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Securities and Exchange Commission.
Final rule; correction.
The Securities and Exchange Commission published a document in the
Effective July 7, 2014.
Carrie A. O'Brien, Special Counsel, at (202) 551-5640; Office of Financial Responsibility (Net Capital, Customer Protection, and Books and Records Requirements).
In the
Office of the Assistant Secretary for Financial Markets, Treasury.
Final rule.
The Department of the Treasury (Treasury) is issuing in final form an amendment to the regulations issued under the Government Securities Act of 1986, as amended (GSA), to replace references to credit ratings in the regulations with alternative requirements. Section 939A of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) requires Federal agencies to remove from their applicable regulations any reference to or requirement of reliance on credit ratings and to substitute a standard of creditworthiness as the agency determines appropriate for such regulations. This final rule amendment provides a substitute standard of creditworthiness for use in the liquid capital rule required by GSA regulations. It also contains several non-substantive, technical amendments to Treasury's GSA regulations to update certain information or to delete certain requirements that are no longer applicable.
The amendments will become effective August 7, 2014.
This final rule is available on the Bureau of the Fiscal Service's Web site at
Lori Santamorena, Executive Director, Chuck Andreatta, Associate Director, or Kevin Hawkins, Government Securities Advisor, Department of the Treasury, Bureau of the Fiscal Service, Government Securities Regulations Staff, (202) 504-3632 or email us at
We are amending Treasury's liquid capital rule for registered government securities brokers and dealers under the GSA regulations at 17 CFR part 402 to remove references to credit ratings and substitute a standard of creditworthiness. We are issuing this amendment in order to comply with the requirements of the Dodd-Frank Act.
Treasury's liquid capital rule (17 CFR 402.2) prescribes minimum regulatory capital requirements for registered government securities brokers and dealers. In general, the liquid capital rule is a minimum ratio requirement of liquid capital to risk, as measured using various “haircuts,”
In describing the method for registered government securities brokers and dealers to calculate their minimum capital requirements, the liquid capital rule categorizes certain dollar-denominated securities, debt instruments, and derivative instruments as “Treasury market risk instruments.”
The liquid capital rule includes three references to a rating by a nationally recognized statistical rating organization (NRSRO), i.e., a credit rating, each in regard to commercial paper. NRSROs are credit rating agencies that are subject to Securities and Exchange Commission (SEC) registration and oversight.
On September 27, 2011, Treasury published a proposed rule amendment
• Credit spreads (i.e., whether it is possible to demonstrate that a position in commercial paper is subject to a minimal amount of credit risk based on the spread between the commercial paper's yield and the yield of Treasury or other securities, or based on credit default swap spreads that reference the security);
• Price and/or yield (i.e., whether the price and yield of a security are consistent with other securities that the government securities broker or dealer has reasonably determined are subject to a minimal amount of credit risk and whether the price resulted from active trading);
• Liquidity (i.e., whether the commercial paper can be sold quickly at a minimal transaction cost);
• Securities-related research (i.e., whether providers of securities-related research believe the issuer of the commercial paper will be able to meet its financial commitments, generally, or specifically, with respect to the commercial paper held by the government securities broker or dealer);
• Internal or external credit risk assessments (i.e., whether credit assessments developed internally by the government securities broker or dealer or externally by a credit rating agency, irrespective of its status as an NRSRO, express a view as to the credit risk associated with a particular security);
• Default statistics (i.e., whether providers of credit information relating to securities express a view that the commercial paper has a probability of default consistent with other commercial paper with a minimal amount of credit risk);
• Inclusion on an index (i.e., whether a security, or issuer of the security, is included as a component of a recognized index of instruments that are subject to a minimal amount of credit risk); and
• Factors specific to the commercial paper market (e.g., general liquidity conditions). The range and type of specific factors considered by the government securities broker or dealer, and how frequently it updates its assessment, would vary depending on the particular commercial paper under review.
If the government securities broker or dealer conducts an assessment of creditworthiness and determines that the commercial paper it holds has more than a minimal amount of credit risk, the government securities broker or dealer would not classify the commercial paper as a Treasury market risk instrument, and would apply the higher “other securities haircut” in its liquid capital computation. Similarly, if the government securities broker or dealer does not have written policies and procedures to assess creditworthiness, or chooses not to use its policies and procedures, it would apply the “other securities haircut” treatment to the commercial paper it holds.
Under Treasury's GSA regulations that govern recordkeeping requirements,
We received one comment letter on the proposed rule amendment from a
The commenter asserted that the proposed rule must establish an explicit and detailed list of mandatory factors that government securities brokers and dealers are required to apply in the credit analysis of commercial paper and that those factors must be set forth in the text of the rule itself. Merely providing a suggested list of optional factors that might be considered, “is an exceedingly vague concept that allows for a wide range of interpretations,” the commenter wrote. The minimal amount of credit risk standard we are adopting is intended, in part, to promote a heightened level of internal due diligence among government securities brokers and dealers. The standard therefore provides an appropriate degree of flexibility by allowing government securities brokers and dealers to use and evaluate a variety of factors in assessing the credit and liquidity risks associated with commercial paper for liquid capital. In addition, the factors relevant to a credit risk determination may vary in significance over time. For these reasons, we do not believe the specific factors described above should be included in the rule itself.
The commenter also asserted that the rule should expand the list of factors used to assess creditworthiness. The commenter argued that the list must be more comprehensive, and must contain a catchall provision that requires government securities brokers and dealers to consider all material factors that bear on the creditworthiness of the commercial paper being evaluated, including the nature of the issuer, the terms of the security, and the financial and regulatory context in which the issuer is operating. We agree that a government securities broker or dealer might want to consider additional factors in evaluating the creditworthiness of commercial paper. Upon consideration of the comment, however, we determined that other factors should not be added to the list because it is not meant to be exhaustive and government securities brokers and dealers should tailor their written policies and procedures for assessing credit risk to their particular circumstances and consider those factors they deem appropriate, including factors that are not described above.
The commenter further asserted that the rule must fully eliminate continued reliance on credit ratings, claiming that the factor referring to internal or external credit risk assessments would conflict with section 939A of the Dodd-Frank Act. We considered this comment, but determined that the minimal amount of credit risk standard that we are adopting is consistent with section 939A because it replaces the requirement that commercial paper must be “rated in one of the three highest categories by at least two nationally recognized statistical rating organizations” in order to receive the more favorable haircut treatment of Treasury market risk instruments. In place of that requirement, the minimal amount of credit risk standard provides flexibility to government securities brokers and dealers by allowing them to use and evaluate a variety of factors, which could include external credit risk assessments, in assessing the credit and liquidity risks of commercial paper.
Finally, the commenter stated that the rule must require “each government securities broker or dealer to create and maintain a record of each creditworthiness determination that it makes” in order to promote compliance by government securities brokers and dealers and to increase the regulators' ability to monitor and enforce compliance with the liquid capital rule. As discussed above, through incorporation of SEC Rule 17a-4, as recently amended by the SEC,
We are adopting amendments to Treasury's liquid capital rule (17 CFR 402.2) to remove references to NRSRO credit ratings and to substitute a standard of creditworthiness based on a minimal amount of credit risk as determined by the government securities broker or dealer pursuant to reasonably designed written policies and procedures. The final rule amendments include several modifications to the proposed rule text in regard to the policies and procedures adopted by the government securities broker or dealer for assessing creditworthiness, as described below.
We have added the words “and monitor” to the minimal amount of credit risk standard to clarify that, after the initial creditworthiness determination, a commercial paper position must continue to have only a minimal amount of credit risk to remain qualified for the lower haircut and that monitoring must be done in accordance with the firm's policies and procedures.
Compared with reliance on NRSRO credit ratings, the minimal amount of credit risk standard is a more subjective approach to determining whether a lower haircut can be applied to commercial paper. Moreover, this standard provides flexibility to government securities brokers and dealers by allowing them to use and evaluate a variety of factors, both objective and subjective, in assessing the credit and liquidity risks associated with their commercial paper positions. However, we do not intend for the minimal amount of credit risk standard to result in a more liberal requirement that broadens the scope of the rule by allowing more positions to qualify for the lower haircuts. We note that credit ratings and market data (such as credit spreads and yields) can serve as useful benchmarks for evaluating whether the written policies and procedures of a government securities broker or dealer, as applied to the minimal amount of credit risk standard, are increasing the types of commercial paper to which it applies the lower haircuts as compared to the eliminated NRSRO credit rating standard.
To reduce the potential subjectivity of the proposed minimal amount of credit risk standard, we modified the final rule to add new text that provides that reasonably designed, written policies and procedures should result in assessments of creditworthiness that typically are consistent with market data.
Under Treasury's Rule 404, the written policies and procedures of a government securities broker or dealer for assessing credit risk for commercial paper are subject to review in regulatory examinations by the SEC and SROs. Although not required to maintain a record of each credit risk determination for purposes of the liquid capital rule, the written policies and procedures of a government securities broker or dealer should specify with sufficient detail the steps the government securities broker or dealer will take in performing a credit assessment so that the SEC and SRO examiners can evaluate them.
In addition, as part of our review of our Federal regulations required by Executive Order 13563, we are updating the GSA regulations by deleting certain requirements. Specifically, we are deleting the sections in our reporting requirements that refer to year 2000 (Y2K) readiness reports because they are no longer needed.
Executive Orders 13563 and 12866 direct agencies to assess 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 “significant regulatory action,” although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget.
This final amendment would potentially affect three registered government securities brokers or dealers, none of which currently or routinely holds commercial paper. For that reason, the amendment would not have a significant economic impact on a substantial number of small entities. Therefore, a regulatory flexibility analysis is not required under the Regulatory Flexibility Act (5 U.S.C. 601,
Administrative practice and procedure, Banks, banking, Brokers, Government securities, Reporting and recordkeeping requirements.
Banks, banking, Brokers, Government securities.
Brokers, Government securities.
Banks, banking, Brokers, Government securities.
Brokers, Government securities, Reporting and recordkeeping requirements.
Banks, banking, Brokers, Government securities, Reporting and recordkeeping requirements.
Banks, banking, Brokers, Government securities, Reporting and recordkeeping requirements.
Banks, banking, Government securities, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, 17 CFR chapter IV is amended as follows:
15 U.S.C. 78
(a) * * * The office responsible for implementing the regulations, including interpretations and action on requests for exemption, classification, or modification, is the Office of the Commissioner, Bureau of the Fiscal Service.
(c) * * *
(3) * * *
(vi) An original and two copies of each request letter shall be submitted to
(7)(i) * * * These documents will be made available at the following location: Treasury Department Library, 1500 Pennsylvania Avenue NW., Annex, Room 1020, Washington, DC 20220.
Sec. 101, Pub. L. 99-571, 100 Stat. 3209 (15 U.S.C. 78o-5(a)(4)).
15 U.S.C. 78o-5(b)(1)(A), (b)(4), Pub. L. 111-203, 124 Stat. 1376.
(f) This part shall be effective July 25, 1987.
(b)(1)
(2)
(c)(1)
(2)
(e) * * *
(1) * * *
(v) Commercial paper of no more than one year to maturity and which has only a minimal amount of credit risk as determined by the government securities broker or dealer pursuant to reasonably designed written policies and procedures the government securities broker or dealer establishes, maintains, and enforces to assess and monitor creditworthiness. These policies and procedures should result in creditworthiness assessments that typically are consistent with market data;
Line 3—Haircuts on credit exposure:
c. Enter the credit volatility haircut which equals a factor of 0.15 percent applied to the larger of the gross long or gross short position in money market instruments qualifying as Treasury market risk instruments which mature in 45 days or more, in futures and forwards on these instruments that are settled on a cash or delivery basis, and in futures and forwards on time deposits described in § 402.2(e)(1)(vii), that mature in 45 days or more, settled on a cash or delivery basis. Money market instruments qualifying as Treasury market risk instruments are (1) marketable certificates of deposit with no more than one year to maturity, (2) bankers acceptances, and (3) commercial paper of no more than one year to maturity and which has only a minimal amount of credit risk as determined by the government securities broker or dealer pursuant to reasonably designed written policies and procedures the government securities broker or government securities dealer establishes, maintains, and enforces to assess and monitor creditworthiness. These policies and procedures should result in creditworthiness assessments that
(5) Commercial paper of no more than one year to maturity and which has only a minimal amount of credit risk as determined by the government securities broker or dealer pursuant to reasonably designed written policies and procedures the government securities broker or dealer establishes, maintains, and enforces to assess and monitor creditworthiness. These policies and procedures should result in creditworthiness assessments that typically are consistent with market data; and
Sec. 101, Pub. L. 99-571, 100 Stat. 3209; sec. 4(b), Pub. L. 101-432, 104 Stat. 963; sec. 102, sec. 106, Pub. L. 103-202, 107 Stat. 2344 (15 U.S.C. 78o-5(a)(5), (b)(1)(A), (b)(4)).
15 U.S.C. 78o-5 (b)(1)(B), (b)(1)(C), (b)(2), (b)(4).
15 U.S.C. 78
(a) An aggregating entity that controls a portion of its reporting entity's reportable position in a recently-issued Treasury security, when such reportable position of the reporting entity equals or exceeds the minimum large position threshold, shall be responsible for making and maintaining the records prescribed in this section.
15 U.S.C. 78o-5(a), (b)(1)(B), (b)(4).
* * * The form is promulgated by the Board of Governors of the Federal Reserve System and is available from the Board of Governors of the Federal Reserve System, the Comptroller of the Currency, the Federal Deposit Insurance Corporation, and the SEC.
* * * The form is promulgated by the Board of Governors of the Federal Reserve System and is available from the Board of Governors of the Federal Reserve System, the Comptroller of the Currency, the Federal Deposit Insurance Corporation, and the SEC.
* * * The form is promulgated by the Department of the Treasury and is available from the Board of Governors of the Federal Reserve System, the Comptroller of the Currency, the Federal Deposit Insurance Corporation, and the SEC.
* * * The form is promulgated by the Department of the Treasury and is available from the Board of Governors of the Federal Reserve System, the Comptroller of the Currency, the Federal Deposit Insurance Corporation, and the SEC.
Sec. 201, Pub. L. 99-571, 100 Stat. 3222-23 (31 U.S.C. 3121, 9110); Sec. 101, Pub. L. 99-571, 100 Stat. 3208 (15 U.S.C. 78o-5(b)(1)(A), (b)(4), (b)(5)(B)).
(b) * * * The office responsible for the regulations is the Office of the Commissioner, Bureau of the Fiscal Service.
(a) The Secretary has determined that the rules and standards of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, and the Federal Deposit Insurance Corporation governing the holding of government securities in a fiduciary capacity by depository institutions subject thereto are adequate. * * *
Food and Drug Administration, HHS.
Final order.
The Food and Drug Administration (FDA) is classifying the transcranial magnetic stimulator for headache into class II (special controls). The special controls that will apply to the device are identified in this order, and will be part of the codified language for the transcranial magnetic stimulator for headache classification. The Agency is classifying the device into class II (special controls) in order to provide a reasonable assurance of safety and effectiveness of the device.
This order is effective August 7, 2014. The classification was applicable on December 13, 2013.
Michael Hoffmann, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 1434, Silver Spring, MD 20993-0002, 301-796-6476,
In accordance with section 513(f)(1) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 360c(f)(1)), devices that were not in commercial distribution before May 28, 1976 (the date of enactment of the Medical Device Amendments of 1976), generally referred to as postamendments devices, are classified automatically by statute into class III without any FDA rulemaking process. These devices remain in class III and require premarket approval, unless and until the device is classified or reclassified into class I or II, or FDA issues an order finding the device to be substantially equivalent, in accordance with section 513(i) of the FD&C Act, to a predicate device that does not require premarket approval. The Agency determines whether new devices are substantially equivalent to predicate devices by means of premarket notification procedures in section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and part 807 (21 CFR part 807) of the regulations.
Section 513(f)(2) of the FD&C Act, as amended by section 607 of the Food and Drug Administration Safety and Innovation Act (Pub. L. 112-144), provides two procedures by which a person may request FDA to classify a device under the criteria set forth in section 513(a)(1). Under the first procedure, the person submits a premarket notification under section 510(k) of the FD&C Act for a device that has not previously been classified and, within 30 days of receiving an order classifying the device into class III under section 513(f)(1) of the FD&C Act, the person requests a classification under section 513(f)(2). Under the second procedure, rather than first submitting a premarket notification under section 510(k) and then a request for classification under the first procedure, the person determines that there is no legally marketed device upon which to base a determination of substantial equivalence and requests a classification under section 513(f)(2) of the FD&C Act. If the person submits a request to classify the device under this second procedure, FDA may decline to undertake the classification request if FDA identifies a legally marketed device that could provide a reasonable basis for review of substantial equivalence with the device or if FDA determines that the device submitted is not of “low-moderate risk” or that general controls would be inadequate to control the risks and special controls to mitigate the risks cannot be developed.
In response to a request to classify a device under either procedure provided by section 513(f)(2) of the FD&C Act, FDA will classify the device by written order within 120 days. This classification will be the initial classification of the device.
On March 1, 2013, Neuralieve (now eNeura Therapeutics LLC), submitted a request for classification of the NEURALIEVE CERENA Transcranial Magnetic Stimulator under section 513(f)(2) of the FD&C Act. The manufacturer recommended that the device be classified into class II (Ref. 1).
In accordance with section 513(f)(2) of the FD&C Act, FDA reviewed the request in order to classify the device under the criteria for classification set forth in section 513(a)(1). FDA classifies devices into class II if general controls by themselves are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls to provide reasonable assurance of the safety and effectiveness of the device for its intended use. After review of the information submitted in the de novo request, FDA determined that the device can be classified into class II with the establishment of special controls. FDA believes these special controls, in addition to general controls, will provide reasonable assurance of the safety and effectiveness of the device.
Therefore, on December 13, 2013, FDA issued an order to the requester classifying the device into class II. FDA is codifying the classification of the device by adding § 882.5808.
Following the effective date of this final classification administrative order, any firm submitting a premarket notification (510(k)) for a transcranial magnetic stimulator for headache will need to comply with the special controls named in the final administrative order.
The device is assigned the generic name transcranial magnetic stimulator for headache, and it is identified as a device that delivers brief duration, rapidly alternating, or pulsed, magnetic fields that are externally directed at spatially discrete regions of the brain to induce electrical currents for the treatment of headache.
FDA has identified the following risks to health associated with this type of device and the measures required to mitigate these risks in table 1:
FDA believes that the following special controls, in addition to the general controls, address these risks to health and provide reasonable assurance of safety and effectiveness:
• Appropriate analysis/testing must demonstrate electromagnetic compatibility, electrical safety, and thermal safety.
• Appropriate verification, validation, and hazard analysis must be performed on the device software and firmware.
• The elements of the device that contact the patient must be assessed to be biocompatible.
• Non-clinical testing data must demonstrate that the device performs as intended under anticipated conditions of use. This includes full characterization of the magnetic pulse output and resulting magnetic field map. This also includes characterization of the sound level of the device during use.
• Clinical testing must demonstrate that the device is safe and effective for treating headache in the indicated patient population.
• The physician and patient labeling must include the following:
○ A summary of the clinical performance testing, including any adverse events and complications;
○ The intended use population in terms of the types of headaches appropriate for use with the device;
○ Information on how to report adverse events and device malfunctions; and
○ A diagram or picture depicting the proper placement of the device on the user.
Section 510(m) of the FD&C Act provides that FDA may exempt a class II device from the premarket notification requirements under section 510(k) if FDA determines that premarket notification is not necessary to provide reasonable assurance of the safety and effectiveness of the device. For this type of device, FDA has determined that premarket notification is necessary to provide reasonable assurance of the safety and effectiveness of the device. Therefore, this device type is not exempt from premarket notification requirements. Persons who intend to market this type of device must submit to FDA a premarket notification prior to marketing the device, which contains information about the transcranial magnetic stimulator for headache they intend to market.
The Agency has determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
This final administrative order establishes special controls that refer to previously approved collections of information found in other FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in part 807, subpart E, regarding premarket notification submissions have been approved under OMB control number 0910-0120, and the collections of information in 21 CFR part 801, regarding labeling, have been approved under OMB control number 0910-0485.
The following reference has been placed on display in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852, and may be seen by interested persons between 9 a.m. and 4 p.m., Monday through Friday, and is available electronically at
Medical devices, Neurological devices.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 882 is amended as follows:
21 U.S.C. 351, 360, 360c, 360e, 360j, 371.
(a)
(b)
(1) Appropriate analysis/testing must demonstrate electromagnetic compatibility, electrical safety, and thermal safety.
(2) Appropriate verification, validation, and hazard analysis must be performed on the device software and firmware.
(3) The elements of the device that contact the patient must be assessed to be biocompatible.
(4) Non-clinical testing data must demonstrate that the device performs as intended under anticipated conditions of use. This includes full characterization of the magnetic pulse output and resulting magnetic field map. This also includes characterization of the sound level of the device during use.
(5) Clinical testing must demonstrate that the device is safe and effective for treating headache in the indicated patient population.
(6) The physician and patient labeling must include the following:
(i) A summary of the clinical performance testing, including any adverse events and complications.
(ii) The intended use population in terms of the types of headaches appropriate for use with the device.
(iii) Information on how to report adverse events and device malfunctions.
(iv) A diagram or picture depicting the proper placement of the device on the user.
Coast Guard, DHS.
Notice of enforcement of regulations.
The Coast Guard will enforce the events throughout the Sector Northern New England Captain of the Port (COTP) Zone. This action is necessary to protect marine traffic and spectators from the hazards associated with powerboat races, regattas, boat parades, rowing and paddling boat races, swim events, and fireworks displays. During the enforcement period, no person or vessel may enter the Special Local Regulation area or Safety Zone without permission of the COTP.
The marine events listed in 33 CFR 100.120 and 33 CFR 165.171 will take place from July 30, 2014 through September 26, 2014, during the times and dates specified in Tables 1 and 2 below.
If you have questions on this notice, call or email Lieutenant Junior Grade Elizabeth Gunn, U.S. Coast Guard, Sector Northern New England, Waterways Management Division, via telephone at 207-347-5014 or email at
The Coast Guard will enforce the Special Local Regulations and Safety Zones listed in 33 CFR 100.120 and 33 CFR 165.171. These regulations will be enforced for the duration of each event, on or about the dates indicated in Tables 1 and 2. This is the second Notice of Enforcement published for events occurring in 2014. For the enforcement details of events other than the events listed here, refer to the Notice of Enforcement published in the
For events where the date is different from the dates previously published for that event, new Temporary Rules may be issued to enforce limited access areas for the marine event. The Coast Guard may patrol each event area under the direction of a designated Coast Guard Patrol Commander (PATCOM). The PATCOM may be contacted on Channel 16 VHF-FM (156.8 MHz) by the call sign “PATCOM.” Official patrol vessels may consist of any Coast Guard, Coast Guard Auxiliary, state, or local law enforcement vessels assigned or approved by the COTP, Sector Northern New England. For information about regulations and restrictions for waterway use during the effective periods of these events, please refer to 33 CFR 100.120 and 33 CFR 165.171.
This notice is issued under authority of 33 CFR 100.120, 33 CFR 165.171, and 5 U.S.C. 552(a). In addition to this notice in the
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is temporarily changing the enforcement date of a safety zone for one recurring fireworks display in the Fifth Coast Guard District. This regulation applies to only one recurring fireworks event held in the waters of Metedeconk River in Brick Township, NJ. Instead of the usual enforcement periods—July 4, every Thursday in August, and the first Thursday in September—in 2014 enforcement will take place on July 3, July 17, and August 14. The safety zone is necessary to provide for the safety of life on navigable waters during the event. This action is intended to restrict vessel traffic in a portion of Metedeconk River near Brick Township, NJ, during the event.
This rule is effective from July 8, 2014 through August 14, 2014 and will be enforced from 8:30 p.m. to 10:00 p.m. on July 3, July 17, and August 14, 2014.
Submit comments using one of the listed methods, and see
•
•
•
If you have questions on this rule, call or email Lieutenant Brennan Dougherty, U.S. Coast Guard, Sector Delaware Bay, Chief Waterways Management Division, Coast Guard; telephone (215) 271-4851, email
The governing regulation for this fireworks display event is 33 CFR 165.506. The specifics for this event are listed in the Table to § 165.506, section (a), item 9.
We are issuing this final rule without prior notice and opportunity to comment, and to take effect less than 30 days after publication in the
The legal basis of this rule is found in 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, and 160.5; Public Law 107-295, 116 Stat. 2064; and Department of Homeland Security Delegation No. 0170.1. The purpose of this rule is to promote public and maritime safety during a fireworks display.
We are temporarily changing the enforcement periods for Brick Township safety zone, to reflect that in 2014 fireworks will be held on July 3, July 17, and August 14. This change is needed to accommodate the sponsor's event plan. No other portion of the Table to § 165.506 or other provisions in § 165.506 is affected by this regulation.
The regulated area of this safety zone includes all the waters of the Metedeconk River within a 500 yard radius of the fireworks launch platform in approximate position latitude 40°03′24″ N, longitude 074°06′42″ W, near the shoreline at Brick Township, NJ.
During the period of the safety zone, all persons and vessels will be prohibited from entering, transiting, mooring, or remaining within the zone, unless specifically authorized by the Captain of the Port Delaware Bay, or her designated representative. Those persons authorized to transit through the safety zone shall abide by and follow all directions provided by the Captain of the Port Delaware Bay, or her designated representative, in order to ensure they are not disrupting the fireworks display. U.S. Coast Guard Sector Delaware Bay will notify the public by broadcast notice to mariners at least one hour prior to the times of enforcement.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 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, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. Although this regulation will restrict access to the regulated area, the effect of this rule will not be significant because: (i) The Coast Guard will make extensive notification of the Safety Zone to the maritime public via maritime advisories so mariners can alter their plans accordingly; (ii) vessels may still be permitted to transit through the safety zone with the permission of the Captain of the Port on a case-by-case basis; and (iii) this rule will be enforced for only the duration of the fireworks display.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to anchor or transit along a portion of the Metedeconk River near Brick Township, New Jersey from 8:30 p.m. to 10:00 p.m. on July 3, July 17, and August 14, 2014, unless cancelled earlier by the Captain of the Port once all operations are completed.
This safety zone will not have a significant economic impact on a substantial number of small entities for the following reason: Vessel traffic will be allowed to pass through the zone with permission of the Coast Guard Captain of the Port Delaware Bay or her designated representative and zone is limited in size and duration. Sector Delaware Bay will issue maritime advisories widely available to users of the Delaware Bay and River.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not cause 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.
This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
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 determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves implementation of regulations within 33 CFR Part 165, applicable to safety zones on the navigable waterways. This zone will temporarily restrict vessel traffic from transiting the waters of the Metedeconk River along the shoreline of Brick Township, NJ, in order to protect the safety of life and property on the waters for the duration of the fireworks display. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping
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 or vessels wishing to transit through the Safety Zone must request authorization to do so from the Captain of the Port or her designated representative one hour prior to the intended time of transit.
(2) Vessels granted permission to transit must do so in accordance with the directions provided by the Captain of the Port or her designated representative to the vessel.
(3) To seek permission to transit the Safety Zone, the Captain of the Port's representative can be contacted via marine radio VHF Channel 16.
(4) This section applies to all vessels wishing to transit through the Safety Zone except vessels that are engaged in the following operations:
(i) Enforcing laws;
(ii) Servicing aids to navigation, and
(iii) Emergency response vessels.
(5) No person or vessel may enter or remain in a safety zone without the permission of the Captain of the Port;
(6) Each person and vessel in a safety zone shall obey any direction or order of the Captain of the Port;
(7) No person may board, or take or place any article or thing on board, any vessel in a safety zone without the permission of the Captain of the Port; and
(8) No person may take or place any article or thing upon any waterfront facility in a safety zone without the permission of the Captain of the Port.
(d)
(1) The Captain of the Port means the Commander of Sector Delaware Bay or any Coast Guard commissioned, warrant, or petty officer who has been authorized by the Captain of the Port to act on her behalf.
(e)
Environmental Protection Agency (EPA).
Direct final rule.
EPA is promulgating significant new use rules (SNURs) under the Toxic Substances Control Act (TSCA) for 13 chemical substances which were the subject of premanufacture notices (PMNs). Three of these chemical substances are subject to TSCA section 5(e) consent orders issued by EPA. This action requires persons who intend to manufacture or process any of these 13 chemical substances for an activity that is designated as a significant new use by this rule to notify EPA at least 90 days before commencing that activity. The required notification will provide EPA with the opportunity to evaluate the intended use and, if necessary, to prohibit or limit that activity before it occurs.
This rule is effective on September 8, 2014. For purposes of judicial review, this rule shall be promulgated at 1 p.m. (e.s.t.) on July 22, 2014.
Written adverse or critical comments, or notice of intent to submit adverse or critical comments, on one or more of these SNURs must be received on or before August 7, 2014 (see Unit VI. of the
For additional information on related reporting requirement dates, see Units I.A., VI., and VII. of the
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPPT-2014-0277, by one of the following methods:
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You may be potentially affected by this action if you manufacture, process, or use the chemical substances contained in this rule. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Manufacturers or processors of one or more subject chemical substances (NAICS codes 325 and 324110), e.g., chemical manufacturing and petroleum refineries.
This action may also affect certain entities through pre-existing import certification and export notification rules under TSCA. Chemical importers are subject to the TSCA section 13 (15 U.S.C. 2612) import certification requirements promulgated at 19 CFR 12.118 through 12.127 and 19 CFR 127.28. Chemical importers must certify that the shipment of the chemical substance complies with all applicable rules and orders under TSCA. Importers of chemicals subject to these SNURs must certify their compliance with the SNUR requirements. The EPA policy in support of import certification appears at 40 CFR part 707, subpart B. In addition, any persons who export or intend to export a chemical substance that is the subject of a proposed or final rule are subject to the export notification provisions of TSCA section 12(b) (15 U.S.C. 2611(b)) (see § 721.20), and must comply with the export notification requirements in 40 CFR part 707, subpart D.
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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 is promulgating these SNURs using direct final procedures. These SNURs will require persons to notify EPA at least 90 days before commencing the manufacture or processing of a chemical substance for any activity designated by these SNURs as a significant new use. Receipt of such notices allows EPA to assess risks that may be presented by the intended uses and, if appropriate, to regulate the proposed use before it occurs. Additional rationale and background to these rules are more fully set out in the preamble to EPA's first direct final SNUR published in the
Section 5(a)(2) of TSCA (15 U.S.C. 2604(a)(2)) authorizes EPA to determine that a use of a chemical substance is a “significant new use.” EPA must make this determination by rule after considering all relevant factors, including the four bulleted TSCA section 5(a)(2) factors listed in Unit III.
General provisions for SNURs appear in 40 CFR part 721, subpart A. These provisions describe persons subject to the rule, recordkeeping requirements, exemptions to reporting requirements, and applicability of the rule to uses occurring before the effective date of the rule. Provisions relating to user fees appear at 40 CFR part 700. According to § 721.1(c), persons subject to these SNURs must comply with the same SNUN requirements and EPA regulatory procedures as submitters of PMNs under TSCA section 5(a)(1)(A). In particular, these requirements include the information submission requirements of TSCA sections 5(b) and 5(d)(1), the exemptions authorized by TSCA sections 5(h)(1), (h)(2), (h)(3), and (h)(5), and the regulations at 40 CFR part 720. Once EPA receives a SNUN, EPA may take regulatory action under TSCA sections 5(e), 5(f), 6, or 7 to control the activities for which it has received the SNUN. If EPA does not take action, EPA is required under TSCA section 5(g) to explain in the
Section 5(a)(2) of TSCA states that EPA's determination that a use of a chemical substance is a significant new use must be made after consideration of all relevant factors, including:
• The projected volume of manufacturing and processing of a chemical substance.
• The extent to which a use changes the type or form of exposure of human beings or the environment to a chemical substance.
• The extent to which a use increases the magnitude and duration of exposure of human beings or the environment to a chemical substance.
• The reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of a chemical substance.
In addition to these factors enumerated in TSCA section 5(a)(2), the statute authorized EPA to consider any other relevant factors.
To determine what would constitute a significant new use for the 13 chemical substances that are the subject of these SNURs, EPA considered relevant information about the toxicity of the chemical substances, likely human exposures and environmental releases associated with possible uses, and the four bulleted TSCA section 5(a)(2) factors listed in this unit.
EPA is establishing significant new use and recordkeeping requirements for 13 chemical substances in 40 CFR part 721, subpart E. In this unit, EPA provides the following information for each chemical substance:
• PMN number.
• Chemical name (generic name, if the specific name is claimed as CBI).
• Chemical Abstracts Service (CAS) Registry number (if assigned for non-confidential chemical identities).
• Basis for the TSCA section 5(e) consent order or, the basis for non-TSCA section 5(e) SNURs, (i.e., SNURs without TSCA section 5(e) consent orders).
• Tests recommended by EPA to provide sufficient information to evaluate the chemical substance (see Unit VIII. for more information).
• CFR citation assigned in the regulatory text section of this rule.
This rule includes two PMN substances, P-10-5 and P-11-339, whose reported chemical names include the term “carbon nanotube” or “CNT”. Because of a lack of established nomenclature for carbon nanotubes, the TSCA Inventory names for carbon nanotubes are currently in generic form, e.g., carbon nanotube (CNT), multi-walled carbon nanotube (MWCNT), double-walled carbon nanotube (DWCNT), or single-walled carbon nanotube (SWCNT). EPA uses the specific structural characteristics provided by the PMN submitter to more specifically characterize the Inventory listing for an individual CNT. All submitters of new chemical notices for CNTs in this SNUR have claimed those specific structural characteristics as CBI. EPA is publishing the generic chemical name along with the PMN number to identify that a distinct chemical substance was the subject of the PMN without revealing the confidential chemical identity of the PMN substance. Confidentiality claims preclude a more detailed description of the identity of these CNTs. If an intended manufacturer or processor of CNTs is unsure of whether its CNTs are subject to this SNUR or any other SNUR, the company can either contact EPA or obtain a written determination from EPA pursuant to the bona fide procedures at § 721.11. EPA is using the specific structural characteristics, for all CNTs submitted as new chemical substances under TSCA, to help develop standard nomenclature for placing these chemical substances on the TSCA Inventory. EPA has compiled a generic list of those structural characteristics entitled “Material Characterization of Carbon Nanotubes for Molecular Identity (MI) Determination & Nomenclature.” A copy of this list is available in the docket for these SNURs under docket ID number EPA-HQ-OPPT-2014-0277. If EPA develops a more specific generic chemical name for these materials, that name will be made publicly available.
The regulatory text section of this rule specifies the activities designated as significant new uses. Certain new uses, including production volume limits (i.e., limits on manufacture volume) and other uses designated in this rule, may be claimed as CBI. Unit IX. discusses a procedure companies may use to ascertain whether a proposed use constitutes a significant new use.
This rule includes 3 PMN substances (P-10-5, P-11-339 and P-12-125) that are subject to “risk-based” consent orders under TSCA section 5(e)(1)(A)(ii)(I) where EPA determined that activities associated with the PMN substances may present unreasonable risk to human health or the environment. Those consent orders require protective measures to limit exposures or otherwise mitigate the potential unreasonable risk. The so-called “TSCA section 5(e) SNURs” on these PMN substances are promulgated pursuant to § 721.160, and are based on and consistent with the provisions in the underlying consent orders. The TSCA section 5(e) SNURs designate as a “significant new use” the absence of the protective measures required in the corresponding consent orders.
This rule also includes SNURs on 10 PMN substances that are not subject to consent orders under TSCA section 5(e). In these cases, for a variety of reasons, EPA did not find that the use scenario described in the PMN triggered the determinations set forth under TSCA section 5(e). However, EPA does believe that certain changes from the use scenario described in the PMN could result in changes in exposures, thereby constituting a “significant new use.” These so-called “non-TSCA section 5(e) SNURs” are promulgated pursuant to § 721.170. EPA has determined that every activity designated as a “significant new use” in all non-TSCA section 5(e) SNURs issued under § 721.170 satisfies the two requirements stipulated in § 721.170(c)(2), i.e., these significant new use activities, “(i) are different from those described in the premanufacture notice for the substance, including any amendments,
1. Use of personal protective equipment including gloves and protective clothing impervious to the substance when there is potential dermal exposure and use of a National Institute of Occupational Safety and Health (NIOSH)-certified air-purifying, tight-fitting full-face respirator equipped with N-100 cartridges when there is potential inhalation exposure.
2. Use of the substance only as a component for a conductive coating using the PMN substance in a dispersion or ink or as an additive in resins/thermoplastics/elastomers for mechanical reinforcement.
3. Manufacture of the substance at a volume not to exceed a confidential volume specified in the consent order unless the company has submitted the results of certain health studies and physical/chemical properties data.
4. No surface water releases of the PMN substance, except for limited water releases resulting in no more than 1 ppb waste water effluent concentration determined by monitoring. The Company shall analyze the concentration of the PMN substance in waste water discharged to the city sewer from the facility every year and adhere to the monitoring procedure referenced in the consent order.
The SNUR designates as a “significant new use” the absence of these protective measures.
1. Use of personal protective equipment including gloves and protective clothing impervious to the substance when there is potential dermal exposure and a NIOSH-certified air-purifying, tight-fitting full-face respirator equipped with N-100, R-100, or P-100 cartridges when there is potential for inhalation exposure.
2. Use of the substance only as an additive in resins, thermoplastics, and elastomers for mechanical reinforcement and enhanced electrical performance, as a coating on metallic foils for battery applications, or in the manufacture of fabric composites.
3. Manufacture of the substance at a volume not to exceed a confidential volume specified in the consent order unless the company has submitted the results of certain health studies and physical/chemical properties data.
4. No surface water releases of the PMN substance, except for limited water releases resulting in no more than 1 ppb waste water effluent concentration determined by monitoring. The Company shall analyze the concentration of the PMN substance in waste water discharged to the city sewer from the facility every year and adhere to the monitoring procedure referenced in the consent order.
The SNUR designates as a “significant new use” the absence of these protective measures.
1. Establishment and use of a hazard communication program.
2. Manufacture of the PMN substance: (a) According to the chemical composition section of the consent order, including analyzing and reporting PCDD and PCDF levels in the PMN substance to EPA; (b) without exceeding the maximum established limit of 110 picogram/gram (pg/g) of PCDD/PCDF toxic equivalents (using the World Health Organization 2005 Toxic Equivalency Factors as detailed in the consent order); and (c) while monitoring the pH of the aqueous effluent stream from the manufacturing process as outlined in the consent order.
3. Use of the substance only as described in the consent order.
The SNUR designates as a “significant new use” the absence of these protective measures.
For the use described in the PMNs, releases of the substances are not expected to result in surface water concentrations exceeding these values. Therefore, EPA has not determined that the proposed manufacturing, processing, or use of the substance may present an unreasonable risk. EPA has determined, however, that any use of the substances other than as emulsifiers for use in asphalt applications may cause significant adverse environmental effects. Based on this information, the PMN substances meet the concern criteria at § 721.170(b)(4)(ii).
During review of the PMNs submitted for the chemical substances that are subject to these SNURs, EPA concluded that for 3 of the 13 chemical substances, regulation was warranted under TSCA section 5(e), pending the development of information sufficient to make reasoned evaluations of the health or environmental effects of the chemical substances. The basis for such findings is outlined in Unit IV. Based on these findings, TSCA section 5(e) consent orders requiring the use of appropriate exposure controls were negotiated with the PMN submitters. The SNUR provisions for these chemical substances are consistent with the provisions of the TSCA section 5(e) consent orders. These SNURs are promulgated pursuant to § 721.160 (see Unit VI.).
In the other 10 cases, where the uses are not regulated under a TSCA section 5(e) consent order, EPA determined that one or more of the criteria of concern established at § 721.170 were met, as discussed in Unit IV.
EPA is issuing these SNURs for specific chemical substances which have undergone premanufacture review because the Agency wants to achieve the following objectives with regard to the significant new uses designated in this rule:
• EPA will receive notice of any person's intent to manufacture or process a listed chemical substance for the described significant new use before that activity begins.
• EPA will have an opportunity to review and evaluate data submitted in a SNUN before the notice submitter begins manufacturing or processing a listed chemical substance for the described significant new use.
• EPA will be able to regulate prospective manufacturers or processors of a listed chemical substance before the described significant new use of that chemical substance occurs, provided that regulation is warranted pursuant to TSCA sections 5(e), 5(f), 6, or 7.
• EPA will ensure that all manufacturers and processors of the same chemical substance that is subject to a TSCA section 5(e) consent order are subject to similar requirements.
Issuance of a SNUR for a chemical substance does not signify that the chemical substance is listed on the TSCA Chemical Substance Inventory (TSCA Inventory). Guidance on how to determine if a chemical substance is on the TSCA Inventory is available on the Internet at
EPA is issuing these SNURs as a direct final rule, as described in § 721.160(c)(3) and § 721.170(d)(4). In accordance with § 721.160(c)(3)(ii) and § 721.170(d)(4)(i)(B), the effective date of this rule is September 8, 2014 without further notice, unless EPA receives written adverse or critical comments, or notice of intent to submit adverse or critical comments before August 7, 2014.
If EPA receives written adverse or critical comments, or notice of intent to submit adverse or critical comments, on one or more of these SNURs before August 7, 2014, EPA will withdraw the relevant sections of this direct final rule before its effective date. EPA will then issue a proposed SNUR for the chemical substance(s) on which adverse or critical comments were received, providing a 30-day period for public comment.
This rule establishes SNURs for a number of chemical substances. Any person who submits adverse or critical comments, or notice of intent to submit adverse or critical comments, must identify the chemical substance and the new use to which it applies. EPA will not withdraw a SNUR for a chemical substance not identified in the comment.
To establish a significant new use, EPA must determine that the use is not ongoing. The chemical substances subject to this rule have undergone premanufacture review. In cases where EPA has not received a notice of commencement (NOC) and the chemical substance has not been added to the TSCA Inventory, no person may commence such activities without first submitting a PMN. Therefore, for chemical substances for which an NOC has not been submitted, EPA concludes that the designated significant new uses are not ongoing.
When chemical substances identified in this rule are added to the TSCA Inventory, EPA recognizes that, before the rule is effective, other persons might engage in a use that has been identified as a significant new use. However, TSCA section 5(e) consent orders have been issued for 3 of the 13 chemical substances, and the PMN submitters are prohibited by the TSCA section 5(e) consent orders from undertaking activities which would be designated as significant new uses. The identities of all 13 of the chemical substances subject to this rule have been claimed as confidential and EPA has received no post-PMN
Therefore, EPA designates July 8, 2014 as the cutoff date for determining whether the new use is ongoing. Persons who begin commercial manufacture or processing of the chemical substances for a significant new use identified as of that date would have to cease any such activity upon the effective date of the final rule. To resume their activities, these persons would have to first comply with all applicable SNUR notification requirements and wait until the notice review period, including any extensions, expires. If such a person met the conditions of advance compliance under § 721.45(h), the person would be considered exempt from the requirements of the SNUR. Consult the
EPA recognizes that TSCA section 5 does not require developing any particular test data before submission of a SNUN. The two exceptions are:
1. Development of test data is required where the chemical substance subject to the SNUR is also subject to a test rule under TSCA section 4 (see TSCA section 5(b)(1)).
2. Development of test data may be necessary where the chemical substance has been listed under TSCA section 5(b)(4) (see TSCA section 5(b)(2)).
In the absence of a TSCA section 4 test rule or a TSCA section 5(b)(4) listing covering the chemical substance, persons are required only to submit test data in their possession or control and to describe any other data known to or reasonably ascertainable by them (see 40 CFR 720.50). However, upon review of PMNs and SNUNs, the Agency has the authority to require appropriate testing. In cases where EPA issued a TSCA section 5(e) consent order that requires or recommends certain testing, Unit IV. lists those tests. Unit IV. also lists recommended testing for non-TSCA section 5(e) SNURs. Descriptions of tests are provided for informational purposes. EPA strongly encourages persons, before performing any testing, to consult with the Agency pertaining to protocol selection. To access the OCSPP test guidelines referenced in this document electronically, please go to
In the TSCA section 5(e) consent orders for several of the chemical substances regulated under this rule, EPA has established production volume limits in view of the lack of data on the potential health and environmental risks that may be posed by the significant new uses or increased exposure to the chemical substances. These limits cannot be exceeded unless the PMN submitter first submits the results of toxicity tests that would permit a reasoned evaluation of the potential risks posed by these chemical substances. Under recent TSCA section 5(e) consent orders, each PMN submitter is required to submit each study before reaching the specified production limit. Listings of the tests specified in the TSCA section 5(e) consent orders are included in Unit IV. The SNURs contain the same production volume limits as the TSCA section 5(e) consent orders. Exceeding these production limits is defined as a significant new use. Persons who intend to exceed the production limit must notify the Agency by submitting a SNUN at least 90 days in advance of commencement of non-exempt commercial manufacture or processing.
