Road 872 to the Knox County Line, north along the Knox County Line to the South Dakota State line. Where the Niobrara River forms the boundary, both banks of the river are included in the Niobrara Unit.
East Unit: That area north and east of U.S. 81 at the Kansas-Nebraska State line, north to NE Hwy 91, east to U.S. 275, south to U.S. 77, south to NE 91, east to U.S. 30, east to Nebraska-Iowa State line.
Platte River Unit: That area north and west of U.S. 81 at the Kansas-Nebraska State line, north to NE Hwy 91, west along NE 91 to NE 11, north to the Holt County line, west along the northern border of Garfield, Loup, Blaine and Thomas Counties to the Hooker County line, south along the Thomas-Hooker County lines to the McPherson County line, east along the south border of Thomas County to the western line of Custer County, south along the Custer-Logan County line to NE 92, west to U.S. 83, north to NE 92, west to NE 61, south along NE 61 to NE 92, west along NE 92 to U.S. Hwy 26, south along U.S. Hwy 26 to Keith County Line, south along Keith County Line to the Colorado State line.
Panhandle Unit: That area north and west of Keith-Deuel County Line at the Nebraska-Colorado State line, north along the Keith County Line to U.S. Hwy 26, west to NE Hwy 92, east to NE Hwy 61, north along NE Hwy 61 to NE Hwy 2, west along NE 2 to the corner formed by Garden-Grant-Sheridan Counties, west along the north border of Garden, Morrill, and Scotts Bluff Counties to the intersection of the Interstate Canal, west to the Wyoming State line.
North-Central Unit: The remainder of the State.
Rainwater Basin Light Goose Area (West): The area bounded by the junction of U.S. 283 and U.S. 30 at Lexington, east on U.S. 30 to U.S. 281, south on U.S. 281 to NE 4, west on NE 4 to U.S. 34, continue west on U.S. 34 to U.S. 283, then north on U.S. 283 to the beginning.
Rainwater Basin Light Goose Area (East): The area bounded by the junction of U.S. 281 and U.S. 30 at Grand Island, north and east on U.S. 30 to NE 14, south to NE 66, east to US 81, north to NE 92, east on NE 92 to NE 15, south on NE 15 to NE 4, west on NE 4 to U.S. 281, north on U.S. 281 to the beginning.
Remainder of State: The remainder portion of Nebraska.
Dark Geese
Middle Rio Grande Valley Unit: Sierra, Socorro, and Valencia Counties.
Remainder: The remainder of the Central Flyway portion of New Mexico.
Missouri River Canada Goose Zone: The area within and bounded by a line starting where ND Hwy 6 crosses the South Dakota border; thence north on ND Hwy 6 to I-94; thence west on I-94 to ND Hwy 49; thence north on ND Hwy 49 to ND Hwy 200; thence north on Mercer County Rd. 21 to the section line between sections 8 and 9 (T146N-R87W); thence north on that section line to the southern shoreline to Lake Sakakawea; thence east along the southern shoreline (including Mallard Island) of Lake Sakakawea to U.S. Hwy 83; thence south on U.S. Hwy 83 to ND Hwy 200; thence east on ND Hwy 200 to ND Hwy 41; thence south on ND Hwy 41 to U.S. Hwy 83; thence south on U.S. Hwy 83 to I-94; thence east on I-94 to U.S. Hwy 83; thence south on U.S. Hwy 83 to the South Dakota border; thence west along the South Dakota border to ND Hwy 6.
Rest of State: Remainder of North Dakota.
Canada Geese
Unit 1: Remainder of South Dakota.
Unit 2: Gregory, Hughes, Lyman, Perkins, and Stanley Counties; that portion of Potter County west of U.S. Highway 83; that portion of Sully County west of U.S. Highway 83; that portion of Bon Homme, Brule, Buffalo, Charles Mix, and Hyde County south and west of a line beginning at the Hughes-Hyde County line on SD Highway 34, east to Lees Boulevard, southeast to SD 34, east 7 miles to 350th Avenue, south to I-90, south and east on SD Highway 50 to Geddes, east on 285th Street to U.S. Highway 281, south on U.S. Highway 281 to SD 50, east and south on SD 50 to the Bon Homme-Yankton County boundary; that portion of Fall River County east of SD Highway 71 and U.S. Highway 385; that portion of Custer County east of SD Highway 79 and south of French Creek; that portion of Dewey County south of BIA Road 8, BIA Road 9, and the section of U.S. 212 east of BIA Road 8 junction.