The recommended tests specified in Unit IV. may not be the only means of addressing the potential risks of the chemical substance. However, submitting a SNUN without any test data may increase the likelihood that EPA will take action under TSCA section 5(e), particularly if satisfactory test results have not been obtained from a prior PMN or SNUN submitter. EPA recommends that potential SNUN submitters contact EPA early enough so that they will be able to conduct the appropriate tests.
SNUN submitters should be aware that EPA will be better able to evaluate SNUNs which provide detailed information on the following:
• Human exposure and environmental release that may result from the significant new use of the chemical substances.
• Potential benefits of the chemical substances.
• Information on risks posed by the chemical substances compared to risks posed by potential substitutes.
By this rule, EPA is establishing certain significant new uses which have been claimed as CBI subject to Agency confidentiality regulations at 40 CFR part 2 and 40 CFR part 720, subpart E. Absent a final determination or other disposition of the confidentiality claim under 40 CFR part 2 procedures, EPA is required to keep this information confidential. EPA promulgated a procedure to deal with the situation where a specific significant new use is CBI, at 40 CFR 721.1725(b)(1).
Under these procedures a manufacturer or processor may request EPA to determine whether a proposed use would be a significant new use under the rule. The manufacturer or processor must show that it has a
If EPA determines that the use identified in the
According to § 721.1(c), persons submitting a SNUN must comply with the same notification requirements and EPA regulatory procedures as persons submitting a PMN, including submission of test data on health and environmental effects as described in 40 CFR 720.50. SNUNs must be submitted on EPA Form No. 7710-25, generated using e-PMN software, and submitted to the Agency in accordance with the procedures set forth in 40 CFR 720.40 and § 721.25. E-PMN software is available electronically at
EPA has evaluated the potential costs of establishing SNUN requirements for potential manufacturers and processors of the chemical substances subject to this rule. EPA's complete economic analysis is available in the docket under docket ID number EPA-HQ-OPPT-2014-0277.
This rule establishes SNURs for several new chemical substances that were the subject of PMNs, or TSCA section 5(e) consent orders. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993).
According to PRA (44 U.S.C. 3501
The information collection requirements related to this action have already been approved by OMB pursuant to PRA under OMB control number 2070-0012 (EPA ICR No. 574). This action does not impose any burden requiring additional OMB approval. If an entity were to submit a SNUN to the Agency, the annual burden is estimated to average between 30 and 170 hours per response. This burden estimate includes the time needed to review instructions, search existing data sources, gather and maintain the data needed, and complete, review, and submit the required SNUN.
Send any comments about the accuracy of the burden estimate, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques, to the Director, Collection Strategies Division, Office of Environmental Information (2822T), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001. Please remember to include the OMB control number in any correspondence, but do not submit any completed forms to this address.
On February 18, 2012, EPA certified pursuant to RFA section 605(b) (5 U.S.C. 601
1. A significant number of SNUNs would not be submitted by small entities in response to the SNUR.
2. The SNUR submitted by any small entity would not cost significantly more than $8,300.
A copy of that certification is available in the docket for this rule.
This rule is within the scope of the February 18, 2012 certification. Based on the Economic Analysis discussed in Unit XI. and EPA's experience promulgating SNURs (discussed in the certification), EPA believes that the following are true:
• A significant number of SNUNs would not be submitted by small entities in response to the SNUR.
• Submission of the SNUN would not cost any small entity significantly more than $8,300.
Therefore, the promulgation of the SNUR would not have a significant economic impact on a substantial number of small entities.
Based on EPA's experience with proposing and finalizing SNURs, State, local, and Tribal governments have not been impacted by these rulemakings, and EPA does not have any reasons to believe that any State, local, or Tribal government will be impacted by this rule. As such, EPA has determined that this rule does not impose any enforceable duty, contain any unfunded mandate, or otherwise have any effect on small governments subject to the requirements of UMRA sections 202, 203, 204, or 205 (2 U.S.C. 1501
This action will not have a substantial direct effect on 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, entitled “Federalism” (64 FR 43255, August 10, 1999).
This rule does not have Tribal implications because it is not expected to have substantial direct effects on Indian Tribes. This rule does not significantly nor uniquely affect the communities of Indian Tribal governments, nor does it involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), do not apply to this rule.
This action is not subject to Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because this is not an economically significant regulatory action as defined by Executive Order 12866, and this action does not address environmental health or safety risks disproportionately affecting children.
This action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because this action is not expected to affect energy supply, distribution, or use and because this action is not a significant regulatory action under Executive Order 12866.
In addition, since this action does not involve any technical standards, NTTAA section 12(d) (15 U.S.C. 272 note), does not apply to this action.
This action does not entail special considerations of environmental justice related issues as delineated by Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Reporting and recordkeeping requirements.
Environmental protection, Chemicals, Hazardous substances, Reporting and recordkeeping requirements.
Therefore, 40 CFR parts 9 and 721 are amended as follows:
7 U.S.C. 135
15 U.S.C. 2604, 2607, and 2625(c).
(a)
(2) The significant new uses are:
(i)
(ii)
(iii)
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(2)
(3)
(a)
(2) The significant new uses are:
(i)
(ii)
(iii)
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii)
(b)
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(2) The significant new uses are:
(i)
(ii)
(iii)
(b)
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(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
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(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(A) NIOSH-certified power air-purifying respirator with a hood or helmet and with appropriate gas/vapor (acid gas, organic vapor, or substance specific) cartridges in combination with HEPA filters;
(B) NIOSH-certified continuous flow supplied-air respirator equipped with a loose fitting facepiece, hood, or helmet; and
(C) NIOSH-certified negative pressure (demand) supplied-air respirator with a full facepiece.
(ii)
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS implements accountability measures (AMs) for the commercial deep-water complex in the exclusive economic zone (EEZ) of the South Atlantic. Commercial landings for the deep-water complex, as estimated by the Science and Research Director, are projected to reach the commercial annual catch limit (ACL) on July 10, 2014. Therefore, NMFS is closing the commercial sector for the deep-water complex in the South Atlantic EEZ on July 10, 2014, and it will remain closed until the start of the next fishing season, January 1, 2015. This closure is necessary to protect the deep-water complex resource.
This rule is effective 12:01 a.m., local time, July 10, 2014, until 12:01 a.m., local time, January 1, 2015.
Catherine Hayslip, telephone: 727-824-5305, email:
The snapper-grouper fishery of the South Atlantic includes the deep-water complex and is managed under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The deep-water complex in the South Atlantic includes yellowedge grouper, silk snapper, misty grouper, queen snapper, sand tilefish, black snapper, and blackfin snapper. The FMP was prepared by the South Atlantic Fishery Management Council and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.
Given new stock assessment results that indicated the blueline tilefish stock is overfished and undergoing overfishing in the South Atlantic, NMFS published an emergency rule (79 FR 21636, April 17, 2014) to remove blueline tilefish from the deep-water complex and establish separate commercial and recreational ACLs and AMs for blueline tilefish and for the deep-water complex in the EEZ of the South Atlantic. That emergency rule implemented an updated commercial ACL for the deep-water complex in the South Atlantic of 60,371 lb (27,384 kg), round weight. The emergency rule is effective April 17, 2014, through October 14, 2014, unless superseded by subsequent rulemaking. NMFS may extend the rule's effectiveness for an additional 186 days pursuant to the Magnuson-Stevens Act.
Under 50 CFR 622.193(z)(1), NMFS is required to close the commercial sector for the deep-water complex when the commercial ACL is reached, or is projected to be reached, by filing a notification to that effect with the Office of the Federal Register. NMFS has determined that the commercial ACL for the South Atlantic deep-water complex will have been reached by July 10, 2014. Accordingly, the commercial sector for the South Atlantic deep-water complex is closed effective 12:01 a.m., local time, July 10, 2014, until 12:01 a.m., local time, January 1, 2015.
The operator of a vessel with a valid commercial vessel permit for South Atlantic snapper-grouper having any deep-water complex species onboard must have landed and bartered, traded, or sold such species prior to 12:01 a.m., local time, July 10, 2014. During the closure, all sale or purchase of the deep-water complex species is prohibited and harvest or possession of the deep-water complex species in or from the South Atlantic EEZ is limited to the bag and possession limits specified in 50 CFR 622.187(b)(2) and 622.187(c)(1), respectively. These bag and possession limits apply in the South Atlantic on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper has been issued, without regard to where such species were harvested,
The Regional Administrator, Southeast Region, NMFS, has determined this temporary rule is necessary for the conservation and management of the deep-water complex and the South Atlantic snapper-grouper fishery and is consistent with the Magnuson-Stevens Act, the FMP, and other applicable laws.
This action is taken under 50 CFR 622.193(z)(1) and is exempt from review under Executive Order 12866.
These measures are exempt from the procedures of the Regulatory Flexibility Act because the temporary rule is issued without opportunity for prior notice and comment.
This action responds to the best available scientific information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA), finds that the need to immediately implement this action to close the
Allowing prior notice and opportunity for public comment is contrary to the public interest because of the need to immediately implement this action to protect the deep-water complex since the capacity of the fishing fleet allows for rapid harvest of the commercial ACL. Prior notice and opportunity for public comment would require time and would potentially result in a harvest well in excess of the established commercial ACL.
For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS implements accountability measures (AMs) for the commercial sector for the lesser amberjack, almaco jack, and banded rudderfish complex in the South Atlantic for the 2014 fishing year through this temporary rule. Commercial landings for the lesser amberjack, almaco jack, and banded rudderfish complex, as estimated by the Science and Research Director (SRD), are projected to reach their combined commercial annual catch limit (ACL) on July 15, 2014. Therefore, NMFS closes the commercial sector for this complex on July 15, 2014, through the remainder of the fishing year in the exclusive economic zone (EEZ) of the South Atlantic. This closure is necessary to protect the lesser amberjack, almaco jack, and banded rudderfish resources.
This rule is effective 12:01 a.m., local time, July 15, 2014, until 12:01 a.m., local time, January 1, 2015.
Catherine Hayslip, telephone: 727-824-5305, email:
The snapper-grouper fishery of the South Atlantic, which includes the lesser amberjack, almaco jack, and banded rudderfish complex, is managed under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The FMP was prepared by the South Atlantic Fishery Management Council and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.
The combined commercial ACL for the lesser amberjack, almaco jack, and banded rudderfish complex is 189,422 lb (85,920 kg), round weight. Under 50 CFR 622.193(l)(1), NMFS is required to close the commercial sector for the lesser amberjack, almaco jack, and banded rudderfish complex when the commercial ACL has been reached, or is projected to be reached, by filing a notification to that effect with the Office of the Federal Register. NMFS has determined that the commercial sector for this complex is projected to reach the ACL on July 15, 2014. Therefore, this temporary rule implements an AM to close the commercial sector for the lesser amberjack, almaco jack, and banded rudderfish complex in the South Atlantic, effective 12:01 a.m., local time, July 15, 2014.
The operator of a vessel with a valid commercial vessel permit for South Atlantic snapper-grouper having lesser amberjack, almaco jack, or banded rudderfish onboard must have landed and bartered, traded, or sold such species prior to 12:01 a.m., local time, July 15, 2014. During the closure, the bag limit specified in 50 CFR 622.187(b)(8) and the possession limits specified in 50 CFR 622.187(c) apply to all harvest or possession of lesser amberjack, almaco jack, or banded rudderfish in or from the South Atlantic EEZ. These bag and possession limits apply in the South Atlantic on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper has been issued, without regard to where such species were harvested,
The Regional Administrator, Southeast Region, NMFS, has determined this temporary rule is necessary for the conservation and management of the lesser amberjack, almaco jack, and banded rudderfish complex, a component of the South Atlantic snapper-grouper fishery, and is consistent with the Magnuson-Stevens Act and other applicable laws.
This action is taken under 50 CFR 622.193(l)(1) and is exempt from review under Executive Order 12866.
These measures are exempt from the procedures of the Regulatory Flexibility Act because the temporary rule is issued without opportunity for prior notice and comment.
This action responds to the best available scientific information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA), finds that the need to immediately implement this action to close the commercial sector for the lesser amberjack, almaco jack, and banded rudderfish complex constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment pursuant to the authority set forth in 5 U.S.C. 553(b)(B), as such procedures would be unnecessary and contrary to the public interest. Such procedures would be unnecessary because the rule itself has been subject to notice and comment, and all that remains is to notify the public of the closure.
Allowing prior notice and opportunity for public comment is contrary to the public interest because of the need to immediately implement this action to protect the lesser amberjack, almaco jack, and banded rudderfish complex because the capacity of the fishing fleet allows for
For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).
16 U.S.C. 1801
Food and Drug Administration, HHS.
Notice of Petition; Correction.
The Food and Drug Administration (FDA) published a document in the
The notice of petition is corrected as of July 8, 2014.
Isabel W. Pocurull, Center for Veterinary Medicine, Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 240-453-6853.
In FR Doc. 2014-05066, appearing on page 13263 in the
1. On page 13263, in the second column, remove the
Submit either electronic or written comments on the petitioner's environmental assessment by August 7, 2014.
2. On page 13263, in the second column, remove the second paragraph of the
We are reviewing the potential environmental impact of this petition. To encourage public participation consistent with regulations issued under the National Environmental Policy Act (40 CFR 1501.4(b)), we are placing the environmental assessment submitted with the petition that is the subject of this notice on public display at the Division of Dockets Management (see
Interested persons may submit either electronic comments regarding this document to
Wage and Hour Division, Department of Labor.
Extension of comment period.
This document extends the period for filing written comments until July 28, 2014 on the proposed rulemaking to implement the minimum wage protections of Executive Order 13658, Establishing a Minimum Wage for Contractors. The Notice of Proposed Rulemaking (NPRM) was published in the
The comment period for the proposed rule published June 17, 2014, at 79 FR 34568, is extended. The agency must receive comments on or before July 28, 2014.
You may submit comments, identified by Regulatory Information Number (RIN) 1235-AA10, by either one of the following methods:
Mary Ziegler, Director, Division of Regulations, Legislation and Interpretation, Wage and Hour Division, U.S. Department of Labor, Room S-3510, 200 Constitution Avenue NW., Washington, DC 20210; telephone: (202) 693-0406 (this is not a toll-free number). Copies of the NPRM may be obtained in alternative formats (large print, braille, audio tape, or disc) upon request by calling (202) 693-0023. TTY/TDD callers may dial toll-free (877) 889-5627 to obtain information or request materials in alternative formats.
Questions of interpretation or enforcement of regulations issued by this agency or referenced in this document may be directed to the nearest Wage and Hour Division District Office. Locate the nearest office by calling the Wage and Hour Division's toll-free help line at (866) 4US-WAGE ((866) 487-9243) between 8 a.m. and 5 p.m. in your local time zone, or log onto the Wage and Hour Division's Web site for a nationwide listing of Wage and Hour District and Area Offices at
The Department is proposing regulations to implement Executive Order 13658, Establishing a Minimum Wage for Contractors. The Executive Order seeks to increase efficiency and cost savings in the work performed by parties that contract with the Federal Government by raising the hourly minimum wage paid by those contractors to workers performing work on covered federal contracts to: (i) $10.10 per hour, beginning January 1, 2015; and (ii) beginning January 1, 2016, and annually thereafter, an amount determined by the Secretary of Labor. The NPRM incorporates existing definitions, procedures, remedies, and enforcement processes under the Fair Labor Standards Act, the Service Contract Act, and the Davis-Bacon Act.
On February 12, 2014, President Obama signed Executive Order 13658, which directed the Department to issue regulations to implement the requirements of the Executive Order by October 1, 2014. On June 12, 2014, the Department posted on its Web site an overview of the Executive Order and the NPRM comment process. The Department published the NPRM in the
The Department has received requests to extend the period for filing public comments from government and business organizations. Because of the interest that has been expressed in this matter, the Department has decided to provide an extension of the period for submitting public comment until July 28, 2014.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish a safety zone on the navigable waters of the James River in the vicinity of the James River Reserve Fleet and Hog Island, Virginia for multiple periods of one hour in length each on all weekdays from August 6 until August 15, 2014. This safety zone is intended to restrict vessel movement in the specified area during the United States Navy's demonstrations involving unmanned and remote-operated crafts. This action is necessary to provide for the safety of life and property on the surrounding navigable waters during the events due to the high speed maneuvering of the vessels and the experimental nature of the control technology.
Comments and related material must be received by the Coast Guard on or before July 23, 2014.
Submit comments online at
If you have questions on this rule, call or email LCDR Gregory Knoll, Waterways Management Division Chief, Sector Hampton Roads, Coast Guard; telephone (757) 668-5580, email
Information and comments that you send us may influence our final action on these proposals. Mark comments with docket number USCG-2014-0376 and provide a reason for each comment. If you include personal contact
Documents mentioned in this notice, and all public comments, can be viewed at
We are not planning to hold a public meeting, but if you think one would be helpful, please contact us (see
The United States Navy is conducting a demonstration in the James River in the vicinity of the James River Reserve Fleet and Hog Island. This is not expected to be an annually recurring event, although the Navy and other entities of the federal government have conducted other experiments and exercises requiring safety zones in the past.
The legal basis of this rule is found in 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, and 160.5; Public Law 107-295, 116 Stat. 2064; and Department of Homeland Security Delegation No. 0170.1. The purpose of this rule is to promote public and maritime safety during the Navy's demonstrations involving unmanned and remote-operated crafts.
The Captain of the Port of Hampton Roads proposes to establish a safety zone within the waters of the James River, from James River Channel Lighted Buoy 11 (LLNR 11595), upstream to James River Channel Lighted Buoy 44 (LLNR 11987), bank to bank, in the vicinity of the James River Reserve Fleet and Hog Island, Virginia. This proposed safety zone will be enforced from August 6, 2014 through August 8, 2014 and August 11, 2014 through August 15, 2014 during the hours of 9:30 a.m. to 10:30 a.m., 11:30 a.m. to 12:30 p.m. and 2 p.m. to 3 p.m. each day. Access to the safety zone will be restricted during the specified dates and times.
Except for vessels authorized by the Captain of the Port or his designated representative, no person or vessel may enter or remain in the safety zone during the time frame listed. The Captain of the Port will give notice of the enforcement of the safety zone by all appropriate means to provide the widest dissemination of notice among the affected segments of the public. This will include publication in the Local Notice to Mariners and Marine Information Broadcasts.
We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes and executive orders.
This proposed 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, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. The primary impact of these regulations will be on vessels wishing to transit the affected waterways during the safety zone on the James River in the vicinity of Newport News, VA. Although these regulations prevent traffic from transiting a portion of the James River during these experiments, that restriction is limited in duration, affects only a limited area, and will be well publicized to allow mariners to make alternative plans for transiting the affected area.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule will not have a significant economic impact on a substantial number of small entities.
This proposed rule will affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in specified waters of the James River during the outlined timeframe.
This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: (i) The safety zone will only be in place for a limited duration, and (ii) before the enforcement period, maritime advisories will be issued allowing mariners to adjust their plans accordingly.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
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 proposed rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and determined that this rule does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires
This proposed rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed 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 proposed 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 proposed 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.
This proposed rule is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves the establishment of a safety zone. This proposed rule is categorically excluded from further review under paragraph 34-g of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination 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 proposes to amend 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)
(2) The operator of any vessel in the immediate vicinity of this safety zone shall:
(i) Contact on scene contracting vessels via VHF channel 13 and 16 for passage instructions.
(ii) If on scene proceed as directed by any commissioned, warrant or petty officer on shore or on board a vessel that is displaying a U.S. Coast Guard Ensign.
(3) The Captain of the Port, Hampton Roads can be reached through the Sector Duty Officer at Sector Hampton Roads in Portsmouth, Virginia at telephone number (757) 668-5555.
(4) The Coast Guard Representatives enforcing the safety zone can be contacted on VHF-FM marine band radio channel 13 (165.65 Mhz) and channel 16 (156.8 Mhz).
(d)
Office of the Chief Economist, U.S. Department of Agriculture.
Request for nominations of expert peer reviewers.
The U.S. Department of Agriculture (USDA) invites the public to nominate scientific experts to be considered as peer reviewers for the external peer review of the draft document entitled, “Global Climate Change, Food Security, and the U.S. Food System.” The draft document was prepared by USDA and a team of multi-institutional experts to support the National Climate Assessment. The draft document is a technical analysis of the issues, and policy considerations are outside its scope.
Responses to this notice should be submitted by 11:59 p.m. Eastern Time on August 7, 2014.
Any interested person or organization may nominate scientific experts to be considered as a peer reviewer. Self-nominations will be accepted. Nominations may be submitted electronically or by overnight/priority mail service. Nominations may not be submitted via the U.S. Postal Service. Nominations must include all nominee information outlined in Section II of the
• Email:
• Overnight/Priority/Courier: U.S. Department of Agriculture, Climate Change Program Office, 1400 Independence Avenue SW., Room #4407, Washington, DC 20250.
• Mail: Nominations cannot be accepted via the U.S. Postal Service.
Questions concerning nomination receipt should be directed to Margaret Walsh of the Climate Change Program Office via Email:
This report will be published as a USDA technical document. Publication is anticipated in the Fall of 2015. Connections between weather, climate, and food security have long been recognized. This report evaluates the possible changes to each element of the food system and food security as a result of changes in climate based on information in the peer-reviewed scientific and economic literature. Temperature and precipitation patterns, as well as changes in weed, pest, and disease prevalence are already occurring under a changing climate. These effects are expected to result in transformations in ecosystem functioning and in the economic viability of agriculture in many regions of the world, as well as in the refrigeration requirements of food products, transportation patterns, and other effects. The U.S. is currently a major food importer and exporter, and provides a safety net for many food insecure nations. Global changes both in climate and in food security are therefore likely to influence the U.S. food system through altered production decisions, the goods available to consumers, and their prices.
The
Animal and Plant Health Inspection Service, USDA.
Extension of approval of an information collection; comment request.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request an extension of approval of an information collection associated with the regulations for pork and poultry products from Mexico transiting the United States.
We will consider all comments that we receive on or before September 8, 2014.
You may submit comments by either of the following methods:
•
•
Supporting documents and any comments we receive on this docket may be viewed at
For information on pork and poultry products from Mexico transiting the United States, contact Dr. Lynette Williams, Senior Staff Veterinarian, National Import Export Services, VS, APHIS, 4700 River Road Unit 40, Riverdale, MD 20737; (301) 851-3300. For copies of more detailed information on the information collection, contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 851-2908.
The regulations in 9 CFR 94.15 allow pork and pork products and poultry carcasses, parts, and products (except eggs and egg products) that are not eligible for entry into the United States to transit the United States from specified States in Mexico, via land border ports, for export to another country.
The regulations set out conditions for the transit movements that protect against the introduction of classical swine fever or Newcastle disease into the United States. These conditions involve the use of information collection activities, including the completion of a USDA, APHIS, Veterinary Services Application for Permit to Import or Transport Controlled Material or Organisms or Vectors (Veterinary Services Form 16-3), the placement of serially numbered seals on product containers, and the forwarding of a pre-arrival notification to U.S. port personnel.
We are asking the Office of Management and Budget (OMB) to approve our use of these information collection activities for an additional 3 years.
The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies; e.g., permitting electronic submission of responses.
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.
Animal and Plant Health Inspection Service, USDA.
Notice of availability.
We are advising the public that we have prepared pest risk analyses that evaluate the risks associated with importation of chipilin leaves and edible flowers of chufle, izote, and pacaya from Guatemala into the continental United States. Based on these analyses, we have determined that the application of one or more designated phytosanitary measures will be sufficient to mitigate the risks of introducing or disseminating plant pests or noxious weeds via the movement of chipilin leaves and edible flowers of chufle, izote, and pacaya from Guatemala. We are making these documents available to the public for review and comment.
We will consider all comments that we receive on or before September 8, 2014.
You may submit comments by either of the following methods:
•
•
Supporting documents and any comments we receive on this docket may be viewed at
Ms. Claudia Ferguson, Senior Regulatory Policy Coordinator, Regulatory Coordination and Compliance, Regulations, Permits and Manuals, PPQ, APHIS, 4700 River Road, Unit 133, Riverdale, MD 20737-1231; (301) 851-2352.
Under the regulations in “Subpart-Fruits and Vegetables” (7 CFR 319.56-1 through 319.56-68, referred to below as the regulations), the Animal and Plant Health Inspection Service (APHIS) prohibits or restricts the importation of fruits and vegetables into the United States from certain parts of the world to prevent the introduction and dissemination of plant pests that are new to or not widely distributed within the United States.
Section 319.56-4 contains a performance-based process for approving the importation of certain fruits and vegetables that, based on the findings of a pest risk analysis, can be safely imported subject to one or more of the phytosanitary measures listed in paragraph (b) of that section.
APHIS received a request from the national plant protection organization (NPPO) of Guatemala to allow the importation of chipilin leaves (
As part of our evaluation of Guatemala's request, we have prepared pest risk assessments (PRAs) to identify pests of quarantine significance that could follow the pathway of importation into the continental United States from Guatemala and, based on the PRAs, risk management documents (RMDs) to identify phytosanitary measures that could be applied to the commodities to mitigate the pest risk. (The PRAs evaluating the pest risks for chipilin leaves, chufle, and pacaya were originally drafted for a market access request from El Salvador; however, these PRAs also address the risks associated with importing these commodities from Guatemala.) We have concluded that chipilin leaves and edible flowers of chufle, izote, and pacaya can be safely imported from Guatemala to the continental United States using one or more of the five designated phytosanitary measures listed in § 319.56-4(b). These measures are:
• The commodities must be imported as commercial consignments only;
• Each consignment must be accompanied by a phytosanitary certificate issued by the NPPO of Guatemala; and
• Each consignment is subject to inspection upon arrival at the port of entry to the United States.
Therefore, in accordance with § 319.56-4(c), we are announcing the availability of our PRAs and RMDs for public review and comment. The documents may be viewed on the Regulations.gov Web site or in our reading room (see
After reviewing any comments we receive, we will announce our decision regarding the import status of chipilin leaves and edible flowers of chufle, izote, and pacaya from Guatemala in a subsequent notice. If the overall conclusions of our analyses and the Administrator's determination of risk remain unchanged following our consideration of the comments, then we will authorize the importation of chipilin leaves and edible flowers of chufle, izote, and pacaya from Guatemala into the continental United States subject to the requirements specified in the RMDs.
7 U.S.C. 450, 7701-7772, and 7781-7786; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3.
Office of the Under Secretary for Food Safety, USDA.
Notice of public meeting and request for comments.
The Office of the Under Secretary for Food Safety, United States
The public meeting is scheduled for Tuesday, August 12, 2014, from 1:00-4:00 p.m.
The public meeting will take place at The United States Department of Agriculture (USDA), Jamie L. Whitten Building, 1400 Independence Avenue SW., Room 107-A, Washington, DC 20250. Documents related to the 27th session of CCPFV will be accessible via Internet at the following address:
Dorian LaFond, U.S. Delegate to the 27th session of CCPFV, invites U.S. interested parties to submit their comments electronically to the following email address:
Call In Number:
If you wish to participate in the public meeting for the 27th session of CCPFV by conference call, Please use the call in number and participant code listed below:
Call in Number: 1-888-844-9904
The participant code will be posted on the following Web page:
For Further Information About The 27th Session of CCPFV Contact: Dorian LaFond, Agricultural Marketing Service, Fruits and Vegetables Division, Stop 0235-Room 2086, South Building, 1400 Independence Ave. SW., Washington, DC 20250-0235; Phone: (202) 690-4944, Fax: (202) 720-0016 Email:
For Further Information About The Public Meeting Contact: Doreen Chen-Moulec, U.S. Codex Office, 1400 Independence Avenue SW., Room 4865, Washington, DC 20250; Phone: (202) 205-7760, Fax: (202) 720-3157, Email:
The Codex Alimentarius (Codex) was established in 1963 by two United Nations organizations, the Food and Agriculture Organization and the World Health Organization. Through adoption of food standards, codes of practice, and other guidelines developed by its committees, and by promoting their adoption and implementation by governments, Codex seeks to protect the health of consumers and ensure fair practices in the food trade.
The CCPFV is responsible for: elaborating worldwide standards and related texts for all types of processed fruits and vegetables including but not limited to canned, dried and frozen products as well as fruit and vegetable juices and nectars.
The Committee is hosted by the United States.
The following items on the Agenda for the 27th session of CCPFV will be discussed during the public meeting:
Each issue listed will be fully described in documents distributed, or to be distributed, by the Secretariat prior to the Meeting. Members of the public may access or request copies of these documents (see
At the August 12, 2014 public meeting, draft U.S. positions on the agenda items will be described and discussed, and attendees will have the opportunity to pose questions and offer comments. Written comments may be offered at the meeting or sent to the U.S. Delegate for the 27th session of CCPFV, Dorian LaFond (see
FSIS will announce this notice online through the FSIS Web page located at
FSIS will also make copies of this
The U.S. Department of Agriculture (USDA) prohibits discrimination in all its programs and activities on the basis of race, color, national origin, gender, religion, age, disability, political beliefs, sexual orientation, and marital or family status. (Not all prohibited bases apply to all programs.)
Persons with disabilities who require alternative means for communication of program information (Braille, large print, audiotape, etc.) should contact USDA's Target Center at (202) 720-2600 (voice and TTY).
To file a written complaint of discrimination, write USDA, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue SW., Washington, DC 20250-9410 or call (202) 720-5964 (voice and TTY). USDA is an equal opportunity provider and employer.
Food Safety and Inspection Service, USDA.
Notice soliciting nominations for membership—extension of time for submission.
On May 15, 2014, the U.S. Department of Agriculture (USDA) published a notice soliciting nominations for membership on the National Advisory Committee on Meat and Poultry Inspection (NACMPI). Nominations were to have been submitted by June 16, 2014. That deadline is now reopened until July 23, 2014.
Nominations and required material (See How to Apply) are due July 23, 2014.
Ms. Jane Johnson, Program Specialist, Office of Outreach, Employee Education and Training, Food Safety and Inspection Service (FSIS); Telephone (202) 690-1277; Fax (202) 690-6519; Email
On May 15, 2014, USDA published a notice in the
To receive consideration for service on the NACMPI, a nominee must submit a resume and USDA Advisory Committee Membership Background Information form AD-755. Self-nominations are welcome. The resume or curriculum vitae must be limited to five one-sided pages and should include nominee's educational background and expertise. For submissions received that are more than five one-sided pages in length, only the first five pages will be reviewed. USDA Advisory Committee Membership Background Information form AD-755 is available online at:
FSIS will announce this notice online through the FSIS Web page located at
FSIS will also make copies of this
USDA prohibits discrimination in all its programs and activities on the basis of race, color, national origin, gender, religion, age, disability, political beliefs, sexual orientation, and marital or family status. (Not all prohibited bases apply to all programs.) Persons with disabilities who require alternative means for communication of program information (Braille, large print, or audiotape) should contact USDA's Target Center at (202) 720-2600 (voice and TTY).
To file a written complaint of discrimination, write USDA, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue SW., Washington, DC 20250-9410 or call (202) 720-5964 (voice and TTY). USDA is an equal opportunity provider and employer.
Food Safety and Inspection Service.
Notice Soliciting Nominations for Membership on the National Advisory Committee on Microbiological Criteria for Foods.
The U.S. Department of Agriculture (USDA) is soliciting nominations for membership on the National Advisory Committee on Microbiological Criteria for Foods (NACMCF). There are 7 vacancies. Advisory Committee members serve a two-year term, renewable for two consecutive terms.
USDA is seeking NACMCF members with scientific expertise in the fields of epidemiology, food technology, microbiology (food, clinical, and predictive), toxicology, risk assessment, infectious disease, biostatistics, and other related sciences. USDA is seeking nominations for NACMCF from persons in academia, industry, State governments, and the Federal Government, as well as all other interested persons with the required experience. Please note that federally registered lobbyists cannot be considered for USDA advisory committee membership.
USDA is also seeking nominations for one individual affiliated with a consumer group to serve on the NACMCF. This member will serve as a representative member to provide a consumer viewpoint. This member will not be required to have a scientific background and will not be subject to conflict of interest review.
Members can serve on only one USDA advisory committee at a time. All nominees will undergo a USDA background check.
With the exception of the consumer representative member, any member who is not a Federal government employee will be appointed to serve as a non-compensated special government employee (SGE). SGEs will be subject to appropriate conflict of interest statutes and standards of ethical conduct.
Nominations for membership on the NACMCF must be addressed to the Secretary of USDA and accompanied by a cover letter announcing the nomination, a resume or curriculum vitae, and a completed USDA Advisory Committee Membership Background Information form AD-755 available online at:
All materials must be received by August 7, 2014.
Nomination packages can be sent by mail to: Tom Vilsack, Secretary, U.S. Department of Agriculture, 1400 Independence Avenue SW., Washington, DC 20250, Attn: National Advisory Committee on Microbiological Criteria for Foods.
Ms. Karen Thomas-Sharp, Advisory Committee Specialist, by telephone at 202-690-6620 or by email
The Food Safety and Inspection Service (FSIS) invites interested persons to submit comments on this notice. Comments may be submitted by either of the following methods: Federal eRulemaking Portal: This Web site (
The NACMCF was established in March 1988, in response to a recommendation in a 1985 report of the National Academy of Sciences Committee on Food Protection, Subcommittee on Microbiological Criteria, “An Evaluation of the Role of Microbiological Criteria for Foods.” The current charter for the NACMCF and other information about the Committee are available to the public for viewing on the FSIS Web site at:
The Committee provides scientific advice and recommendations to the Secretary of Agriculture and the Secretary of Health and Human Services concerning the development of microbiological criteria by which the safety and wholesomeness of food can be assessed. For example, the Committee assists in the development of criteria for microorganisms that indicate whether food has been processed using good manufacturing practices.
Appointments to the Committee will be made by the Secretary of Agriculture after consultation with the Secretary of Health and Human Services to ensure that recommendations made by the Committee take into account the needs of the diverse groups served by the Department.
Given the complexity of issues, the full Committee expects to meet at least once a year by teleconference or in-person, and the meetings will be announced in the
NACMCF holds subcommittee meetings in order to accomplish the work of NACMCF; all subcommittee work is reviewed and approved during a public meeting of the full Committee, as announced in the
Advisory Committee members are expected to attend all in-person meetings during the two-year term for the smooth functioning of this advisory committee. However, on rare occasions attendance through teleconferencing may be necessary.
Members must be prepared to work outside of scheduled Committee and subcommittee meetings and may be required to assist in document preparation. Committee members serve on a voluntary basis; however, travel expenses and per diem reimbursement are available.
All SGE and Federal government employee nominees who are selected must complete the Office of Government Ethics (OGE) 450 Confidential Financial Disclosure Report before rendering any advice or prior to their first meeting. With the exception of the consumer representative committee member, all committee members will be reviewed pursuant to 18 U.S.C. 208 for conflicts of interest relating to specific NACMCF work charges, and financial disclosure updates will be required annually. Members subject to financial disclosure must report any changes in financial holdings requiring additional disclosure. OGE 450 forms are available on-line at:
FSIS will announce this notice online through the FSIS Web page located at
FSIS will also make copies of this
USDA prohibits discrimination in all its programs and activities on the basis of race, color, national origin, gender, religion, age, disability, political beliefs, sexual orientation, and marital or family status. (Not all prohibited bases apply to all programs.) Persons with disabilities who require alternative means for communication of program information (Braille, large print, or audiotape.) should contact USDA's Target Center at 202-720-2600 (voice and TTY).
To file a written complaint of discrimination, write USDA, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue SW., Washington, DC 20250-9410 or call 202-720-5964 (voice and TTY). USDA is an equal opportunity provider and employer.
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
Greater Maricopa Foreign-Trade Zone, Inc., grantee of FTZ 277, submitted a notification of proposed production activity to the FTZ Board on behalf of Maxwell Technologies, Inc. (Maxwell), located in Peoria, Arizona. The notification conforming to the requirements of the regulations of the FTZ Board (15 CFR 400.22) was received on June 27, 2014.
A separate application for usage-driven designation at the Maxwell facility was submitted and will be processed under Section 400.38 of the Board's regulations. The facility is used for the manufacturing of electrodes and capacitors. Pursuant to 15 CFR 400.14(b), FTZ activity would be limited to the specific foreign-status materials and components and specific finished products described in the submitted notification (as described below) and subsequently authorized by the FTZ Board.
Production under FTZ procedures could exempt Maxwell from customs duty payments on the foreign status components used in export production. On its domestic sales, Maxwell would be able to choose the duty rates during customs entry procedures that apply to electrodes and capacitors (duty rate free) for the foreign status inputs noted below. Customs duties also could possibly be deferred or reduced on foreign status production equipment.
The components and materials sourced from abroad include: Aluminum foil and carbon powder (duty rate ranges from 4.8% to 5.3%).
Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is August 18, 2014.
A copy of the notification will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the Board's Web site, which is accessible via
Christopher Kemp at
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
The application to reorganize FTZ 197 under the ASF is approved, subject to the FTZ Act and the Board's regulations, including Section 400.13, to the Board's standard 2,000-acre activation limit for the zone, and to a five-year ASF sunset provision for magnet sites that would terminate authority for Sites 1, 2, 3 and 5 if not activated by June 30, 2019.
In the matter of:
Pursuant to Section 766.24 of the Export Administration Regulations, 15 CFR Parts 730-774 (2014) (“EAR” or the “Regulations”), I hereby grant the request of the Office of Export Enforcement (“OEE”) to renew the January 3, 2014 Order Temporarily Denying the Export Privileges of 3K Aviation Consulting & Logistics, also known as 3K Havacilik Ve Danismanlik SAN. TIC. LTD. ST. (“3K Aviation”); Huseyin Engin Borluca (“Borluca”), 3K's Aviation founder and director; Pouya Airline, also known as Pouya Air; and Evans Meridians Ltd. I find that renewal of the Temporary Denial Order (“TDO”) is necessary in the public interest to prevent an imminent violation of the EAR.
On January 3, 2014, I signed a TDO denying for 180 days the export privileges of 3K Aviation, Borluca, Pouya Airline, and Adaero International Trade, LLC and its managing director, Recep Sadettin Ilgin.
On January 30, 2014, I issued an Order modifying the TDO to add Evans Meridians Ltd. (“Evans Meridians”) as an additional respondent.
In support of the original TDO and modification, OEE presented evidence that in December 2013, two U.S.-origin General Electric CF6 aircraft engines
As mentioned above, OEE obtained evidence following issuance of the TDO of Evans Meridians' involvement in the attempted export or reexport of the items to Iran. OEE presented evidence as part of its request to modify the TDO that Evans Meridians appeared on documents as the purchaser and had acted as the owner of the items in connection with their transfer to 3K Aviation en route to Iran. OEE also provided evidence showing that, in violation of the TDO, Evans Meridians made and 3K Aviation accepted payment of approximately $100,000 for customs storage fees for the engines on or about January 21, 2014, that is, 18 days after the TDO issued on January 3, 2014, and 11 days after publication of the TDO on January 10, 2014. The most recent evidence available shows the two aircraft engines remain in the possession and/or control of 3K Aviation in Turkey.
The current TDO dated January 3, 2014, will expire on July 1, 2014, unless renewed on or before that date. On June 10, 2014, OEE submitted a written request for renewal of the TDO as to 3K Aviation, Borluca, Pouya Airline, and Evans Meridians. Notice of the renewal request was provided in accordance with Sections 766.5 and 766.24(d) of the Regulations. No opposition to any aspect of the requested renewal has been received.
Pursuant to Section 766.24(b) of the Regulations, BIS may issue or renew an order temporarily denying a Respondent's export privileges upon a showing that the order is necessary in the public interest to prevent an “imminent violation” of the Regulations. 15 CFR 766.24(b)(1). “A violation may be `imminent' either in time or degree of likelihood.” 15 CFR 766.24(b)(3). BIS may show “either that a violation is about to occur, or that the general circumstances of the matter under investigation or case under criminal or administrative charges demonstrate a likelihood of future violations.”
OEE's request for renewal is based upon the facts underlying the issuance of the initial TDO and modification and the evidence developed over the course of this investigation, including the evidence summarized in Section I.,
I find that the evidence presented by OEE demonstrates that a violation of the Regulations is imminent in both time and degree of likelihood. Renewal of the TDO is needed to give notice to persons and companies in the United States and abroad that they should cease dealing with the Respondents in export and re-export transactions involving items subject to the EAR or other activities prohibited by the TDO. Doing so is consistent with the public interest to preclude future violations of the EAR.
A. Applying for, obtaining, or using any license, License Exception, or export control document;
B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the EAR, or in any other activity subject to the EAR; or
C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the EAR, or in any other activity subject to the EAR.
A. Export or reexport to or on behalf of a Denied Person any item subject to the EAR;
B. Take any action that facilitates the acquisition or attempted acquisition by a Denied Person of the ownership, possession, or control of any item subject to the EAR that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby a Denied Person acquires or attempts to acquire such ownership, possession or control;
C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from a Denied Person of any item subject to the EAR that has been exported from the United States;
D. Obtain from a Denied Person in the United States any item subject to the EAR with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or
E. Engage in any transaction to service any item subject to the EAR that has been or will be exported from the United States and which is owned, possessed or controlled by a Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by a Denied Person if such service involves the use of any item subject to the EAR that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.
In accordance with the provisions of Section 766.24(e) of the EAR, the Respondents may, at any time, appeal this Order by filing a full written statement in support of the appeal with the Office of the Administrative Law Judge, U.S. Coast Guard ALJ Docketing Center, 40 South Gay Street, Baltimore, Maryland 21202-4022.
In accordance with the provisions of Section 766.24(d) of the EAR, BIS may seek renewal of this Order by filing a written request not later than 20 days before the expiration date. The Respondents may oppose such a request to renew this Order by filing a written submission with the Assistant Secretary for Export Enforcement, which must be received not later than seven days before the expiration date of the Order.
A copy of this Order shall be served on the Respondents and shall be published in the
This Order is effective immediately and shall remain in effect for 180 days.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) preliminarily determines that countervailable subsidies are being provided to producers and exporters of carbon and
Rebecca Trainor or Reza Karamloo, Office II, AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-4007 and (202) 482-4470, respectively.
The scope of this investigation covers certain hot-rolled products of carbon steel and alloy steel, in coils, of approximately circular cross section, less than 19.00 mm in actual solid cross-sectional diameter. Specifically excluded are steel products possessing the above-noted physical characteristics and meeting the Harmonized Tariff Schedule of the United States (HTSUS) definitions for (a) stainless steel; (b) tool steel; (c) high nickel steel; (d) ball bearing steel; or (e) concrete reinforcing bars and rods. Also excluded are free cutting steel (also known as free machining steel) products (i.e., products that contain by weight one or more of the following elements: 0.1 percent or more of lead, 0.05 percent or more of bismuth, 0.08 percent or more of sulfur, more than 0.04 percent of phosphorus, more than 0.05 percent of selenium, or more than 0.01 percent of tellurium). All products meeting the physical description of subject merchandise that are not specifically excluded are included in this scope.
The products under investigation are currently classifiable under subheadings 7213.91.3011, 7213.91.3015, 7213.91.3020, 7213.91.3093; 7213.91.4500, 7213.91.6000, 7213.99.0030, 7227.20.0030, 7227.20.0080, 7227.90.6010, 7227.90.6020, 7227.90.6030, and 7227.90.6035 of the HTSUS. Products entered under subheadings 7213.99.0090 and 7227.90.6090 of the HTSUS also may be included in this scope if they meet the physical description of subject merchandise above. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of this proceeding is dispositive.
The Department is conducting this countervailing duty (CVD) investigation in accordance with section 701 of the Tariff Act of 1930, as amended (the Act). For a full description of the methodology underlying our preliminary conclusions, including our reliance, in part, on adverse facts available (AFA),
As noted in the Preliminary Decision Memorandum, in accordance with section 705(a)(1) of the Act and 19 CFR 351.210(b)(4), we are aligning the final CVD determination in this investigation with the final determination in the companion antidumping (AD) investigation of steel wire rod from the PRC. Consequently, the final CVD determination will be issued on the same date as the final AD determination, which is currently scheduled to be issued no later than November 12, 2014, unless postponed.
In accordance with section 703(e)(1) of the Act, we preliminarily find that critical circumstances exist with respect to certain imports of steel wire rod from the PRC. A discussion of our determination can be found in the Preliminary Decision Memorandum.
In accordance with section 703(d)(1)(A)(i) of the Act, we determine separate subsidy rates for the individually-investigated producers/exporters of the subject merchandise, Benxi Beiying Iron & Steel Group Import & Export Corp., Benxi Beiying Iron & Steel (Group) Co., Ltd. and 13 affiliates (collectively Benxi Steel);
In
As provided in section 782(i)(1) of the Act, we intend to verify the information submitted by the respondent Benxi Steel prior to making our final determination.
The Department intends to disclose to interested parties the calculations performed in connection with this preliminary determination within five days of its public announcement.
In accordance with section 703(f) of the Act, we will notify the International Trade Commission (ITC) of our determination. In addition, we are making available to the ITC all non-privileged and non-proprietary information relating to this investigation. We will allow the ITC access to all privileged and business proprietary information in our files, provided the ITC confirms that it will not disclose such information, either publicly or under an administrative protective order, without the written consent of the Assistant Secretary for Enforcement and Compliance.
In accordance with section 705(b)(2) of the Act, if our final determination is affirmative, the ITC will make its final determination within 45 days after the Department makes its final determination.
This determination is issued and published pursuant to sections 703(f) and 777(i) of the Act and 19 CFR 351.205(c).
International Trade Administration, U.S. Department of Commerce.
Notice of an opportunity for travel and tourism industry leaders to apply for membership on the Board of Directors of the Corporation for Travel Promotion.
The Department of Commerce is currently seeking applications from travel and tourism leaders from specific industries for membership on the Board of Directors (Board) of the Corporation for Travel Promotion (dba Brand USA). The purpose of the Board is to guide the Corporation for Travel Promotion on matters relating to the promotion of the United States and communication of travel facilitation issues, among other tasks.
All applications must be received by the National Travel and Tourism Office by close of business on August 8, 2014.
Electronic applications may be sent to:
Julie Heizer, Deputy Director, Industry Relations, National Travel and Tourism Office, Mail Stop 10003, 1401 Constitution Avenue NW., Washington, DC 20230. Telephone: 202.482.4904. Email:
The Corporation is governed by a board of directors, consisting of 11 members with knowledge of international travel promotion and marketing, broadly representing various regions of the United States. The TPA directs the Secretary of Commerce (after consultation with the Secretary of Homeland Security and the Secretary of State) to appoint the board of directors for the Corporation.
At this time, the Department will be selecting three individuals with the appropriate expertise and experience from specific sectors of the travel and tourism industry to serve on the Board as follows:
(A) 1 shall have appropriate expertise and experience in small business or retail or in associations representing that sector;
(B) 1 shall have appropriate expertise and experience in travel distribution services; and
(C) 1 shall have appropriate expertise and experience as an official in a state tourism office.
To be eligible for Board membership, one must have international travel and tourism marketing experience and must also be a U.S. citizen. In addition, individuals cannot be federally registered lobbyists or registered as a foreign agent under the Foreign Agents Registration Act of 1938, as amended.
Those selected for the Board must be able to meet the time and effort commitments of the Board. Priority may be given to individuals with experience as a Chief Executive Officer or President (or comparable level of responsibility) of an organization or entity in the travel and tourism sector in the United States.
Board members serve at the discretion of the Secretary of Commerce (who may remove any member of the Board for good cause). The terms of office of each member of the Board appointed by the Secretary shall be 3 years. Board members can serve a maximum of two consecutive full three-year terms. Board members are not considered Federal government employees by virtue of their service as a member of the Board and will receive no compensation from the Federal government for their participation in Board activities. Members participating in Board meetings and events may be paid actual travel expenses and per diem when away from their usual places of residence.
To be considered for membership, please provide the following:
1. Name, title, and personal resume of the individual requesting consideration, including address and phone number; and
2. A brief statement of why the person should be considered for membership on the Board. This statement should also address the individual's relevant international travel and tourism marketing experience and indicate clearly the sector or sectors enumerated above in which the individual has the requisite expertise and experience. Individuals who have the requisite expertise and experience in more than one sector can be appointed for only one of those sectors. Appointments of members to the Board will be made by the Secretary of Commerce.
National Institute of Standards and Technology, Commerce.
Notice.
The 99th Annual Meeting of the National Conference on Weights and Measures (NCWM) will be held in Detroit, Michigan, from Sunday, July 13, 2014, to Thursday, July 17, 2014. This notice contains information about significant items on the NCWM Committee agendas, but does not include all agenda items. As a result, the items are not consecutively numbered.
The meeting will be held from Sunday, July 13, 2014, to Thursday, July 17, 2014. Meeting hours are from 8:00 a.m. to 5:00 p.m. (ET) daily.
This meeting will be held at the Westin Book Cadillac Detroit located at 1114 Washington Boulevard, Detroit, MI 48226
Ms. Carol Hockert, Chief, NIST, Office of Weights and Measures, 100 Bureau Drive, Stop 2600, Gaithersburg, MD 20899-2600. You may also contact Ms. Hockert at (301) 975-5507 or by email at
Publication of this notice on the NCWM's behalf is undertaken as a public service; NIST does not endorse, approve, or recommend any of the proposals or other information contained in this notice or in the publications of the NCWM.
The NCWM is an organization of weights and measures officials of the states, counties, and cities of the United States, federal agencies, and representatives from the private sector. These meetings bring together government officials and representatives of business, industry, trade associations, and consumer organizations on subjects related to the field of weights and measures technology, administration, and enforcement. NIST participates to encourage cooperation between federal agencies and the states in the development of legal metrology requirements. NIST also promotes uniformity among the states in laws, regulations, methods, and testing equipment that comprise the regulatory control of commercial weighing and measuring devices, packaged goods, and other trade and commerce issues.
The following are brief descriptions of some of the significant agenda items that will be considered along with other issues at the NCWM Annual Meeting. Comments will be taken on these and other issues during several public comment sessions. At this stage, the items are proposals. This meeting also includes work sessions in which the Committees may also accept comments and discuss the recommendations up for adoption at the 2014 Annual Meeting. The Committees may withdraw or carryover items that need additional development.
Some of the items listed below provide notice of projects under development by groups working to develop specifications, tolerances, and other requirements for devices used in the retail sales of engine fuels and the establishment of approximate gallon and liter equivalents to diesel fuel that would be used in marketing both compressed and liquefied natural gas. Also included is a notice about efforts to clarify a method of sale for pressurized containers that utilize bag-on-valve technology. These notices are intended to make interested parties aware of these projects and additional information on each item may be given at the Annual Meeting. The notices are also presented to invite the participation of manufacturers, experts, consumers, users, and others who may be interested in these efforts.
The Specifications and Tolerances Committee (S&T Committee) will consider proposed amendments to NIST Handbook 44, “Specifications, Tolerances, and other Technical Requirements for Weighing and Measuring Devices” (HB44). Those items address weighing and measuring devices used in commercial applications, that is, devices that are used to buy from or sell to the public or used for determining the quantity of product sold among businesses. Issues on the agenda of the NCWM Laws and Regulations Committee (L&R Committee) relate to a proposal to amend the “Uniform Method of Sale of Commodities Regulation” and other uniform regulations in NIST Handbook 130 “Uniform Laws and Regulations in the area of Legal Metrology and Engine Fuel Quality” (HB130).
The following items are proposals to amend NIST Handbook 44:
A variety of commercial weighing and measuring devices are required to provide paper receipts for consumers at the end of a transaction. These receipts provide important information for consumers (e.g., seller identity, date, product identity, and amount delivered, along with the unit price and total price of the transaction). Sometimes receipts include details of transaction that are often not readily apparent to consumers at the time of the transaction (e.g., such as when a point of sale system in a grocery store deducts for the tare weight on a package of apples). These documents help consumers understand a transaction and reconcile the transaction with billing invoices or credit card bills in the future. Detailed receipts are especially important in transactions where the customer is often not present, such as when a delivery of heating fuel is made when the consumer is not at home. Receipts describing transaction details help prevent fraud and provide valuable protections for buyers and sellers alike. This item is a proposal to revise the General Code requirement to allow sellers to offer consumers the choice of receiving receipts via digital communications such as email or online account access.
The S&T Committee is recommending an amendment to this User Requirement to allow an in-motion railroad scale to use continuous rails extending throughout the approach and weighing areas. Currently use of continuous rails is not permitted under paragraph HB44-UR.2.4. that reads “clearance shall be provided around all live parts to the extent that no contacts may result when the load-receiving element is empty, nor throughout the weighing range of the scale.” This proposal was made in response to a request from a scale manufacturer that offers a scale that determines the weight of railcars moving over continuous rails. This railroad scale design is used in other countries where it has received approval from legal metrology officials under regulations that differ from the requirements in HB44.
Equivalent (DGE) for Compressed Natural Gas and Liquefied Natural Gas; Definition of Gasoline Gallon Equivalent (GGE) and Gasoline Liter Equivalent (GLE) for Compressed Natural Gas; S.1.2. Compressed Natural Gas and Liquefied Natural Gas Dispensers; S.1.3.1.1. Compressed Natural Gas Used as an Engine Fuel; S.1.3.1.2. Liquefied Natural Gas Used as an Engine Fuel; S.5.2. Marking of Diesel and Gasoline Volume Equivalent Conversion Factor; Compressed Natural Gas, S.5.3. Marking of Diesel Volume Equivalent Conversion Factor; Liquefied Natural Gas, UR.3.1.1. Marking of Equivalent Conversion Factor for Compressed Natural Gas, UR.3.1.2. Marking of Equivalent Conversion Factor for Liquefied Natural Gas, and UR.3.8. Return of Product to Storage, Retail Compressed Natural Gas and Liquefied Natural Gas.
In 1994, in response to a request from a coalition of natural gas providers and subsequent fuel study, the NCWM adopted conversion factors for use in converting a delivery of Compressed Natural Gas (CNG) vehicle fuel to an equivalent liter or gallon of gasoline. At that time those equivalents were based on averaged regional CNG energy values and the approximate lower heating value for a gallon of gasoline (indolene). The equivalent values were recommended by the CNG industry to promote greater use of CNG as a vehicle fuel. The “Gasoline Liter/Gallon Equivalents” were developed as a means to facilitate value comparisons between gasoline and CNG and to permit fuel economy comparisons. In a number of instances since the adoption of these “equivalents,” some state weights and measures officials and several CNG providers have expressed the concern that the energy equivalent values adopted in 1994 do not provide an accurate estimate of the energy content of natural gas. Another concern with the 1994 “equivalents” is that the specified values have not been reevaluated to ensure that they correlate with the energy content of today's gasoline and gasoline-oxygenated blends or other alternative fuels such as E85. Consequently, many weights and measures officials are reluctant to consider adding more energy “equivalency” values for additional fuels unless some mechanism is established to ensure that all of these energy equivalency values are routinely updated to reflect the current energy content (i.e., Joules/BTUs) of gasoline and diesel fuels and various blends of these products with alternative fuels. The need for such a mechanism is important considering the many blends of fuels that are currently in the marketplace and others that are anticipated to enter the fuel arena in the future (e.g., 15% or higher ethanol blends with gasoline and biodiesel blends greater than 5%). The proposals would establish new equivalents identified as the “diesel liter equivalent (DLE)” and a “diesel gallon equivalent (DGE)” for both CNG and Liquefied Natural Gas (LNG) that correspond to specific mass values for these units when they are used in retail vehicle refueling applications. The proponents of these proposals indicate that the purpose of these units is to educate consumers to the fact that a DLE or DGE of “compressed” or “liquefied” natural gas would contain approximately the same amount of energy as a liter or gallon of diesel fuel. Many sellers of these products believe that adoption and use of the DLE or DGE in retail fuel sales would make it easier for consumers to make price, value, and fuel economy comparisons between an energy based “equivalent” liter or gallon of compressed natural gas and diesel fuel. See also Items 337-3, and 337-5 on the Specifications and Tolerances Committee Agenda and Items 232-3 and Item 237-2 on the Laws and Regulations Committee Agenda regarding proposed methods of sale for the DLE and DGE.
The Clean Vehicle Education Foundation (CVEF) submitted proposals in 2012 and 2013 for rule changes to allow compressed natural gas (CNG) and liquefied natural gas (LNG) to be sold as a retail engine fuel in liter or gallon equivalent units. The NCWM established the Natural Gas Steering Committee (NGSC) in July 2013 to address concerns over the proliferation of equivalent units and resolve other technical issues involved with the proposed changes to HB44 and HB130.
At the January 2014 NCWM Interim Meeting, the Chairman of the NGSC advised the S&T and L&R Committees that the NGSC planned to consolidate the proposals to modify HB44 and HB130 and that the NGSC supported recognition of the new diesel energy equivalent units for both compressed and liquefied natural gas. The NGSC completed its work in March 2014 and its recommendations are included in NCWM Publication 16 as voting items for adoption at the July 2014 NCWM Annual Meeting.
The following item is a proposal to amend NIST Handbook 130:
This item includes a proposal to clarify that a current method of sale applies to aerosol containers, and containers that utilize Bag-on-Valve (BOV) technology and other self-pressurized packages that have their net content declarations presented in terms of fluid volume. Currently, under the Uniform Packaging and Labeling Regulation (UPLR) adopted by many states and under regulations issued by both the Food and Drug Administration and the Federal Trade Commission, products sold in aerosol or similar pressurized containers must be offered for sale by net weight. BOV packaging, which has been in the marketplace for many years, is used to sell the same products sold in aerosol containers (e.g., sunscreen, wound wash, shaving cream, and car-care products). Because BOV containers (with their net contents declared in fluid volume) are used to sell the same type of products dispensed from aerosol containers (with their net contents declared by weight), consumers are unable to make value comparisons between similar products. The L&R Committee proposal will allow the companies which currently label containers by volume in conflict with the existing method of sale at least three years (the deadline for compliance is January 1, 2018) to bring their labeling into compliance.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of SEDAR 41 Data Workshop for South Atlantic red snapper (
The SEDAR 41 assessments of the South Atlantic stocks of red snapper and gray triggerfish will consist of: A Data Workshop; an Assessment Workshop; and a Review Workshop. See
The SEDAR 41 Data Workshop will be held on August 4, 2014, from 1 p.m. until 6 p.m.; August 5-7, 2014, from 8 a.m. until 6 p.m.; and August 8, 2014, from 8 a.m. until 1 p.m.
The established times may be adjusted as necessary to accommodate the timely completion of discussion relevant to the assessment process. Such adjustments may result in the meeting being extended from, or completed prior to the time established by this notice. The Assessment Workshop and Review Workshop dates and times will publish in a subsequent issue in the
The SEDAR 41 Data Workshop will be held at the Charleston Marriott, 170 Lockwood Boulevard, Charleston, SC 29403; telephone: (843) 732-3000.
Julia Byrd, SEDAR Coordinator, phone: (843) 571-4366; email:
The Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils, in conjunction with NOAA Fisheries and the Atlantic and Gulf States Marine Fisheries Commissions have implemented the Southeast Data, Assessment and Review (SEDAR) process, a multi-step method for determining the status of fish stocks in the Southeast Region. SEDAR is a three step process including: (1) Data Workshop; (2) Assessment Process utilizing workshops and webinars; and (3) Review Workshop. The product of the Data Workshop is a data report which compiles and evaluates potential datasets and recommends which datasets are appropriate for assessment analyses. The product of the Assessment Process is a stock assessment report which describes the fisheries, evaluates the status of the stock, estimates biological benchmarks, projects future population conditions, and recommends research and monitoring needs. The assessment is independently peer reviewed at the Review Workshop. The product of the Review Workshop is a Summary documenting panel opinions regarding the strengths and weaknesses of the stock assessment and input data. Participants for SEDAR Workshops are appointed by the Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils, the Atlantic and Gulf States Marine Fisheries Commissions and NOAA Fisheries Southeast Regional Office and Southeast Fisheries Science Center. Participants include: Data collectors and database managers; stock assessment scientists, biologists, and researchers; constituency representatives including fishermen, environmentalists, and non-governmental organizations (NGOs); international experts; and staff of Councils, Commissions, and state and federal agencies.
An assessment data set and associated documentation will be developed during the Data Workshop. Participants will evaluate all available data and select appropriate sources for providing information on life history characteristics, catch statistics, discard estimates, length and age composition, and fishery independent and fishery dependent measures of stock abundance, as specified in the Terms of Reference for the workshop.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.
The meeting is accessible to people with disabilities. Requests for auxiliary aids should be directed to the SEDAR office (see
The times and sequence specified in this agenda are subject to change.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of an incidental harassment authorization.
In accordance with the Marine Mammal Protection Act (MMPA) implementing regulations, we hereby give notice that we have issued an Incidental Harassment Authorization (Authorization) to Lamont-Doherty Earth Observatory (Observatory), a component of Columbia University, in collaboration with the National Science Foundation (Foundation), to take marine mammals, by harassment, incidental to conducting a marine geophysical (seismic) survey in the northwest Atlantic Ocean off the New Jersey coast July through August, 2014.
Effective July 1, 2014, through August 17, 2014.
A copy of the final Authorization and application are available by writing to Jolie Harrison, Supervisor, Incidental Take Program, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910, by telephoning the contacts listed here, or by visiting the Internet at:
The Foundation has prepared an Environmental Assessment (EA) and in accordance with the National Environmental Policy Act (NEPA) and the regulations published by the Council on Environmental Quality (CEQ). The EA titled, “Environmental Assessment of a Marine Geophysical Survey by the R/V
NMFS also issued a Biological Opinion under section 7 of the Endangered Species Act (ESA) to evaluate the effects of the survey and Authorization on marine species listed as threatened and endangered. The Biological Opinion is available online at:
Jeannine Cody, NMFS, Office of Protected Resources, NMFS (301) 427-8401.
Section 101(a)(5)(D) of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361
Through the authority delegated by the Secretary, NMFS (hereinafter we) shall grant an Authorization for the incidental taking of small numbers of marine mammals if we find that the taking will have a negligible impact on the species or stock(s), and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant). The Authorization must also prescribe, where applicable, the permissible methods of taking by harassment pursuant to such activity; other means of effecting the least practicable adverse impact on the species or stock and its habitat, and on the availability of such species or stock for taking for subsistence uses (where applicable); the measures that we determine are necessary to ensure no unmitigable adverse impact on the availability for the species or stock for taking for subsistence purposes (where applicable); and requirements pertaining to the mitigation, monitoring and reporting of such taking. We have 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.”
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].
On December 17, 2013, we received an application from the Observatory requesting an Authorization for the take of marine mammals, incidental to conducting a seismic survey in the northwest Atlantic Ocean from June through July, 2014. We determined the application complete and adequate on February 3, 2014 and published a notice of proposed Authorization on March 17, 2014 (79 FR 14779). The notice afforded the public a 30-day comment period on our proposed MMPA Authorization. In response to a request by several environmental organizations and others, we extended the comment period for an additional 30 days. (79 FR 19580, April 9, 2014).
The Observatory, with research funding from the Foundation, plans to conduct a high-energy, 3-dimensional (3-D) seismic survey using the R/V
The Observatory plans to use one source vessel, the
The purpose of the research seismic survey is to collect and analyze data on the arrangement of sediments deposited during times of changing global sea level from roughly 60 million years ago to present. The 3-D survey would investigate features such as river valleys cut into coastal plain sediments now buried under a kilometer of younger sediment and flooded by today's ocean.
The Observatory proposes to conduct the research seismic survey from the period of end of June through July 2014. The study (e.g., equipment testing, startup, line changes, repeat coverage of any areas, and equipment recovery) would include approximately 720 hours of airgun operations (i.e., 30 days over 24 hours). Some minor deviation from the Observatory's requested dates is possible, depending on logistics, weather conditions, and the need to repeat some lines if data quality is substandard. Thus, this Authorization will be effective from July 1, 2014 through August 17, 2014.
The Observatory proposes to conduct the seismic survey in the Atlantic Ocean, approximately 25 to 85 km (15.5 to 52.8 mi) off the coast of New Jersey between approximately 39.3-39.7° N and approximately 73.2-73.8° W (see Figure 1). Water depths in the survey area are approximately 30 to 75 m (98.4 to 246 feet (ft)). They would conduct the proposed survey outside of New Jersey state waters and within the U.S. Exclusive Economic Zone.
During the effective dates of the Authorization, the
We outlined the vessel's specifications in the notice of proposed Authorization (79 FR 14779, March 17, 2014). This description is not repeated here as the vessel's specifications have not changed between the proposed Authorization and our final Authorization.
We outlined the details regarding the Observatory's data acquisition activities using the airguns, multibeam echosounder, sub-bottom profiler, and acoustic Doppler current profiler in the notice of proposed Authorization (79 FR 14779, March 17, 2014). After the close of the public comment period, the Observatory informed us that they would not operate the multibeam echosounder, sub-bottom profiler, and acoustic Doppler current profiler during transits to and from the survey area.
Other than this modification, there has been no change to the Observatory's data acquisition activities as described in the proposed Authorization. For a more detailed description of the authorized action, including vessel and acoustic source specifications, metrics, characteristics of airgun pulses, predicted sound levels of airguns, etc., we refer the reader to the notice of proposed Authorization (79 FR 14779, March 17, 2014) and associated documents referenced above this section.
We published a notice of receipt of the Observatory's application and proposed Authorization in the
In addition, the following organizations submitted a request for a 60-day extension to the public comment period and a public hearing prior to the conclusion of the public comment period. They are: Clean Ocean Action; Oceana, The Ocean Foundation, Natural Resources Defense Council, Center for Biological Diversity, Alaska Inter-Tribal Council, International Game Fish Association, Cetacean Society International, Whale and Dolphin Action League, Surfrider Foundation, League of Women Voters of New Jersey, American Littoral Society, Hands Across the Sand, New Jersey Sierra Club, Fisherman's Dock Cooperative, Natural Resources Protective Association, Surfer's Environmental Alliance, WATERSPIRIT, SandyHook SeaLife Foundation, Lenape Nation PA, CWA Local 1075, Paddleout.org, reEarth, Clean Water Action, Association of NJ Environmental Commissions, Asbury Park Fishing Club, Save Barnegat Bay, and concerned citizens.
These comments are online at:
We address any comments specific to the Observatory's application that address the statutory and regulatory requirements or findings that we must make in order to issue an Authorization. Following is a summary of the public comments and our responses.
The Observatory's application (LGL, 2013) and Appendix A in the
We note that the Observatory used a similar process to develop mitigation radii (i.e., exclusion and buffer zones) for a shallow-water seismic survey in the northeast Pacific Ocean offshore Washington in 2012. The Observatory conducted the shallow-water survey using an airgun configuration that was approximately 78 or 89 percent larger than the total discharge volumes proposed for this shallow-water survey (i.e., 6,600 cubic inches (in
At present, the Observatory cannot adjust their modeling methodology to add the environmental and site-specific parameters as requested by the Commission. We are working with the Foundation to address the issue of requiring site-specific information to further inform the analysis and development of mitigation measures in coastal areas for future surveys with the Observatory and the Foundation, and the Foundation has been exploring different approaches in collaboration with the Observatory and other academic institutions with whom they collaborate. We will continue to work with the Observatory, the Foundation, and the Commission on verifying the accuracy of their modeling approach. When available, we will review and consider the final results from the Observatory's expected publication (Crone
For this survey, the Observatory developed the exclusion and buffer zones based on the conservative deep-water calibration results and empirically-derived shallow water exclusion zones from Diebold
Following is a brief summary of the Observatory's process used to predict the mitigation exclusion zones (shown in Table A1 of the Foundation's EA) for the survey.
1. For an 18-gun, 3,300-in
2. Using the direct-arrival modeling approach, the Observatory modeled the exclusion zones for the proposed suite of array configurations for this study in deep water (Figures A4-A8 in Appendix A of the Foundation's EA).
3. The Gulf of Mexico calibration study did not obtain measurements for the smaller array (i.e., 700 in
4. The Observatory calculated the ratios (i.e., scaling factors) between the model's deep-water exclusion zones for the 18-gun, 3,300-in
5. To calculate the exclusion zones for the study's various array configurations in shallow water, the Observatory multiplied the scaling factors by the empirically-derived shallow water exclusion zones reported for an 18-gun, 3,300-in
With respect to the 50-m (164 ft) surface duct identified in the Foundation's PEIS, the Observatory identified the potential surface duct feature in its modeling effort, but concluded the feature was not applicable for this survey because the activities would occur in waters less than 50 m (164 ft). For the reasons described below, NMFS concurs with the Foundation's assessment that the presence of such a surface duct would have little effect on the exposure estimates for this survey.
In light of this information, we considered that the water column in the survey area is a mixed layer with no surface duct. Although the existence of a surface duct could enhance sound propagation due to acoustic energy trapped within this narrow channel, the condition for such propagation is highly dependent on frequency (or wavelength) of the propagating sound. The acoustic waves moving through the sound channel are typically those with shorter wavelength (i.e., higher frequency) in relation to the depth of the channel or water column.
An equation by Jensen
In the case of Observatory's activity, the majority of the source energy is within the first two lobes below 333 Hz, with only a fraction of acoustic energy that lies within the remaining third and fourth lobes (330-667 Hz). Based on the above equation, thickness of the duct required for effective propagation of the sound wave first two lobes would be 68.6 m (225 ft). Although acoustic energy within the third and fourth lobes would be trapped in the surface duct and propagated to greater distances, they represent only a fraction of the total acoustic energy for this survey.
We are currently working with the Foundation to address the issue of including site-specific parameters to account for environmental variation in coastal areas for future surveys. Work is ongoing in exploring approaches for including this information in future surveys conducted in coastal areas and we will consult with the Commission on these activities before the next survey.
The Observatory also considered the likelihood of re-exposure during the survey in the Foundation's EA by estimating the ratio of the ensonified area including overlap (76,645.61 km
The Observatory references a 25 percent contingency factor added onto its take estimates, however, this buffer is also intended to cover marine mammal takes that could potentially result from the operational adjustments, such as the need to rerun survey lines (though in practice, the Observatory has rarely, if ever, utilized this contingency). However, NMFS finds it more appropriate to incorporate a mechanism to explicitly account for the potential of positive immigration of marine mammals into the survey area that the Commission references, and therefore we have included a generalized species-related turnover estimate for the reported densities to account for the potential of new animals entering or passing through the ensonified area. Use of a turnover factor recognizes some of the limitations of the Observatory using a static density estimate for this survey. Thus we are using a generalized turnover estimate of 1.25 (Wood
The method recommended by the Commission is a way to help understand the instances of exposure above the Level B threshold, however, that method would far overestimate the number of individual marine mammals exposed above the threshold, as turnover within the project are does not nearly approach 100 percent per day. The new 1.25 turnover rate will help better estimate the number of animals exposed, and the method described earlier in this response helps indicate the likely maximum number of instances per individual (though in many instances there will be fewer exposures).
Finally, the NJDEP also submitted comments expressing concern for not only to marine mammals' food source, but also for the potential impacts to New Jersey's marine mammal boat tour operators and the recreational and commercial fishing industry.
Regarding the survey's impacts on commercial and recreational fishing, we refer you to the Foundation's (sponsor of the research seismic survey) EA for this survey (Sections III and IV) which includes consideration of the effects of sound on marine invertebrates, fish, and fisheries and the effects of the survey on the recreational and commercial fishing sectors in New Jersey. The Foundation also completed an ESA Section 7 consultation to address the effects of the research seismic survey on ESA-listed fish species and designated critical habitat within the proposed area as well as a consultation under the Magnuson-Stevens Fishery Conservation and Management Act for essential fish habitat. Finally, the Foundation will address the survey's impacts to the marine mammal boat tour industry in their final EA.
We considered, as one potential MMPA measure, that the Observatory modify its survey schedule to January/February. However, this could result in an increase in the number of takes of North Atlantic right whales due to their increased presence off New Jersey in the fall and winter. Whitt
We also considered the effects of the survey on marine mammal prey (i.e., fish and invertebrates), as a component of marine mammal habitat, in the notice of the proposed Authorization. Studies have shown both decreases and increases in fisheries catch rates and behavioral changes in captive marine fish and squid during exposure to seismic sound (Lokkeborg
Laboratory studies have observed permanent damage to sensory epithelia for captive fish exposed at close range to a sound source (McCauley
In summary, in examining impacts to fish as prey species for marine mammals, we expect fish to exhibit a range of behaviors including no reaction or habituation (Pena
We expect that the survey's activities would result, at worst, in a temporary modification in behavior, temporary changes in animal distribution, and/or low-level physiological effects (Level B harassment) of bottlenose dolphins. We expect these impacts to be minor because we do not anticipate measurable changes to the population or impacts to rookeries, mating grounds, and other areas of similar significance.
The Authorization outlines reporting measures and response protocols with the Northeast Regional Stranding Coordinator intended to minimize the impacts of, and enhance the analysis of, any potential stranding in the survey area. The Observatory's activities are approximately 20 km (12 mi) away from the habitat in which the coastal bottlenose dolphins the commenter expressed concern are expected to occur (Toth
Regarding COA
We have considered the potential for behavioral responses such as stranding and indirect injury or mortality from the Observatory's use of the multibeam echosounder. In 2013, an International Scientific Review Panel (ISRP) investigated a 2008 mass stranding of approximately 100 melon-headed whales in a Madagascar lagoon system (Southall
Given that the Observatory proposes to conduct the survey offshore and the
With respect to COA
In response to COA
We do not expect marine mammals to experience any repeated exposures at very close distances to the sound source because the Observatory would implement the required shutdown and power down mitigation measures to ensure that marine mammals do not approach the applicable exclusion zones for Level A harassment. In addition, we anticipate that the required ramp-up procedures at the start of the survey or anytime after a shutdown of the entire array would “warn” marine mammals in the vicinity of the airguns, and provide the time for them to leave the area and thus avoid any potential injury or impairment of their hearing abilities.
We note that current monitoring measures for past and current Authorizations for research seismic surveys require the collection of visual observation data by protected species observers prior to, during, and after airgun operations. This data collection may contribute to baseline data on marine mammals (presence/absence) and provide some generalized support for estimated take numbers (as well as providing data regarding behavioral responses to seismic operation that are observable at the surface). However, it is unlikely that the information gathered from these cruises alone would result in any statistically robust conclusions for any particular species because of the small number of animals typically observed.
Based on the analysis of the likely effects of the specified activity on marine mammals and their habitat contained within this document, the Foundation's EA and our own EA, and taking into consideration the implementation of the mitigation and monitoring measures, we find that the Observatory's proposed activity would result in the take small numbers of marine mammals relative to the populations of the affected species or stocks, would have a negligible impact on the affected species or stocks, and would not result in an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence uses as no subsistence users would be affected by the proposed action.
However, we discuss the science on this issue qualitatively in our analysis of potential effects to marine mammals (79 FR 14779, March 17, 2014). Accordingly, it is not a matter of merely replacing the existing threshold with a new one. NMFS is currently developing revised acoustic guidelines for assessing the effects of anthropogenic sound on marine mammals. Until NMFS finalizes these guidelines (a process that includes internal agency review, public notice and comment, and peer review), we will continue to rely on the existing criteria for Level A and Level B harassment shown in Table 4 of the notice for the proposed authorization (79 FR 14779, March 17, 2014).
As mentioned in the
These papers and the studies discussed in our notice of proposed authorization (79 FR 14779, March 17, 2014) note that there is variability in the behavioral responses of marine mammals to noise exposure. However, it is important to consider the context in predicting and observing the level and type of behavioral response to anthropogenic signals (Ellison
In a passive acoustic research program that mapped the soundscape in the North Atlantic Ocean, Clark and Gagnon (2006) reported that some fin whales (
The authors conclude that there is not enough scientific knowledge to adequately evaluate whether or not these effects on singing or mating behaviors are significant or would alter survivorship or reproductive success (Clark and Gagnon, 2006). Thus, to address COA
MacLeod
Regarding the suggestion that blue whales “significantly” changed course during the conduct of a seismic survey offshore Oregon, we disagree. We considered the McDonald
Risch
We considered the McCauley
With repeated exposure to sound, many marine mammals may habituate to the sound at least partially (Richardson & Wursig, 1997). Bain and Williams (2006) examined the effects of a large airgun array (maximum total discharge volume of 1,100 in
DeRuiter
Regarding the public comments submitted by Clark
None of these studies on the effects of airgun noise on marine mammals point to any associated mortalities, strandings, or permanent abandonment of habitat by marine mammals. Bain and Williams (2006) specifically conclude that “. . . although behavioral changes were observed, the precautions utilized in the SHIPS survey did not result in any detectable marine mammal mortalities during the survey, nor were any reported subsequently by the regional marine mammal stranding network . . .” McCauley
Currently NMFS is working on revising its noise exposure criteria based on the best and most recent scientific information. NMFS will use these criteria to develop methodologies to predict behavioral responses of marine mammals exposed to sound associated with seismic surveys (primary source is airguns). Although using a uniform sound pressure level of 160-dB re: 1 μPa for the onset of behavioral harassment for impulse noises may not capture all of the nuances of different marine mammal reactions to sound, it is an appropriate way to manage and regulate anthropogenic noise impacts on marine mammals until NMFS finalizes its acoustic guidelines.
First, the Observatory will be required to establish larger Level A exclusion zones corresponding to the 177 and 187 dB re: 1 μPa isopleths for cetaceans and pinnipeds respectively, to avoid Level A harassment. If the protected species observers observe marine mammals approaching the exclusion zone, the Observatory must shut down or power down seismic operations to ensure that the marine mammal does not approach the applicable exclusion radius. Second, if the Observatory detects a marine mammal outside the 177- or 187-dB exclusion zones, and the animal—based on its position and the relative motion—is likely to enter the exclusion zone, the Observatory may alter the vessel's speed and/or course—when practical and safe—in combination with powering down or shutting down the airguns, to minimize the effects of the seismic survey. The avoidance behaviors discussed in the notice of proposed authorization (79 FR 14779, March 17, 2014) supports our expectations that individuals will avoid exposure at higher levels. Also, it is unlikely that animals would encounter repeated exposures at very close distances to the sound source because the Observatory would implement the required shutdown and power down mitigation measures to ensure that marine mammals do not approach the applicable exclusion zones for Level A harassment.
Regarding the Lucke
The Thompson
In a study on the effect of non-impulsive sound sources on marine mammal hearing, Kastak
We also considered two other Kastak
We considered that PTS could occur at relatively lower levels, such as at levels that would normally cause TTS, if the animal experiences repeated exposures at very close distances to the sound source. However, an animal would need to stay very close to the sound source for an extended amount of time to incur a serious degree of PTS, which in this case, it would be highly unlikely due to the required mitigation measures in place to avoid Level A harassment and the expectation that a mobile marine mammal would generally avoid an area where received sound pulse levels exceed 160 dB re: 1 μPa (rms) (review in Richardson
We also considered recent studies by Kujawa and Liberman (2009) and Lin
In contrast, a recent study on bottlenose dolphins (Schlundt
Our EA titled, “Issuance of an Incidental Harassment Authorization to
To warrant detailed evaluation as a reasonable alternative, an alternative must meet our purpose and need. In this case, an alternative meets the purpose and need if it satisfies the requirements under section 101(a)(5)(D) the MMPA. We evaluated each potential alternative against these criteria; identified two action alternatives along with the No Action Alternative; and carried these forward for evaluation in our EA.
We provided information on the occurrence of marine mammals with possible or confirmed occurrence in the survey area in the notice of proposed Authorization on March 17, 2014 (79 FR 14779). The marine mammals most likely to be harassed in the action include 6 mysticetes, 18 odontocetes, and 3 pinniped species under our jurisdiction. Table 1 in this notice provides information on those species' regulatory status under the MMPA and the Endangered Species Act of 1973 (16 U.S.C. 1531
The Observatory presented species information in Table 2 of their application but excluded information on pinnipeds because they anticipated that these species would have a more northerly distribution during the summer and thus have a low likelihood of occurring in the survey area. Based on the best available information, we expect that certain pinniped species, however, have the potential to occur within the survey area and we have therefore included additional information for these species. For the Authorization, we considered authorizing take for pinnipeds based upon the best available density information (Read
We refer the public to the Observatory's application, the Foundation's EA (see
We provided a summary and discussion of the ways that the types of stressors associated with the specified activity (e.g., seismic airgun operations, vessel movement, and entanglement) impact marine mammals (via observations or scientific studies) in the notice of proposed Authorization on March 17, 2014 (79 FR 14779).
The “Estimated Take by Incidental Harassment” section later in this document will include a quantitative discussion of the number of marine mammals anticipated to be taken by this activity. The “Negligible Impact Analysis” section will include a discussion of how this specific activity will impact marine mammals. The Negligible Impact analysis considers the anticipated level of take and the effectiveness of mitigation measures to draw conclusions regarding the likely impacts of this activity on the reproductive success or survivorship of individuals and from that on the affected marine mammal populations or stocks.
Operating active acoustic sources, such as airgun arrays, has the potential for adverse effects on marine mammals. The majority of anticipated impacts would be from the use of acoustic sources. The effects of sounds from airgun 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
In the “Potential Effects of the Specified Activity on Marine Mammals” section of the notice of proposed Authorization on March 17, 2014 (79 FR 14779), we included a qualitative discussion of the different ways that the Observatory's seismic survey may potentially affect marine mammals. 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 (e.g., pinnipeds flushing into water from haulouts or rookeries).
Masking is the obscuring of sounds of interest by other sounds, often at similar frequencies. Marine mammals use acoustic signals for a variety of purposes, which differ among species, but include communication between individuals, navigation, foraging, reproduction, avoiding predators, and learning about their environment (Erbe and Farmer, 2000; Tyack, 2000). Masking, or auditory interference, generally occurs when sounds in the environment are louder than, and of a similar frequency as, auditory signals an animal is trying to receive. Masking is a phenomenon that affects animals that are trying to receive acoustic
Hearing impairment (either temporary or permanent) is also unlikely. Given the higher level of sound necessary to cause permanent threshold shift as compared with temporary threshold shift, it is considerably less likely that permanent threshold shift would occur during the seismic survey. Cetaceans generally avoid the immediate area around operating seismic vessels, as do some other marine mammals. Some pinnipeds show avoidance reactions to airguns.
The
We refer the reader to the Observatory's application, our EA, and the Foundation's EA for additional information on the behavioral reactions (or lack thereof) by all types of marine mammals to seismic vessels. We have reviewed these data along with new information submitted during the public comment period and determined them to be the best available information for the purposes of the Authorization.
We included a detailed discussion of the potential effects of this action on marine mammal habitat, including physiological and behavioral effects on marine mammal prey items (e.g., fish and invertebrates) in the notice of proposed Authorization on March 17, 2014 (79 FR 14779) and in our EA. While we anticipate that the specified activity may result in marine mammals avoiding certain areas due to temporary ensonification, the impact to habitat is temporary and reversible. Further, we also considered these impacts to marine mammals in detail in the notice of proposed Authorization as behavioral modification. The main impact associated with the activity would be temporarily elevated noise levels and the associated direct effects on marine mammals.
In order to issue an incidental take authorization under section 101(a)(5)(D) of the MMPA, NMFS must prescribe, where applicable, 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 (where relevant).
The Observatory has reviewed the following source documents and has incorporated a suite of proposed mitigation measures into their project description.
(1) Protocols used during previous Foundation and Observatory-funded seismic research cruises as approved by us and detailed in the Foundation's 2011 PEIS and 2013 EA;
(2) Previous incidental harassment authorization applications and authorizations that we have approved and authorized; and
(3) Recommended best practices in Richardson
To reduce the potential for disturbance from acoustic stimuli associated with the activities, the Observatory, and/or its designees have proposed to implement the following mitigation measures for marine mammals:
(1) Vessel-based visual mitigation monitoring;
(2) Proposed exclusion zones;
(3) Power down procedures;
(4) Shutdown procedures;
(5) Ramp-up procedures; and
(6) Speed and course alterations.
The Observatory would position observers aboard the seismic source vessel to watch for marine mammals near the vessel during daytime airgun operations and during any start-ups at night. Observers would also watch for marine mammals near the seismic vessel for at least 30 minutes prior to the start of airgun operations after an extended shutdown (i.e., greater than approximately eight minutes for this proposed cruise). When feasible, the observers would conduct observations during daytime periods when the seismic system is not operating for comparison of sighting rates and behavior with and without airgun operations and between acquisition periods. Based on the observations, the
During seismic operations, at least four protected species observers would be aboard the
Two observers on the
The
When the observers see marine mammals within or about to enter the designated exclusion zone, the
The 180- or 190-dB level shutdown criteria are applicable to cetaceans and pinnipeds as specified by NMFS (2000). To be conservative, we are requiring the Observatory to establish the exclusion zones based upon the 187-dB and 177-dB isopleths which are approximately 3-dB lower than NMFS' existing shutdown criteria.
If the protected species visual observer detects marine mammal(s) within or about to enter the appropriate exclusion zone, the
If the observer detects a marine mammal outside the exclusion zone and the animal is likely to enter the zone, the crew would power down the airguns to reduce the size of the 177- or 187-dB exclusion zone before the animal enters that zone. Likewise, if a mammal is already within the zone after detection, the crew would power-down the airguns immediately. During a power down of the airgun array, the crew would operate a single 40-in
Resuming Airgun Operations After a Power Down—Following a power-down, the
• The observer has visually observed the animal leave the exclusion zone; or
• An observer has not sighted the animal within the exclusion zone for 15 minutes for species with shorter dive durations (i.e., small odontocetes or pinnipeds), or 30 minutes for species with longer dive durations (i.e., mysticetes and large odontocetes, including sperm, pygmy sperm, dwarf sperm, and beaked whales); or
The
We estimate that the
(1) If an animal enters the exclusion zone of the single airgun after the crew has initiated a power down; or
(2) If an observer sees the animal is initially within the exclusion zone of the single airgun when more than one airgun (typically the full airgun array) is operating.
Considering the conservation status for North Atlantic right whales, the
Resuming Airgun Operations After a Shutdown—Following a shutdown in excess of eight minutes, the
During periods of active seismic operations, there are occasions when the
If the full exclusion zone is not visible to the observer for at least 30 minutes prior to the start of operations in either daylight or nighttime, the
If one airgun has operated during a power down period, ramp-up to full power would be permissible at night or in poor visibility, on the assumption that marine mammals would be alerted to the approaching seismic vessel by the sounds from the single airgun and could move away. The vessel's crew would not initiate a ramp-up of the airguns if an observer sees the marine mammal within or near the applicable exclusion zones during the day or close to the vessel at night.
Ramp-up would begin with the smallest airgun in the array (40 in
If the complete exclusion zone has not been visible for at least 30 minutes prior to the start of operations in either daylight or nighttime, the Observatory would not commence the ramp-up unless at least one airgun (40 in
If during seismic data collection, the Observatory detects marine mammals outside the exclusion zone and, based on the animal's position and direction of travel, is likely to enter the exclusion zone, the
We have carefully evaluated the Observatory's proposed mitigation measures in the context of ensuring that we prescribe 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.
Any mitigation measure(s) prescribed by us should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed here:
1. Avoidance or minimization of injury or death of marine mammals wherever possible (goals 2, 3, and 4 may contribute to this goal).
2. A reduction in the numbers of marine mammals (total number or number at biologically important time or location) exposed to airgun operations that we expect to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).
3. A reduction in the number of times (total number or number at biologically important time or location) individuals would be exposed to airgun operations that we expect to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).
4. A reduction in the intensity of exposures (either total number or number at biologically important time or location) to airgun operations that we expect to result in the take of marine mammals (this goal may contribute to a, above, or to reducing the severity of harassment takes only).
5. Avoidance or minimization of adverse effects to marine mammal habitat, paying special attention to the food base, activities that block or limit passage to or from biologically important areas, permanent destruction of habitat, or temporary destruction/disturbance of habitat during a biologically important time.
6. For monitoring directly related to mitigation—an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation.
Based on the evaluation of the Observatory's proposed measures, as well as other measures considered, we have 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 Authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that we expect to be present in the proposed action area.
The Observatory submitted a marine mammal monitoring plan in section XIII of the Authorization application. This description is not repeated here as we have not changed the monitoring plan between the proposed Authorization and our final Authorization.