Unit 3: Bennett County.
Northeast Goose Zone: That portion of Texas lying east and north of a line beginning at the Texas-Oklahoma border at U.S. 81, then continuing south to Bowie and then southeasterly along U.S. 81 and U.S. 287 to I-35W and I-35 to the juncture with I-10 in San Antonio, then east on I-10 to the Texas-Louisiana border.
Southeast Goose Zone: That portion of Texas lying east and south of a line beginning at the International Toll Bridge at Laredo, then continuing north following I-35 to the juncture with I-10 in San Antonio, then easterly along I-10 to the Texas-Louisiana border.
West Goose Zone: The remainder of the State.
Dark Geese
Zone C1: Converse, Hot Springs, Natrona, and Washakie Counties, and the portion of Park County east of the Shoshone National Forest boundary and south of a line beginning where the Shoshone National Forest boundary crosses Park County Road 8VC, easterly along said road to Park County Road 1AB, easterly along said road to Wyoming Highway 120, northerly along said highway to Wyoming Highway 294, southeasterly along said highway to Lane 9, easterly along said lane to the town of Powel and Wyoming Highway 14A, easterly along said highway to the Park County and Big Horn County Line.
Zone C2: Albany, Campbell, Crook, Johnson, Laramie, Niobrara, Sheridan, and Weston Counties, and that portion of Carbon County east of the Continental Divide; that portion of Park County west of the Shoshone National Forest boundary, and that portion of Park County north of a line beginning where the Shoshone National Forest boundary crosses Park County Road 8VC, easterly along said road to Park County Road 1AB, easterly along said road to Wyoming Highway 120, northerly along said highway to Wyoming Highway 294, southeasterly along said highway to Lane 9, easterly along said lane to the town of Powel and Wyoming Highway 14A, easterly along said highway to the Park County and Big Horn County Line.
North Zone: Game Management Units 1-5, those portions of Game Management Units 6 and 8 within Coconino County, and Game Management Units 7, 9, and 12A.
South Zone: Those portions of Game Management Units 6 and 8 in Yavapai County, and Game Management Units 10 and 12B-45.
Northeastern Zone: In that portion of California lying east and north of a line beginning at the intersection of Interstate 5 with the California-Oregon line; south along Interstate 5 to its junction with Walters Lane south of the town of Yreka; west along Walters Lane to its junction with Easy Street; south along Easy Street to the junction with Old Highway 99; south along Old Highway 99 to the point of intersection with Interstate 5 north of the town of Weed; south along Interstate 5 to its junction with Highway 89; east and south along Highway 89 to main street Greenville; north and east to its junction with North Valley Road; south to its junction of Diamond Mountain Road; north and east to its junction with North Arm Road; south and west to the junction of North Valley Road; south to the junction with Arlington Road (A22); west to the junction of Highway 89; south and west to the junction of Highway 70; east on Highway 70 to Highway 395; south and east on Highway 395 to the point of intersection with the California-Nevada State line; north along the California-Nevada State line to the junction of the California-Nevada-Oregon State lines west along the California-Oregon State line to the point of origin.
Colorado River Zone: Those portions of San Bernardino, Riverside, and Imperial Counties east of a line extending from the Nevada border south along U.S. 95 to Vidal Junction; south on a road known as “Aqueduct Road” in San Bernardino County through the town of Rice to the San Bernardino-Riverside County line; south on a road known in Riverside County as the “Desert Center to Rice Road” to the town of Desert Center; east 31 miles on I-10 to the Wiley Well Road; south on this road to Wiley Well; southeast along the Army-Milpitas Road to the Blythe, Brawley, Davis Lake intersections; south on the Blythe-Brawley paved road to the Ogilby and Tumco Mine Road; south on this road to U.S. 80; east 7 miles on U.S. 80 to the Andrade-Algodones Road; south on this paved road to the Mexican border at Algodones, Mexico.