Monitoring measures prescribed by NMFS should accomplish one or more of the following general goals:
1. An increase in the probability of detecting marine mammals, both within the mitigation zone (thus allowing for more effective implementation of the mitigation) and during other times and locations, in order to generate more data to contribute to the analyses mentioned later;
2. An increase in our understanding of how many marine mammals would be affected by seismic airguns and other active acoustic sources and the likelihood of associating those exposures with specific adverse effects, such as behavioral harassment, temporary or permanent threshold shift;
3. An increase in our understanding of how marine mammals respond to stimuli that we expect to result in take and how those anticipated adverse effects on individuals (in different ways and to varying degrees) may impact the population, species, or stock (specifically through effects on annual rates of recruitment or survival) through any of the following methods:
a. Behavioral observations in the presence of stimuli compared to observations in the absence of stimuli (i.e., we need to be able to accurately predict received level, distance from source, and other pertinent information);
b. Physiological measurements in the presence of stimuli compared to observations in the absence of stimuli (i.e., we need to be able to accurately predict received level, distance from source, and other pertinent information);
c. Distribution and/or abundance comparisons in times or areas with concentrated stimuli versus times or areas without stimuli;
4. An increased knowledge of the affected species; and
5. An increase in our understanding of the effectiveness of certain mitigation and monitoring measures.
The Observatory proposes to sponsor marine mammal monitoring during the present project to supplement the mitigation measures that require real-time monitoring, and to satisfy the monitoring requirements of the Authorization. We have not changed the monitoring plan between the proposed Authorization and our final Authorization. The Observatory planned the monitoring work as a self-contained project independent of any other related monitoring projects that may occur in the same regions at the same time. Further, the Observatory is prepared to discuss coordination of its monitoring program with any other related work that might be conducted by other groups working insofar as it is practical for the Observatory.
Passive acoustic monitoring would complement the visual mitigation monitoring program, when practicable. Visual monitoring typically is not effective during periods of poor visibility or at night, and even with good visibility, is unable to detect marine mammals when they are below the surface or beyond visual range. Passive acoustical monitoring can improve detection, identification, and localization of cetaceans when used in conjunction with visual observations. The passive acoustic monitoring would serve to alert visual observers (if on duty) when vocalizing cetaceans are detected. It is only useful when marine mammals call, but it can be effective either by day or by night, and does not depend on good visibility. The acoustic observer would monitor the system in real time so that he/she can advise the visual observers if they acoustic detect cetaceans.
The passive acoustic monitoring system consists of hardware (i.e., hydrophones) and software. The “wet end” of the system consists of a towed hydrophone array connected to the vessel by a tow cable. The tow cable is 250 m (820.2 ft) long and the hydrophones are fitted in the last 10 m (32.8 ft) of cable. A depth gauge, attached to the free end of the cable, which is typically towed at depths less than 20 m (65.6 ft). The
One acoustic observer, an expert bioacoustician with primary responsibility for the passive acoustic monitoring system would be aboard the
One acoustic observer would monitor the acoustic detection system by listening to the signals from two
When the acoustic observer detects a vocalization while visual observations are in progress, the acoustic observer on duty would contact the visual observer immediately, to alert him/her to the presence of cetaceans (if they have not already been seen), so that the vessel's crew can initiate a power down or shutdown, if required. During non-daylight hours, when a cetacean is detected by acoustic monitoring and may be close to the source vessel, the
Observers would record data to estimate the numbers of marine mammals exposed to various received sound levels and to document apparent disturbance reactions or lack thereof. They would use the data to estimate numbers of animals potentially `taken' by harassment (as defined in the MMPA). They will also provide information needed to order a power down or shut down of the airguns when a marine mammal is within or near the exclusion zone.
When an observer makes a sighting, they will record the following information:
1. Species, group size, age/size/sex categories (if determinable), behavior when first sighted and after initial sighting, heading (if consistent), bearing and distance from seismic vessel, sighting cue, apparent reaction to the airguns or vessel (e.g., none, avoidance, approach, paralleling, etc.), and behavioral pace.
2. Time, location, heading, speed, activity of the vessel, sea state, visibility, and sun glare.
The observer will record the data listed under (2) at the start and end of each observation watch, and during a watch whenever there is a change in one or more of the variables.
Observers will record all observations and power downs or shutdowns in a standardized format and will enter data into an electronic database. The observers will verify the accuracy of the data entry by computerized data validity checks during data entry and by subsequent manual checking of the database. These procedures will allow the preparation of initial summaries of data during and shortly after the field program, and will facilitate transfer of the data to statistical, graphical, and other programs for further processing and archiving.
Results from the vessel-based observations will provide:
1. The basis for real-time mitigation (airgun power down or shutdown).
2. Information needed to estimate the number of marine mammals potentially taken by harassment, which the Observatory must report to the Office of Protected Resources.
3. Data on the occurrence, distribution, and activities of marine mammals and turtles in the area where the Observatory would conduct the seismic study.
4. Information to compare the distance and distribution of marine mammals and turtles relative to the source vessel at times with and without seismic activity.
5. Data on the behavior and movement patterns of marine mammals detected during non-active and active seismic operations.
The Observatory would submit a report to us and to the Foundation within 90 days after the end of the cruise. The report would describe the operations conducted and sightings of marine mammals and turtles near the operations. The report would provide full documentation of methods, results, and interpretation pertaining to all monitoring. The 90-day report would summarize the dates and locations of seismic operations, and all marine mammal sightings (dates, times, locations, activities, associated seismic survey activities). The report would also include estimates of the number and nature of exposures that could result in “takes” of marine mammals by harassment or in other ways.
In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner not permitted by the authorization (if issued), such as an injury, serious injury, or mortality (e.g., ship-strike, gear interaction, and/or entanglement), the Observatory shall immediately cease the specified activities and immediately report the take to the Incidental Take Program Supervisor, Permits and Conservation Division, Office of Protected Resources, NMFS, at 301-427-8401 and/or by email to
• 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 (e.g., wind speed and direction, Beaufort sea state, cloud cover, and visibility);
• 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).
The Observatory shall not resume its activities until we are able to review the circumstances of the prohibited take. We shall work with the Observatory to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The Observatory may not resume their activities until notified by us via letter, email, or telephone.
In the event that the Observatory discovers an injured or dead marine mammal, and the lead visual observer determines that the cause of the injury or death is unknown and the death is relatively recent (i.e., in less than a moderate state of decomposition as we describe in the next paragraph), the Observatory will immediately report the incident to the Incidental Take Program Supervisor, Permits and Conservation Division, Office of Protected Resources, NMFS, at 301-427-8401 and/or by email to
In the event that the Observatory discovers an injured or dead marine mammal, and the lead visual observer determines that the injury or death is not associated with or related to the authorized activities (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), the Observatory would report the incident to the Incidental Take Program Supervisor, Permits and Conservation Division, Office of Protected Resources, NMFS, at 301-427-8401 and/or by email to
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].
Acoustic stimuli (i.e., increased underwater sound) generated during the operation of the airgun sub-arrays have the potential to result in the behavioral disturbance of some marine mammals. Thus, NMFS proposes to authorize take by Level B harassment resulting from the operation of the sound sources for the proposed seismic survey based upon the current acoustic exposure criteria shown in Table 3. Our practice has been to apply the 160 dB re: 1 μPa received level threshold for underwater impulse sound levels to determine whether take by Level B harassment occurs. Southall
The probability of vessel and marine mammal interactions (i.e., ship strike) occurring during the proposed survey is unlikely due to the
The Observatory did not estimate any additional take allowance for animals that could be affected by sound sources other than the airguns. We do not expect that the sound levels produced by the echosounder, sub-bottom profiler, and ADCP would exceed the sound levels produced by the airguns for the majority of the time. Because of the beam pattern and directionality of these sources, combined with their lower source levels, it is not likely that these sources would take marine mammals independently from the takes that the Observatory has estimated to result from airgun operations. Therefore, we do not believe it is necessary to authorize additional takes for these sources for the action at this time. We are currently evaluating the broader use of these types of sources to determine under what specific circumstances coverage for incidental take would or would not be advisable. We are working on guidance that would outline a consistent recommended approach for applicants to address the potential impacts of these types of sources.
NMFS considers the probability for entanglement of marine mammals to be low because of the vessel speed and the monitoring efforts onboard the survey vessel. Therefore, NMFS does not believe it is necessary to authorize additional takes for entanglement at this time.
There is no evidence that planned activities could result in serious injury or mortality within the specified geographic area for the requested Authorization. The required mitigation and monitoring measures would minimize any potential risk for serious injury or mortality.
The following sections describe the Observatory's methods to estimate take by incidental harassment. The Observatory based their estimates on the number of marine mammals that could be harassed by seismic operations with the airgun sub-array during approximately 4,900 km
Because the Observatory assumes that the
Table 3 of their application presents their estimates of the number of different individual marine mammals that could potentially experience exposures greater than or equal to 160 dB re: 1 μPa (rms) during the seismic survey if no animals moved away from the survey vessel. The Observatory used the Strategic Environmental Research and Development Program's (SERDP) spatial decision support system (SDSS) Marine Animal Model Mapper tool (Read
For the Authorization, we reviewed the Observatory's take estimates presented in Table 3 of their application and have revised the take calculations for several species based upon the best available density information from the SERDP SDSS Marine Animal Model Mapper tool for the spring and summer months, survey information from Palka (2012), species presence from the New Jersey Department of Environmental Protection Baseline Studies Final Report Volume III: Marine Mammal and Sea Turtle Studies, and stranding records from the New Jersey Marine Mammal Stranding Center. These include takes for blue, fin, humpback, minke, North Atlantic right, and sei whales; harbor porpoise; and gray, harbor, and harp seals.
For North Atlantic right whales, we used the SERDP SDSS Marine Animal Model Mapper tool NODES spring model to obtain mean densities in a polygon the size of the seismic survey area. To be conservative, we increased the estimated take of 1 individual to 3 to account for a cow/calf pair based on information from Whitt et al. (2013).
For blue and humpback whales, we used the SERDP SDSS Duke Habitat Model for baleen and humpback whales, respectively to obtain the summer mean densities in a polygon the size of the seismic survey area for those species.
For species where the SERDP SDSS NODES summer model produced a density estimate of zero, we increased the take estimates based on generalized group size data from Palka (2012). Those species include: humpback, fin, sei, and minke whales; striped dolphins, short-beaked common dolphins, and Atlantic white-sided dolphins. For gray and harp seals, we increased the take estimates based on stranding data from the New Jersey Marine Mammal Stranding Center.
For harbor porpoise and harbor seals, we also used the SERDP SDSS Marine Animal Model Mapper tool NODES spring model to obtain mean densities in a polygon the size of the seismic survey area.
The Observatory's approach for estimating take does not allow for turnover in the marine mammal populations in the area during the course of the survey. To correct this potential underestimation, we have increased the proposed take estimates for odontocetes (excluding sperm whales) and pinnipeds by a factor of 25 percent to conservatively account for new animals entering or passing through the ensonified area.
Table 4 presents the revised estimates of the possible numbers of marine mammals exposed to sound levels greater than or equal to 160 dB re: 1 μPa during the proposed seismic survey.
The Observatory would coordinate the planned marine mammal monitoring program associated with the seismic survey in the northwest Atlantic Ocean with applicable U.S. agencies.
Negligible impact' is “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival” (50 CFR 216.103). The lack of likely adverse effects on annual rates of recruitment or survival (i.e., population level effects) forms the basis of a negligible impact finding. Thus, an estimate of the number of Level B harassment takes, alone, is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be “taken” through behavioral harassment, we must consider other factors, such as the likely nature of any responses (their intensity, duration, etc.), the context of any responses (critical reproductive time or location, migration, etc.), as well as the number and nature of estimated Level A harassment takes, and the number of estimated mortalities, effects on habitat, and the status of the species.
In making a negligible impact determination, we consider:
• The number of anticipated injuries, serious injuries, or mortalities;
• The number, nature, and intensity, and duration of Level B harassment; and
• The context in which the takes occur (e.g., impacts to areas of significance, impacts to local populations, and cumulative impacts when taking into account successive/contemporaneous actions when added to baseline data);
• The status of stock or species of marine mammals (i.e., depleted, not depleted, decreasing, increasing, stable, impact relative to the size of the population);
• Impacts on habitat affecting rates of recruitment/survival; and
• The effectiveness of monitoring and mitigation measures to reduce the number or severity of incidental take.
For reasons stated previously in this document and based on the following factors, the Observatory's specified activities are not likely to cause long-term behavioral disturbance, permanent threshold shift, or other non-auditory injury, serious injury, or death. They include:
• The anticipated impacts of the Observatory's survey activities on marine mammals are temporary behavioral changes due to avoidance of the area.
• The likelihood that marine mammals approaching the survey area will likely be traveling through the or opportunistically foraging within the vicinity. Marine mammals transiting within the vicinity of survey operations will be transient as no breeding, calving, pupping, or nursing areas, or haul-outs, overlap with the survey area.
• The low potential of the survey to cause an effect on coastal bottlenose dolphin populations due to the fact that the Observatory's study area is approximately 20 km (12 mi) away from the identified habitats for coastal bottlenose dolphins and their calves.
• The low likelihood that North Atlantic right whales would be exposed to sound levels greater than or equal to 160 dB re: 1 μPa due to the requirement that the
• The anticipated impacts of the Observatory's survey activities on marine mammals are temporary
• The likelihood that, given sufficient notice through relatively slow ship speed, we expect marine mammals to move away from a noise source that is annoying prior to its becoming potentially injurious;
• The availability of alternate areas of similar habitat value for marine mammals to temporarily vacate the survey area during the operation of the airgun(s) to avoid acoustic harassment;
• We also expect that the seismic survey would have no more than a temporary and minimal adverse effect on any fish or invertebrate species that serve as prey species for marine mammals, and therefore consider the potential impacts to marine mammal habitat minimal;
• The relatively low potential for temporary or permanent hearing impairment and the likelihood that the Observatory would avoid this impact through the incorporation of the required monitoring and mitigation measures (including the incorporation of larger exclusion zones for Level A Harassment, power-downs, and shutdowns); and
• The high likelihood that trained visual protected species observers would detect marine mammals at close proximity to the vessel.
NMFS does not anticipate that any injuries, serious injuries, or mortalities would occur as a result of the Observatory's proposed activities, and NMFS does not propose to authorize injury, serious injury, or mortality at this time.
We anticipate only behavioral disturbance to occur primarily in the form of avoidance behavior to the sound source during the conduct of the survey activities. Further, the additional mitigation measure requiring the Observatory to increase the size of the Level A harassment exclusion zones will effect the least practicable impact marine mammals.
Table 4 in this document outlines the number of requested Level B harassment takes that we anticipate as a result of these activities. NMFS anticipates that 27 marine mammal species (6 mysticetes, 18 odontocetes, and 3 pinnipeds) under our jurisdiction would likely occur in the proposed action area. Of the marine mammal species under our jurisdiction that are known to occur or likely to occur in the study area, six of these species are listed as endangered under the ESA and depleted under the MMPA, including: the blue, fin, humpback, north Atlantic right, sei, and sperm whales.
Due to the nature, degree, and context of Level B (behavioral) harassment anticipated and described (see “Potential Effects on Marine Mammals” section in this notice), we do not expect the activity to impact rates of recruitment or survival for any affected species or stock. In addition, the seismic surveys would not take place in areas of significance for marine mammal feeding, resting, breeding, or calving and would not adversely impact marine mammal habitat, including the identified habitats for coastal bottlenose dolphins and their calves.
Many animals perform vital functions, such as feeding, resting, traveling, and socializing, on a diel cycle (i.e., 24 hour cycle). Behavioral reactions to noise exposure (such as disruption of critical life functions, displacement, or avoidance of important habitat) are more likely to be significant if they last more than one diel cycle or recur on subsequent days (Southall
In summary, we expect marine mammals to avoid the survey area, thereby reducing the risk of exposure and impacts. We do not anticipate disruption to reproductive behavior and there is no anticipated effect on annual rates of recruitment or survival of affected marine mammals.
Based on this notice's analysis of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS finds that the Observatory's proposed seismic survey would have a negligible impact on the affected marine mammal species or stocks.
As mentioned previously, NMFS estimates that the Observatory's activities could potentially affect, by Level B harassment only, 27 species of marine mammals under our jurisdiction. For each species, these estimates constitute small numbers (each, less than or equal to four percent) relative to the population size and we have provided the regional population estimates for the marine mammal species that may be taken by Level B harassment in Table 4 in this notice.
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 finds that the Observatory's proposed activity would take small numbers of marine mammals relative to the populations of the affected species or stocks.
There are no relevant subsistence uses of marine mammals implicated by this action.
There are six marine mammal species that may occur in the proposed survey area, several are listed as endangered under the Endangered Species Act, including the blue, fin, humpback, north Atlantic right, sei, and sperm whales. Under section 7 of the ESA, the Foundation has initiated formal consultation with NMFS on the proposed seismic survey. NMFS (i.e., National Marine Fisheries Service, Office of Protected Resources, Permits and Conservation Division) also consulted with NMFS on the proposed issuance of an Authorization under section 101(a)(5)(D) of the MMPA. NMFS consolidated those consultations in a single Biological Opinion.
On June 30, 2014, the Endangered Species Act Interagency Cooperation Division issued an Opinion to us and the Foundation which concluded that the issuance of the Authorization and the conduct of the seismic survey were not likely to jeopardize the continued existence of blue, fin, humpback, North Atlantic right, sei, and sperm whales. The Opinion also concluded that the issuance of the Authorization and the conduct of the seismic survey would not affect designated critical habitat for these species.
The Foundation has prepared an EA titled, “Environmental Assessment of a Marine Geophysical Survey by the R/V Marcus G. Langseth in the Atlantic Ocean off New Jersey, June-July 2014,” prepared by LGL, Ltd. environmental research associates, on behalf of the
We have issued an Incidental Harassment Authorization to the Observatory for the take of marine mammals incidental to conducting a marine seismic survey in the Atlantic Ocean, July 1, 2014 to August 17, 2014.
10 a.m., Friday, July 11, 2014.
1155 21st St. NW., Washington, DC, 9th Floor Commission Conference Room.
Closed.
Surveillance, Enforcement Matters, and Examinations. In the event that the times, dates, or locations of this or any future meetings change, an announcement of the change, along with the new time and place of the meeting will be posted on the Commission's Web site at
Christopher J. Kirkpatrick, 202-418-5964.
Consumer Product Safety Commission.
Notice.
It is the policy of the Commission to publish settlements which it provisionally accepts under the Consumer Product Safety Act in the
Any interested person may ask the Commission not to accept this agreement or otherwise comment on its contents by filing a written request with the Office of the Secretary by July 23, 2014.
Persons wishing to comment on this Settlement Agreement should send written comments to the Comment 14-C0003 Office of the Secretary, Consumer Product Safety Commission, 4330 East West Highway, Room 820, Bethesda, Maryland 20814-4408.
Mary B. Murphy, Assistant General Counsel, Office of the General Counsel, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, Maryland 20814-4408; telephone (301) 504-7809.
The text of the Agreement and Order appears below.
In the Matter of:
1. In accordance with the Consumer Product Safety Act (CPSA), 15 U.S.C. §§ 2051-2089 and 16 C.F.R. § 1118.20, HMI Industries Inc. (HMI), and the U.S. Consumer Product Safety Commission (Commission), through its staff (staff), hereby enter into this Settlement Agreement (Agreement). The Agreement and the incorporated attached Order (Order) resolve staff's charges set forth below.
2. The Commission is an independent federal regulatory agency established pursuant to, and responsible for, the enforcement of the CPSA. By executing this Agreement, staff is acting on behalf of the Commission, pursuant to 16 C.F.R. § 1118.20(b). The Commission issues the Order under the provisions of the CPSA.
3. HMI is a corporation, organized and existing under the laws of the state of Delaware with its principal corporate office located in Strongsville, Ohio. HMI is a manufacturer of floor cleaners and indoor air purifiers.
4. Between September 2004 and August 2006, HMI manufactured and distributed approximately 44,000 Filter Queen Majestic 360 floor cleaners (Subject Products, or Floor Cleaners). The Floor Cleaners were sold through independent distributors nationwide for approximately $1,800.
5. The Floor cleaners are “consumer products,” and at all relevant times, HMI was a “manufacturer” of these consumer products, which were “distributed in commerce,” as those terms are defined or used in sections 3(a)(5) and (11), of the CPSA, 15 U.S.C. § 2052(a)(5) and (11).
6. The Floor Cleaners are defective because their wiring can overheat, causing electrical arcing and melting. This poses a burn hazard to consumers.
7. HMI received notice of the defect shortly after distribution began in September 2004. Between 2005 and 2008, HMI received hundreds of reports of electrical arcing, sparking, and fire, including reports of property damage
8. By March 2006, HMI had sufficient information that reasonably supported the conclusion that the Floor Cleaners contained a defect that could create a substantial product hazard or created an unreasonable risk of serious injury or death. HMI was required to inform the Commission immediately of such defect or risk, as required by sections 15(b)(3) and (4) of the CPSA, 15 U.S.C. §§ 2064(b)(3) and (4). By that date, the Firm had received approximately 500 reports of arcing, had instituted its third design change, and had sent product information notices to consumers alerting them to the defect.
9. Despite having information regarding the Floor Cleaner's defect or risk, HMI failed to inform the Commission immediately, as required by sections 15(b)(3) and (4) of the CPSA, 15 U.S.C. §§ 2064(b)(3) and (4).
10. In failing to inform the Commission about the Subject Products immediately, HMI knowingly violated section 19(a)(4) of the CPSA, 15 U.S.C. § 2068(a)(4), as the term “knowingly” is defined in section 20(d) of the CPSA, 15 U.S.C. § 2069(d).
11. HMI did not file its Full Report with the Commission until February 2009. By that date, HMI was aware of approximately 2,000 incidents of arcing involving the Floor Cleaners, approximately 120 consumer reports of overheating and property damage, and injuries to two consumers. However, HMI advised staff that it knew of only 40 consumer complaints of overheating and damage to carpets, with no reports of injury. Staff relied upon that information and included that information in the joint press release issued on April 29, 2009.
12. In underreporting to Commission staff the number of incidents and injuries associated with the Floor Cleaners, HMI knowingly committed a material misrepresentation to an officer or employee in the course of an investigation under the CPSA in violation of section 19(a)(13) of the CPSA, 15 U.S.C. § 2068(a)(13).
13. Pursuant to section 20 of the CPSA, 15 U.S.C. § 2069, HMI is subject to civil penalties for its knowing failure to report, as required by section 15(b) of the CPSA, 15 U.S.C. § 2064(b), and for HMI's material misrepresentation in violation of CPSA Section 19(a)(13).
14. This Agreement does not constitute an admission by HMI to the charges set forth in paragraphs 4 through 13, including, but not limited to, the charge that the Floor Cleaners contained a defect which could create a substantial product hazard or created an unreasonable risk of serious injury or death, and the contention that HMI failed to notify the Commission in a timely manner, in accordance with section 15(b) of the CPSA, 15 U.S.C. § 2064(b), and the charge that HMI knowingly committed a material misrepresentation to an officer or employee in the course of an investigation in violation of Section 19(a)(13) of the CPSA.
15. Under the CPSA, the Commission has jurisdiction over the matter involving the Floor Cleaners described herein and over HMI.
16. In settlement of staff's charges, and to avoid the cost, distraction, delay, uncertainty, and inconvenience of protracted litigation or other proceedings, HMI shall pay a civil penalty in the amount of seven hundred twenty-five thousand dollars ($725,000), with three hundred twenty-five thousand ($325,000) of that sum suspended. The remaining four hundred thousand dollars ($400,000) is to be paid in forty equal payments of $10,000, with the first payment due and payable within twenty (20) calendar days after receiving service of the Commission's final Order accepting the Agreement, and each subsequent payment due and payable no later than the 15th day of each succeeding month until all amounts due and payable under this Agreement are paid in full. Interest at the federal legal rate of interest set forth at 28 U.S.C. § 1961(a) and (b) shall accrue only on amounts not timely paid as provided in this Agreement and shall be payable by HMI. All payments shall be applied first to accrued but unpaid interest, if any, and then to principal. All payments to be made under this Agreement shall constitute debts owing to the United States and shall be made by electronic wire transfer to the United States via:
17. The parties agree that this settlement figure has been agreed to by staff, and is predicated, among other things, upon the accuracy of oral and written representations of, and statements by, HMI and HMI's representatives (including representations and warranties set forth in this Agreement) regarding (a) facts that establish HMI's status as a small business and (b) the financial condition of HMI, including statements concerning HMI's inability to pay a greater penalty due to restrictions imposed by a tangible net worth covenant in an existing loan agreement.
18. HMI warrants and represents that the financial statements and financial information provided to staff are true, accurate, and complete and have been prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated and with each other; and that the financial statements and financial information fairly present the financial condition and results of operations and cash flow of HMI as of the dates, and for the periods, indicated therein, all in conformity with GAAP consistently applied during the periods involved except as otherwise noted. HMI additionally warrants and represents that all information provided to staff in connection with this civil penalty matter is true, accurate, and complete. To the extent that financial information provided by the Firm during the course of this civil penalty matter included projections and/or forward looking statements, such projections or statements represented HMI's good faith assessment of the HMI's future performance, and had a reasonable basis.
19. HMI has provided staff with its consolidated financial statements as of and for the years ending September 30, 2012 and September 30, 2013 and, along with related notes to the financial statements, as reviewed and audited by independent auditors.
20. The parties agree that an amount equal to $725,000 (representing the entire civil penalty including the suspended portion) plus any accrued and unpaid interest minus any penalty amounts paid by HMI shall become immediately due and payable upon the occurrence of an “Event of Default.” An Event of Default means: (1) HMI's breach or failure to perform in any respect any of its agreements, covenants, representations or warranties contained in this Agreement (including the failure of HMI to timely pay any payment obligation under this Agreement as set forth in this Agreement); or (2) a violation by HMI of any CPSC statute or regulation.
21. The suspended portion of the civil penalty ($325,000), and any obligations of HMI related to such payment, will terminate upon the payment in full by HMI as provided in this Agreement of
22. The parties enter into this Agreement for settlement purposes only. The Agreement does not constitute an admission by HMI that HMI violated the CPSA.
23. Following staff's receipt of this Agreement executed on behalf of HMI, staff shall promptly submit the Agreement to the Commission for provisional acceptance. Promptly following provisional acceptance of the Agreement by the Commission, the Agreement shall be placed on the public record and published in the
24. This Agreement is conditioned upon, and subject to, the Commission's final acceptance, as set forth above, and is subject to the provisions of 16 C.F.R. § 1118.20(h). Upon the later of: (i) the Commission's final acceptance of this Agreement and service of the accepted Agreement upon HMI, and (ii) the date of issuance of the final Order, this Agreement shall be in full force and effect and shall be binding upon the parties.
25. Effective upon the later of: (i) the Commission's final acceptance of the Agreement and service of the accepted Agreement upon HMI, and (ii) the date of issuance of the final Order, for good and valuable consideration, HMI hereby expressly and irrevocably waives and agrees not to assert any past, present, or future rights to the following, in connection with the matter described in the Agreement: (a) an administrative or judicial hearing; (b) judicial review or other challenge or contest of the validity of the Order or of the Commission's actions; (c) a determination by the Commission of whether HMI failed to comply with the CPSA and the underlying regulations; (d) a statement of findings of fact and conclusions of law; and (e) any claims under the Equal Access to Justice Act.
26. HMI shall implement and maintain a compliance program designed to ensure compliance with the statutes and regulations enforced by the Commission that, at a minimum, contains the following elements: (i) written standards and policies; (ii) procedures for implementing corrective and preventive actions when compliance deficiencies or violations are identified; (iii) a mechanism for confidential employee reporting of compliance-related questions or concerns to either a compliance officer or to another senior manager with authority to act as necessary; (iv) effective communication of company compliance-related policies and procedures to all employees through training programs or otherwise; (v) senior manager responsibility for compliance and accountability for violations of the statutes and regulations enforced by the Commission; (vi) board oversight of compliance (if applicable); and (vii) retention of all compliance-related records for at least five (5) years and availability of such records to staff upon request.
27. HMI shall maintain and enforce a system of internal controls and procedures designed to ensure that: (i) information required to be disclosed by HMI to the Commission is recorded, processed and reported in accordance with applicable law; (ii) all reporting made to the Commission is timely, truthful, complete and accurate; and (iii) prompt disclosure is made to HMI management of any significant deficiencies or material weaknesses in the design or operation of such internal controls that are reasonably likely to adversely affect in any material respect HMI's ability to record, process, and report to the Commission in accordance with applicable law.
28. Upon request of staff, HMI shall provide written documentation of its compliance program, and internal controls and procedures including, but not limited to, the effective dates thereof. HMI shall cooperate fully and truthfully with staff and shall make available all information, materials, and personnel deemed necessary by staff to evaluate HMI's compliance with the terms of the Agreement.
29. The parties acknowledge and agree that the Commission may make public disclosure of the terms of the Agreement and the Order.
30. HMI represents that the Agreement: (i) is entered into freely and voluntarily, without any degree of duress or compulsion whatsoever; (ii) has been duly authorized; and (iii) constitutes the valid and binding obligation of HMI, and each of its successors and/or assigns, enforceable against HMI in accordance with the Agreement's terms. The individuals signing the Agreement on behalf of HMI represent and warrant that they are duly authorized by HMI to execute the Agreement.
31. The Commission signatories represent that they are signing the Agreement in their official capacities and that they are authorized to execute this Agreement.
32. The Agreement is governed by the laws of the United States.
33. The Agreement and the Order shall apply to, and be binding upon, HMI and each of its subsidiaries, successors, transferees, and assigns, and a violation of the Agreement or Order may subject HMI and each of its successors, transferees, and assigns to appropriate legal action.
34. The Agreement and the Order constitute the complete agreement between the parties on the subject matter contained herein and therein.
35. The Agreement may be used in interpreting the Order. Understandings, agreements, representations, or interpretations apart from those contained in the Agreement and the Order may not be used to vary or contradict their terms. For purposes of construction, the Agreement shall be deemed to have been drafted by both of the parties, and therefore, shall not be construed against any party for that reason in any subsequent dispute.
36. The Agreement shall not be waived, amended, modified, or otherwise altered, except as in accordance with the provisions of 16 C.F.R. § 1118.20(h). The Agreement may be executed in counterparts.
37. If any provision of the Agreement or the Order is held to be illegal, invalid, or unenforceable under present or future laws effective during the terms of the Agreement and the Order, such provision shall be fully severable. The balance of the Agreement and the Order shall remain in full force and effect, unless the Commission and HMI agree that severing the provision materially affects the purpose of the Agreement and Order.
In the Matter of: HMI, Industries Inc.
Upon consideration of the Settlement Agreement entered into between HMI, Industries Inc. (HMI), and the U.S. Consumer Product Safety Commission (Commission), and the Commission having jurisdiction over the subject matter and over HMI, and it appearing that the Settlement Agreement and the Order are in the public interest, it is
Washington Headquarters Service, Acquisition Directorate (WHS/AD), DoD.
Notice.
In compliance with Section 3506(c)(2)(A) of the
Consideration will be given to all comments received by September 8, 2014.
You may submit comments, identified by docket number and title, by any of the following methods:
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To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Director, Washington Headquarters Services Acquisition Directorate, 1225 S. Clark Street, Suite 1202, Arlington, VA 22302 (703-545-0423).
OMB has asked the Acquisitions Directorate (AD) of Washington Headquarters Service to participate in a pilot program whereby AD surveys its contractors after the pre-award phase of the acquisition process to obtain their feedback. Responses to the survey will help assess AD's performance and identify its strengths and weaknesses. The survey contains 17 questions and should take no more than 10 minutes to complete.
Department of Defense (DoD).
Notice of meeting.
The Department of Defense is publishing this notice to announce the following Federal Advisory Committee meeting of the Independent Review Panel on Military Medical Construction Standards (“the Panel”).
San Antonio Military Medical Center, 3551 Roger Brooke Drive, Fort Sam Houston, Texas 78234. Wilford Hall Ambulatory Surgical Center, 2200 Bergquist Drive, Joint Base San Antonio, Lackland, Texas 78236. Carl R. Darnall Army Medical Center, 36000 Darnall Loop, Fort Hood, Texas 76544.
The Director is Ms. Christine Bader, 7700 Arlington Boulevard, Suite 5101, Falls Church, Virginia 22042,
This meeting is being held under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.150.
At this meeting, the Panel will address the Ike Skelton National Defense Authorization Act (NDAA) for Fiscal Year 2011 (Pub. L. 111-383), Section 2852(b) requirement to provide the Secretary of Defense independent advice and recommendations regarding a construction standard for military medical centers to provide a single standard of care, as set forth below:
a. Reviewing the unified military medical construction standards to determine the standards consistency with industry practices and benchmarks for world class medical construction;
b. Reviewing ongoing construction programs within the DoD to ensure medical construction standards are uniformly applied across applicable military centers;
c. Assessing the DoD approach to planning and programming facility improvements with specific emphasis on facility selection criteria and proportional assessment system; and facility programming responsibilities between the Assistant Secretary of Defense for Health Affairs and the Secretaries of the Military Departments;
d. Assessing whether the Comprehensive Master Plan for the National Capital Region Medical (“the Master Plan”), dated April 2010, is adequate to fulfill statutory requirements, as required by section 2714 of the Military Construction Authorization Act for Fiscal Year 2010 (division B of Pub. L. 111-84; 123 Stat. 2656), to ensure that the facilities and organizational structure described in the Master Plan result in world class military medical centers in the National Capital Region; and
e. Making recommendations regarding any adjustments of the Master Plan that are needed to ensure the provision of world class military medical centers and delivery system in the National Capital Region.
Pursuant to 5 U.S.C. 552b, as amended, and 41 CFR 102-3.140 through 102-3.165 and subject to availability of space, the Panel meeting is open to the public from 10:00 a.m. to 12:15 p.m. on July 21, 9:00 a.m. to 11:15 a.m. on July 22, and 8:00 a.m. to 10:00 a.m. on July 23, 2014, as the Panel will meet with senior military healthcare leaders to discuss facility design standards and benchmarking processes.
A copy of the agenda or any updates to the agenda for the July 21-23, 2014, meeting, as well as any other materials presented in the meeting, may be obtained at the meeting.
Pursuant to 5 U.S.C. 552b, as amended, and 41 CFR 102-3.140 through 102-3.165 and subject to availability of space, this meeting is open to the public. Seating is limited and is on a first-come basis. All members of the public who wish to attend the public meeting must contact Ms. Kendal Brown at the number listed in the section
Individuals requiring special accommodations to access the public meeting should contact Ms. Kendal Brown at least five (5) business days prior to the meeting so that appropriate arrangements can be made.
Any member of the public wishing to provide comments to the Panel may do so in accordance with 41 CFR 102-3.105(j) and 102-3.140 and section 10(a)(3) of the Federal Advisory Committee Act, and the procedures described in this notice.
Individuals desiring to provide comments to the Panel may do so by submitting a written statement to the Director (see
If the written statement is not received at least five (5) business days prior to the meeting, the Director may choose to postpone consideration of the statement until the next open meeting.
The Director will review all timely submissions with the Panel Chairperson and ensure they are provided to members of the Panel before the meeting that is subject to this notice. After reviewing the written comments, the President and the Director may choose to invite the submitter to orally present their issue during an open portion of this meeting or at a future meeting. The Director, in consultation with the Panel Chairperson, may allot time for members of the public to present their issues for review and discussion by the Panel.
Due to difficulties beyond the control of the Designated Federal Officer (DFO), the DFO was unable to approve the Independent Review Panel on Military Medical Construction Standards' meeting agenda for the scheduled meeting of July 21, 2014, through July 24, 2014, to ensure compliance with the requirements of 41 CFR 102-3.150(a). Accordingly, the Advisory Committee Management Officer for the Department of Defense, pursuant to 41 CFR 102-3.150(b), waives the 15-calendar day notification requirement.
Office of the Secretary of Defense, DoD.
Notice to alter a System of Records.
The Office of the Secretary of Defense proposes to alter a system of records, DHRA 06 DoD, entitled “Defense Sexual Assault Incident Database,” in its inventory of record systems subject to the Privacy Act of 1974, as amended. This system will be used to centralize case-level sexual assault data involving a member of the Armed Forces, in a manner consistent with DoD regulations for unrestricted and restricted reporting, including information, if available, about the nature of the assault (e.g., incident date and location, type of offense), the victim, the alleged perpetrator, investigative information, case outcomes in connection with the assault, and other information necessary to fulfill reporting requirements. Records may also be used as a management tool for statistical analysis, tracking, reporting, evaluating program effectiveness and conducting research. The system includes the capability for entering records and interfacing data; generating various level reports and queries; and conducting case and business management.
Comments will be accepted on or before August 7, 2014. This proposed action will be effective the date following the end of the comment period unless comments are received which result in a contrary determination.
You may submit comments, identified by docket number and title, by any of the following methods:
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Ms. Cindy Allard, Chief, OSD/JS Privacy Office, Freedom of Information Directorate, Washington Headquarters Service, 1155 Defense Pentagon, Washington, DC 20301-1155, or by phone at (571) 372-0461.
The Office of the Secretary of Defense notices for systems of records subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
The proposed system report, as required by U.S.C. 552a(r) of the Privacy Act of 1974, as amended, was submitted on June 27, 2014, to the House Committee on Oversight and Government Reform, the Senate Committee on Governmental Affairs, and the Office of Management and Budget (OMB) pursuant to paragraph 4c of Appendix I to OMB Circular No. A-130, “Federal Agency Responsibilities for Maintaining Records About Individuals,” dated February 8, 1996 (February 20, 1996, 61 FR 6427).
Defense Sexual Assault Incident Database (November 19, 2012, 77 FR 69442).
Washington Headquarters Services (WHS), Enterprise Information Technology Support Directorate, WHS-Supported Organizations Division, 2521 South Clark Street, Suite 640, Arlington, VA 22209-2328.
The Department of the Army, Automated Criminal Investigation/Intelligence System, Russell Knox Building, 27130 Telegraph Road, Quantico, VA 22134-2253.
The Department of the Navy, Consolidated Law Enforcement Operations Center, Naval Criminal Investigative Service, Russell Knox Building, 27130 Telegraph Road, Quantico, VA 22134-2253.
The Department of the Air Force, Investigative Information Management System, Headquarters United States Air Force, Air Force Office of Special Investigations, Russell Knox Building, 27130 Telegraph Road, Quantico, VA 22134-2253.
Decentralized locations include the Services staff and field operating agencies, major commands, installations, and activities. Official mailing addresses are published as an appendix to each Services compilation of systems of records notices.”
Delete entry and replace with “Active duty Army, Navy, Marine Corps and Air Force members; active duty Reserve members and National Guard members covered by title 10 or title 32 (hereafter `service members'); service members who were victims of a sexual assault prior to enlistment or commissioning; military dependents age 18 and older; DoD civilians; DoD contractors; other government civilians; U.S. civilians; and foreign military members who may be lawfully admitted into the U.S. or foreign military members who are not covered under the Privacy Act who may be victims and/or alleged perpetrators in a sexual assault involving a member of the Armed Forces.”
Delete entry and replace with “Victim information, in unrestricted reports, includes last, first, and middle name, Defense Sexual Assault Incident Database (DSAID) control number (i.e., system generated unique control number), identification type (e.g., DoD Identification (DoD ID) number, Social Security Number (SSN), passport, U.S. Permanent Residence Card, foreign identification), identification number for identification provided, birth date, victim contact information (e.g. phone number, mailing address, email address), age at the time of incident, gender, race, ethnicity, and victim type (e.g., military, DoD civilian/contractor, other government civilian, U.S. civilian, foreign national/military, unknown), affiliation, grade/rank, status (e.g., Active Duty, Reserve, National Guard), location, relationship to subject, and name of victim's commander.
Alleged perpetrator information, in unrestricted reports, includes last, first, and middle name, identification type (e.g., DoD ID number, SSN, passport, U.S. Permanent Residence Card, or foreign identification), identification number for identification provided,
However, if a victim of a sexual assault involving a member of the Armed Forces makes a restricted report (report that does not initiate investigation) of sexual assault, no personal identifying information for the victim and/or alleged perpetrator is maintained in DSAID. Any personal information collected is stored and maintained locally.
Other data collected, for unrestricted reports, to support case and business management includes the date and type of report; tracking information on Sexual Assault Forensic Examinations performed, expedited transfers and civilian/military protective orders, and referrals to appropriate resources; information on line of duty determinations; victim safety information; case management meeting information; and information on memoranda of understanding.”
Delete entry and replace with “10 U.S.C. 113 note, Department of Defense Policy and Procedures on Prevention and Response to Sexual Assaults Involving Members of the Armed Forces; 10 U.S.C. 136, Under Secretary of Defense for Personnel and Readiness; 10 U.S.C. 3013, Secretary of the Army; 10 U.S.C. 5013, Secretary of the Navy; 10 U.S.C. 8013, Secretary of the Air Force; 32 U.S.C. 102, National Guard; DoD Directive 6495.01, Sexual Assault Prevention and Response (SAPR) Program; DoD Instruction 6495.02, Sexual Assault Prevention and Response (SAPR) Program Procedures; Army Regulation 600-20, Chapter 8, Army Command Policy (Sexual Assault Prevention and Response Program); Secretary of the Navy Instruction 1752.4B, Sexual Assault Prevention and Response; Marine Corps Order 1752.5B, Sexual Assault Prevention and Response (SAPR) Program; Air Force Instruction 36-6001, Sexual Assault Prevention and Response (SAPR) Program; and E.O. 9397 (SSN), as amended.”
Delete entry and replace with “To centralize case-level sexual assault data involving a member of the Armed Forces, in a manner consistent with DoD regulations for unrestricted and restricted reporting, including information, if available, about the nature of the assault (e.g., incident date and location, type of offense), the victim, the alleged perpetrator, investigative information, case outcomes in connection with the assault, and other information necessary to fulfill reporting requirements. Records may also be used as a management tool for statistical analysis, tracking, reporting, evaluation program effectiveness and conducting research.
The system includes the capability for entering records and interfacing data; generating various level reports and queries; and conducting case and business management.
At the DoD level, only de-identified data is used to respond to mandated reporting requirements. Identified closed case information and de-identified, aggregate open case information may also be used as a management tool for statistical analysis, tracking, reporting, evaluating program effectiveness and conducting research. In accordance with DoD policy, at the Military Service level, information regarding unrestricted reports should only be released to personnel with an official need to know or as authorized by law; proper release of restricted reporting information should also be limited to those with an official need to know or as authorized by law.”
Delete entry and replace with “In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, as amended, the records contained herein may be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
The DoD Blanket Routine Uses set forth at the beginning of Office of the Secretary of Defense (OSD) systems of records notices may apply to this system.”
Delete entry and replace with “Paper file folders and electronic storage media.”
Delete entry and replace with “Records are maintained in a controlled facility. Physical entry is restricted by the use of guards, identification badges, key cards, and locks. Access to case files in the system is role-based and requires the use of a Common Access Card (CAC) and password. Access roles and permission lists for SARCs and authorized Military Service legal officers are granted by Military Service Sexual Assault Prevention and Response program managers through the assignment of appropriate user roles. Periodic security audits are also conducted. Technical safeguards include firewalls, passwords, encryption of data, and use of virtual private network. Access is further restricted to authorized users with a .mil email address and a CAC.”
Delete entry and replace with “Records are cut off at the end of the fiscal year and destroyed fifty years after cut off.”
Delete entry and replace with “Sexual Assault Prevention and Response Office, ATTN: Defense Sexual Assault Incident Database Program Manager, 4800 Mark Center Drive, Alexandria, VA 22350-8000.”
Delete entry and replace with “Individuals seeking to determine whether information about themselves is contained in this system of records should address written inquiries to the appropriate Service office listed below:
The Department of the Army, Human Resources Policy Directorate (HRPD), Sexual Harassment/Assault Response and Prevention (SHARP), 2530 Crystal Drive, 6th Floor, Arlington, VA 22202-3938.
The Department of the Navy, ATTN: Sexual Assault Prevention and Response Program Manager, 716 Sicard Street SE., Suite 1000, Washington Navy Yard, DC 20374-5140.
Headquarters United States Air Force/A1S, ATTN: Sexual Assault Prevention and Response Program Manager, 1040 Air Force Pentagon, Washington, DC 20330-1040.
The National Guard Bureau, Sexual Assault Prevention and Response Office, ATTN: Sexual Assault Prevention and Response Program Manager, 111 South George Mason Drive, AH2, Arlington, VA 22204-1373.
Signed, written requests should contain the name, identification number and type of identification, and indicate whether the individual is a victim or alleged perpetrator.”
Delete entry and replace with “Individuals seeking access to records about themselves contained in this
The Department of the Army, HRPD, Sexual Harassment/Assault Response and Prevention (SHARP), 2530 Crystal Drive, 6th Floor, Arlington, VA 22202-3938.