Southern Zone: That portion of southern California (but excluding the Colorado River Zone) south and east of a line extending from the Pacific Ocean east along the Santa Maria River to CA 166 near the City of Santa Maria; east on CA 166 to CA 99; south on CA 99 to the crest of the Tehachapi Mountains at Tejon Pass; east and north along the crest of the Tehachapi Mountains to CA 178 at Walker Pass; east on CA 178 to U.S. 395 at the town of Inyokern; south on U.S. 395 to CA 58; east on CA 58 to I-15; east on I-15 to CA 127; north on CA 127 to the Nevada border.
Imperial County Special Management Area: The area bounded by a line beginning at Highway 86 and the Navy Test Base Road; south on Highway 86 to the town of Westmoreland; continue through the town of Westmoreland to Route S26; east on Route S26 to Highway 115; north on Highway 115 to Weist Rd.; north on Weist Rd. to Flowing Wells Rd.; northeast on Flowing Wells Rd. to the Coachella Canal; northwest on the Coachella Canal to Drop 18; a straight line from Drop 18 to Frink Rd.; south on Frink Rd. to Highway 111; north on Highway 111 to Niland Marina Rd.; southwest on Niland Marina Rd. to the old Imperial County boat ramp and the water line of the Salton Sea; from the water line of the Salton Sea, a straight line across the Salton Sea to the Salinity Control Research Facility and the Navy Test Base Road; southwest on the Navy Test Base Road to the point of beginning.
Balance-of-State Zone: The remainder of California not included in the Northeastern, Southern, and the Colorado River Zones.
North Coast Special Management Area: The Counties of Del Norte and Humboldt.
Sacramento Valley Special Management Area: That area bounded by a line beginning at Willows south on I-5 to Hahn Road; easterly on Hahn Road and the Grimes-Arbuckle Road to Grimes; northerly on CA 45 to the junction with CA 162; northerly on CA 45/162 to Glenn; and westerly on CA 162 to the point of beginning in Willows.
West Central Area: Archuleta, Delta, Dolores, Gunnison, LaPlata, Montezuma, Montrose, Ouray, San Juan, and San Miguel Counties and those portions of Hinsdale, Mineral, and Saguache Counties west of the Continental Divide.
State Area: The remainder of the Pacific-Flyway Portion of Colorado.
Zone 1: Adams, Bannock, Bear Lake, Benewah, Bingham north of state highway 20 and east of the west bank of the Snake River and the American Falls Reservoir bluff, Blaine, Bonner, Bonneville, Boundary, Butte, Camas, Caribou, Clark, Clearwater, Custer, Franklin, Fremont, Idaho, Jefferson, Kootenai, Latah, Lemhi, Lewis, Madison, Nez Perce, Oneida, Power south of Interstate 86 and east of the west bank of the Snake River and the American Falls Reservoir bluff, Shoshone, Teton, and Valley Counties.
Zone 2: Ada, Boise, Canyon, Cassia, Elmore, Gem, Gooding, Jerome, Lincoln, Minidoka, Owyhee, Payette, Twin Falls, and Washington Counties.
Zone 3: Bingham County south of state highway 20 and west of the west bank of the Snake River and the American Falls Reservoir bluff and Power County north of Interstate 86 and west of the west bank of the Snake River and the American Falls Reservoir bluff.
East of the Divide Zone: The Pacific Flyway portion of the State located east of the Continental Divide.
West of the Divide Zone: The remainder of the Pacific Flyway portion of Montana.
Northeast Zone: All of Elko and White Pine Counties.
Northwest Zone: All of Carson City, Churchill, Douglas, Esmeralda, Eureka, Humboldt, Lander, Lyon, Mineral, Nye, Pershing, Storey, and Washoe Counties.
South Zone: All of Clark and Lincoln County.
North Zone: The Pacific Flyway portion of New Mexico located north of I-40.
South Zone: The Pacific Flyway portion of New Mexico located south of I-40.
Southwest Zone: Those portions of Douglas, Coos, and Curry Counties east of Highway 101, and Josephine and Jackson Counties.
South Coast Zone: Those portions of Douglas, Coos, and Curry Counties west of Highway 101.
Northwest Special Permit Zone: That portion of western Oregon west and north of a line running south from the Columbia River in Portland along I-5 to OR 22 at Salem; then east on OR 22 to the Stayton Cutoff; then south on the Stayton Cutoff to Stayton and due south to the Santiam River; then west along
Lower Columbia/N. Willamette Valley Management Area: Those portions of Clatsop, Columbia, Multnomah, and Washington Counties within the Northwest Special Permit Zone.