The Department of the Navy, ATTN: Sexual Assault Prevention and Response Program Manager, 716 Sicard Street SE., Suite 1000, Washington Navy Yard, DC 20374-5140.
Headquarters United States Air Force/A1S, ATTN: Sexual Assault Prevention and Response Program Manager, 1040 Air Force Pentagon, Washington, DC 20330-1040.
The National Guard Bureau, Sexual Assault Prevention and Response Office, ATTN: Sexual Assault Prevention and Response Program Manager, 111 South George Mason Drive, AH2, Arlington, VA 22204-1373.
Signed, written requests should contain the name, identification number and type of identification, indicate whether the individual is a victim or alleged perpetrator, and the number of this system of records notice.”
Delete entry and replace with “Individual, SARCs, Military Service Legal Officers (i.e. attorneys provided access to the system), Automated Criminal Investigation/Intelligence System (Army), Consolidated Law Enforcement Operations Center (Navy), and Investigative Information Management System (Air Force).”
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice of open Federal advisory committee meeting.
The Department of the Army is publishing this notice to announce the following Federal advisory committee meeting of the U.S. Army Corps of Engineers, Inland Waterways Users Board (Board). This meeting is open to the public. For additional information about the Board, please visit the committee's Web site at
The Army Corps of Engineers, Inland Waterways Users Board will meet from 9:00 a.m. to 1:00 p.m. on August 14, 2014. Public registration will begin at 8:30 a.m.
The Board meeting will be conducted at the Marcus Whitman Hotel, 6 West Rose Street, Walla Walla, WA 99362, at 509-525-2200 and 866-826-9422, or
Ms. Mindy M. Simmons, the Designated Federal Officer (DFO) for the committee, in writing at Headquarters, U.S. Army Corps of Engineers, ATTN: CECW-IP, 441 G Street NW., Washington, DC 20314-1000; by telephone at 202-761-1934; and by email at
The committee meeting is being held under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.150.
Department of the Navy, DoD.
Notice; revision.
The Department of the Navy published a document in the
Rita Manak, Head, Technology Transfer Office, NRL Code 1004, 4555 Overlook Avenue SW., Washington, DC 20375-5320, telephone 202-767-3083. Due to U.S. Postal delays, please fax 202-404-7920, email:
In the
1. In the third column, on page 17187 and the first column, on page 17188, revise the
The Department of the Navy hereby gives notice of its intent to grant to Fiber Optic Sensor Systems Technology Corporation a revocable, nonassignable, exclusive license to practice the field of use of electrical power measurements for the measurement or control of temperature, pressure, strain, vibration, acceleration, and any other measurement enabled in electrical power systems, including but not limited to, substations, generating facilities, transmission lines, distribution facilities and other electrical power infrastructure and in electrical power systems equipment, including but not limited to, generators, motors, transformers, switches, power supplies, batteries and other devices employed to generate, transform, transport, distribute or store electrical energy; the field of use of monitoring and control systems used in industrial production and infrastructure monitoring and control, including particularly supervisory control systems and distributed control systems used in manufacturing, mining and utilities in the United States, the Government-owned inventions described in U.S. Patent No. 7,020,354: Intensity Modulated Fiber Optic Pressure Sensor, Navy Case No. 83,816//U.S. Patent No. 7,149,374: Fiber Optic Pressure Sensor, Navy Case No. 84,557//U.S. Patent No. 7,379,630: Multiplexed Fiber Optic Sensor System, Navy Case No. 97,488//U.S. Patent No. 7,460,740: Intensity Modulated Fiber Optic Static Pressure Sensor System, Navy Case No. 97,279//U.S. Patent No. 7,646,946: Intensity Modulated Fiber Optic Strain Sensor, Navy Case No. 97,005//U.S. Patent No. 7,697,798: Fiber Optic Pressure Sensors and Catheters, Navy Case No. 97,569//U.S. Patent No. 8,094,519: Intensity Modulated Fiber Optic Hydrophones, Navy Case No. 98,318//U.S. Patent No. 8,195,013: Miniature Fiber Optic Temperature Sensors, Navy
Anyone wishing to object to the grant of this license must file written objections along with supporting evidence, if any, not later than July 23, 2014.
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified date(s). Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following 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 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
284.123(g) Protests Due:
284.123(g) Protests Due: 5 p.m. ET 8/25/14.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR § 385.211 and § 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing
Environmental Protection Agency (EPA).
Notice of delegation of authority.
On September 13, 2013, EPA sent the State of West Virginia (West Virginia) a letter acknowledging that West Virginia's delegation of authority to implement and enforce National Emissions Standards for Hazardous Air Pollutants (NESHAP) and New Source Performance Standards (NSPS) had been updated, as provided for under previously approved delegation mechanisms. To inform regulated facilities and the public of West Virginia's updated delegation of authority to implement and enforce NESHAP and NSPS, EPA is making available a copy of EPA's letter to West Virginia through this notice.
On September 13, 2013, EPA sent West Virginia a letter acknowledging that West Virginia's delegation of authority to implement and enforce NESHAP and NSPS had been updated.
Copies of documents pertaining to this action are available for public inspection during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103-2029. Copies of West Virginia's submittal are also available at the West Virginia Department of Environmental Protection, Division of Air Quality, 601 57th Street SE., Charleston, West Virginia 25304. Copies of West Virginia's notice to EPA that West Virginia has updated its incorporation by reference of Federal NESHAP and NSPS, and of EPA's response, may also be found posted on EPA Region III's Web site at:
Ray Chalmers, (215) 814-2061, or by email at
On June 5, 2013, West Virginia notified EPA that West Virginia had updated its incorporation by reference of Federal NESHAP and NSPS to include many such standards, as found in the Code of Federal Regulations (CFR), Parts 60, 61, and 63. On September 13, 2013, EPA sent West Virginia a letter acknowledging that West Virginia now has the authority to implement and enforce the NESHAP and NSPS as specified by West Virginia in its notice to EPA, as provided for under previously approved automatic delegation mechanisms. All notifications, applications, reports and other correspondence required pursuant to the delegated NESHAP and NSPS must be submitted to both the US EPA Region III and to the West Virginia Department of Environmental Protection, unless the delegated standard specifically provides that such submittals may be sent to EPA or a delegated State. In such cases, the submittals should be sent only to the West Virginia Department of Environmental Protection. A copy of EPA's letter to West Virginia follows:
The United States Environmental Protection Agency (EPA) has previously delegated to the State of West Virginia (West Virginia) the authority to implement and enforce various federal National Emissions Standards for Hazardous Air Pollutants (NESHAP) and New Source Performance Standards (NSPS), which are found at 40 C.F.R. Parts 60, 61 and 63.
In a letter dated June 5, 2013, West Virginia informed EPA that West Virginia had updated its incorporation by reference of federal NESHAP and NSPS to include many such standards, to the extent referenced in 40 C.F.R. Part 60, effective June 1, 2012, and in 40 C.F.R. Parts 61, and 63, effective June 1, 2011. West Virginia noted that it understood that it was automatically delegated the authority to implement these standards. West Virginia committed to enforcing the standards in conformance with the terms of EPA's previous delegations of authority. West Virginia made only allowed wording changes.
West Virginia provided copies of the revised West Virginia Legislative Rules which specify the NESHAP and NSPS which West Virginia has adopted by reference. These revised Legislative Rules are entitled 45 CSR 34—“Emission Standards for Hazardous Air Pollutants,” and 45 CSR 16—“Standards of Performance for New Stationary Sources.” These revised Rules have an effective date of June 1, 2013.
Accordingly, EPA acknowledges that West Virginia now has the authority, as provided for under the terms of EPA's previous delegation actions, to implement and enforce the NESHAP and NSPS standards which West Virginia has adopted by reference in West Virginia's revised Legislative Rules 45 CSR 34 and 45 CSR 16, both effective on June 1, 2013.
Please note that on December 19, 2008 in
Accordingly, EPA no longer allows sources the SSM exemption as provided for in the vacated provisions at 40 C.F.R. Part 63, §§ 63.6(f)(1) and (h)(1), even though EPA has not yet formally removed the SSM exemption provisions from the General Provisions of 40 C.F.R. Part 63. Because West Virginia incorporated 40 C.F.R. Part 63 by reference, West Virginia should also no longer allow sources to use the former SSM exemption from the General Provisions of 40 C.F.R. Part 63 due to the Court's ruling in Sierra Club vs. EPA.
EPA appreciates West Virginia's continuing NESHAP and NSPS enforcement efforts, and also West Virginia's decision to take automatic delegation of additional and more recent NESHAP and NSPS by adopting them by reference.
If you have any questions, please contact me or Ms. Kathleen Cox, Associate Director, Office of Permits and Air Toxics, at 215-814-2173.
This notice acknowledges the update of West Virginia's delegation of authority to implement and enforce NESHAP and NSPS.
Federal Accounting Standards Advisory Board.
Notice.
FASAB is the body designated to establish generally accepted accounting principles for federal government entities. Generally, non-federal Board members are selected from the general financial community, the accounting and auditing community, or the academic community. Specifically, FASAB is particularly interested in candidates who have experience as:
• Analysts of financial information,
• Economists or forecasters,
• Academics,
• Auditors,
• Preparers of financial information, or
• Those otherwise knowledgeable regarding the use of financial information in decision-making.
The FASAB meets in Washington, DC, for two days every other month. Members are compensated based on current federal executive salaries. The member designated as chairperson of the board is typically compensated for 40-hours during each two-week pay period. Other members are typically compensated for 24 days per year. Travel expenses are reimbursed in accordance with federal travel regulations.
Responses may be submitted by email to
Please submit your resume by September 15, 2014. Additional information about the FASAB can be obtained from its Web site at
Wendy Payne, Executive Director, at (202) 512-7350.
Federal Advisory Committee Act, Pub. L. 92-463.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before September 8, 2014. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Cathy Williams, FCC, via email
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
Federal Communications Commission.
Notice; request for comments.
As part of its continuing effort to reduce paperwork burden and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501—3520), the Federal Communications Commission (FCC) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s). Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and further ways to reduce the information burden for small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid 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 (PRA) that does not display a valid Control Number.
Written Paperwork Reduction Act (PRA) comments should be submitted on or before September 8, 2014. 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 FCC contact listed below as soon as possible.
Submit your PRA comments to Leslie F. Smith, Office of Managing Director (OMD), Federal Communications Commission (FCC), via the Internet at
For additional information, contact Leslie F. Smith at (202) 418-0217, or via the Internet at
(a) The system of records notice (SORN), FCC/EB-5, “Enforcement Bureau Activity Tracking System (EBATS),” was published in the
(b) The initial Privacy Impact Assessment (PIA) was completed on May 22, 2009. However, with the approval of the FCC/EB-5, “EBATS,” on January 24, 2011 and supplementation expected in Fall 2014, the Commission is now updating the PIA to include the information that is contained in this SORN.
Statutory authority for this information collection is contained in 47 U.S.C. 151, 154(i), 154(j), 206, 207, 208, 209, 301, 303, 304, 309, 316, 332, and 1302.
Section 208(a) authorizes complaints by any person “complaining of anything done or omitted to be done by any common carrier” subject to the provisions of the Act.
Section 208(a) states that if a carrier does not satisfy a complaint or there appears to be any reasonable ground for investigating the complaint, the Commission shall “investigate the matters complained of in such manner and by such means as it shall deem proper.” Certain categories of complaints are subject to a statutory deadline for resolution.
Formal complaint proceedings before the Commission are similar to civil litigation in federal district court. In fact, under section 207 of the Act, a party claiming to be damaged by a common carrier may file its complaint with the Commission or in any district court of the United States, “but such person shall not have the right to pursue both such remedies” (47 U.S.C. 207). The Commission has promulgated rules (Formal Complaint Rules) to govern its formal complaint proceedings that are
This collection of information includes the process for submitting a formal complaint against a common carrier. The Commission uses this information to determine the sufficiency of complaints and to resolve the merits of disputes between the parties. The Commission bases its orders in formal complaint proceedings upon evidence and argument produced by the parties in accordance with the Formal Complaint Rules. If the information were not collected, the Commission would not be able to resolve common carrier-related complaint proceedings, as required by section 208 of the Act.
In addition, the Commission has adopted most of this formal complaint process to govern data roaming complaints. Specifically, the Commission has extended, as applicable, the procedural rules in the Commission's Part I, Subpart E rules, 47 CFR Sections 1.716-1.718, 1.720, 1.721, and 1.723-1.735, to disputes arising out of the data roaming rule contained in 47 CFR Section 20.12(e). Therefore, in addition to being necessary to resolve common carrier-related complaint proceedings, this collection of information is also necessary to resolve data roaming-related complaint proceedings.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burden and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s). Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information burden for small business concerns with fewer than 25 employees. The FCC may not conduct or sponsor a collection of information unless it displays a currently valid 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 (PRA) that does not display a valid OMB control number.
Written Paperwork Reduction Act (PRA) comments should be submitted on or before August 7, 2014. If you anticipate that you will be submitting PRA comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the FCC contact listed below as soon as possible.
Submit your PRA comments to Nicholas A. Fraser, Office of Management and Budget, via fax at 202-395-5167 or via Internet at
Benish Shah, Office of Managing Director, (202) 418-7866.
On March 31, 2014, the Commission adopted a First Report and Order,
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communication Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC 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.
Written comments should be submitted on or before August 7, 2014. 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 email
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
Federal Deposit Insurance Corporation (FDIC).
Notice of open meeting.
In accordance with the Federal Advisory Committee Act, notice is hereby given of a meeting of the FDIC Advisory Committee on Community Banking, which will be held in Washington, DC. The Advisory Committee will provide advice and recommendations on a broad range of policy issues that have particular impact on small community banks throughout the United States and the local communities they serve, with a focus on rural areas.
Wednesday, July 23, 2014, from 8:45 a.m. to 3:30 p.m.
The meeting will be held in the FDIC Board Room on the sixth floor of the FDIC Building located at 550 17th Street NW., Washington, DC.
Requests for further information concerning the meeting may be directed to Mr. Robert E. Feldman, Committee Management Officer of the FDIC, at (202) 898-7043.
Federal Election Commission.
Thursday July 10, 2014, 15 minutes after the conclusion of the open meeting.
999 E Street NW., Washington, DC.
This meeting will be closed to the public.
Compliance matters pursuant to 2 U.S.C. 437g.
Matters concerning participation in civil actions or proceedings or arbitration.
Information the premature disclosure of which would be likely to have a considerable adverse effect on the implementation of a proposed Commission action.
Judith Ingram, Press Officer, Telephone: (202) 694-1220.
Federal Election Commission.
Thursday, July 10, 2014 at 10:00 a.m.
999 E Street NW., Washington, DC (ninth floor)
This meeting will be open to the public.
Draft Advisory Opinion 2014-06: Congressman Paul Ryan, Ryan for Congress, Inc., and Prosperity Action, Inc.
Individuals who plan to attend and require special assistance, such as sign language interpretation or other reasonable accommodations, should contact Shawn Woodhead Werth, Secretary and Clerk, at (202) 694-1040, at least 72 hours prior to the meeting date.
Judith Ingram, Press Officer, Telephone: (202) 694-1220.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than July 22, 2014.
A. Federal Reserve Bank of Atlanta (Chapelle Davis, Assistant Vice President) 1000 Peachtree Street NE., Atlanta, Georgia 30309:
1.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than August 1, 2014.
A. Federal Reserve Bank of Dallas (E. Ann Worthy, Vice President) 2200 North Pearl Street, Dallas, Texas 75201-2272:
1.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA), Office of International Programs (OIP) is announcing the availability of grant funds for the support of a single source cooperative agreement to the Pan American Health Organization (PAHO) for fostering cooperation and strengthening medical product regulatory systems in the Americas. The goal of the cooperative agreement is to build upon existing cooperation between OIP/FDA and PAHO to foster regulatory collaboration and strengthen regulatory capacity throughout the Americas.
Important dates are as follows:
1. The application due date is August 1, 2014.
2. The anticipated start date is October 1, 2014.
3. The expiration date is August 2, 2014.
Submit electronic applications to:
Charles M. Preston, Office of Strategy, Partnerships and Analytics, Office of International Programs, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 32, Rm. 3309, Silver Spring, MD 20993, 301-796-0654; or Kimberly Pendleton-Chew, Food and Drug Administration, Division of Acquisitions and Grants (HFA 500), 5630 Fishers Lane, Rm. 2031, Rockville, MD 20857, 240-402-7610.
For more information on this funding opportunity announcement (FOA) and to obtain detailed requirements, please refer to the full FOA located at
PAHO is the Regional Office for the Americas of the World Health Organization (WHO). WHO has responsibility for helping to ensure access to essential medical products of assured safety, quality, and efficacy within its 193 member states. It does so in three primary areas: (1) Setting global norms and standards; (2) articulating evidence-based policy options, including those relating to regulatory systems performance; and (3) providing technical support to national and regional regulatory authorities and governments. These activities help to strengthen regulatory systems which, in this era of globalization, where the supply chain of medicines has become a global network, and as national, regional, and global health programs work to scale up access to medicines and health products, strong regulatory systems, are imperative.
The necessary constituents of a medical products regulatory system have been defined by PAHO and WHO. They include regulatory frameworks, marketing authorization, import/export control and postmarket surveillance, licensing of manufacturers, inspections, laboratories, pharmacovigilance, clinical trials, and vaccine lot release. Specifically, PAHO helps to strengthen medical products regulatory systems through activities that include disseminating quality norms and standards, facilitating the exchange of regulatory information, evaluating regulatory authorities, providing training and technical assistance, distributing scientific materials and information on aspects of regulation, strengthening regional monitoring and surveillance for falsified and substandard products (including supporting national pharmacovigilance programs), and building capacity as a component of WHO's prequalification programs.
In recent years, OIP/FDA has been actively engaged with PAHO on a number of areas related to regulatory systems strengthening. OIP/FDA and PAHO are currently involved in a 4-year cooperative agreement which began in September 2010 that promotes medical product regulatory system strengthening in the Americas. The centerpiece of the agreement is the development of the Regional Platform for Access and Innovation of Health Technologies (PRAIS), an electronic platform for regulatory exchange. The site was launched by PAHO in 2012 and the cooperative agreement is managed by OIP, with additional strategic and technical guidance provided by a steering group of FDA Center subject matter experts. PRAIS includes features such as communities of practice, where regulators can share information and engage in real-time dialogue around regulatory issues, and an “observatory”, where information on the basic structures and functions of participating regulatory authorities is housed.
PAHO envisions PRAIS to be a cornerstone of its regulatory system strengthening activities in the Americas. Beyond the immediate functionalities, PRAIS is also being used to prioritize and coordinate activities related to the Pan American Network for Drug Regulatory Harmonization. In addition, PRAIS is being used to develop regional models for regulatory systems; for example, data from the observatory have been used in research to assess strengths and weaknesses of regulatory systems in the Caribbean towards a regional system. Another initiative related to PRAIS is a secure platform for sharing non-public information, called PRAISsec, and FDA has been engaged in its governance and assessing agency needs and requirements. At this time, the platform is not yet built and no non-public information has been shared. A next phase of development for PRAIS may include global scale-up, which will enhance the platform's utility to other parts of the world that are in critical need of regulatory information exchange and capacity building tools.
OIP/FDA entered a similar cooperative agreement on regulatory systems strengthening with WHO in fiscal year (FY) 2014. Activities include work that WHO is undertaking at the global level, including advancement of a member state mechanism on substandard, spurious, falsified, falsely-labeled, and counterfeit medical products (SSFFC), enhancement of another FDA-supported cooperative agreement to develop a global monitoring system for SSFFC medical products, and specific work to improve regulation of active pharmaceutical ingredients among regulators in WHO's member states.
The cooperative agreement announced in this FOA represents the further expansion of well-established collaborations between OIP/FDA and PAHO in support of data-driven and science-based public health strategies and approaches. The objective is to build upon existing cooperation to foster regulatory collaboration and
This cooperative agreement will support collaboration and investigation in the following areas:
• Enable the sharing of scientific findings and data through expert meetings and technical consultations;
• assist member states in the implementation and subsequent evaluation of internationally-recognized standards and guidelines, e.g. WHO guidelines and standards and those emerging from standards development venues such as the International Conference on Harmonisation of Technical Requirements for Registration of Pharmaceuticals for Human Use (ICH);
• utilize PAHO's convening power to engage with relevant stakeholders on science-based norms and standards; and
• facilitate the alignment and convergence of standards between PAHO, other regions, and/or global bodies.
• Contribute to the knowledge base of the current state of medical product regulation globally, including challenges, risks, and emerging trends, and making the business case for investments in regulatory systems; and
• enable and/or further strengthen the development of data/information systems as sources of inputs for evidence-based regulatory decisions and actions and enhanced knowledge management systems, coalitions, and networks.
• Enable the strengthening of regulatory systems at the regional and global levels in such critical domains as: Regulatory frameworks; marketing authorization; import/export control and postmarket surveillance; inspections; laboratories; pharmacovigilance; clinical trials and vaccine lot release; staff development and training, including the professionalization of the regulatory workforce; monitoring and evaluation of product quality; inspection and surveillance of products throughout the supply chain; and risk assessment, analysis, and management; and
• contribute strategies to expand the knowledge and awareness of the essential role of regulatory systems within the broader global health and development frameworks, including ways that can leverage existing initiatives, investments and partnerships or catalyze new ones.
This is a single source cooperative agreement. PAHO is eligible to apply for this award. PAHO is the Regional Office for the Americas of WHO. WHO has responsibility for helping to ensure access to essential medical products of assured safety, quality, and efficacy within its 193 member states. It does so in three primary areas: (1) Setting global norms and standards; (2) articulating evidence-based policy options, including those relating to regulatory systems performance; and (3) providing technical support to national and regional regulatory authorities and governments. In recent years, OIP/FDA has been actively engaged with PAHO on a number of areas related to regulatory systems strengthening. OIP/FDA and PAHO are currently involved in a 4-year cooperative agreement which began in September 2010 that promotes medical product regulatory system strengthening in the Americas.
This award is contingent upon FDA appropriations and meritorious application. FDA/OIP can fund one award in the amount up to $2 million for FY 2015 based on available appropriations.
The total project period may not exceed 5 years. Funding in future years will be contingent on the availability of appropriations and successful performance in the award not to exceed $2 million per year.
Only electronic applications will be accepted. To submit an electronic application in response to this FOA, applicants should first review the full announcement located
Steps 1 through 5, in detail, can be found at
Food and Drug Administration, HHS.
Notice of public meeting; request for comments.
The Food and Drug Administration (FDA or Agency) is announcing a public meeting and an opportunity for public comment on Patient-Focused Drug Development for idiopathic pulmonary fibrosis. Patient-Focused Drug Development is part of FDA's performance commitments made as part of the fifth authorization of the Prescription Drug User Fee Act (PDUFA V). The public meeting is intended to allow FDA to obtain patient perspectives on the impact of idiopathic pulmonary fibrosis on daily life as well as patient views on treatment approaches for idiopathic pulmonary fibrosis.
The public meeting will be held on September 26, 2014, from 1 p.m. to 5 p.m. Registration to attend the meeting
The public meeting will be held at the FDA White Oak Campus, 10903 New Hampshire Ave., Bldg. 31 Conference Center, the Great Room (Rm. 1503), Silver Spring, MD 20993-0002. Participants must enter through Building 1 and undergo security screening. For more information on parking and security procedures, please refer to
Submit electronic comments to
FDA will post the agenda approximately 5 days before the meeting at:
Pujita Vaidya, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 1144, Silver Spring, MD 20993, 301-796-0684, FAX: 301-847-8443, email:
FDA has selected idiopathic pulmonary fibrosis as the focus of a public meeting under Patient-Focused Drug Development, an initiative that involves obtaining a better understanding of patient perspectives on the severity of a disease and the available therapies for that condition. Patient-Focused Drug Development is being conducted to fulfill FDA performance commitments that are part of the reauthorization of PDUFA under Title I of the Food and Drug Administration Safety and Innovation Act (Pub. L. 112-144). The full set of performance commitments is available on the FDA Web site at
FDA committed to obtain the patient perspective on 20 disease areas during the course of PDUFA V. For each disease area, the Agency will conduct a public meeting to discuss the disease and its impact on patients' daily lives, the types of treatment benefit that matter most to patients, and patients' perspectives on the adequacy of the available therapies. These meetings will include participation of FDA review divisions, the relevant patient communities, and other interested stakeholders.
On April 11, 2013, FDA published a notice (78 FR 08441) in the
The purpose of this Patient-Focused Drug Development meeting is to obtain input on the symptoms and other impacts of idiopathic pulmonary fibrosis that matter most to patients, as well as perspectives on current approaches to treating idiopathic pulmonary fibrosis. FDA expects that this information will come directly from patients, caregivers, and patient advocates. Idiopathic pulmonary fibrosis is a rare and life-threatening disease in which lung tissue become scarred over time. Many people with idiopathic pulmonary fibrosis survive only 3 to 5 years from the time of diagnosis. Symptoms of idiopathic pulmonary fibrosis can include shortness of breath, dry cough, fatigue, and chest pain. There is no cure for idiopathic pulmonary fibrosis; symptomatic treatment options include corticosteroids, oxygen therapy, pulmonary rehabilitation, and lifestyle changes.
The questions that will be asked of patients and patient stakeholders at the meeting are listed in this section, organized by topic. For each topic, a brief initial patient panel discussion will begin the dialogue. This will be followed by a facilitated discussion inviting comments from other patient and patient stakeholder participants. In addition to input generated through this public meeting, FDA is interested in receiving patient input addressing these questions through written comments, which can be submitted to the public docket (see
• Of all the symptoms that you experience because of your condition, which one to three symptoms have the most significant impact on your life? (Examples may include shortness of breath, cough, fatigue, etc.)
• Are there specific activities that are important to you but that you cannot do at all or as fully as you would like because of your condition? (Examples of activities may include household chores, walking up the stairs, etc.)
○ How do your symptoms and their negative impacts affect your daily life on the best days?
○ How do your symptoms and their negative impacts affect your daily life on the worst days?
• How has your condition and its symptoms changed over time?
• What are you currently doing to help treat your condition or its symptoms? (Examples may include prescription medicines, over-the-counter products, and other therapies including non-drug therapies such as diet modification.) How well does your current treatment regimen treat the most significant symptoms of your disease?
• What are the most significant downsides to your current treatments and how do they affect your daily life? (Examples of downsides may include bothersome side effects, going to the hospital for treatment, etc.)
• Because there is no complete cure for your condition, what specific things would you look for in an ideal treatment for your condition?
If you wish to attend this meeting, visit
Patients who are interested in presenting comments as part of the initial panel discussions will be asked to indicate in their registration which topic(s) they wish to address. They will be asked to send a brief summary of responses to the topic questions to
Submit electronic or written responses to the questions pertaining to Topics 1 and 2 to the public docket (see
As soon as a transcript is available, FDA will post it at
Food and Drug Administration, HHS.
Notice, reopening of the comment period.
The Food and Drug Administration (FDA) is reopening the comment period for the notice entitled “Center for Drug Evaluation and Research; Use of Innovative Packaging, Storage, and/or Disposal Systems to Address the Misuse and Abuse of Opioid Analgesics,” which published in the
Submit either electronic or written comments by August 7, 2014.
Submit electronic comments to
Colleen Brennan, Center for Drug Evaluation and Research, Food and Drug Administration, Office of Surveillance and Epidemiology, 10903 New Hampshire Ave., Bldg. 22, Rm. 4410, Silver Spring, MD 20993-0002, 301-796-2316, email:
In the
To help FDA prioritize among proposed approaches, the Agency is also interested in receiving feedback about methods that could be used to assess a system or technology's potential abuse-deterrent characteristics and real-world impact (e.g., actual ability to prevent or deter misuse and abuse, effect on access for appropriate patients, patient confidentiality, burden on the healthcare system, feasibility of implementation, whether the design could create unintended medication errors). Finally, FDA is interested in receiving feedback on methods for encouraging further research and development in this area, and, if promising technologies are identified, incentivizing the pharmaceutical industry (e.g. via patent extensions) to adopt such technologies.
Interested persons were given until June 9, 2014, to submit comments. On our own initiative, the Agency is reopening the comment period until August 7, 2014 to allow interested persons additional time to submit comments. The Agency believes that an additional 30 days allows adequate time for interested persons to submit comments without significantly delaying the Agency's consideration of these important issues.
Interested persons may submit either electronic comments regarding this document to
Under the provisions of Section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the National Institutes of Health (NIH), has submitted to the Office of Management and Budget (OMB) a request for review and approval of the information collection listed below. This proposed information collection was previously published in the
To obtain a copy of the data collection plans and instruments or request more information on the proposed project contact: Joanne Demchok, Program Director, Cancer Diagnosis Program, Division of Cancer Treatment and Diagnosis, 9609 Medical Center Drive, Rockville, Md. 20892 or call non-toll-free number 240-276-5959 or Email your request, including your address to:
OMB approval is requested for 3 years. There are no costs to respondents other than their time. The total estimated annualized burden hours are 105.
In compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, for opportunity for public comment on proposed data collection projects, the National Cancer Institute (NCI), National Institutes of Health (NIH), will publish periodic summaries of proposed projects to be submitted to the Office of Management and Budget (OMB) for review and approval.
Written comments and/or suggestions from the public and affected agencies are invited on one or more of the following points: (1) Whether the proposed collection of information is necessary for the proper performance of the function of the agency, including whether the information will have practical utility; (2) The accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) Ways to enhance the quality, utility, and
OMB approval is requested for 3 years. There are no costs to respondents other than their time. The total estimated annualized burden hours are 51.
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 meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (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.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (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.
Federal Emergency Management Agency, DHS.
Notice.
This notice lists communities where the addition or modification of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or the regulatory floodway
These flood hazard determinations will become effective on the dates listed in the table below and revise the FIRM panels and FIS report in effect prior to this determination for the listed communities.
From the date of the second publication of notification 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 Associate Administrator for Mitigation reconsider the changes. The flood hazard determination information may be changed during the 90-day period.
The affected communities are listed in the table below. Revised flood hazard information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Submit comments and/or appeals to the Chief Executive Officer of the community as listed in the table below.
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, FEMA, 500 C Street SW., Washington, DC 20472, (202) 646-4064, or (email)
The specific flood hazard determinations are not described for each community in this notice. However, the online location and local community map repository address where the flood hazard determination information is available for inspection is provided.
Any request for reconsideration of flood hazard determinations must be submitted to the Chief Executive Officer of the community as listed in the table below.
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
The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
These flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. The flood hazard determinations are in accordance with 44 CFR 65.4.
The affected communities are listed in the following table. Flood hazard determination information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Federal Emergency Management Agency, DHS.
Final notice.
New or modified Base (1% annual-chance) Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, and/or regulatory floodways (hereinafter referred to as flood hazard determinations) as shown on the indicated Letter of Map Revision (LOMR) for each of the communities listed in the table below are finalized. Each LOMR revises the Flood Insurance Rate Maps (FIRMs), and in some cases the Flood Insurance Study (FIS) reports, currently in effect for the listed communities. The flood hazard determinations modified by each LOMR will be used to calculate flood insurance premium rates for new buildings and their contents.
The effective date for each LOMR is indicated in the table below.
Each LOMR is available for inspection at both the respective Community Map Repository address listed in the table below and online through the FEMA Map Service Center at
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, FEMA, 500 C Street SW., Washington, DC 20472, (202) 646-4064, or (email)
The Federal Emergency Management Agency (FEMA) makes the final flood hazard determinations as shown in the LOMRs for each community listed in the table below. Notice of these modified flood hazard determinations has been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Deputy Associate Administrator for Mitigation has resolved any appeals resulting from this notification.
The modified flood hazard determinations are made pursuant to section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.
The new or modified flood hazard information is the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to remain qualified for participation in the National Flood Insurance Program (NFIP).
This new or modified flood hazard information, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities.
These new or modified flood hazard determinations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings, and for the contents in those buildings. The changes in flood hazard determinations are in accordance with 44 CFR 65.4.
Interested lessees and owners of real property are encouraged to review the final flood hazard information available at the address cited below for each community or online through the FEMA Map Service Center at
Federal Emergency Management Agency, DHS.
Final notice.
New or modified Base (1% annual-chance) Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, and/or the regulatory floodway (hereinafter referred to as flood hazard determinations) as shown on the indicated Letter of Map Revision (LOMR) for each of the communities listed in the table below are finalized. Each LOMR revises the Flood Insurance Rate Maps (FIRMs), and in some cases the Flood Insurance Study (FIS) reports, currently in effect for the listed
The effective date for each LOMR is indicated in the table below.
Each LOMR is available for inspection at both the respective Community Map Repository address listed in the table below and online through the FEMA Map Service Center at
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, FEMA, 500 C Street SW., Washington, DC 20472, (202) 646-4064, or (email)
The Federal Emergency Management Agency (FEMA) makes the final flood hazard determinations as shown in the LOMRs for each community listed in the table below. Notice of these modified flood hazard determinations has been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Deputy Associate Administrator for Mitigation has resolved any appeals resulting from this notification.
The modified flood hazard determinations are made pursuant to section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.
The new or modified flood hazard determinations 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 remain qualified for participation in the National Flood Insurance Program (NFIP).
These new or modified flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities.
These new or modified flood hazard determinations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings, and for the contents in those buildings. The changes in flood hazard determinations are in accordance with 44 CFR 65.4.
Interested lessees and owners of real property are encouraged to review the final flood hazard information available at the address cited below for each community or online through the FEMA Map Service Center at
Federal Emergency Management Agency, DHS.
Final notice.
New or modified Base (1% annual-chance) Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, and/or the regulatory floodway (hereinafter referred to as flood hazard determinations) as shown on the indicated Letter of Map Revision (LOMR) for each of the communities listed in the table below are finalized. Each LOMR revises the Flood Insurance Rate Maps (FIRMs), and in some cases the Flood Insurance Study (FIS) reports, currently in effect for the listed communities. The flood hazard determinations modified by each LOMR will be used to calculate flood insurance
The effective date for each LOMR is indicated in the table below.
Each LOMR is available for inspection at both the respective Community Map Repository address listed in the table below and online through the FEMA Map Service Center at
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, FEMA, 500 C Street SW., Washington, DC 20472, (202) 646-4064, or (email)
The Federal Emergency Management Agency (FEMA) makes the final flood hazard determinations as shown in the LOMRs for each community listed in the table below. Notice of these modified flood hazard determinations has been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Deputy Associate Administrator for Mitigation has resolved any appeals resulting from this notification.
The modified flood hazard determinations are made pursuant to section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.
The new or modified flood hazard determinations 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 remain qualified for participation in the National Flood Insurance Program (NFIP).
These new or modified flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities.
These new or modified flood hazard determinations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings, and for the contents in those buildings. The changes in flood hazard determinations are in accordance with 44 CFR 65.4.
Interested lessees and owners of real property are encouraged to review the final flood hazard information available at the address cited below for each community or online through the FEMA Map Service Center at
Federal Emergency Management Agency, DHS.
Notice.
This notice lists communities where the addition or modification of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or the regulatory floodway (hereinafter referred to as flood hazard determinations), as shown on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports, prepared by the Federal Emergency Management Agency (FEMA) for each community, is appropriate because of
These flood hazard determinations will become effective on the dates listed in the table below and revise the FIRM panels and FIS report in effect prior to this determination for the listed communities.
From the date of the second publication of notification 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 Associate Administrator for Mitigation reconsider the changes. The flood hazard determination information may be changed during the 90-day period.
The affected communities are listed in the table below. Revised flood hazard information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Submit comments and/or appeals to the Chief Executive Officer of the community as listed in the table below.
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, FEMA, 500 C Street SW., Washington, DC 20472, (202) 646-4064, or (email)
The specific flood hazard determinations are not described for each community in this notice. However, the online location and local community map repository address where the flood hazard determination information is available for inspection is provided.
Any request for reconsideration of flood hazard determinations must be submitted to the Chief Executive Officer of the community as listed in the table below.
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
The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
These flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. The flood hazard determinations are in accordance with 44 CFR 65.4.
The affected communities are listed in the following table. Flood hazard determination information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Federal Emergency Management Agency, DHS.
Notice.
This notice lists communities where the addition or modification of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or the regulatory floodway (hereinafter referred to as flood hazard determinations), as shown on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports, prepared by the Federal Emergency Management Agency (FEMA) for each community, is appropriate because of new scientific or technical data. The FIRM, and where applicable, portions of the FIS report, have been revised to reflect these flood hazard determinations through issuance of a Letter of Map Revision (LOMR), in accordance with Title 44, Part 65 of the Code of Federal Regulations (44 CFR Part 65). The LOMR will be used by insurance agents and others to calculate appropriate flood insurance premium rates for new buildings and the contents of those buildings. For rating purposes, the currently effective community number is shown in the table below and must be used for all new policies and renewals.
These flood hazard determinations will become effective on the dates listed in the table below and revise the FIRM panels and FIS report in effect prior to this determination for the listed communities.
From the date of the second publication of notification 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 Associate Administrator for Mitigation reconsider the changes. The flood hazard determination information may be changed during the 90-day period.
The affected communities are listed in the table below. Revised flood hazard information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, FEMA, 500 C Street SW., Washington, DC 20472, (202) 646-4064, or (email)
The specific flood hazard determinations are not described for each community in this notice. However, the online location and local community map repository address where the flood hazard determination information is available for inspection is provided.
Any request for reconsideration of flood hazard determinations must be submitted to the Chief Executive Officer of the community as listed in the table below.
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
The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
These flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. The flood hazard determinations are in accordance with 44 CFR 65.4.
The affected communities are listed in the following table. Flood hazard determination information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
60-Day Notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) invites the general public and other Federal agencies to comment upon this proposed new collection of information. In accordance with the Paperwork Reduction Act (PRA) of 1995, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days until September 8, 2014.
All submissions received must include the OMB Control Number 1615-New in the subject box, the agency name and Docket ID USCIS-2014-0002. To avoid duplicate submissions, please use only one of the following methods to submit comments:
(1)
(2)
(3)
Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at
The address listed in this notice should only be used to submit comments concerning this information collection. Please do not submit requests for individual case status inquiries to this address. If you are seeking information about the status of your individual case, please check “My Case Status” online at:
Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
If you need a copy of the information collection instrument with instructions, or additional information, please visit the Federal eRulemaking Portal site at:
Institute of American Indian and Alaska Native Culture and Arts Development (aka Institute of American Indian Arts).
NOTICE—Request for nominations.
The Board directs the Administration of the Institute of American Indian and Alaska Native Culture and Arts Development, including soliciting, accepting, and disposing of gifts, bequests, and other properties for the benefit of the Institute. The Institute, established under Public Law 99-498 (20 U.S.C. 4411 et seq.), provides scholarly study of and instruction in Indian art and culture, and establishes programs which culminate in the awarding of degrees in the various fields of Indian art and culture.
The Board consists of thirteen members appointed by the President of the United States, by and with the consent of the U.S. Senate, who are American Indians or persons knowledgeable in the field of Indian art and culture. This notice requests nominations to fill one expiring term on the Board of Trustees.
Institute of American Indian Arts, 83 Avan Nu Po Road, Santa Fe, New Mexico 87508.
Dr. Robert Martin, President, 505-424-2301.
Policy, Management and Budget, Interior.
Notice.
This notice announces location and date changes to the upcoming meetings of the United States Extractive Industries Transparency Initiative (USEITI) Multi-Stakeholder Group (MSG) Advisory Committee. The location for the September 9-11, 2014, meeting has changed and the November 18-20, 2014, meeting has been rescheduled.
Both meetings will take place at the U.S. Department of the Interior Steward Lee Udall Building located at 1849 C Street NW., Washington, DC 20240. The September 9-11, 2014, meeting will be held in the South Penthouse, and the December 10-11, 2014, meeting will be held in the North Penthouse. Members of the public may attend in person or participate remotely by viewing documents and presentations on-line via WebEx at
Rosita Compton Christian, USEITI Secretariat; 1849 C Street NW., MS-4211, Washington, DC 20240. You may also contact the USEITI Secretariat via
The U.S. Department of the Interior established the USEITI Advisory Committee (Committee) on July 26, 2012, to serve as the initial USEITI multi-stakeholder group. More information about the Committee, including its charter, can be found at
The agenda for the September meeting will include a review and discussion of Subcommittee action items and an introduction of the Independent Administrator. The agenda for the December meeting will include a presentation of the Independent Administrator's inception report, a review of the work-plan to meet all EITI requirements, and planning for 2015 activities.
The final agendas and materials for all meetings will be posted on the USEITI MSG Web site at
Whenever possible, we encourage those participating by telephone to gather in conference rooms in order to share teleconference lines. Please plan to dial into the meeting and/or log into to WebEx at least 10-15 minutes prior to the scheduled start time in order to avoid possible technical difficulties. Individuals with special needs will be accommodated whenever possible. If you require special assistance (such as an interpreter for the hearing impaired), please notify Interior staff in advance of the meeting at 202-208-0272 or via email at
The minutes from these proceedings will be posted on USEITI MSG Web site at
Fish and Wildlife Service, Interior.
Notice of initiation of reviews; request for information.
We, the U.S. Fish and Wildlife Service, are initiating 5-year status reviews under the Endangered Species Act of 1973, as amended (Act), for nine animal and two plant species. A 5-year status review is based on the best scientific and commercial data available at the time of the review; therefore, we are requesting submission of any such information that has become available since the last review for the species.
To ensure consideration, please send your written information by September 8, 2014. However, we will continue to accept new information about any listed species at any time.
For how to send comments or information for each species, see the table in the
To request information, contact the appropriate person in the table in the
We are initiating 5-year status reviews under the Endangered Species Act of 1973, as amended (Act), for nine animal and two plant species: Gray bat (
Under the Act (16 U.S.C. 1531
A 5-year review considers all new information available at the time of the review. In conducting these reviews, we consider the best scientific and commercial data that have become available since the listing determination or most recent status review, such as:
(A) Species biology, including but not limited to population trends, distribution, abundance, demographics, and genetics;
(B) Habitat conditions, including but not limited to amount, distribution, and suitability;
(C) Conservation measures that have been implemented that benefit the species;
(D) Threat status and trends in relation to the five listing factors (as defined in section 4(a)(1) of the Act); and
(E) Other new information, data, or corrections, including but not limited to taxonomic or nomenclatural changes, identification of erroneous information contained in the List, and improved analytical methods.
Any new information will be considered during the 5-year review and will also be useful in evaluating the ongoing recovery programs for the species.
This notice announces our active 5-year status reviews of the species in the following table.
To ensure that a 5-year review is complete and based on the best available scientific and commercial information, we request new information from all sources. See “What Information Do We Consider in Our Review?” for specific criteria. If you submit information, please support it with documentation such as maps, bibliographic references, methods used to gather and analyze the data, and/or copies of any pertinent publications, reports, or letters by knowledgeable sources.
If you wish to provide information for any species listed above, please submit your comments and materials to the appropriate contact in the table above. You may also direct questions to those contacts. Individuals who are hearing impaired or speech impaired may call the Federal Relay Service at 800-877-8339 for TTY assistance.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Comments and materials received will be available for public inspection, by appointment, during normal business hours at the offices where the comments are submitted.
We publish this notice under the authority of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Bureau of Land Management, Interior.
Notice of Public Meeting.
In accordance with the Federal Land Policy and Management Act and the Federal Advisory Committee Act of 1972, and the U.S. Department of the Interior, Bureau of Land Management (BLM), the Steens Mountain Advisory Council (SMAC) will meet as indicated below:
July 17-18, 2014, 8:30 a.m. to 4 p.m. each day, at the Frenchglen School, 39235 Oregon 205, in Frenchglen, Oregon. Daily sessions may end early if all business items are accomplished ahead of schedule.
Tara Martinak, Public Affairs Specialist, BLM Burns District Office, 28910 Highway 20 West, Hines, Oregon 97738, (541) 573-4519, or email
The SMAC was initiated August 14, 2001, pursuant to the Steens Mountain Cooperative Management and Protection Act (CMPA) of 2000 (Pub. L. 106-399). The SMAC provides representative counsel and advice to the BLM regarding new and unique approaches to management of the land within the bounds of the Steens Mountain CMPA; recommending cooperative programs and incentives for landscape management that meet human needs, and the maintenance and improvement of the ecological and economic integrity of the area. Tentative agenda items for the July 17-18 sesson include a field tour to and discussion regarding the Page Springs Weir; a possible field tour to the Andle Creek basin area; a discussion on managing wildfire for multiple objectives; and regular business items such as approving the previous meeting's minutes, member round-table, the Designated Federal Official's update and planning the next meeting's agenda. A public comment period will be available each day of each meeting, excluding sessions that are entirely in the field for tour purposes. The public is welcome to attend all sessions, including field tours. Unless otherwise approved by the SMAC Chair, the public comment period will last no longer than 30 minutes, and each speaker may address the SMAC for a maximum of five minutes.
Before including your address, phone number, email address, or other personal identifying information in your comments, please be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
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 August 7, 2014.
Protests of the survey must be filed before August 7, 2014 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.
Blaise Lodermeier, Cadastral Surveyor, Branch of Cadastral Survey, Bureau of Land Management, 5001 Southgate Drive, Billings, Montana 59101-4669, telephone (406) 896-5128 or (406) 896-5007,
This survey was executed at the request of the BLM Montana State Office, Division of Energy, Minerals and Realty, and was necessary to determine federal leasable mineral lands. The lands we surveyed are:
The plat, in two sheets, representing the supplemental plat of secs. 21, 22, 23, 24, 25, 26, 27, and 28, showing the amended lottings, Township 154 North, Range 97 West, Fifth Principal Meridian, North Dakota, was accepted April 9, 2014.
The plat, in one sheet, representing the supplemental plat of sec. 35, showing the amended lottings, Township 154 North, Range 98 West, Fifth Principal Meridian, North Dakota, was accepted April 9, 2014.
The plat, in three sheets, representing the supplemental plat of secs. 25, 26, 27, 28, 29, 30, 31, 32, 33, and 36, showing the amended lottings, Township 154 North, Range 95 West, Fifth Principal Meridian, North Dakota, was accepted May 8, 2014.
The plat, in two sheets, representing the supplemental plat of secs. 21, 26, 27, 28, 29, and 30, showing the amended lottings, Township 154 North, Range 96 West, Fifth Principal Meridian, North Dakota, was accepted May 8, 2014.
We will place a copy of the plats, in eight sheets, in the open files. They will be available to the public as a matter of information. If the BLM receives a protest against this survey, as shown on these plats, in nine sheets, prior to the date of the official filing, we will stay the filing pending our consideration of the protest. We will not officially file these plats, in nine sheets, until the day after we have accepted or dismissed all protests and they have become final, including decisions or appeals.
43 U.S.C. Chapter 3.
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 August 7, 2014.
Protests of the survey must be filed before August 7, 2014 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.
Thomas L. Laakso, Cadastral Surveyor, Branch of Cadastral Survey, Bureau of Land Management, 5001 Southgate Drive, Billings, Montana 59101-4669, telephone (406) 896-5125 or (406) 896-5007,
This survey was executed at the request of the Regional Director, Rocky Mountain Region, Bureau of Indian Affairs, and was necessary to determine the boundaries of individual and tribal trust lands.
The lands we surveyed are:
The plat, in two sheets, representing the dependent resurvey of Township 33 North, Range 12 East, Principal Meridian, Montana, was accepted May 29, 2014.
We will place a copy of the plat, in two sheets, and related field notes we described in the open files. They will be available to the public as a matter of information. If the BLM receives a protest against this survey, as shown on this plat, in two sheets, prior to the date of the official filing, we will stay the filing pending our consideration of the protest. We will not officially file this plat, in two sheets, until the day after we have accepted or dismissed all protests and they have become final, including decisions or appeals.
43 U.S.C. Chap. 3.
Office of Surface Mining Reclamation and Enforcement, Interior.
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995, the Office of Surface Mining Reclamation and Enforcement (OSMRE) is announcing its intention to request renewed approval for the continued collection of information for the Abandoned Mine Reclamation Fund—Fee Collection and Coal Production Reporting and the form it implements, the OSM-1, Coal Reclamation Fee Report. This collection was previously approved by the Office of Management and Budget (OMB) and assigned control number 1029-0063.
Comments on the proposed information collection must be received by September 8, 2014, to be assured of consideration.
Comments may be mailed to John Trelease, Office of Surface Mining Reclamation and Enforcement, 1951 Constitution Ave. NW., Room 203—SIB, Washington, DC 20240. Comments may
To request a copy of the information collection request contact John Trelease at (202) 208-2783 or via email at
OMB regulations at 5 CFR 1320, which implement provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13), require 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 OSMRE will be submitting to OMB for extension. This collection is contained in 30 CFR Part 870—Abandoned Mine Reclamation Fund—Fee Collection and Coal Production Reporting, and the implementing form OSM-1—Coal Reclamation Fee Report. OSMRE will request a 3-year term of approval for this information collection activity.
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 OMB control number for this collection is 1029-0063. Responses are mandatory.
Comments are invited on: (1) The need for the collection of information for the performance of the functions of the agency; (2) the accuracy of the agency's burden estimates; (3) ways to enhance the quality, utility and clarity of the information collection; and (4) ways to minimize the information collection burden on respondents, such as use of automated means of collection of the information. A summary of the public comments will be included in OSMRE's submission of the information collection request to OMB.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Notice of application.
Registered bulk manufacturers of the affected basic classes and applicants therefore, may file written comments on or objections to the issuance of the proposed registration in accordance with 21 CFR 1301.33(a) on or before September 8, 2014.
Written comments should be sent to: Drug Enforcement Administration, Attention: DEA Federal Register Representative/ODW, 8701 Morrissette Drive, Springfield, Virginia 22152.
The Attorney General has delegated his authority under the Controlled Substances Act to the Administrator of the Drug Enforcement Administration (DEA), 28 CFR 0.100(b). Authority to exercise all necessary functions with respect to the promulgation and implementation of 21 CFR part 1301, incident to the registration of manufacturers, distributors, and dispensers of controlled substances (other than final orders in connection with suspension, denial, or revocation of registration) has been redelegated to the Deputy Assistant Administrator of the DEA Office of Diversion Control (“Deputy Assistant Administrator”) pursuant to sec. 7(g) of 28 CFR pt. 0, subpt. R, App.
In accordance with 21 CFR 1301.33(a), this is notice that on December 10, 2013, S & B Pharma, Inc., DBA Norac Pharma, 405 South Motor Avenue, Azusa, California 91702-3232, applied to be registered as a bulk manufacturer of the following basic classes of narcotic or nonnarcotic controlled substances:
The company plans to manufacture the listed controlled substances in bulk for use in product development and for commercial sales to its customers.
Notice.
The Department of Labor (DOL) is submitting the Occupational Safety and Health Administration (OSHA) sponsored information collection request (ICR) titled, “Powered Platforms for Building Maintenance Standard,” to the Office of Management and Budget (OMB) for review and approval for continued use, without change, in accordance with the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq. Public comments on the ICR are invited.
The OMB will consider all written comments that agency receives on or before August 7, 2014.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the RegInfo.gov Web site at
Submit comments about this request by mail or courier to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-OSHA, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503; by Fax: 202-395-6881 (this is not a toll-free number); or by email:
Michel Smyth by telephone at 202-693-4129, TTY 202-693-8064, (these are not toll-free numbers) or by email at
44 U.S.C. 3507(a)(1)(D).
This ICR seeks to extend PRA authority for the Powered Platforms for Building Maintenance Standard information collection requirements codified in regulations 29 CFR 1910.66, which requires that a covered employer develop and implement a written emergency action plan for each type of powered platform operation. The plan must explain the emergency procedures that a worker is to follow upon encountering a disruption of the power supply, equipment failure, or other emergency. More specifically, the Standard requires the employer to develop and maintain a written emergency action plan and work plan for training; to affix a load rating plate to each suspended unit; to label each emergency electric operating device with instructions for its use; to attach a tag to one of the fastenings holding a suspension wire rope; to prepare and to maintain a written certification record of the inspection and testing of each building-support structure, component of a powered platform, powered platform facility, and suspension wire rope. Occupational Safety and Health Act section 8 authorizes this information collection.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number.
OMB authorization for an ICR cannot be for more than three (3) years without renewal, and the current approval for this collection is scheduled to expire on July 31, 2014. The DOL seeks to extend PRA authorization for this information collection for three (3) more years, without any change to existing requirements. The DOL notes that existing information collection requirements submitted to the OMB receive a month-to-month extension while they undergo review. For additional substantive information about this ICR, see the related notice published in the
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
Veterans' Employment and Training Service (VETS), Department of Labor.
Notice of Open Meeting.
This notice sets forth the schedule and proposed agenda of a forthcoming meeting of the ACVETEO. The ACVETEO will discuss the VETS core programs and services regarding efforts that assist veterans seeking employment and raise employer awareness as to the advantages of hiring veterans. There will be an opportunity for persons or organizations to address the committee. Any individual or organization that wishes to do so should contact Mr. Anthony Camilli at 202-693-4708. Time constraints may limit the number of outside participants/presentations.
Individuals who will need accommodations for a disability in order to attend the meeting (e.g., interpreting services, assistive listening devices, and/or materials in alternative format) should notify the Advisory Committee no later than Thursday, July 24, 2014 by contacting Mr. Gregory Green at 202-693-4734. Requests made after this date will be reviewed, but availability of the requested accommodations cannot be guaranteed. The meeting site is accessible to individuals with disabilities. This Notice also describes the functions of the ACVETEO. Notice of this meeting is required under Section 10(a)(2) of the Federal Advisory Committee Act. This document is intended to notify the general public.
Thursday, July 31, 2014 beginning at 9 a.m. and ending at approximately 5:00 p.m. (E.S.T.).
The meeting will take place at the U.S. Department of Labor, Frances Perkins Building, 200 Constitution Avenue NW., Washington, DC 20210, Room C-5521. Members of the public are encouraged to arrive early to allow for security clearance into the Frances Perkins Building.
1. Present a valid photo ID to receive a visitor badge.
2. Know the name of the event you are attending: The meeting event is the Advisory Committee on Veterans' Employment, Training and Employer Outreach (ACVETEO).
3. Visitor badges are issued by the security officer at the Visitor Entrance located at 3rd and C Streets NW. When receiving a visitor badge, the security officer will retain the visitor's photo ID until the visitor badge is returned to the security desk.
4. Laptops and other electronic devices may be inspected and logged for identification purposes.
5. Due to limited parking options, Metro is the easiest way to access the Frances Perkins Building.
Mr. Anthony Camilli, Alternate Designated Federal Official for the ACVETEO, (202) 693-4708.
The ACVETEO is a Congressionally mandated Advisory Committee authorized under Title 38, U.S. Code, Section 4110 and subject to the Federal Advisory Committee Act, 5 U.S.C. App. 2, as amended. The ACVETEO is responsible for: Assessing employment and training needs of veterans; determining the extent to which the programs and activities of the U.S. Department of Labor meet these needs; assisting to conduct outreach to employers seeking to hire veterans; making recommendations to the Secretary, through the Assistant Secretary of Labor for Veterans' Employment and Training with respect to outreach activities and employment and training needs of Veterans; and carrying out such other activities necessary to make required reports and recommendations. The ACVETEO meets at least quarterly.
In accordance with Section 223 of the Trade Act of 1974, as amended (“Act”), 19 U.S.C. 2273, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on December 11, 2012, applicable to workers of Hutchinson Technology Incorporated, Eau Claire, Wisconsin (TA-W-82,145), Hutchinson Technology Incorporated, including on-site leased workers from Atterro, Plymouth, Minnesota (TA-W-82,145A), Express Employment Professionals, working on-site at Hutchinson Technology Incorporated, Eau Claire, Wisconsin (TA-W-82,145B), and Doherty Staffing Solutions, working on-site at Hutchinson Technology Incorporated, Eau Claire, Wisconsin (TA-W-82,145C). The Department's notice of determination was published in the
At the request of State Workforce Office, the Department reviewed the certification for workers of the subject firm. The workers are engaged in activities related to the production of suspension arms for hard disk drives.
The state workforce office reports that workers from Hutchinson Technology Incorporated, Hutchinson, Minnesota are being affected by the same shift in production of suspension arms for hard disk drives to a foreign country that was the cause of the separations for the subject certification. The worker group includes on-site leased workers from Doherty Staffing.
Workers of Hutchinson Technology Incorporated, Hutchinson, Minnesota were previously certified under petition
The amended notice applicable to TA-W-82,145, is hereby issued as follows:
All workers of Hutchinson Technology Incorporated, Eau Claire, Wisconsin (TA-W-82,145), who became totally or partially separated from employment on or after April 16, 2012 through December 11, 2014, and all workers in the group threatened with total or partial separation from employment on the date of certification through December 11, 2014, are eligible to apply for adjustment assistance under Chapter 2 of Title II of the Trade Act of 1974, as amended;
All workers of Hutchinson Technology Incorporated, including on-site leased workers from Atterro, Plymouth, Minnesota (TA-W-82,145A), Express Employment Professionals, working on-site at Hutchinson Technology Incorporated, Eau Claire, Wisconsin (TA-W-82,145B), and Doherty Staffing Solutions, working on-site at Hutchinson Technology Incorporated, Eau Claire, Wisconsin (TA-W-82,145C), who became totally or partially separated from employment on or after November 9, 2011 through December 11, 2014, and all workers in the group threatened with total or partial separation from employment on the date of certification through December 11, 2014, are eligible to apply for adjustment assistance under Chapter 2 of Title II of the Trade Act of 1974, as amended.
All workers of Hutchinson Technology Incorporated, including on-site leased workers from Doherty Staffing Solutions, Hutchinson, Minnesota, who became totally or partially separated from employment on or after September 8, 2013 through December 11, 2014, and all workers in the group threatened with total or partial separation from employment on the date of certification through December 11, 2014, are eligible to apply for adjustment assistance under Chapter 2 of Title II of the Trade Act of 1974, as amended.
By application dated June 3, 2014, a company official requested administrative reconsideration of the negative determination regarding workers' eligibility to apply for worker adjustment assistance applicable to workers and former workers of SunEdison, Inc., STP Manufacturing Plant, St. Peters, Missouri (subject firm). The determination was issued on May 6, 2014 and the Notice of determination has not yet been published in the
Pursuant to 29 CFR 90.18(c) reconsideration may be granted under the following circumstances:
(1) If it appears on the basis of facts not previously considered that the determination complained of was erroneous;
(2) If it appears that the determination complained of was based on a mistake in the determination of facts not previously considered; or
(3) If in the opinion of the Certifying Officer, a misinterpretation of facts or of the law justified reconsideration of the decision.
The negative determination was based on the Department of Labor's findings that the subject firm did not shift production of articles like or directly competitive with those produced by the workers to a foreign country during the relevant time period; the subject firm did not increase imports of such articles during the relevant time period; and the subject firm is not a Supplier or Downstream Producer to a firm that employed a group of workers who received a certification of eligibility under Section 222(a) of the Trade Act of 1974, as amended (the Act).
The request for reconsideration includes information not previously considered regarding the subject firm's operations and customers.
The Department has carefully reviewed the request for reconsideration and the existing record, and has determined that the Department will conduct further investigation to determine if the workers meet the eligibility requirements of the Act.
After careful review of the application, I conclude that the claim is of sufficient weight to justify reconsideration of the U.S. Department of Labor's prior decision. The application is, therefore, granted.
Petitions have been filed with the Secretary of Labor under Section 221(a) of the Trade Act of 1974 (“the Act”) and are identified in the Appendix to this notice. Upon receipt of these petitions, the Director of the Office of Trade Adjustment Assistance, Employment and Training Administration, has instituted investigations pursuant to Section 221(a) of the Act.
The purpose of each of the investigations is to determine whether the workers are eligible to apply for adjustment assistance under Title II, Chapter 2, of the Act. The investigations will further relate, as appropriate, to the determination of the date on which total or partial separations began or threatened to begin and the subdivision of the firm involved.
The petitioners or any other persons showing a substantial interest in the subject matter of the investigations may request a public hearing, provided such request is filed in writing with the Director, Office of Trade Adjustment Assistance, at the address shown below, not later than July 18, 2014.
Interested persons are invited to submit written comments regarding the subject matter of the investigations to the Director, Office of Trade Adjustment Assistance, at the address shown below, not later than July 18, 2014.
The petitions filed in this case are available for inspection at the Office of the Director, Office of Trade Adjustment Assistance, Employment and Training Administration, U.S. Department of Labor, Room N-5428, 200 Constitution Avenue NW., Washington, DC 20210.
In accordance with Section 223 of the Trade Act of 1974, as amended (19 U.S.C. 2273) the Department of Labor herein presents summaries of determinations regarding eligibility to apply for trade adjustment assistance for workers (TA-W) number and alternative trade adjustment assistance (ATAA) by (TA-W) number issued during the period of
In order for an affirmative determination to be made for workers of a primary firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(a) of the Act must be met.
I. Section (a)(2)(A) all of the following must be satisfied:
A. a significant number or proportion of the workers in such workers' firm, or an appropriate subdivision of the firm, have become totally or partially separated, or are threatened to become totally or partially separated;
B. the sales or production, or both, of such firm or subdivision have decreased absolutely; and
C. increased imports of articles like or directly competitive with articles produced by such firm or subdivision have contributed importantly to such workers' separation or threat of separation and to the decline in sales or production of such firm or subdivision; or
II. Section (a)(2)(B) both of the following must be satisfied:
A. a significant number or proportion of the workers in such workers' firm, or an appropriate subdivision of the firm, have become totally or partially separated, or are threatened to become totally or partially separated;
B. there has been a shift in production by such workers' firm or subdivision to a foreign country of articles like or directly competitive with articles which are produced by such firm or subdivision; and
C. One of the following must be satisfied:
1. the country to which the workers' firm has shifted production of the articles is a party to a free trade agreement with the United States;
2. the country to which the workers' firm has shifted production of the articles to a beneficiary country under the Andean Trade Preference Act, African Growth and Opportunity Act, or the Caribbean Basin Economic Recovery Act; or
3. there has been or is likely to be an increase in imports of articles that are like or directly competitive with articles which are or were produced by such firm or subdivision.
Also, in order for an affirmative determination to be made for secondarily affected workers of a firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(b) of the Act must be met.
(1) significant number or proportion of the workers in the workers' firm or an appropriate subdivision of the firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) the workers' firm (or subdivision) is a supplier or downstream producer to a firm (or subdivision) that employed a group of workers who received a certification of eligibility to apply for trade adjustment assistance benefits and such supply or production is related to the article that was the basis for such certification; and
(3) either—
(A) the workers' firm is a supplier and the component parts it supplied for the firm (or subdivision) described in paragraph (2) accounted for at least 20 percent of the production or sales of the workers' firm; or
(B) a loss or business by the workers' firm with the firm (or subdivision) described in paragraph (2) contributed importantly to the workers' separation or threat of separation.
In order for the Division of Trade Adjustment Assistance to issue a certification of eligibility to apply for Alternative Trade Adjustment Assistance (ATAA) for older workers, the group eligibility requirements of Section 246(a)(3)(A)(ii) of the Trade Act must be met.
1. Whether a significant number of workers in the workers' firm are 50 years of age or older.
2. Whether the workers in the workers' firm possess skills that are not easily transferable.
3. The competitive conditions within the workers' industry (i.e., conditions within the industry are adverse).
The following certifications have been issued. The date following the company name and location of each determination references the impact date for all workers of such determination.
The following certifications have been issued. The date following the company
The following certifications have been issued. The requirements of Section 222(a)(2)(A) (increased imports) and Section 246(a)(3)(A)(ii) of the Trade Act have been met.
In the following cases, it has been determined that the requirements of 246(a)(3)(A)(ii) have not been met for the reasons specified.
In the following cases, the investigation revealed that the eligibility criteria for worker adjustment assistance have not been met for the reasons specified.
Because the workers of the firm are not eligible to apply for TAA, the workers cannot be certified eligible for ATAA.
The investigation revealed that criteria (a)(2)(A)(I.C.) (increased imports) and (a)(2)(B)(II.B.) (shift in production to a foreign country) have not been met.
The workers' firm does not produce an article as required for certification under Section 222 of the Trade Act of 1974.
After notice of the petitions was published in the
The following determinations terminating investigations were issued because the petitioner has requested that the petition be withdrawn.
I hereby certify that the aforementioned determinations were issued during the period of
Mine Safety and Health Administration, Labor.
Notice.
Section 101(c) of the Federal Mine Safety and Health Act of 1977 and 30 CFR part 44 govern the application, processing, and disposition of petitions for modification. This notice is a summary of petitions for modification submitted to the Mine Safety and Health Administration (MSHA) by the parties listed below to modify the application of existing mandatory safety standards codified in Title 30 of the Code of Federal Regulations.
All comments on the petitions must be received by the Office of Standards, Regulations and Variances on or before August 7, 2014.
You may submit your comments, identified by “docket number” on the subject line, by any of the following methods:
1.
2.
3.
MSHA will consider only comments postmarked by the U.S. Postal Service or proof of delivery from another delivery service such as UPS or Federal Express on or before the deadline for comments.
Barbara Barron, Office of Standards, Regulations and Variances at 202-693-9447 (Voice),
Section 101(c) of the Federal Mine Safety and Health Act of 1977 (Mine Act) allows the mine operator or representative of miners to file a petition to modify the application of any mandatory safety standard to a coal or other mine if the Secretary of Labor determines that:
1. An alternative method of achieving the result of such standard exists which will at all times guarantee no less than the same measure of protection afforded the miners of such mine by such standard; or
2. That the application of such standard to such mine will result in a diminution of safety to the miners in such mine.
In addition, the regulations at 30 CFR 44.10 and 44.11 establish the requirements and procedures for filing petitions for modification.
The petitioner states that MSHA Policy Information Bulletin (PIB) No.
a. The petitioner proposes to use the following plugging procedures:
(1) Prior to the anticipated mine-through, the borehole will be filled with cementitious grout, polyurethane grout, silica gel, flexible gel, or another material approved by the District Manager (DM).
(2) A packer will be installed at a location in the borehole to ensure that an appropriate amount of the borehole is filled with the plugging material.
(3) Any water present in the borehole will be tested for chlorides prior to plugging.
(4) A pump will be used to pump 1.75 times the calculated hole-volume of the plugging material into the borehole. The calculated volume of the plugging material will be pumped until the volume of the plugging material is depleted, 100-140 pounds per square inch (psi) pressure is realized, or until leakage is observed underground. The plugging material will be pumped through a packer equipped with a one-way check valve. The one-way check valve will prevent the plugging material from flowing back.
(5) The volume of fill material required will be calculated and 1.75 times that amount will be pumped unless the 100-140 psi pressure is reached.
(6) A directional deviation survey completed during the drilling of the borehole will be used to determine the location of the borehole within the coal seam.
(7) Where suitable plugging procedures have not been developed or are impractical, water infusion and ventilation of vertical CBM wells with horizontal laterals may be used in lieu of plugging.
b. The petitioner proposes to use the following procedures when using water and ventilation to mine through CBM wells with horizontal laterals:
(1) At least 2 days before intersecting the well, the well will be filled with water to at least 100 feet above the coal seam in which the CBM well with horizontal laterals is located. This level will be maintained until the well is intersected. As an alternative, after an in-mine horizontal borehole has been drilled in close proximity to the well, the mine supply water system will be connected to the in-mine horizontal borehole and the in-mine borehole will be pressurized.
(2) When a CBM well or lateral is intersected and the area deemed safe, the mining will proceed far enough to establish roof support in the area of the cut-through, and packers of appropriate pressure rating will be inserted into both sides of the cut-through. After the packers are inserted they will be inflated and all valves will be closed.
(3) After the well is intersected and the water is drained from the wellbore, a vacuum pump will be attached to the well head on the surface and started to provide negative pressure to the well head side of the cut-through. The adjacent side of the cut-through will be put on negative pressure by use of a vacuum pump on the surface attached to the underground degas system that was drilled in close proximity of the CBM. Should the intersected CBM build pressure later, the packers will be attached to the underground degas system and vented to the surface until this portion of the hole is plugged.
(4) If the hole can continue to be ventilated with mine atmosphere to the surface via a vacuum pump on the surface, plugging will not be necessary. If no system is in place underground to carry the gas to the surface, the holes will be plugged as soon as the continuous mining equipment is moved to the next portion of the cycle and no longer interferes with the plugging process.
(5) If mining continues parallel to the intersected hole or the hole continues to be intersected by the longwall, the hole will be plugged with cement grout, flexible gel or other method approved by the DM, or if mining down dip, the hole will be filled with water.
c. The petitioner proposes to use the following procedures for mining through a CBM degasification well with horizontal laterals:
(1) The operator will notify the DM or designee prior to mining within 300 feet of the well and when a specific plan is developed for mining through each well.
(2) The DM or designee, representative of the miners, and the appropriate State agency will be notified by the operator in sufficient time prior to the mining-through operation to have an opportunity to have representatives present.
(3) When using the continuous mining method, drivage sights will be installed at the last open crosscut near the place to be mined to ensure intersection of the well. The drivage sights will not be more than 250 feet from the well. When using the longwall mining method, drivage sights will be installed on 10-foot centers 50 feet in advance of the initial anticipated intersection of the well. The drivage sights will be installed in both the headgate and tailgate entry.
(4) Firefighting equipment, including fire extinguishers, rock dust and enough fire hose to reach the well location on the working face will be available near the working place.
(5) Sufficient supplies of roof support and ventilation materials will be available near the working place.
(6) The quantity of air required by the approved ventilation system and methane and dust control plan will be used to ventilate the working face or the longwall face during the mining-through operation.
(7) Equipment will be checked for permissibility and serviced on the shift prior to mining through the well.
(8) The methane monitor on the longwall or continuous mining machine will be calibrated on the shift prior to mining through the well.
(9) When mining is in progress, tests for methane will be made with a hand-held methane detector at least every 10 minutes from the time mining with the continuous mining machine is within 30 feet of the well until the well is intersected and immediately prior to mining through or the resumption of mining after a well is intersected. When mining with longwall mining equipment, the tests for methane will be made at least every 10 minutes when the longwall face is within 10 feet of the well.
(10) When using continuous mining methods, the working place will be free from accumulations of coal dust and coal spillages, and rock dust will be placed on the roof and rib to within 20 feet of the face when mining through the well.
(11) When the wellbore is intersected, all equipment will be deenergized and the place thoroughly examined and determined safe before mining is resumed. Any well casing will be removed and no open flame will be permitted in the area until adequate ventilation has been established around the wellbore.
(12) After a well has been intersected and the working place determined safe, mining will continue inby the well at a sufficient distance to permit adequate ventilation around the area of the wellbore.
(13) No person will be permitted in the area of the mining-through operation, inby the last open crosscut
(14) The mining-through operation will be under the direct supervision of a certified official. Instructions concerning the mining-through operation will be issued only by the certified official in charge.
The petitioner asserts that the proposed alternative method will provide the same measure of protection as that afforded by the existing standard.
The petitioner states that MSHA Policy Information Bulletin (PIB) No. P08-20 regarding “Surface Drilled Coalbed Methane Wells with Horizontal Branches in the Coal Seam” supports and encourages CBM extraction because it can significantly reduce methane emissions in coal mines and has been proved to decrease the incidence of face ignitions in gassy coal mines. The PIB recognizes that procedures to address the potential hazards presented by CBM wells must be developed and implemented to protect the coal miners who will be exposed to these wells.
a. The petitioner proposes to use the following plugging procedures:
(1) Prior to the anticipated mine-through, the borehole will be filled with cementitious grout, polyurethane grout, silica gel, flexible gel, or another material approved by the District Manager (DM).
(2) A packer will be installed at a location in the borehole to ensure that an appropriate amount of the borehole is filled with the plugging material.
(3) Any water present in the borehole will be tested for chlorides prior to plugging.
(4) A pump will be used to pump 1.75 times the calculated hole-volume of the plugging material into the borehole. The calculated volume of the plugging material will be pumped until the volume of the plugging material is depleted, 100-140 pounds per square inch (psi) pressure is realized, or until leakage is observed underground. The plugging material will be pumped through a packer equipped with a one-way check valve. The one-way check valve will prevent the plugging material from flowing back.
(5) The volume of fill material required will be calculated and 1.75 times that amount will be pumped unless the 100-140 psi pressure is reached.
(6) A directional deviation survey completed during the drilling of the borehole will be used to determine the location of the borehole within the coal seam.
(7) Where suitable plugging procedures have not been developed or are impractical, water infusion and ventilation of vertical CBM wells with horizontal laterals may be used in lieu of plugging.
b. The petitioner proposes to use the following procedures when using water and ventilation to mine through CBM wells with horizontal laterals:
(1) At least 2 days before intersecting the well, the well will be filled with water to at least 100 feet above the coal seam in which the CBM well with horizontal laterals is located. This level will be maintained until the well is intersected. As an alternative, after an in-mine horizontal borehole has been drilled in close proximity to the well, the mine supply water system will be connected to the in-mine horizontal borehole and the in-mine borehole will be pressurized.
(2) When a CBM well or lateral is intersected and the area deemed safe, the mining will proceed far enough to establish roof support in the area of the cut-through, and packers of appropriate pressure rating will be inserted into both sides of the cut-through. After the packers are inserted they will be inflated and all valves will be closed.
(3) After the well is intersected and the water is drained from the wellbore, a vacuum pump will be attached to the well head on the surface and started to provide negative pressure to the well head side of the cut-through. The adjacent side of the cut-through will be put on negative pressure by use of a vacuum pump on the surface attached to the underground degas system that was drilled in close proximity of the CBM. Should the intersected CBM build pressure later, the packers will be attached to the underground degas system and vented to the surface until this portion of the hole is plugged.
(4) If the hole can continue to be ventilated with mine atmosphere to the surface via a vacuum pump on the surface, plugging will not be necessary. If no system is in place underground to carry the gas to the surface, the holes will be plugged as soon as the continuous mining equipment is moved to the next portion of the cycle and no longer interferes with the plugging process.
(5) If mining continues parallel to the intersected hole or the hole continues to be intersected by the longwall, the hole will be plugged with cement grout, flexible gel or other method approved by the DM, or if mining down dip, the hole will be filled with water.
c. The petitioner proposes to use the following procedures for mining through a CBM degasification well with horizontal laterals:
(1) The operator will notify the DM or designee prior to mining within 300 feet of the well and when a specific plan is developed for mining through each well.
(2) The DM or designee, representative of the miners, and the appropriate State agency will be notified by the operator in sufficient time prior to the mining-through operation to have an opportunity to have representatives present.
(3) When using the continuous mining method, drivage sights will be installed at the last open crosscut near the place to be mined to ensure intersection of the well. The drivage sights will not be more than 250 feet from the well. When using the longwall mining method, drivage sights will be installed on 10-foot centers 50 feet in advance of the initial anticipated intersection of the well. The drivage sights will be installed in both the headgate and tailgate entry.
(4) Firefighting equipment, including fire extinguishers, rock dust and enough fire hose to reach the well location on the working face will be available near the working place.
(5) Sufficient supplies of roof support and ventilation materials will be available near the working place.
(6) The quantity of air required by the approved ventilation system and methane and dust control plan will be used to ventilate the working face or the longwall face during the mining-through operation.
(7) Equipment will be checked for permissibility and serviced on the shift prior to mining through the well.
(8) The methane monitor on the longwall or continuous mining machine will be calibrated on the shift prior to mining through the well.
(9) When mining is in progress, tests for methane will be made with a hand-held methane detector at least every 10 minutes from the time mining with the continuous mining machine is within 30 feet of the well until the well is intersected and immediately prior to mining through or the resumption of mining after a well is intersected. When mining with longwall mining equipment, the tests for methane will be made at least every 10 minutes when the longwall face is within 10 feet of the well.
(10) When using continuous mining methods, the working place will be free from accumulations of coal dust and coal spillages, and rock dust will be placed on the roof and rib to within 20 feet of the face when mining through the well.
(11) When the wellbore is intersected, all equipment will be deenergized and the place thoroughly examined and determined safe before mining is resumed. Any well casing will be removed and no open flame will be permitted in the area until adequate ventilation has been established around the wellbore.
(12) After a well has been intersected and the working place determined safe, mining will continue inby the well at a sufficient distance to permit adequate ventilation around the area of the wellbore.
(13) No person will be permitted in the area of the mining-through operation, inby the last open crosscut except those actually engaged in the operation, company personnel, representatives of the miners, MSHA personnel and personnel from the appropriate State agency.
(14) The mining-through operation will be under the direct supervision of a certified official. Instructions concerning the mining-through operation will be issued only by the certified official in charge.
The petitioner asserts that the proposed alternative method will provide the same measure of protection as that afforded by the existing standard.
Electronic Board Meeting to be held via email exchanges Thursday, July 10, 2014, 8 a.m. (PDT), through Wednesday, July 16, 2014.
Board Meeting held via email.
This special meeting of the Board of Trustees, to be held Electronically (in accordance with Foundation Operating Procedures), is open to the public. Members of the public who would like to see the text of the resolution to be considered and/or the email votes regarding the resolution should email Elizabeth E. Monroe, Executive Assistant, Morris K. Udall and Stewart L. Udall Foundation, at
Resolution regarding transfer of funds to the Native Nations Institute for Leadership, Management, and Policy.
Philip J. Lemanski, Executive Director, 130 South Scott Avenue, Tucson, AZ 85701, (520) 901-8500.
The Members of the National Council on Disability (NCD) will hold a quarterly meeting on Thursday, July 24, 2014, 1:30 p.m. to 4:30 p.m. (Eastern Daylight Time). On July 25, 2014, from 9:30 a.m. to 12 p.m., the Council will host a congressional forum on the topic of the rights of parents with disabilities and their children that is also open to the public.
The Thursday quarterly business meeting will occur in Washington, DC, at the Access Board Conference Room, 1331 F Street NW., Suite 800, Washington, DC. Interested parties may join the meeting in person or by phone in a listening-only capacity (with the exception of the public comment period) using the following call-in number: 1-888-378-0320; Conference ID: 5251555; Conference Title: NCD Meeting; Host Name: Jeff Rosen. The Friday congressional forum will occur on a location on Capitol Hill, room to be determined. Please check NCD's Web site for the room location, which, once confirmed, will be posted at
The Council will receive reports from its standing committees and updates on policy projects underway; hear from a panel of policy thinkers to help map out disability policy priorities and trends for the Council's consideration; discuss the Council's scope of work for FY15 and beyond; and receive an update on its Medicaid Managed Care forums around the country.
The times provided below are approximations for when each agenda item is anticipated to be discussed (all times EDT):
To better facilitate NCD's public comment periods, any individual interested in providing public comment will be asked to register their intent to provide comment in advance by sending an email to
Anne Sommers, NCD, 1331 F Street NW., Suite 850, Washington, DC 20004; 202-272-2004 (V), 202-272-2074 (TTY).
A CART streamtext link has been arranged for the Thursday
Pursuant to 10 CFR 2.4, notice is hereby given that Larry Harris, Senior Materials Program Manager, Office of Nuclear Security and Incident Response, and John Rycyna, Senior Security Specialist, Office of Nuclear Security and Incident Response, have been appointed as Commission adjudicatory employees to advise the Commission regarding issues relating to review of the Licensing Board's Initial Decision, LBP-14-1. Mr. Harris and Mr. Rycyna have not previously performed any investigative or litigating function in connection with this proceeding.
Until such time as a final decision is issued in this matter, interested persons outside the agency and agency employees performing investigative or litigating functions in this proceeding are required to observe the restrictions of 10 CFR 2.347 and 2.348 in their communications with Mr. Harris and Mr. Rycyna.
It is so ordered.
For the Commission.
Nuclear Regulatory Commission.
License amendment request; opportunity to comment, request a hearing, and petition for leave to intervene; order.
The U.S. Nuclear Regulatory Commission (NRC) received and is considering approval of 11 amendment requests. The amendment requests are for River Bend Station, Unit 1; Grand Gulf Nuclear Station, Unit 1; Dresden Nuclear Power Station, Units 2 and 3; Quad Cities Nuclear Power Station, Units 1 and 2 (two amendment requests); Donald C. Cook Nuclear Plant, Units 1 and 2; Cooper Nuclear Station; Point Beach Nuclear Plant, Units 1 and 2; Watts Bar Nuclear Plant, Unit 1; Browns Ferry Nuclear Plant, Units 1, 2, and 3; and Sequoyah Nuclear Plant, Units 1 and 2. For each amendment request, the NRC proposes to determine that they involve no significant hazards consideration. In addition, each amendment request contains sensitive unclassified non-safeguards information (SUNSI).
Comments must be filed by August 7, 2014. A request for a hearing must be filed by September 8, 2014. Any potential party as defined in § 2.4 of Title 10 of the
You may submit comments by any of the following methods (unless this document describes a different method for submitting comments on a specific subject):
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Angela M. Baxter, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-2976, email:
Please refer to Docket ID NRC-2014-0138 when contacting the NRC about the availability of information regarding this document. You may access publicly-available information related to this document by the following methods:
•
•
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Please include Docket ID NRC-2014-0138 in the subject line of your
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment submissions into ADAMS.
Pursuant to Section 189a.(2) of the Atomic Energy Act of 1954, as amended (the Act), the NRC is publishing this notice. The Act requires the Commission to publish notice of any amendments issued, or proposed to be issued and grants the Commission the authority to issue and make immediately effective any amendment to an operating license or combined license, as applicable, upon a determination by the Commission that such amendment involves no significant hazards consideration, notwithstanding the pendency before the Commission of a request for a hearing from any person.
This notice includes notices of amendments containing SUNSI.
The Commission has made a proposed determination that the following amendment requests involve no significant hazards consideration. Under the Commission's regulations in 10 CFR 50.92, this means that operation of the facility in accordance with the proposed amendment would not (1) involve a significant increase in the probability or consequences of an accident previously evaluated, or (2) create the possibility of a new or different kind of accident from any accident previously evaluated, or (3) involve a significant reduction in a margin of safety. The basis for this proposed determination for each amendment request is shown below.
The Commission is seeking public comments on this proposed determination. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination.
Normally, the Commission will not issue the amendment until the expiration of 60 days after the date of publication of this notice. The Commission may issue the license amendment before expiration of the 60-day period provided that its final determination is that the amendment involves no significant hazards consideration. In addition, the Commission may issue the amendment prior to the expiration of the 30-day comment period should circumstances change during the 30-day comment period such that failure to act in a timely way would result, for example in derating or shutdown of the facility. Should the Commission take action prior to the expiration of either the comment period or the notice period, it will publish in the
Within 60 days after the date of publication of this notice, any person(s) whose interest may be affected by this action may file a request for a hearing and a petition to intervene with respect to issuance of the amendment to the subject facility operating license or combined license. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's “Agency Rules of Practice and Procedure” in 10 CFR Part 2. Interested person(s) should consult a current copy of 10 CFR 2.309, which is available at the NRC's PDR, located at One White Flint North, Room O1-F21, 11555 Rockville Pike (first floor), Rockville, Maryland 20852. The NRC's regulations are accessible electronically from the NRC Library on the NRC's Web site at
As required by 10 CFR 2.309, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements: (1) The name, address, and telephone number of the requestor or petitioner; (2) the nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the requestor's/petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the requestor's/petitioner's interest. The petition must also set forth the specific contentions which the requestor/petitioner seeks to have litigated at the proceeding.
Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the requestor/petitioner shall provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the requestor/petitioner intends to rely in proving the contention at the hearing. The requestor/petitioner must also provide references to those specific sources and documents of which the petitioner is aware and on which the requestor/petitioner intends to rely to establish those facts or expert opinion. The petition must include sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the amendment under consideration. The contention must be one which, if proven, would entitle the requestor/petitioner to relief. A requestor/petitioner who fails to satisfy these requirements with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to
If a hearing is requested, and the Commission has not made a final determination on the issue of no significant hazards consideration, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to decide when the hearing is held. If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing held would take place after issuance of the amendment. If the final determination is that the amendment request involves a significant hazards consideration, then any hearing held would take place before the issuance of any amendment.
All documents filed in NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC's E-Filing rule (72 FR 49139; August 28, 2007). The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public Web site at
If a participant is electronically submitting a document to the NRC in accordance with the E-Filing rule, the participant must file the document using the NRC's online, Web-based submission form. In order to serve documents through the Electronic Information Exchange System, users will be required to install a Web browser plug-in from the NRC's Web site. Further information on the Web-based submission form, including the installation of the Web browser plug-in, is available on the NRC's public Web site at
Once a participant has obtained a digital ID certificate and a docket has been created, the participant can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with NRC guidance available on the NRC's public Web site at
A person filing electronically using the NRC's adjudicatory E-Filing system may seek assistance by contacting the NRC Meta System Help Desk through the “Contact Us” link located on the NRC's public Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland, 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket which is available to the public at
Petitions for leave to intervene must be filed no later than 60 days from the date of publication of this notice. Requests for hearing, petitions for leave to intervene, and motions for leave to file new or amended contentions that are filed after the 60-day deadline will not be entertained absent a determination by the presiding officer that the filing demonstrates good cause by satisfying the three factors in 10 CFR 2.309(c)(1)(i)-(iii).
For further details with respect to this amendment action, see the application for amendment which is available for public inspection at the NRC's PDR, located at One White Flint North, Room O1-F21, 11555 Rockville Pike (first floor), Rockville, Maryland 20852. Publicly available documents created or received at the NRC are accessible electronically through ADAMS in the NRC Library at
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The NRC staff has concluded that the proposed change (1) does not alter accident analysis assumptions, add any initiators, or affect the function of plant systems or the manner in which systems are operated, maintained, modified, tested, or inspected; (2) does not require any plant modifications which affect the performance capability of the structures, systems, and components relied upon to mitigate the consequences of postulated accidents; and (3) has no impact on the probability or consequences of an accident previously evaluated. In addition, the NRC staff has concluded that the proposed change to the CSP Implementation Schedule is administrative in nature.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The NRC staff has concluded the proposed change (1) does not alter accident analysis assumptions, add any initiators, or affect the function of plant systems or the manner in which systems are operated, maintained, modified, tested, or inspected; and (2) does not require any plant modifications which affect the performance capability of the structures, systems, and components relied upon to mitigate the consequences of postulated accidents and does not create the possibility of a new or different kind of accident from any accident previously evaluated. In addition, the NRC staff has concluded that the proposed change to the CSP Implementation Schedule is administrative in nature.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Response: No.
Plant safety margins are established through limiting conditions for operation, limiting safety system settings, and safety limits specified in the technical specifications. The delay of the full implementation date for the CSP has no substantive impact because other measures have been taken which provide adequate protection for the plant during this period of time. Therefore, the NRC staff has concluded that there is no change to established safety margins as a result of this change. In addition, the NRC staff has concluded that the proposed change to the CSP Implementation Schedule is administrative in nature.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
Based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The NRC staff has concluded that the proposed change (1) does not alter accident analysis assumptions, add any initiators, or affect the function of plant systems or the manner in which systems are operated, maintained, modified, tested, or inspected; (2) does not require any plant modifications which affect the performance capability of the structures, systems, and components relied upon to mitigate the consequences of postulated accidents; and (3) has no impact on the probability or consequences of an accident previously evaluated. In addition, the NRC staff has concluded that the proposed change to the CSP Implementation Schedule is administrative in nature.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The NRC staff has concluded that the proposed change (1) does not alter accident analysis assumptions, add any initiators, or affect the function of plant systems or the
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Response: No.
Plant safety margins are established through limiting conditions for operation, limiting safety system settings, and safety limits specified in the technical specifications. The delay of the full implementation date for the CSP has no substantive impact because other measures have been taken which provide adequate protection for the plant during this period of time. Therefore, the NRC staff has concluded that there is no change to established safety margins as a result of this change. In addition, the NRC staff has concluded that the proposed change to the CSP Implementation Schedule is administrative in nature.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
TS Section 5.6.5 lists NRC approved analytical methods used at DNPS [Dresden Nuclear Power Station] and QCNPS [Quad Cities Nuclear Power Station] to determine core operating limits. The proposed change adds an NRC approved topical report reference to the list of analytical methods in TS Section 5.6.5.
The proposed change to TS Section 5.6.5 will add a Westinghouse methodology to determine the end of lower plenum flashing for analysis of a BWR LOCA [boiling-water reactor loss-of-coolant accident]. The proposed change will allow DNPS and QCNPS to use the most current Westinghouse methodology for determination of the APLHGR limits associated with TS 3.2.1, “Average Planar Linear Heat Generation Rate (APLHGR).”
The addition of an approved analytical method in TS Section 5.6.5 has no effect on any accident initiator or precursor previously evaluated and does not change the manner in which the core is operated. The NRC approved method ensures that the analysis output accurately models the predicted core behavior, has no effect on the type or amount of radiation released, and has no effect on predicted offsite doses in the event of an accident. Additionally, the NRC approved method does not change any key core parameters that influence any accident consequences. Thus, the proposed change does not affect the probability of an accident previously evaluated.