Tillamook County Management Area: All of Tillamook County. The following portion of the Tillamook County Management Area is closed to goose hunting beginning at the point where Old Woods Rd. crosses the south shores of Horn Creek, north on Old Woods Rd. to Sand Lake Rd. at Woods, north on Sand Lake Rd. to the intersection with McPhillips Dr., due west (~200 yards) from the intersection to the Pacific coastline, south on the Pacific coastline to Neskowin Creek, east along the north shores of Neskowin Creek and then Hawk Creek to Salem Ave, east on Salem Ave in Neskowin to Hawk Ave., east on Hawk Ave. to Hwy 101, north on Hwy 101 to Resort Dr., north on Resort Dr. to a point due west of the south shores of Horn Creek at its confluence with the Nestucca River, due east (~80 yards) across the Nestucca River to the south shores of Horn Creek, east along the south shores of Horn Creek to the point of beginning.
Northwest Zone: Those portions of Clackamas, Lane, Linn, Marion, Multnomah, and Washington Counties outside of the Northwest Special Permit Zone and all of Lincoln County.
Eastern Zone: Hood River, Wasco, Sherman, Gilliam, Morrow, Umatilla, Deschutes, Jefferson, Crook, Wheeler, Grant, Baker, Union, and Wallowa Counties.
Harney and Lake County Zone: All of Harney and Lake Counties.
Klamath County Zone: All of Klamath County.
Malheur County Zone: All of Malheur County.
Northern Utah Zone: All of Cache and Rich Counties, and that portion of Box Elder County beginning at I-15 and the Weber-Box Elder County line; east and north along this line to the Weber-Cache County line; east along this line to the Cache-Rich County line; east and south along the Rich County line to the Utah-Wyoming State line; north along this line to the Utah-Idaho State line; west on this line to Stone, Idaho-Snowville, Utah road; southwest on this road to Locomotive Springs Wildlife Management Area; east on the county road, past Monument Point and across Salt Wells Flat, to the intersection with Promontory Road; south on Promontory Road to a point directly west of the northwest corner of the Bear River Migratory Bird Refuge boundary; east along an imaginary line to the northwest corner of the Refuge boundary; south and east along the Refuge boundary to the southeast corner of the boundary; northeast along the boundary to the Perry access road; east on the Perry access road to I-15; south on I-15 to the Weber-Box Elder County line.
Remainder-of-the-State Zone: The remainder of Utah.
Area 1: Skagit, Island, and Snohomish Counties.
Area 2A (SW Quota Zone): Clark County, except portions south of the Washougal River; Cowlitz County; and Wahkiakum County.
Area 2B (SW Quota Zone): Pacific County.
Area 3: All areas west of the Pacific Crest Trail and west of the Big White Salmon River that are not included in Areas 1, 2A, and 2B.
Area 4: Adams, Benton, Chelan, Douglas, Franklin, Grant, Kittitas, Lincoln, Okanogan, Spokane, and Walla Walla Counties.
Area 5: All areas east of the Pacific Crest Trail and east of the Big White Salmon River that are not included in Area 4.
North Coast Zone: Del Norte, Humboldt and Mendocino Counties.
South Coast Zone: Balance of the State.
Puget Sound Zone: Skagit County.
Coastal Zone: Pacific County.
Open Area: Cascade, Chouteau, Hill, Liberty, and Toole Counties and those portions of Pondera and Teton Counties lying east of U.S. 287-89.
Open Area: Churchill, Lyon, and Pershing Counties.
Open Area: Those portions of Box Elder, Weber, Davis, Salt Lake, and Toole Counties lying west of I-15, north of I-80, and south of a line beginning from the Forest Street exit to the Bear River National Wildlife Refuge boundary; then north and west along the Bear River National Wildlife Refuge boundary to the farthest west boundary of the Refuge; then west along a line to Promontory Road; then north on Promontory Road to the intersection of SR 83; then north on SR 83 to I-84; then north and west on I-84 to State Hwy 30; then west on State Hwy 30 to the Nevada-Utah State line; then south on the Nevada-Utah State line to I-80.