The methodology conservatively establishes acceptable core operating limits such that the consequences of previously analyzed events are not increased.
The proposed change in the list of analytical methods does not affect the ability of DNPS and QCNPS to successfully respond to previously evaluated accidents and does not affect the radiological assumptions used in the evaluations. Thus, the radiological consequences of any accident previously evaluated are not increased.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change to TS Section 5.6.5 does not affect the performance of any DNPS and QCNPS structure, system or component credited for mitigating any accident previously evaluated. The NRC approved analytical methodology for evaluating the APLHGR limits will not affect the control parameters governing unit operation or the response of the plant equipment to transient conditions. The proposed change does not introduce any new accident precursors, modes of system operation, or failure mechanisms.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Response: No.
The proposed change will add a reference to the list of analytical methods in TS Section 5.6.5 that can be used to determine core operating limits. The new methodology has been previously approved by the NRC and accurately establishes the appropriate APLHGR limits. The proposed change does not modify the safety limits or setpoints at which protective actions are initiated and does not change the requirements governing operation or availability of safety equipment assumed to operate to preserve the margin of safety. Therefore, the proposed change does not impact the level of protection currently provided.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the requested amendments involve no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change revises Technical Specification (TS) 4.3.1 to permit installation of NETCO-SNAP-IN® rack inserts in spent fuel pool storage rack cells. The change is necessary to ensure that, with continued Boraflex degradation over time, the effective neutron multiplication factor, k
The installation of NETCO-SNAP-IN® rack inserts does not result in a significant increase in the probability of an accident previously analyzed because there are no changes in the manner in which spent fuel is handled, moved, or stored in the rack cells. The probability that a fuel assembly would be dropped is unchanged by the installation of the rack inserts. These events involve failures of administrative controls, human performance, and equipment failures that are unaffected by the presence or absence of Boraflex and the rack inserts.
The installation of NETCO-SNAP-IN® rack inserts does not result in a significant increase in the consequences of an accident previously analyzed because there is no change to the fuel assemblies that provide the source term used in calculating the radiological consequences of a fuel handling accident. In addition, consistent with the current design, only one fuel assembly will be moved at a time. Thus, the consequences of dropping a fuel assembly onto any other fuel assembly or other structure remain bounded by the previously analyzed fuel handling accident. The proposed change does not affect the effectiveness of the other engineered design features, such as filtration systems, that limit the offsite dose consequences of a fuel handling accident.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
Onsite storage of spent fuel assemblies in the QCNPS, Units 1 and 2 spent fuel pools is a normal activity for which QCNPS has been designed and licensed. As part of assuring that this normal activity can be performed without endangering the public health and safety, the ability to safely accommodate different possible accidents in the spent fuel pool have been previously analyzed. These analyses address accidents such as radiological releases due to dropping a fuel assembly; and potential inadvertent criticality due to misloading a fuel assembly. The proposed spent fuel storage configuration utilizing the NETCO-SNAP-IN® rack inserts does not change the method of fuel movement or spent fuel storage and does not create the potential for a new accident. The proposed change also allows for the continued use of spent fuel pool storage rack cells with degraded Boraflex within those spent fuel pool storage rack cells; however, no credit is taken for the Boraflex.
The rack inserts are passive devices. These devices, when inside a spent fuel storage rack cell, perform the same function as the previously licensed Boraflex neutron absorber panels in that cell. The NETCO-SNAP-IN® rack inserts do not add any limiting structural loads or adversely affect the removal of decay heat from the assemblies. No change in total heat load in the spent fuel pool is being made. The insert devices will maintain their design function over the life of the spent fuel pool. The existing fuel handling accident, which assumes the drop of a fuel assembly and refueling mast, bounds the drop of a rack insert and/or rack insert installation tool. This proposed change does not create the possibility of misloading an assembly into a spent fuel storage rack cell.
Based on the above information, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Response: No.
The NETCO-SNAP-IN® rack inserts are being installed to restore the spent fuel pool criticality margin, compensating for the degraded Boraflex neutron absorber. The NETCO-SNAP-IN® rack inserts, once approved and credited, will replace the existing Boraflex as the credited neutron absorber for controlling spent fuel pool reactivity, even though the Boraflex absorber will remain in place.
QCNPS TS 4.3, “Fuel Storage,” Specification 4.3.1.1.a requires the spent fuel storage racks to maintain the effective neutron multiplication factor, k
The proposed change ensures, as verified by the associated criticality analysis, that k
In addition, the radiological consequences of a dropped fuel assembly, considering the installed NETCO-SNAP-IN® rack inserts, remain unchanged as the anticipated fuel damage due to a fuel handling accident is unaffected by the addition of the inserts in the spent fuel pool storage cells. The proposed change also does not increase the capacity of the Unit 1 and Unit 2 spent fuel pools beyond the current capacity of 3,657 and 3,897 fuel assemblies respectively.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the requested amendments involve no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
TS Section 5.6.5 lists NRC approved analytical methods used at DNPS [Dresden Nuclear Power Station] and QCNPS to determine core operating limits. The proposed change adds an NRC approved topical report reference to the list of analytical methods in TS Section 5.6.5.
The proposed change to TS Section 5.6.5 will add a Westinghouse methodology to determine the end of lower plenum flashing for analysis of a BWR LOCA [boiling-water reactor loss-of-coolant accident]. The proposed change will allow DNPS and QCNPS to use the most current Westinghouse methodology for determination of the APLHGR limits associated with TS 3.2.1, “Average Planar Linear Heat Generation Rate (APLHGR).”
The addition of an approved analytical method in TS Section 5.6.5 has no effect on any accident initiator or precursor previously evaluated and does not change the manner in which the core is operated. The NRC approved method ensures that the analysis output accurately models the predicted core behavior, has no effect on the type or amount of radiation released, and has no effect on predicted offsite doses in the event of an accident. Additionally, the NRC approved method does not change any key core parameters that influence any accident consequences. Thus, the proposed change does not affect the probability of an accident previously evaluated.
The methodology conservatively establishes acceptable core operating limits such that the consequences of previously analyzed events are not increased.
The proposed change in the list of analytical methods does not affect the ability of DNPS and QCNPS to successfully respond to previously evaluated accidents and does not affect the radiological assumptions used in the evaluations. Thus, the radiological consequences of any accident previously evaluated are not increased.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change to TS Section 5.6.5 does not affect the performance of any DNPS and QCNPS structure, system or component credited for mitigating any accident previously evaluated. The NRC approved analytical methodology for evaluating the APLHGR limits will not affect the control parameters governing unit operation or the response of the plant equipment to transient conditions. The proposed change does not introduce any new accident precursors, modes of system operation, or failure mechanisms.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Response: No.
The proposed change will add a reference to the list of analytical methods in TS Section 5.6.5 that can be used to determine core operating limits. The new methodology has been previously approved by the NRC and accurately establishes the appropriate APLHGR limits. The proposed change does not modify the safety limits or setpoints at which protective actions are initiated and does not change the requirements governing operation or availability of safety equipment assumed to operate to preserve the margin of safety. Therefore, the proposed change does not impact the level of protection currently provided.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the requested amendments involve no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability of occurrence or consequences of an accident previously evaluated?
Response: No.
The amendment proposes a change to the CNP Unit 1 and Unit 2 CSPs Milestone 8 full implementation date as set forth in the CNP CSP Implementation Schedule. The revision of the full implementation date for the CNP CSP does not involve modifications to any safety-related structures, systems or components (SSCs). Rather, the implementation schedule provides a timetable for fully implementing the CNP CSP. The CSP describes how the requirements of 10 CFR 73.54 are to be implemented to identify, evaluate, and mitigate cyber attacks up to and including the design basis cyber attack threat, thereby achieving high assurance that the facility's digital computer and communications systems and networks are adequately protected from cyber attacks. The revision of the CNP CSP Implementation Schedule will not alter previously evaluated design basis accident analysis assumptions, add any accident initiators, modify the function of the plant safety-related SSCs, or affect how any plant safetyrelated SSCs are operated, maintained, modified, tested, or inspected.
Therefore, the proposed changes do not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
A revision to the CSP Implementation Schedule does not require any plant modifications. The proposed revision to the CSP Implementation Schedule does not alter the plant configuration, require new plant equipment to be installed, alter accident analysis assumptions, add any initiators, or affect the function of plant systems or the manner in which systems are operated, maintained, modified, tested, or inspected. Revision of the CNP CSP Implementation Schedule does not introduce new equipment that could create a new or different kind of accident, and no new equipment failure modes are created. No new accident scenarios, failure mechanisms, or limiting single failures are introduced as a result of this proposed amendment.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Response: No.
Plant safety margins are established through limiting conditions for operation, limiting safety system settings, and safety limits specified in the technical specifications. The proposed amendment does not alter the way any safety-related SSC functions and does not alter the way the plant is operated. The CSP, as implemented by milestones 1-7, provides assurance that safety-related SSCs are protected from cyber attacks. The proposed amendment does not introduce any new uncertainties or change any existing uncertainties associated with any safety limit. The proposed amendment has no effect on the structural integrity of the fuel cladding, reactor coolant pressure boundary, or containment structure.
Therefore the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change to the CSP Implementation Schedule is administrative in nature. The revision of the CNS CSP Implementation Schedule does not alter any previously evaluated design basis accident analysis assumptions, add any accident initiators, modify the function of plant safety-related structures, systems, or components (SSCs), or affect how any plant safety-related SSCs are operated, maintained, tested, or inspected. The proposed change does not require any plant modifications which affect the performance capability of SSCs relied upon to mitigate the consequences of postulated accidents and has no impact on the probability or consequences of an accident previously evaluated.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Do the proposed changes create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change to the CSP Implementation Schedule is administrative in nature. The revision of the CNS CSP Implementation Schedule does not introduce new equipment that could create a new or different kind of accident, and no new equipment failure modes are created. No new accident scenarios, failure mechanisms, or limiting single failures are introduced as a result of this proposed amendment.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Do the proposed changes involve a significant reduction in a margin of safety?
Response: No.
The margin of safety is associated with the ability of the fission product barriers (i.e., fuel cladding, reactor coolant pressure boundary, and containment structure) to limit the level of radiation to the public. The proposed amendment does not alter the way any safety-related SSC functions and does not alter the way the plant is operated. The proposed amendment does not introduce any new uncertainties or change any existing uncertainties associated with any safety limit. The proposed amendment has no effect on the structural integrity of the fuel cladding, reactor coolant pressure boundary, or containment structure. Based on the above considerations, the proposed amendment will not degrade the ability of the fission product barriers to limit the level of radiation to the public.
Therefore, the proposed change does not involve a reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
Operation of PBNP [Point Beach Nuclear Plant] in accordance with the proposed amendment does not increase the probability or consequences of accidents previously evaluated. The PBNP Updated Final Safety Analysis Report (UFSAR) documents the analyses of design basis accidents (DBAs) and design basis events (DBEs) at PBNP. The proposed amendment does not adversely affect accident initiators nor alter design assumptions, conditions, or configuration of the facility and does not adversely affect the ability of structures, systems, or components (SSCs) to perform their design function. SSCs required to mitigate DBAs and DBEs and to safely shut down the reactor and to maintain it in a safe shutdown condition will remain capable of performing their design functions.
The purpose of the proposed amendment is to permit PPBNP to adopt a new fire protection licensing basis, which complies with the requirements in 10 CFR 50.48(a) and (c) and the guidance in Revision 1 of Regulatory Guide (RG) 1.205. As endorsed in NRC regulation 10 CFR 50.48(c) and RG 1.205, the NRC considers that NFPA 805 provides an acceptable methodology and performance criteria for licensees to identify [fire] protection systems and features that are an acceptable alternative to the 10 CFR 50, Appendix R, fire protection features (69 FR 33536, June 16, 2004). Engineering analyses, in accordance with NFPA 805 and Revision 2 of NEI 04-02, have been performed to demonstrate that the risk-informed, performance-based (RI-PB) requirements of NFPA 805 have been met.
NFPA 805, taken as a whole, provides an acceptable alternative to 10 CFR 50.48(b), satisfies 10 CFR 50.48(a) and General Design Criterion (GDC) 3 of Appendix A to 10 CFR 50, meets the underlying intent of the NRC's existing fire protection regulations and guidance, achieves defense-in-depth (DID), and meets the goals, performance objectives, and performance criteria in Chapter 1 of the
Based on this, the implementation of this [proposed] amendment does not significantly increase the probability of any accident previously evaluated. Equipment required to mitigate DBAs or DBEs remain capable of performing their assumed function. Therefore, the consequences of any accident or event previously evaluated are not significantly increased with the implementation of this [proposed] amendment.
The probability of these accidents and events was not impacted by this proposed transition. The radiological consequences were evaluated as documented in Section 4.4, Radioactive Release Performance Criteria, and Attachment E, NEI 04-02 Radioactive Release Transition, which demonstrates that the radiological consequences of these accidents and events were not significantly increased.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
Operation of PBNP in accordance with the proposed amendment does not create the possibility of a new or different kind of accident from any accident previously evaluated. Any scenario or previously analyzed design basis accidents or events with potential offsite radiological consequences were included in the evaluations documented in the UFSAR. The proposed change does not alter the requirements or functions for systems required during design basis accidents or events. Implementation of the proposed new fire protection licensing basis, which complies with the requirements in 10 CFR 50.48(a) and (c) and the guidance in Revision 1 of RG 1.205, will not result in new or different accidents.
The proposed amendment does not adversely affect accident initiators nor alter design assumptions, conditions, or configurations of the PBNP facility. The proposed amendment does not adversely affect the ability of SSCs to perform their design function. SSCs required to mitigate DBAs and DBEs and to safely shut down the reactor and maintain it in a safe shutdown condition remain capable of performing their design functions.
The purpose of the proposed amendment is to permit PBNP to adopt a new fire protection licensing basis, which complies with the requirements in 10 CFR 50.48(a) and (c) and the guidance in Revision 1 of Regulatory Guide (RG) 1.205. As endorsed in NRC regulation 10 CFR 50.48(c) and RG 1.205, the NRC considers that NFPA 805 provides an acceptable methodology and performance criteria for licensees to identify [fire] protection systems and features that are an acceptable alternative to the 10 CFR 50, Appendix R, fire protection features (69 FR 33536, June 16, 2004). Engineering analyses, in accordance with NFPA 805 and Revision 2 of NEI 04-02, have been performed to demonstrate that the risk-informed, performance-based (RI-PB) requirements of NFPA 805 have been met.
The requirements in NFPA 805 address only fire protection and the impacts of fire on the plant that have already been evaluated. Based on this, the implementation of the proposed amendment does not create the possibility of a new or different kind of accident from any kind of accident previously evaluated. The proposed changes do not involve new failure mechanisms or malfunctions that can initiate a new accident.
Therefore, the possibility of a new or different kind of accident from any kind of accident previously evaluated is not created with the implementation of this proposed amendment.
3. Does the proposed amendment involve a significant reduction in the margin of safety?
Response: No.
Operation of PBNP in accordance with the proposed amendment does not involve a significant reduction in the margin of safety. The proposed amendment does not alter the manner in which safety limits, limiting safety system settings, or limiting conditions for operation are determined. The safety analyses acceptance criteria are not affected by this change. The proposed amendment does not adversely affect existing plant safety margins or the reliability of equipment assumed to mitigate DBAs or DBEs in the UFSAR. The proposed amendment does not adversely affect the ability of SSCs to perform their design function. SSCs required to safely shut down the reactor and to maintain it in a safe shutdown condition remain capable of performing their design function.
The purpose of this amendment is to permit PBNP to adopt a new fire protection licensing basis, which complies with the requirements in 10 CFR 50.48(a) and (c) and the guidance in Revision 1 of Regulatory Guide (RG) 1.205. As endorsed in NRC regulation 10 CFR 50.48(c) and RG 1.205, the NRC considers that NFPA 805 provides an acceptable methodology and performance criteria for licensees to identify [fire] protection systems and features that are an acceptable alternative to the 10 CFR 50, Appendix R, fire protection features (69 FR 33536, June 16, 2004). Engineering analyses, in accordance with NFPA 805 and Revision 2 of NEI 04-02, have been performed, including probabilistic risk assessments and fire modeling calculations, to demonstrate that the performance-based methods do not result in a significant reduction in the margin of safety. NFPA 805 continues to protect public health and safety and the common defense and security because the overall approach of NFPA 805 is consistent with key principles for evaluating license basis changes, as described in RG 1.174, is consistent with the defense-in-depth philosophy, and maintains sufficient safety margins.
Based on this, the implementation of this proposed amendment does not significantly reduce the margin of safety. The proposed changes are evaluated to ensure that the risk and safety margins are kept within acceptable limits.
Therefore, the transition does not involve a significant reduction in the margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change revises the CSP Milestone 8 implementation date. This change does not alter accident analysis assumptions, add any initiators, or affect the function of plant systems or the manner in which systems are operated, maintained, modified, tested, or inspected. The proposed change is an extension to the completion date of implementation Milestone 8, that in itself does not require any plant modifications which affect the performance capability of the structures, systems, and components relied upon to mitigate the consequences of postulated accidents and have no impact on
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change revises the CSP Implementation Schedule. This proposed change to extend the completion date of implementation Milestone 8 does not alter accident analysis assumptions, add any initiators, or affect the function of plant systems or the manner in which systems are operated, maintained, modified, tested, or inspected. The proposed change does not require any plant modifications which affect the performance capability of the structures, systems and components relied upon to mitigate the consequences of postulated accidents. This change also does not create the possibility of a new or different kind of accident from any accident previously evaluated.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Response: No.
Plant safety margins are established through limiting conditions for operation, limiting safety system settings, and safety limits specified in the technical specifications. The proposed change extends the CSP implementation schedule. Because there is no change to these established safety margins as result of this change, the proposed change does not involve a significant reduction in a margin of safety.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change revises the CSP Milestone 8 implementation date. This change does not alter accident analysis assumptions, add any initiators, or affect the function of plant systems or the manner in which systems are operated, maintained, modified, tested, or inspected. The proposed change is an extension to the completion date of implementation Milestone 8, that in itself does not require any plant modifications which affect the performance capability of the structures, systems, and components relied upon to mitigate the consequences of postulated accidents and have no impact on the probability or consequences of an accident previously evaluated.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change revises the CSP Implementation Schedule. This proposed change to extend the completion date of implementation Milestone 8 does not alter accident analysis assumptions, add any initiators, or affect the function of plant systems or the manner in which systems are operated, maintained, modified, tested, or inspected. The proposed change does not require any plant modifications which affect the performance capability of the structures, systems and components relied upon to mitigate the consequences of postulated accidents. This change also does not create the possibility of a new or different kind of accident from any accident previously evaluated.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
Plant safety margins are established through limiting conditions for operation, limiting safety system settings, and safety limits specified in the technical specifications. The proposed change extends the CSP implementation schedule. Because there is no change to these established safety margins as result of this change, the proposed change does not involve a significant reduction in a margin of safety.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change revises the CSP Milestone 8 implementation date. This change does not alter accident analysis assumptions, add any initiators, or affect the
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change revises the CSP Implementation Schedule. This proposed change to extend the completion date of implementation Milestone 8 does not alter accident analysis assumptions, add any initiators, or affect the function of plant systems or the manner in which systems are operated, maintained, modified, tested, or inspected. The proposed change does not require any plant modifications which affect the performance capability of the structures, systems and components relied upon to mitigate the consequences of postulated accidents. This change also does not create the possibility of a new or different kind of accident from any accident previously evaluated.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
Plant safety margins are established through limiting conditions for operation, limiting safety system settings, and safety limits specified in the technical specifications. The proposed change extends the CSP implementation schedule. Because there is no change to these established safety margins as result of this change, the proposed change does not involve a significant reduction in a margin of safety.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
A. This Order contains instructions regarding how potential parties to this proceeding may request access to documents containing SUNSI.
B. Within 10 days after publication of this notice of hearing and opportunity to petition for leave to intervene, any potential party who believes access to SUNSI is necessary to respond to this notice may request such access. A “potential party” is any person who intends to participate as a party by demonstrating standing and filing an admissible contention under 10 CFR 2.309. Requests for access to SUNSI submitted later than 10 days after publication of this notice will not be considered absent a showing of good cause for the late filing, addressing why the request could not have been filed earlier.
C. The requester shall submit a letter requesting permission to access SUNSI to the Office of the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemakings and Adjudications Staff, and provide a copy to the Associate General Counsel for Hearings, Enforcement and Administration, Office of the General Counsel, Washington, DC 20555-0001. The expedited delivery or courier mail address for both offices is: U.S. Nuclear Regulatory Commission, 11555 Rockville Pike, Rockville, Maryland 20852. The email address for the Office of the Secretary and the Office of the General Counsel are
(1) A description of the licensing action with a citation to this
(2) The name and address of the potential party and a description of the potential party's particularized interest that could be harmed by the action identified in C.(1); and
(3) The identity of the individual or entity requesting access to SUNSI and the requester's basis for the need for the information in order to meaningfully participate in this adjudicatory proceeding. In particular, the request must explain why publicly-available versions of the information requested would not be sufficient to provide the basis and specificity for a proffered contention.
D. Based on an evaluation of the information submitted under paragraph C.(3) the NRC staff will determine within 10 days of receipt of the request whether:
(1) There is a reasonable basis to believe the petitioner is likely to establish standing to participate in this NRC proceeding; and
(2) The requestor has established a legitimate need for access to SUNSI.
E. If the NRC staff determines that the requestor satisfies both D.(1) and D.(2) above, the NRC staff will notify the requestor in writing that access to SUNSI has been granted. The written notification will contain instructions on
F. Filing of Contentions. Any contentions in these proceedings that are based upon the information received as a result of the request made for SUNSI must be filed by the requestor no later than 25 days after the requestor is granted access to that information. However, if more than 25 days remain between the date the petitioner is granted access to the information and the deadline for filing all other contentions (as established in the notice of hearing or opportunity for hearing), the petitioner may file its SUNSI contentions by that later deadline. This provision does not extend the time for filing a request for a hearing and petition to intervene, which must comply with the requirements of 10 CFR 2.309.
G. Review of Denials of Access.
(1) If the request for access to SUNSI is denied by the NRC staff after a determination on standing and need for access, the NRC staff shall immediately notify the requestor in writing, briefly stating the reason or reasons for the denial.
(2) The requester may challenge the NRC staff's adverse determination by filing a challenge within 5 days of receipt of that determination with: (a) the presiding officer designated in this proceeding; (b) if no presiding officer has been appointed, the Chief Administrative Judge, or if he or she is unavailable, another administrative judge, or an administrative law judge with jurisdiction pursuant to 10 CFR 2.318(a); or (c) officer if that officer has been designated to rule on information access issues.
H. Review of Grants of Access. A party other than the requester may challenge an NRC staff determination granting access to SUNSI whose release would harm that party's interest independent of the proceeding. Such a challenge must be filed with the Chief Administrative Judge within 5 days of the notification by the NRC staff of its grant of access.
If challenges to the NRC staff determinations are filed, these procedures give way to the normal process for litigating disputes concerning access to information. The availability of interlocutory review by the Commission of orders ruling on such NRC staff determinations (whether granting or denying access) is governed by 10 CFR 2.311.
I. The Commission expects that the NRC staff and presiding officers (and any other reviewing officers) will consider and resolve requests for access to SUNSI, and motions for protective orders, in a timely fashion in order to minimize any unnecessary delays in identifying those petitioners who have standing and who have propounded contentions meeting the specificity and basis requirements in 10 CFR Part 2. Attachment 1 to this Order summarizes the general target schedule for processing and resolving requests under these procedures.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Biweekly notice.
Pursuant to Section 189a. (2) of the Atomic Energy Act of 1954, as amended (the Act), the U.S. Nuclear Regulatory Commission (NRC) is publishing this regular biweekly notice. The Act requires the Commission to publish notice of any amendments issued, or proposed to be issued and grants the Commission the authority to issue and make immediately effective any amendment to an operating license or combined license, as applicable, upon a determination by the Commission that such amendment involves no significant hazards consideration, notwithstanding the pendency before the Commission of a request for a hearing from any person.
This biweekly notice includes all notices of amendments issued, or proposed to be issued from June 12, to June 25, 2014. The last biweekly notice was published on June 24, 2014.
Comments must be filed by August 7, 2014. A request for a hearing must be filed by September 8, 2014.
You may submit comments by any of the following methods (unless this document describes a different method for submitting comments on a specific subject):
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Sandra Figueroa, Office, U.S. Nuclear Regulatory Commission, Washington DC 20555-0001; telephone: 301-415-1262, email:
Please refer to Docket ID NRC-2014-0159 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
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•
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Please include Docket ID NRC-2014-0159 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
The Commission has made a proposed determination that the following amendment requests involve no significant hazards consideration. Under the Commission's regulations in § 50.92 of Title 10 of the
The Commission is seeking public comments on this proposed determination. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination.
Normally, the Commission will not issue the amendment until the expiration of 60 days after the date of publication of this notice. The Commission may issue the license
Within 60 days after the date of publication of this notice, any person(s) whose interest may be affected by this action may file a request for a hearing and a petition to intervene with respect to issuance of the amendment to the subject facility operating license or combined license. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's “Agency Rules of Practice and Procedure” in 10 CFR Part 2. Interested person(s) should consult a current copy of 10 CFR 2.309, which is available at the NRC's PDR, located at One White Flint North, Room O1-F21, 11555 Rockville Pike (first floor), Rockville, Maryland 20852. The NRC's regulations are accessible electronically from the NRC Library on the NRC's Web site at
As required by 10 CFR 2.309, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements: (1) The name, address, and telephone number of the requestor or petitioner; (2) the nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the requestor's/petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the requestor's/petitioner's interest. The petition must also identify the specific contentions which the requestor/petitioner seeks to have litigated at the proceeding.
Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the requestor/petitioner shall provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the requestor/petitioner intends to rely in proving the contention at the hearing. The requestor/petitioner must also provide references to those specific sources and documents of which the petitioner is aware and on which the requestor/petitioner intends to rely to establish those facts or expert opinion. The petition must include sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the amendment under consideration. The contention must be one which, if proven, would entitle the requestor/petitioner to relief. A requestor/petitioner who fails to satisfy these requirements with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing.
If a hearing is requested, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to decide when the hearing is held. If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing held would take place after issuance of the amendment. If the final determination is that the amendment request involves a significant hazards consideration, then any hearing held would take place before the issuance of any amendment.
All documents filed in NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC's E-Filing rule (72 FR 49139; August 28, 2007). The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least ten 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public Web site at
If a participant is electronically submitting a document to the NRC in accordance with the E-Filing rule, the participant must file the document using the NRC's online, Web-based submission form. In order to serve documents through the Electronic Information Exchange System, users will be required to install a Web browser plug-in from the NRC's Web site. Further information on the Web-based submission form, including the installation of the Web browser plug-in, is available on the NRC's public Web site at
Once a participant has obtained a digital ID certificate and a docket has been created, the participant can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with NRC guidance available on the NRC's public Web site at
A person filing electronically using the NRC's adjudicatory E-Filing system may seek assistance by contacting the NRC Meta System Help Desk through the “Contact Us” link located on the NRC's public Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland, 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket which is available to the public at
Petitions for leave to intervene must be filed no later than 60 days from the date of publication of this notice. Requests for hearing, petitions for leave to intervene, and motions for leave to file new or amended contentions that are filed after the 60-day deadline will not be entertained absent a determination by the presiding officer that the filing demonstrates good cause by satisfying the three factors in 10 CFR 2.309(c)(1)(i)-(iii).
For further details with respect to these license amendment applications, see the application for amendment which is available for public inspection in ADAMS and at the NRC's PDR. For additional direction on obtaining information related to this document, see the “Obtaining Information and Submitting Comments” section of this document.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed amendment involves changes to the IP3 [Indian Point Unit No. 3] containment leakage rate testing program. The proposed amendment does not involve a physical change to the plant or a change in the manner in which the plant is operated or controlled. The primary containment function is to provide an essentially leak tight barrier against the uncontrolled release of radioactivity to the environment for postulated accidents. As such, the containment itself and the testing requirements to periodically demonstrate the integrity of the containment exist to ensure the plant's ability to mitigate the consequences of an accident do not involve any accident precursors or initiators.
Therefore, the probability of occurrence of an accident previously evaluated is not significantly increased by the proposed amendment.
The proposed amendment adopts the NRC [Nuclear Regulatory Commission] accepted guidelines of [Nuclear Energy Institute] NEI 94-01, Revision 3-A, for development of the IP3 performance-based testing program for the Type A testing. Implementation of these guidelines continues to provide adequate assurance that during design basis accidents, the primary containment and its components would limit leakage rates to less than the
Therefore, it is concluded that the proposed amendment does not significantly increase the consequences of an accident previously evaluated.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed amendment adopts the NRC-accepted guidelines of NEI 94-01, Revision 3-A, for the development of the IP3 performance-based leakage testing program, and establishes a 15-year interval for the performance of the containment ILRT. The containment and the testing requirements to periodically demonstrate the integrity of the containment exist to ensure the plant's ability to mitigate the consequences of an accident do not involve any accident precursors or initiators. The proposed change does not involve a physical change to the plant (i.e., no new or different type of equipment will be installed) or a change to the manner in which the plant is operated or controlled.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
The proposed amendment adopts the NRC-accepted guidelines of NEI 94-01, Revision 3-A, for the development of the IP3 performance-based leakage testing program, and establishes a 15-year interval for the performance of the containment ILRT. This amendment does not alter the manner in which safety limits, limiting safety system setpoints, or limiting conditions for operation are determined. The specific requirements and conditions of the containment leakage rate testing program, as defined in the TS [technical specifications], ensure that the degree of primary containment structural integrity and leak-tightness that is considered in the plant's safety analysis is maintained. The overall containment leakage rate limit specified by the TS is maintained, and the Type A, Type B, and Type C containment leakage tests would be performed at the frequencies established in accordance with the NRC-accepted guidelines of NEI 94-01, Revision 3-A.
Containment inspections performed in accordance with other plant programs serve to provide a high degree of assurance that the containment would not degrade in a manner that is not detectable by an ILRT. A risk assessment using the current IP3 PSA [probabilistic safety assessment] model concluded that extending the ILRT test interval from ten years to 15 years results in a very small change to the risk profile.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change revises the Steam Generator (SG) Program to modify the frequency of verification of SG tube integrity and SG tube sample selection. A steam generator tube rupture (SGTR) event is one of the design basis accidents that are analyzed as part of a plant's licensing basis. The proposed SG tube inspection frequency and sample selection criteria will continue to ensure that the SG tubes are inspected such that the probability of a SGTR is not increased. The consequences of a SGTR are bounded by the conservative assumptions in the design basis accident analysis. The proposed change will not cause the consequences of a SGTR to exceed those assumptions. The proposed change to reporting requirements and clarifications of the existing requirements have no affect on the probability or consequences of a SGTR.
Therefore, this change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed changes to the SG Program will not introduce any adverse changes to the plant design basis or postulated accidents resulting from potential tube degradation. The proposed changes do not affect the design of the SGs or their method of operation. In addition, the proposed changes do not impact any other plant system or component.
Therefore, the proposed changes do not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The SG tubes in pressurized water reactors are an integral part of the reactor coolant pressure boundary and, as such, are relied upon to maintain the primary system's pressure and inventory. As part of the reactor coolant pressure boundary, the SG tubes are unique in that they are also relied upon as a heat transfer surface between the primary and secondary systems such that residual heat can be removed from the primary system. In addition, the SG tubes also isolate the radioactive fission products in the primary coolant from the secondary system. In summary, the safety function of a SG is maintained by ensuring the integrity of its tubes.
Steam generator tube integrity is a function of the design, environment, and the physical condition of the tube. The proposed change does not affect tube design or operating environment. The proposed change will continue to require monitoring of the physical condition of the SG tubes such that there will not be a reduction in the margin of safety compared to the current requirements.
Changes associated with inspection frequency and tube selection criteria are consistent with TSTF-510 Revision 2 and are based on recent industry experience and are more effective in managing the frequency of verification of tube integrity and sample selection than those required by current TSs [technical specifications].
Therefore, the proposed change does not involve a significant reduction in any margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
Decreasing the reactor pressure in TS Safety Limit 2.1.1.1 or 2.1.1.2 for reactor rated thermal power ranges effectively expands the validity range for GEXL correlation and the calculation of Minimum Critical Power Ratio Safety Limit (MCPR). The [critical power ratio] CPR rises during the pressure reduction following the scram that terminates the PRFO transient. Since the change does not involve a modification of any plant hardware, the probability and consequence of the PRFO transient are essentially unchanged. The reduction in the reactor dome pressure value in the safety limit from 800 psia (785 psig) to 700 psia (685 psig) provides greater margin to accommodate the pressure reduction during the transient within the revised TS limit.
The proposed change will continue to support the validity range for GEXL correlation and the calculation of MCPR as approved. The proposed TS revision involves no significant changes to the operation of any systems or components in normal or accident or transient operating conditions.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed reduction in the reactor pressure value in the safety limit from 800 psia (785 psig) to 700 psia (685 psig) reflects a wider range of applicability for the GEXL correlation for fuels in use at JAF and does not involve changes to the plant hardware or its operating characteristics. As a result, no new failure modes are being introduced.
Therefore, the change does not introduce a new or different kind of accident from those previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The margin of safety is established through the design of the plant structures, systems, and components, and through the parameters for safe operation and setpoints for the actuation of equipment relied upon to respond to transients and design basis accidents. The proposed change in the reactor pressure safety limit enhances the safety margin, which protects the fuel cladding integrity during a depressurization transient, but does not change the requirements governing operation or availability of safety equipment assumed to operate to preserve the margin of safety. The change does not alter the behavior of plant equipment, which remains unchanged. The available pressure range is expanded by the change, thus offering greater margin for pressure reduction during the transient.
Therefore, the proposed change does not involve a significant reduction in the margin of safety.
Based on the above, Entergy concludes that the proposed amendment presents no significant hazards consideration under the standards set forth in 10 CFR 50.92(c), and, accordingly, a finding of “no significant hazards consideration” is justified.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
Criterion 1: The Proposed Change Does Not Involve a Significant Increase in the Probability or Consequences of an Accident Previously Evaluated
Operation of Arkansas Nuclear One, Unit 1 (ANO-1) in accordance with the proposed amendment does not result in a significant increase in the probability or consequences of accidents previously evaluated. The proposed amendment does not affect accident initiators or precursors as described in the ANO-1 Safety Analysis Report (SAR), nor does it adversely alter design assumptions, conditions, or configurations of the facility, and it does not adversely impact the ability of structures, systems, or components (SSCs) to perform their intended function to mitigate the consequences of accidents described and evaluated in the SAR. The proposed changes do not physically alter safety-related systems nor affect the way in which safety-related systems perform their functions as required by the accident analysis. The SSCs required to safely shut down the reactor and to maintain it in a safe shutdown condition will remain capable of performing their design functions.
The purpose of this amendment is to permit ANO-1 to adopt a new risk-informed, performance-based fire protection licensing basis that complies with the requirements in 10 CFR 50.48(a) and 10 CFR 50.48(c), as well as the guidance contained in Regulatory Guide (RG) 1.205. The NRC considers that NFPA 805 provides an acceptable methodology and performance criteria for licensees to identify fire protection requirements that are an acceptable
The purpose of the fire protection program is to provide assurance, through defense-in-depth, that the NRC's fire protection objectives are satisfied. These objectives are: (1) preventing fires from starting; (2) rapidly detecting and controlling fires and promptly extinguishing those fires that do occur, thereby limiting fire damage; (3) providing an adequate level of fire protection for SSCs important to safety, so that a fire that is not promptly extinguished will not prevent essential plant safety functions from being performed; and (4) ensuring that fires will not significantly increase the risk of radioactive releases to the environment. In addition, fire protection systems must be designed such that their failure or inadvertent operation does not adversely impact the ability of the SSCs important to safety to perform their safety-related functions.
NFPA 805, taken as a whole, provides an acceptable alternative for satisfying General Design Criterion 3 (GDC 3) of Appendix A to 10 CFR Part 50, meets the underlying intent of the NRC's existing fire protection regulations and guidance, and achieves defense-in-depth along with the goals, performance objectives, and performance criteria specified in NFPA 805, Chapter 1. In addition, if there are any increases in core damage frequency (CDF) or risk as a result of the transition to NFPA 805, the increase will be small, bounded by the delta risk requirements of NFPA 805, and consistent with the intent of the Commission's Safety Goal Policy.
Engineering analyses, which may include engineering evaluations, probabilistic risk assessments, and fire modeling calculations, have been performed to demonstrate that the performance-based requirements of NFPA 805 have been met. The SAR documents the analyses of design basis accidents (DBAs) at ANO-1. All accident analysis acceptance criteria will continue to be met with the proposed amendment. The proposed changes will not affect the source term, containment isolation, or radiological release assumptions used in evaluating the radiological consequences of any accident previously evaluated. The proposed changes will not alter any assumptions or change any mitigation actions for the radiological consequence evaluations in the ANO-1 SAR. In addition, the applicable radiological dose acceptance criteria will continue to be met.
Based on the above, the implementation of this amendment to transition the Fire Protection Plan (FPP) at ANO-1 to one based on NFPA 805, in accordance with 10 CFR 50.48(c), does not result in a significant increase in the probability of any accident previously evaluated. In addition, all equipment required to mitigate an accident remains capable of performing the assumed function. Therefore, the consequences of any accident previously evaluated are not significantly increased with the implementation of this amendment.
Criterion 2: The Proposed Change Does Not Create the Possibility of a New or Different Kind of Accident from Any Accident Previously Evaluated
Operation of ANO-1 in accordance with the proposed amendment does not create the possibility of a new or different kind of accident from any accident previously evaluated. Previously analyzed accidents with potential offsite dose consequences were included in the evaluation of the transition to NFPA 805. The proposed amendment does not impact these accident analyses. The proposed change does not alter the requirements or functions for systems required during accident conditions as assumed in the licensing basis analyses and/or DBA radiological consequences evaluations.
Implementation of the new risk-informed, performance-based fire protection licensing basis, which complies with the requirements in 10 CFR 50.48(a) and 10 CFR 50.48(c), as well as the guidance contained in RG 1.205, will not result in new or different kinds of accidents. The NRC considers that NFPA 805 provides an acceptable methodology and performance criteria for licensees to identify fire protection systems and features that are an acceptable alternative to the 10 CFR 50, Appendix R fire protection features (69 FR 33536, June 16, 2004). No new modes of operation are introduced by the proposed amendment, nor will it create any failure mode not bounded by previously evaluated accidents. Further, the impacts of the proposed change are not directly assumed in any safety analysis to initiate an accident sequence.
The requirements in NFPA 805 address only fire protection and the impacts of fire effects on the plant have been evaluated. The proposed fire protection program changes do not involve new failure mechanisms or malfunctions that could initiate a new or different kind of accident beyond those already analyzed in the SAR. Based on this, as well as the discussion above, the implementation of this amendment to transition the FPP at ANO-1 to one based on NFPA 805, in accordance with 10 CFR 50.48(c), does not create the possibility of a new or different kind of accident from any accident previously evaluated.
Criterion 3: The Proposed Change Does Not Involve a Significant Reduction in a Margin of Safety
Operation of ANO-1 in accordance with the proposed amendment does not involve a significant reduction in a margin of safety. The transition to a new risk-informed, performance-based fire protection licensing basis that complies with the requirements in 10 CFR 50.48(a) and 10 CFR 50.48(c) does not alter the manner in which safety limits, limiting safety system settings, or limiting conditions for operation are determined. The safety analysis acceptance criteria are not affected by this change. The proposed amendment does not adversely affect existing plant safety margins or the reliability of equipment assumed in the SAR to mitigate accidents. The proposed change does not adversely impact systems that respond to safely shut down the plant and maintain the plant in a safe shutdown condition. In addition, the proposed amendment will not result in plant operation in a configuration outside the design basis for an unacceptable period of time without implementation of appropriate compensatory measures.
The risk evaluations for plant changes, in part as they relate to the potential for reducing a safety margin, were measured quantitatively for acceptability using the delta risk (i.e., ΔCDF and ΔLERF [large early release frequency]) criteria from Section 5.3.5, “Acceptance Criteria,” of NEI 04-02, as well as the guidance contained in RG 1.205. Engineering analyses, which may include engineering evaluations, probabilistic safety assessments, and fire modeling calculations, have been performed to demonstrate that the performance-based methods of NFPA 805 do not result in a significant reduction in the margin of safety. As such, the proposed changes are evaluated to ensure that risk and safety margins are kept within acceptable limits. Based on the above, the implementation of this amendment to transition the FPP at ANO-1 to one based on NFPA 805, in accordance with 10 CFR 50.48(c), will not significantly reduce a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed changes would revise TS 4.5.M to conform the TS to the revised Snubber Inspection Program. Snubber examination, testing and service life
Therefore, the probability of an accident previously evaluated is not significantly increased.
Snubbers will continue to be demonstrated OPERABLE by performance of a program for examination, testing and service life monitoring in compliance with 10 CFR 50.55a or authorized alternatives. The proposed changes do not adversely affect plant operations, design functions or analyses that verify the capability of systems, structures, and components to perform their design functions.
Therefore, the consequences of accidents previously evaluated are not significantly increased.
Based on the above, these proposed changes do not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the amendment change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed changes do not involve any physical alteration of plant equipment. The proposed changes do not alter the method by which any safety-related system performs its function. As such, no new or different types of equipment will be installed, and the basic operation of installed equipment is unchanged. The methods governing plant operation and testing remain consistent with current safety analysis assumptions.
Therefore, it is concluded that these proposed changes do not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The proposed changes ensure snubber examination, testing and service life monitoring will continue to meet the requirements of 10 CFR 50.55a(g). Snubbers will continue to be demonstrated OPERABLE by performance of a program for examination, testing and service life monitoring in compliance with 10 CFR 50.55a or authorized alternatives.
Therefore, it is concluded that the proposed changes do not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed TS changes do not involve a significant increase in the probability or consequences of an accident previously evaluated. There are no physical changes to the plant being introduced by the proposed changes to the heatup and cooldown limitation curves. The proposed changes do not modify the RCS pressure boundary. That is, there are no changes in operating pressure, materials, or seismic loading. The proposed changes do not adversely affect the integrity of the RCS pressure boundary such that its function in the control of radiological consequences is affected.
Therefore, it is concluded that the proposed amendment does not involve a significant increase in the probability or the consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed TS changes do not create the possibility of a new or different kind of accident from any accident previously evaluated. No new modes of operation are introduced by the proposed changes. The proposed changes will not create any failure mode not bounded by previously evaluated accidents. Further, the proposed changes to the heatup and cooldown limitation curves do not affect any activities or equipment other than the RCS pressure boundary and do not create the possibility of a new or different kind of accident from any accident previously evaluated.
Consequently, the proposed changes do not create the possibility of a new or different kind of accident, from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Response: No.
The proposed TS changes do not involve a significant reduction in the margin of safety. The revised heatup and cooldown limitation curves and low-temperature overpressure protection limits are established in accordance with current regulations and the [American Society of Mechanical Engineers Boiler and Pressure Vessel (ASME B&PV)] Code 1995 edition with 1996 Addenda. These proposed changes are acceptable because the ASME B&PV Code maintains the margin of safety required by [Title 10 of the
Therefore, the proposed amendment does not involve a significant reduction in margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change to the Emergency Plan does not impact the function of plant structures, systems, or components (SSCs). The proposed change does not affect accident initiators or precursors, nor does it alter design assumptions. The proposed change does not alter or prevent the ability of the Emergency Response Organization to perform their intended functions to mitigate the consequences of an accident or event. This proposed change only removes a no longer credited position from the Emergency Plan.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change does not impact the accident analysis. The change does not involve a physical alteration of the plant (i.e., no new or different type of equipment will be installed), a change in the method of plant operation, or new operator actions. The proposed change does not introduce failure modes that could result in a new accident, and the change does not alter assumptions made in the safety analysis. This proposed change only removes a no longer credited position from the Emergency Plan. The proposed change, therefore, does not alter or prevent the ability of the Emergency Response Organization to perform their intended functions to mitigate the consequences of an accident or event.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Response: No.
Margin of safety is associated with confidence in the ability of the fission product barriers (i.e., fuel cladding, reactor coolant system pressure boundary, and containment structure) to limit the level of radiation dose to the public. The proposed change is associated with the Emergency Plan staffing and does not impact operation of the plant or its response to transients or accidents. The change does not affect the Technical Specifications. The proposed change does not involve a change in the method of plant operation, and no accident analyses will be affected by the proposed change. Safety analysis acceptance criteria are not affected by this proposed change. The revised Emergency Plan will continue to provide the necessary response staff with the proposed change.
Therefore, the proposed change does not involve a significant reduction in the margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The requested change revises the performance interval of one TS surveillance requirement to be consistent with the Inservice Testing Program as stated in 10 CFR 50.55a(g)(5). The performance of the surveillance, or the failure to perform the surveillance, is not a precursor to an accident. Performing the surveillance or failing to perform the surveillance does not affect the probability of an accident. Even with the requested extension, the period during which the plant is in Modes 1 or 2 and the valves are required to be operable will be no longer than a typical operating cycle. Also, the proposed interval between tests will be consistent with the interval for this type of valve specified by the American Society of Mechanical Engineers (ASME) Code for Operation and Maintenance of Nuclear Power Plants (OM Code), 1998 Edition, through 2000 Addenda, Appendix I, frequency requirements for testing of pressure relief valves.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change does not alter the physical design, safety limits, or safety analysis assumptions associated with the operation of the plant. Hence, the proposed change does not introduce any new accident initiators, nor does it reduce or adversely affect the capabilities of any plant structure or system in the performance of their safety function.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The proposed change revises the performance interval for one surveillance requirement to be consistent with the test interval for this type of valve specified by the ASME OM Code, 1998 Edition, through 2000 Addenda as required by 10 CFR 50.55a. This change does not alter any safety margins.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or
Response: No.
The proposed changes do not involve a significant increase in the probability or consequences of an accident previously evaluated.
The proposed change to Technical Specification (TS) 2.5 would allow a seven day Completion Time for the turbine-driven Auxiliary Feedwater (AFW) pump if the inoperability occurs following a refueling outage, and if MODE 2 had not been entered. The note currently in TS 2.5 Applicability addresses the issue of allowing additional time to perform necessary testing to prove the operability of the turbine driven AFW pump following refueling as approved by the NRC in TS Amendment 127. This note does not specifically state that it is only allowed following refueling and does not restrict the time the plant can be in this condition. The proposed change will be more restrictive than the current TS since it will specifically state when it is allowed (following refueling) and for how long it is allowed.
The proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated because: 1) the proposed amendment does not represent a change to the system design, 2) the proposed amendment does not prevent the safety function of the AFW system from being performed, since the other fully redundant essential train is required to be operable, 3) the proposed amendment does not alter, degrade, or prevent action described or assumed in any accident Updated Safety Analysis Report (USAR) from being performed since the other train of AFW is required to be operable, 4) the proposed amendment does not alter any assumptions previously made in evaluating radiological consequences, and 5) the proposed amendment does not affect the integrity of any fission product barrier. No other safety related equipment is affected by the proposed change.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change does not alter the physical design, safety limits, or safety analysis assumptions associated with the operation of the plant. Hence, the proposed change does not introduce any new accident initiators, nor does it reduce or adversely affect the capabilities of any plant structure or system in the performance of their safety function.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The proposed changes do not involve a significant reduction in a margin of safety. The proposed change to TS 2.5 would restrict for the turbine-driven AFW pump inoperability to a seven day Completion Time if the inoperability occurs following a refueling outage and prior to MODE 2 being entered. The current Note in TS 2.5 Applicability does not require the turbine driven AFW pump to be operable until prior to entering MODE 2; therefore, the proposed change is more restrictive than current TS.
The proposed change does not involve a significant reduction in a margin of safety because: (1) during a return to power operations following a refueling outage, decay heat is at its lowest levels, (2) the other AFW train is required to be operable, and (3) the motor-driven AFW train can provide sufficient flow to remove decay heat and cool the unit to shutdown cooling system entry conditions from power operations. This change does not alter any safety margins.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
[T]his change to the Updated Safety Analysis Report (USAR) has no effect on the consequences of any accident, as it makes no physical changes to the plant. Since the Alternate Seismic Criteria and Methodologies (ASCM) floor response spectra (FRS) represent a refined version of the plant's original design basis, the design margins for any application utilizing the FRS will be maintained with respect to the design basis earthquake. Thus, the proposed amendment does not result in a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
[T]he change to the USAR does not change any accident analyses, does not make any physical changes to the plant, and does not change the way the plant is operated. The only change is to permit the utilization of the ASCM curves in the design and evaluation of structural applications. The curves themselves are based on the same earthquake as the plant's original design. Thus, the proposed amendment does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
[T]he ASCM FRS is based on the same earthquake as the plant's original design basis. The ASCM FRS are refined curves of the same design basis and thus, the design margins of any application or evaluation utilizing the ASCM FRS will be maintained with respect to the design basis earthquake. Thus, the proposed amendment does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change to the current licensing basis (CLB) allows the use of American Society of Mechanical Engineers (ASME) Boiler and Pressure Vessel (BPV) Code, Section III, 1980 Edition (no Addenda) as an alternative to the original Code of Record (i.e., United States of America Standards (USAS) B31.7 1968 (DRAFT) Edition) for the design and analysis of non-reactor coolant system (RCS) piping. The American National Standards Institute (ANSI) B31 Code Committee has determined that:
“. . . piping that has been designed and constructed in accordance with Section III of the ASME Boiler and Pressure Vessel Code including addenda and applicable cases may be accepted as complying with the requirements of B31.7, 1969 and applicable addenda for the respective class of construction.”
Although the ANSI B31 Code Committee statement refers to the B31.7, 1969 Edition, there are no significant differences between it and the B31.7 1968 (DRAFT) Edition. The change involves the substitution of one accepted piping Code for another and not a physical plant change. The Updated Safety Analysis Report (USAR) accident analysis assumes the proper functioning of safety systems in demonstrating the adequacy of the plant's design. This change does not alter the intended function of any plant equipment nor does it degrade or increase challenges to the performance of safety systems assumed to function in the accident analysis.
The use of ASME BPV Code, Section III, 1980 Edition (no Addenda) analytical methods provides acceptable design results with no reduction in radiological barrier safety margin. Hence, there is no change in radiological barrier performance that would increase the dose to personnel onsite (10 CFR 20) or to the public at the site boundary (10 CFR 100).
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated in the USAR.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed amendment provides the basis for the use of ASME BPV Code, Section III, 1980 Edition (no Addenda) for stress analysis of non-RCS safety-related piping. This approach will not introduce any methods or analytical techniques that could create the possibility of a new or different kind of accident. Application of a Code methodology does not create the possibility of a different kind of accident.
The application of the ASME BPV Code, Section III, 1980 Edition (no Addenda) does not create any new unanalyzed interactions between systems or components. Piping systems will be analyzed in accordance with the Code, which is one part of the framework to establish the necessary design, fabrication, construction, testing, and performance requirements for structures, systems, and components important to safety. The proposed change to the CLB does not create a new failure mechanism or new accident initiator. The proposed amendment does not involve a change in methods governing the operation of plant systems or components.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated in the USAR.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The Fort Calhoun Station Technical Specifications (TS) ensure that the plant operates in a manner that will ensure acceptable levels of protection for the health and safety of the public. The Technical Specifications ensure that the available equipment and initial conditions for a Design Basis Accident (DBA) as defined in the USAR meet the assumptions in the accident analysis contained in the USAR. The plant safety margins are addressed in the Technical Specification Bases and the USAR.
This proposed amendment revises the CLB to allow the use of ASME BPV Code, Section III, 1980 Edition (no Addenda) for stress analysis of non-RCS safety-related piping. No changes are being made to the physical plant. The use of the ASME BPV Code, Section III, 1980 Edition (no Addenda) does not change, revise, or otherwise affect the current Technical Specifications (TS) or TS Bases. Incorporation of the ASME BPV Code, Section III, 1980 Edition (no Addenda) into the FCS CLB will not affect the current plant design parameters or TS Limiting Conditions for Operation (LCO).
The proposed change does not modify, change, revise, or otherwise affect any current calculations concerning the plant accident analysis or supporting basis for which the TSs, TS Bases, or USAR safety margins were established. Therefore, the proposed amendment does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
(1) Does the change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed changes (deletion of operational requirements and certain design requirements) reflect the complete transfer of the spent fuel from the spent fuel pool to the ISFSI. Design basis accidents related to the spent fuel pool are discussed in the ZNPS Defueled Safety Analysis Report (DSAR) Chapter 5. These postulated accidents are predicated on spent fuel being stored in the spent fuel pool. With the removal of the spent fuel from the spent fuel pool, there are no remaining spent fuel assemblies to be monitored and there are no credible accidents that require the actions of a Certified Fuel Handler, Shift Supervisor, or a Non-certified Operator to prevent occurrence or mitigate the consequences of an accident.
In addition, the ZNPS DSAR Chapter 5 also provides analyses of accidents as result of
The proposed changes do not have an adverse impact on the remaining decommissioning activities or any decommissioning related postulated accident consequences.
The proposed changes related to the relocation of certain administrative requirements do not affect operating procedures or administrative controls that have the function of preventing or mitigating any remaining decommissioning design basis accidents. In addition, these proposed changes are consistent with the guidance of the NRC's Administrative Letter 95-06.
Therefore, the proposed changes do not involve a significant increase in the probability or consequences of any accident previously evaluated.
(2) Does the change create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed changes eliminate the operational requirements and certain design requirements associated with the storage of the spent fuel in the spent fuel pool, and relocate certain administrative controls to the Quality Assurance Program Plan.
With the complete removal of the spent fuel from the spent fuel pool and transfer to the ISFSI, there are no spent fuel assemblies that remain at the plant and the potential for fuel related accidents is removed. The proposed changes do not introduce any new failure modes. Therefore, the proposed changes will not create the possibility of a new or different kind of accident from any previously evaluated.
(3) Does the change involve a significant reduction in a margin of safety?
The design basis and accident assumptions within the ZNPS DSAR and the TS relating to spent fuel are no longer applicable. The proposed changes do not affect remaining plant operations, systems, or components supporting decommissioning activities. In addition, the proposed changes do not result in a change in initial conditions, system response time, or in any other parameter affecting the course of the remaining decommissioning activity accident analysis. Therefore, the proposed changes do not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
During the period since publication of the last biweekly notice, the Commission has issued the following amendments. The Commission has determined for each of these amendments that the application complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR Chapter I, which are set forth in the license amendment.
A notice of consideration of issuance of amendment to facility operating license or combined license, as applicable, proposed no significant hazards consideration determination, and opportunity for a hearing in connection with these actions, was published in the
Unless otherwise indicated, the Commission has determined that these amendments satisfy the criteria for categorical exclusion in accordance with 10 CFR 51.22. Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared for these amendments. If the Commission has prepared an environmental assessment under the special circumstances provision in 10 CFR 51.22(b) and has made a determination based on that assessment, it is so indicated.
For further details with respect to the action see (1) the applications for amendment, (2) the amendment, and (3) the Commission's related letter, Safety Evaluation and/or Environmental Assessment as indicated. All of these items can be accessed as described in the “Accessing Information and Submitting Comments” section of this document.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated June 25, 2014.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated June 23, 2014.
No significant hazards consideration comments received: No.
The NRC staff has issued a partial approval of the original May 29, 2013, amendment request as supplemented, to permit fuel handling activities in accordance with DEK's request in its March 13, 2014, submittal. The staff continues to review the remaining license condition and technical specification changes requested in DEK's May 29, 2013, submittal as supplemented, that were not addressed in this amendment.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated June 9, 2014.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated June 18, 2014.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated June 13, 2014.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated June 16, 2014.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated May 30, 2014.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated June 17, 2014.
No significant hazards consideration comments received: No.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Order; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is issuing an order to revise the Davis-Besse National Fire Protection Association (NFPA) 805 License Amendment Request submittal date of July 1, 2014 to December 31, 2015. This new submittal date extends enforcement discretion until December 31, 2015, and supports FirstEnergy Nuclear Operating Company's (the licensee) continued progress in activities related to the transition to NFPA 805.
Please refer to Docket ID NRC-2014-0162 when contacting the NRC about the availability of information regarding this document. You may access publicly-available
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Gerry Gulla, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington DC 20555-0001; telephone: 301-415-2872,
The text of the Order is attached.
For the Nuclear Regulatory Commission.
FirstEnergy Nuclear Operating Company (FENOC, the licensee) is the holder of Facility Operating License No. NPF-3 issued by the U.S. Nuclear Regulatory Commission (NRC) pursuant to Part 50 of Title 10 of the
On February 27, 2007, FENOC notified the NRC of its intent to adopt National Fire Protection Association (NFPA) Standard 805, “Performance Based Standard for Fire Protection for Light Water Reactor Electric Generating Plants, 2001 Edition,” at Davis-Besse in accordance with 10 CFR 50.48(c). In this February letter, FENOC committed to commence its transition to the performance-based standard on March 1, 2007, and submit its license amendment request (LAR) three years after the transition start date, which would be March 1, 2010. Under this initiative, the NRC has exercised enforcement discretion for most fire protection noncompliances identified during the licensee's transition to NFPA 805, and for certain existing identified noncompliances that may reasonably be resolved at the completion of transition.
The alternative fire protection rule NFPA 805, as adopted in 10 CFR 50.48(c), is one path to resolving longstanding fire protection issues. To receive this enforcement discretion for fire protection noncompliances during transition, the licensee must meet the specific criteria, as stated in Section 9.1, “Enforcement Discretion for Certain Fire Protection Issues (10 CFR 50.48),” of the NRC Enforcement Policy (Policy), and submit an acceptable license amendment application by the date, as specified in the licensee's commitment letter.
On September 10, 2008, the NRC revised Section 9.1 of the Policy to allow licensees to take advantage of the lessons learned from the NFPA 805 pilot plants (73 FR 52705). This revision offered licensees transitioning to NFPA 805 the option to request an extension to their NFPA 805 enforcement discretion to six months after the NRC approved the second pilot plant LAR, given that the requesting plant had made substantial progress in their transition effort. By letter dated January 14, 2010, FENOC requested this extension for Davis-Besse and on March 23, 2010, the NRC granted it (Agencywide Documents Access and Management System (ADAMS) Accession Nos.; ML100191803 and ML100670111, respectively). Accordingly, Davis-Besse, along with other licensees who requested and were granted this extension, had their LAR submittal date extended.
On December 29, 2010, the NRC approved the second pilot plant's license amendment, thereby establishing June 29, 2011, as the expiration date for the enforcement discretion period for about 25 licensees, including Davis-Besse. In an effort to manage this high number of submittals and for the convenience of the staff, the NRC revised the Policy (76 FR 40777) to extend enforcement discretion to allow for the staggered submittal of licensee LARs. To receive this extension, licensees were required to submit a letter to the NRC by June 29, 2011, acknowledging a new LAR submittal commitment date. Accordingly, on June 29, 2011, FENOC submitted their request to submit their LAR for Davis-Besse on or before July 1, 2014 (ADAMS Accession No. ML111800765). On August 1, 2011, the NRC approved their request to extend enforcement discretion (ADAMS Accession No. ML112010151).
In a public meeting held on November 13, 2013, between the NRC and FENOC, the licensee described its progress for transitioning Davis-Besse to NFPA 805. FENOC also informed the NRC that an extension of the schedule for LAR submittal is under consideration to allow appropriate coordination of design modifications that are risk beneficial. In a letter dated April 1, 2014, FENOC expressed a desire to continue enforcement discretion, and a willingness to commit to a new submittal date of December 31, 2015 (ADAMS Accession No. ML14091A453). In accordance with SECY-12-0031, “Enforcement Alternatives for Sites that Indicated Additional Time Required to Submit Their License Amendment Requests to Transition to 10 CFR 50.48(c) National Fire Protection Association Standard 805,” enforcement discretion may be extended, via a confirmatory order, if a licensee provides adequate justification.
In the April and subsequent May 29, 2014 (ADAMS Accession No. ML14149A545) letters, FENOC provided the justification for revising the LAR submittal date. The extension is necessary to incorporate plant modifications that were identified in response to the mitigation strategies for the beyond design basis external events. The extension request is necessary to incorporate these modifications into the PRA that support the NFPA 805 transition and the NFPA 805 LAR, with sufficient technical information for the
Therefore, the NRC has determined that the Davis-Besse NFPA 805 enforcement discretion along with the LAR submittal date should be extended. This Order is being issued to revise the Davis-Besse NFPA 805 LAR submittal date of July 1, 2014 to December 31, 2015. This new submittal date supports FENOC's continued progress in activities related to the transition to NFPA 805, as described in their letters dated April 1, and May 29, 2014.
FENOC may, at any time, cease its transition to NFPA 805 and comply with Davis-Besse's existing licensing basis and the regulations set forth in 10 CFR 50.48, as applicable. As indicated in the Enforcement Policy, if FENOC decides not to complete the transition to 10 CFR 50.48(c), it must submit a letter stating its intent to retain its existing licensing basis and withdrawing its letter of intent to comply with 10 CFR 50.48(c). If FENOC fails to meet the new LAR submittal date and fails to comply with its existing licensing basis, the NRC will take appropriate enforcement action, consistent with its Enforcement Policy.
On June 25, 2014, FENOC consented to issuing this Order, as described in Section V below. FENOC further agreed that this Order will be effective upon issuance and that it has waived its rights to a hearing.
Based on the licensee's current status, scheduled key activities, and planned modifications, the NRC has determined that the licensee has provided adequate justification for its commitment given in Section V, and, thus, for the extension of enforcement discretion. Because the licensee will continue to perform modifications to reduce current fire risk in parallel with the development of its NFPA 805 LAR, the staff finds this acceptable to ensure public health and safety. Based on the above and FENOC's consent, this Order is effective upon issuance.
Accordingly, pursuant to Sections 103, 161b, 161i, 161o, 182, and 186 of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's regulations in 10 CFR 2.202, “Orders,”
A. FENOC will submit an acceptable license amendment request for Davis-Besse Nuclear Power Station, Unit 1, to adopt NFPA Standard 805 by no later than December 31, 2015.
B. FENOC will continue to receive enforcement discretion until December 31, 2015. If the NRC finds that the license amendment request is not acceptable, the NRC will take steps consistent with the Enforcement Policy.
The Director of the Office of Enforcement, in consultation with the Director of the Office of Nuclear Reactor Regulation, may, in writing, relax or rescind any of the above conditions upon demonstration by the licensee of good cause.
In accordance with 10 CFR 2.202, the licensee must, and any other person adversely affected by this Order may, submit an answer to this Order within 30 days from the date of this Order. In addition, any other person adversely affected by this Order may request a hearing on this Order within 30 days from the date of this Order. Where good cause is shown, consideration will be given to extending the time to answer or request a hearing. A request for extension of time must be directed to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, and include a statement of good cause for the extension.
If a hearing is requested by a person whose interest is adversely affected, the Commission will issue an Order designating the time and place of any hearings. If a hearing is held, the issue to be considered at such hearing shall be whether this Order should be sustained.
All documents filed in the NRC adjudicatory proceedings, including a request for a hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with NRC E-Filing rule (72 FR 49139; August 28, 2007). The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public Web site at
If a participant is electronically submitting a document to the NRC in accordance with the E-Filing rule, the participant must file the document using the NRC's online, web-based submission form. In order to serve documents through the Electronic Information Exchange System, users will be required to install a web browser plug-in from the NRC's Web site. Further information on the web-based submission form, including the installation of the web browser plug-in, is available on the NRC's public Web site at
Once a participant has obtained a digital ID certificate and a docket has been created, the participant can then submit a request for a hearing or petition for leave to intervene. Submissions should be in portable document format (PDF) in accordance with the NRC guidance available on the NRC's public Web site at
A person filing electronically using the agency's adjudicatory E-Filing system may seek assistance by contacting the NRC Meta System Help Desk thorough the “Contact Us” link located on the NRC's Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file an extension request, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) first class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party using E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket, which is available to the public at
If a person other than the licensee requests a hearing, that person shall set forth with particularity the manner in which his interest is adversely affected by this Order and shall address the criteria set forth in 10 CFR 2.309(d) and (f).
In the absence of any request for hearing, or written approval of an extension of time in which to request a hearing, the provisions specified in Section V above shall be final 30 days from the date of this Order without further order or proceedings. If an extension of time for requesting a hearing has been approved, the provisions specified in Section V shall be final when the extension expires if a hearing request has not been received.
For The Nuclear Regulatory Commission.
Dated at Rockville, Maryland this 30th of June 2014.
Nuclear Regulatory Commission.
Draft NUREG; request for comments.
The U.S. Nuclear Regulatory Commission (NRC) is revising its licensing guidance for service provider licenses. The NRC is requesting public comment on draft NUREG-1556, Volume 18, Revision 1, “Consolidated Guidance about Materials Licenses: Program-Specific Guidance about Service Provider Licenses.” The document has been updated from the previous revision to include information on safety culture, security of radioactive materials, protection of sensitive information, and changes in regulatory policies and practices. This document is intended for use by applicants, licensees, and the NRC staff.
Submit comments by August 7, 2014. Comments received after this date will be considered if it is practical to do so, but the NRC is only able to assure consideration of comments received on or before this date.
You may submit comment by any of the following methods (unless this document describes a different method for submitting comments on a specific subject):
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For additional direction on accessing information and submitting comments, see “Accessing Information and Submitting Comments” in the
Tomas Herrera, Office of Federal and State Materials and Environmental Management Programs; U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-7138; email:
Please refer to Docket ID NRC-2014-0124 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this action by the following methods:
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The draft NUREG-1556, Volume 18, Revision 1, is also available on the NRC's public Web site on the: (1) “Consolidated Guidance About Materials Licenses (NUREG-1556)” page at
Please include Docket ID NRC-2014-0124 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact information that you do not want publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment submissions into ADAMS.
The NUREG provides guidance to existing service provider licensees and to an applicant in preparing a service provider license application. The NUREG also provides the NRC with criteria for evaluating a license application. The purpose of this notice is to provide the public with an opportunity to review and provide comments on draft NUREG-1556, Volume 18, Revision 1, “Consolidated Guidance about Materials Licenses: Program-Specific Guidance about Service Provider Licenses.” These comments will be considered in the final version or subsequent revisions.
Notice of application for an order under sections 17(d) and 57(i) of the Investment Company Act of 1940 (the “Act”) and rule 17d-1 under the Act to permit certain joint transactions otherwise prohibited by sections 17(d) and 57(a)(4) of the Act and rule 17d-1 under the Act.
Applicants request an order to permit a business development company (“BDC”) and certain closed-end management investment companies to co-invest in portfolio companies with each other and with affiliated investment funds.
Solar Capital Ltd. (“Solar Capital”), Solar Senior Capital Ltd. (“Solar Senior”, and together with Solar Capital, the “Solar Funds”), and Solar Capital Partners, LLC (the “Adviser”).
The application was filed on August 5, 2013, and amended on December 18, 2013, April 7, 2014, June 12, 2004, and July 1, 2014.
An order granting the requested relief will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on July 25, 2014, and should be accompanied by proof of service on applicants, in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Secretary, U.S. Securities and Exchange Commission, 100 F St. NE., Washington, DC 20549-1090. Applicants: 500 Park Avenue, New York, NY 10022.
Jaea F. Hahn, Senior Counsel, at (202) 551-6870 or Dalia Osman Blass, Assistant Chief Counsel, at (202) 551-6821 (Chief Counsel's Office, Division of Investment Management).
The following is a summary of the application. The complete application may be obtained via the Commission's Web site by searching for the file number, or for an applicant using the Company name box, at
1. The Solar Funds are Maryland corporations organized as closed-end management investment companies that have elected to be regulated as BDCs under section 54(a) of the Act.
2. The Adviser, a privately held investment adviser registered with the Commission pursuant to section 203 of the Investment Advisers Act of 1940 (“Advisers Act”), was organized as a limited liability company under the laws of the state Delaware. The Adviser serves as the investment adviser to each Solar Fund.
3. Applicants seek an order (“Order”) to permit a Regulated Fund
4. Applicants state that a Regulated Fund may, from time to time, form a Wholly-Owned Investment Sub.
5. When considering Potential Co-Investment Transactions for any Regulated Fund, the Adviser will consider only the Objectives and Strategies, investment policies, investment positions, capital available for investment, and other pertinent factors applicable to that Regulated Fund. The Adviser expects that any portfolio company that is an appropriate investment for a Regulated Fund should also be an appropriate investment for one or more other Regulated Funds and/or one or more Affiliated Funds, with certain exceptions based on available capital or diversification.
6. Other than pro rata dispositions and Follow-On Investments as provided in conditions 7 and 8, and after making the determinations required in conditions 1 and 2(a), the Adviser will present each Potential Co-Investment Transaction and the proposed allocation to the directors of the Board eligible to vote under section 57(o) of the Act (“Eligible Directors”), and the “required majority,” as defined in section 57(o) of the Act (“Required Majority”)
7. With respect to the pro rata dispositions and Follow-On Investments provided in conditions 7 and 8, a Regulated Fund may participate in a pro rata disposition or Follow-On Investment without obtaining prior approval of the Required Majority if, among other things: (i) The proposed participation of each Regulated Fund and each Affiliated Fund in such disposition is proportionate to its outstanding investments in the issuer immediately preceding the disposition or Follow-On Investment, as the case may be; and (ii) the Board of the Regulated Fund has approved that Regulated Fund's participation in pro rata dispositions and Follow-On Investments as being in the best interests of the Regulated Fund. If the Board does not so approve, any such disposition or Follow-On Investment will be submitted to the Regulated Fund's Eligible Directors. The Board of any Regulated Fund may at any time rescind, suspend or qualify its approval of pro rata dispositions and Follow-On Investments with the result that all dispositions and/or Follow-On Investments must be submitted to the Eligible Directors.
8. No Non-Interested Director of a Regulated Fund will have a direct or indirect financial interest in any Co-Investment Transaction (other than
1. Section 57(a)(4) of the Act prohibits certain affiliated persons of a BDC from participating in joint transactions with the BDC or a company controlled by a BDC in contravention of rules as prescribed by the Commission. Under section 57(b)(2) of the Act, any person who is directly or indirectly controlling, controlled by, or under common control with a BDC is subject to section 57(a)(4). Applicants submit that each of the Regulated Funds and Affiliated Funds could be deemed to be a person related to each Regulated Fund in a manner described by section 57(b) by virtue of being under common control. Section 57(i) of the Act provides that, until the Commission prescribes rules under section 57(a)(4), the Commission's rules under section 17(d) of the Act applicable to registered closed-end investment companies will be deemed to apply to transactions subject to section 57(a)(4). Because the Commission has not adopted any rules under section 57(a)(4), rule 17d-1 also applies to joint transactions with Regulated Funds that are BDCs. Section 17(d) of the Act and rule 17d-1 under the Act are applicable to Regulated Funds that are registered closed-end investment companies.
2. Section 17(d) of the Act and rule 17d-1 under the Act prohibit affiliated persons of a registered investment company from participating in joint transactions with the company unless the Commission has granted an order permitting such transactions. In passing upon applications under rule 17d-1, the Commission considers whether the company's participation in the joint transaction is consistent with the provisions, policies, and purposes of the Act and the extent to which such participation is on a basis different from or less advantageous than that of other participants.
3. Applicants state that in the absence of the requested relief, the Regulated Funds would be, in some circumstances, limited in their ability to participate in attractive and appropriate investment opportunities. Applicants believe that the proposed terms and conditions will ensure that the Co-Investment Transactions are consistent with the protection of each Regulated Fund's shareholders and with the purposes intended by the policies and provisions of the Act. Applicants state that the Regulated Funds' participation in the Co-Investment Transactions will be consistent with the provisions, policies, and purposes of the Act and on a basis that is not different from or less advantageous than that of other participants.
Applicants agree that the Order will be subject to the following conditions:
1. Each time the Adviser considers a Potential Co-Investment Transaction for another Regulated Fund or an Affiliated Fund that falls within a Regulated Fund's then-current Objectives and Strategies, the Adviser will make an independent determination of the appropriateness of the investment for the Regulated Fund in light of the Regulated Fund's then-current circumstances.
2. (a) If the Adviser deems a Regulated Fund's participation in any Potential Co-Investment Transaction to be appropriate for the Regulated Fund, the Adviser will then determine an appropriate level of investment for the Regulated Fund.
(b) If the aggregate amount recommended by the Adviser to be invested by the applicable Regulated Fund in the Potential Co-Investment Transaction together with the amount proposed to be invested by the other participating Regulated Funds and Affiliated Funds, collectively, in the same transaction, exceeds the amount of the investment opportunity, the investment opportunity will be allocated among them pro rata based on each participant's capital available for investment in the asset class being allocated, up to the amount proposed to be invested by each. The Adviser will provide the Eligible Directors of each participating Regulated Fund with information concerning each participating party's available capital to assist the Eligible Directors with their review of the Regulated Fund's investments for compliance with these allocation procedures.
(c) After making the determinations required in conditions 1 and 2(a), the Adviser will distribute written information concerning the Potential Co-Investment Transaction (including the amount proposed to be invested by each Regulated Fund and each Affiliated Fund) to the Eligible Directors of each participating Regulated Fund for their consideration. A Regulated Fund will co-invest with another Regulated Fund or an Affiliated Fund only if, prior to the Regulated Fund's participation in the Potential Co-Investment Transaction, a Required Majority concludes that:
(i) The terms of the Potential Co-Investment Transaction, including the consideration to be paid, are reasonable and fair to the Regulated Fund and its shareholders and do not involve overreaching in respect of the Regulated Fund or its shareholders on the part of any person concerned;
(ii) the Potential Co-Investment Transaction is consistent with:
(A) the interests of the Regulated Fund's shareholders; and
(B) the Regulated Fund's then-current Objectives and Strategies;
(iii) the investment by any other Regulated Funds or any Affiliated Funds would not disadvantage the Regulated Fund, and participation by the Regulated Fund would not be on a basis different from or less advantageous than that of any other Regulated Funds or any Affiliated Funds; provided that, if any other Regulated Fund or any Affiliated Fund, but not the Regulated Fund itself, gains the right to nominate a director for election to a portfolio company's board of directors or the right to have a board observer or any similar right to participate in the governance or management of the portfolio company, such event shall not be interpreted to prohibit the Required Majority from reaching the conclusions required by this condition (2)(c)(iii), if:
(A) the Eligible Directors will have the right to ratify the selection of such director or board observer, if any; and
(B) the Adviser agrees to, and does, provide periodic reports to the Board of the Regulated Fund with respect to the actions of such director or the information received by such board observer or obtained through the exercise of any similar right to participate in the governance or management of the portfolio company; and
(C) any fees or other compensation that any Regulated Fund or any Affiliated Fund or any affiliated person of any Regulated Fund or any Affiliated Fund receives in connection with the right of a Regulated Fund or an Affiliated Fund to nominate a director or appoint a board observer or otherwise to participate in the governance or management of the portfolio company will be shared proportionately among the participating Affiliated Funds (who may each, in turn, share its portion with its affiliated persons) and the participating Regulated Funds in accordance with the amount of each party's investment; and
(iv) the proposed investment by the Regulated Fund will not benefit the Adviser, the other Regulated Funds, the Affiliated Funds or any affiliated person of any of them (other than the parties to
3. Each Regulated Fund has the right to decline to participate in any Potential Co-Investment Transaction or to invest less than the amount proposed.
4. The Adviser will present to the Board of each Regulated Fund, on a quarterly basis, a record of all investments in Potential Co-Investment Transactions made by any of the other Regulated Funds or Affiliated Funds during the preceding quarter that fell within the Regulated Fund's then-current Objectives and Strategies that were not made available to the Regulated Fund, and an explanation of why the investment opportunities were not offered to the Regulated Fund. All information presented to the Board pursuant to this condition will be kept for the life of the Regulated Fund and at least two years thereafter, and will be subject to examination by the Commission and its staff.
5. Except for Follow-On Investments made in accordance with condition 8, a Regulated Fund will not invest in reliance on the Order in any issuer in which another Regulated Fund, Affiliated Fund, or any affiliated person of another Regulated Fund or Affiliated Fund is an existing investor.
6. A Regulated Fund will not participate in any Potential Co-Investment Transaction unless the terms, conditions, price, class of securities to be purchased, settlement date, and registration rights will be the same for each participating Regulated Fund and Affiliated Fund. The grant to another Regulated Fund or an Affiliated Fund, but not the Regulated Fund, of the right to nominate a director for election to a portfolio company's board of directors, the right to have an observer on the board of directors or similar rights to participate in the governance or management of the portfolio company will not be interpreted so as to violate this condition 6, if conditions 2(c)(iii)(A), (B) and (C) are met.
7. (a) If any Regulated Fund or an Affiliated Fund elects to sell, exchange or otherwise dispose of an interest in a security that was acquired in a Co-Investment Transaction, the Adviser will:
(i) Notify each Regulated Fund that participated in the Co-Investment Transaction of the proposed disposition at the earliest practical time; and
(ii) formulate a recommendation as to participation by each Regulated Fund in the disposition.
(b) Each Regulated Fund will have the right to participate in such disposition on a proportionate basis, at the same price and on the same terms and conditions as those applicable to the participating Regulated Funds and Affiliated Funds.
(c) A Regulated Fund may participate in such disposition without obtaining prior approval of the Required Majority if: (i) The proposed participation of each Regulated Fund and each Affiliated Fund in such disposition is proportionate to its outstanding investments in the issuer immediately preceding the disposition; (ii) the Board of the Regulated Fund has approved as being in the best interests of the Regulated Fund the ability to participate in such dispositions on a pro rata basis (as described in greater detail in the application); and (iii) the Board of the Regulated Fund is provided on a quarterly basis with a list of all dispositions made in accordance with this condition. In all other cases, the Adviser will provide its written recommendation as to the Regulated Fund's participation to the Regulated Fund's Eligible Directors, and the Regulated Fund will participate in such disposition solely to the extent that a Required Majority determines that it is in the Regulated Fund's best interests.
(d) Each Regulated Fund and each Affiliated Fund will bear its own expenses in connection with any such disposition.
8. (a) If a Regulated Fund or an Affiliated Fund desires to make a Follow-On Investment in a portfolio company whose securities were acquired in a Co-Investment Transaction, the Adviser will:
(i) Notify each Regulated Fund that participated in the Co-Investment Transaction of the proposed transaction at the earliest practical time; and
(ii) formulate a recommendation as to the proposed participation, including the amount of the proposed Follow-On Investment, by each Regulated Fund.
(b) A Regulated Fund may participate in such Follow-On Investment without obtaining prior approval of the Required Majority if: (i) The proposed participation of each Regulated Fund and each Affiliated Fund in such investment is proportionate to its outstanding investments in the issuer immediately preceding the Follow-On Investment; and (ii) the Board of the Regulated Fund has approved as being in the best interests of the Regulated Fund the ability to participate in Follow-On Investments on a pro rata basis (as described in greater detail in the application). In all other cases, the Adviser will provide its written recommendation as to the Regulated Fund's participation to the Eligible Directors, and the Regulated Fund will participate in such Follow-On Investment solely to the extent that a Required Majority determines that it is in the Regulated Fund's best interests.
(c) If, with respect to any Follow-On Investment:
(i) The amount of a Follow-On Investment is not based on the Regulated Funds' and the Affiliated Funds' outstanding investments immediately preceding the Follow-On Investment; and
(ii) the aggregate amount recommended by the Adviser to be invested by each Regulated Fund in the Follow-On Investment, together with the amount proposed to be invested by the participating Affiliated Funds in the same transaction, exceeds the amount of the opportunity; then the amount invested by each such party will be allocated among them pro rata based on each party's capital available for investment in the asset class being allocated, up to the amount proposed to be invested by each.
(d) The acquisition of Follow-On Investments as permitted by this condition will be considered a Co-Investment Transaction for all purposes and subject to the other conditions set forth in the application.
9. The Non-Interested Directors of each Regulated Fund will be provided quarterly for review all information concerning Potential Co-Investment Transactions and Co-Investment Transactions, including investments made by other Regulated Funds and the Affiliated Funds that the Regulated Fund considered but declined to participate in, so that the Non-Interested Directors may determine whether all investments made during the preceding quarter, including those investments which the Regulated Fund considered but declined to participate in, comply with the conditions of the Order. In addition, the Non-Interested Directors will consider at least annually the continued appropriateness for the Regulated Fund of participating in new and existing Co-Investment Transactions.
10. Each Regulated Fund will maintain the records required by section 57(f)(3) of the Act as if each of the Regulated Funds were a business development company and each of the investments permitted under these conditions were approved by the
11. No Non-Interested Director of a Regulated Fund will also be a director, general partner, managing member or principal, or otherwise an “affiliated person” (as defined in the Act) of an Affiliated Fund.
12. The expenses, if any, associated with acquiring, holding or disposing of any securities acquired in a Co-Investment Transaction (including, without limitation, the expenses of the distribution of any such securities registered for sale under the Securities Act) will, to the extent not payable by the Adviser under the investment advisory agreements with the Regulated Funds and the Affiliated Funds, be shared by the Affiliated Funds and the Regulated Funds in proportion to the relative amounts of the securities held or to be acquired or disposed of, as the case may be.
13. Any transaction fee (including break-up or commitment fees but excluding broker's fees contemplated by section 17(e) or 57(k) of the Act, as applicable), received in connection with a Co-Investment Transaction will be distributed to the participating Regulated Funds and Affiliated Funds on a pro rata basis based on the amounts they invested or committed, as the case may be, in such Co-Investment Transaction. If any transaction fee is to be held by the Adviser pending consummation of the transaction, the fee will be deposited into an account maintained by the Adviser at a bank or banks having the qualifications prescribed in section 26(a)(1) of the Act, and the account will earn a competitive rate of interest that will also be divided pro rata among the participating Regulated Funds and Affiliated Funds based on the amounts they invest in such Co-Investment Transaction. None of the Affiliated Funds, the Adviser, the other Regulated Funds or any affiliated person of the Regulated Funds or Affiliated Funds will receive additional compensation or remuneration of any kind as a result of or in connection with a Co-Investment Transaction (other than (a) in the case of the Regulated Funds and the Affiliated Funds, the pro rata transaction fees described above and fees or other compensation described in condition 2(c)(iii)(C); and (b) in the case of the Adviser, investment advisory fees paid in accordance with the agreements between the Adviser and the Regulated Funds or the Affiliated Funds.
For the Commission, by the Division of Investment Management, under delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to list and trade shares of the following under NYSE Arca Equities Rule 8.600 (“Managed Fund Shares”): PIMCO Short-Term Exchange-Traded Fund and PIMCO Municipal Bond Exchange-Traded Fund. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to list and trade shares (“Shares”) of the following under NYSE Arca Equities Rule 8.600,
The investment manager to the Funds will be Pacific Investment Management
Commentary .06 to Rule 8.600 provides that, if the investment adviser to the investment company issuing Managed Fund Shares is affiliated with a broker-dealer, such investment adviser shall erect a “fire wall” between the investment adviser and the broker-dealer with respect to access to information concerning the composition and/or changes to such investment company portfolio.
In the event (a) the Adviser becomes registered as a broker-dealer or newly affiliated with a broker-dealer, or (b) any new adviser or sub-adviser is a registered broker-dealer or becomes affiliated with a broker-dealer, it will implement a fire wall with respect to its relevant personnel or its broker-dealer affiliate regarding access to information concerning the composition and/or changes to a portfolio, and will be subject to procedures designed to prevent the use and dissemination of material non-public information regarding such portfolio.
According to the Registration Statement, in selecting investments for each Fund, PIMCO will develop an outlook for interest rates, currency exchange rates and the economy, analyze credit and call risks, and use other investment selection techniques. The proportion of each Fund's assets committed to investment in securities with particular characteristics (such as quality, sector, interest rate or maturity) will vary based on PIMCO's outlook for the U.S. economy and the economies of other countries in the world, the financial markets and other factors.
With respect to each Fund, in seeking to identify undervalued currencies, PIMCO may consider many factors, including but not limited to, longer-term analysis of relative interest rates, inflation rates, real exchange rates, purchasing power parity, trade account balances and current account balances, as well as other factors that influence exchange rates such as flows, market technical trends and government policies. With respect to fixed income investing, PIMCO will attempt to identify areas of the bond market that are undervalued relative to the rest of the market. PIMCO will identify these areas by grouping fixed income investments into sectors such as money markets, governments, corporates, mortgages, asset-backed and international. Sophisticated proprietary software will then assist in evaluating sectors and pricing specific investments. Once investment opportunities are identified, PIMCO will shift assets among sectors depending upon changes in relative valuations, credit spreads and other factors.
Among other investments described in more detail herein, each Fund may invest in Fixed Income Instruments, which include:
• securities issued or guaranteed by the U.S. Government, its agencies or government-sponsored enterprises (“U.S. Government Securities”);
• corporate debt securities of U.S. and non-U.S. issuers, including convertible securities and corporate commercial paper
• mortgage-backed and other asset-backed securities
• inflation-indexed bonds issued both by governments and corporations
• structured notes, including hybrid or “indexed” securities and event-linked bonds
• bank capital and trust preferred securities
• loan participations and assignments
• delayed funding loans and revolving credit facilities;
• bank certificates of deposit, fixed time deposits and bankers' acceptances;
• repurchase agreements on Fixed Income Instruments and reverse repurchase agreements on Fixed Income Instruments;
• debt securities issued by states or local governments and their agencies, authorities and other government-sponsored enterprises (“Municipal Bonds”);
• obligations of non-U.S. governments or their subdivisions, agencies and government-sponsored enterprises; and
• obligations of international agencies or supranational entities.
A Fund's investments in derivative instruments will be made in accordance with the 1940 Act and consistent with the Fund's investment objective and policies. With respect to each Fund, derivative instruments will include forwards;
As described further below, each Fund will typically use derivative instruments as a substitute for taking a position in the underlying asset and/or as part of a strategy designed to reduce exposure to other risks, such as interest rate or currency risk. A Fund may also use derivative instruments to enhance returns. To limit the potential risk associated with such transactions, a Fund will segregate or “earmark” assets determined to be liquid by PIMCO in accordance with procedures established by the Trust's Board of Trustees and in accordance with the 1940 Act (or, as permitted by applicable regulation, enter into certain offsetting positions) to cover its obligations under derivative instruments. These procedures have been adopted consistent with Section 18 of the 1940 Act and related Commission guidance. In addition, each Fund will include appropriate risk disclosure in its offering documents, including leveraging risk. Leveraging risk is the risk that certain transactions of the Fund, including the Fund's use of derivatives, may give rise to leverage, causing the Fund to be more volatile than if it had not been leveraged.
The Adviser believes that derivatives can be an economically attractive substitute for an underlying physical security that each Fund would otherwise purchase. For example, a Fund could purchase Treasury futures contracts instead of physical Treasuries or could sell credit default protection on a corporate bond instead of buying a physical bond. Economic benefits include potentially lower transaction costs or attractive relative valuation of a derivative versus a physical bond (
The Adviser further believes that derivatives can be used as a more liquid means of adjusting portfolio duration as well as targeting specific areas of yield curve exposure, with potentially lower transaction costs than the underlying securities (e.g., interest rate swaps may have lower transaction costs than physical bonds). Similarly, money market futures can be used to gain exposure to short-term interest rates in order to express views on anticipated changes in central bank policy rates. In addition, derivatives can be used to protect client assets through selectively hedging downside (or “tail risks”) in each Fund.
Each Fund also can use derivatives to increase or decrease credit exposure. Index credit default swaps (CDX) can be used to gain exposure to a basket of credit risk by “selling protection” against default or other credit events, or to hedge broad market credit risk by “buying protection.” Single name credit default swaps (CDS) can be used to allow a Fund to increase or decrease exposure to specific issuers, saving investor capital through lower trading costs. A Fund can use total return swap contracts to obtain the total return of a reference asset or index in exchange for paying a financing cost. A total return swap may be much more efficient than buying underlying securities of an index, potentially lowering transaction costs.
The Adviser believes that the use of derivatives will allow each Fund to selectively add diversifying sources of return from selling options. Option purchases and sales can also be used to hedge specific exposures in the portfolio, and can provide access to return streams available to long-term investors such as the persistent difference between implied and realized volatility. Option strategies can generate income or improve execution prices (
According to the Registration Statement, the Short-Term Fund will seek maximum current income, consistent with preservation of capital and daily liquidity. The Fund will seek to achieve its investment objective by investing under normal circumstances
According to the Registration Statement, the Fund will invest primarily in investment grade debt securities, but may invest up to 10% of its total assets in high yield securities rated B or higher by Moody's, or equivalently rated by S&P or Fitch, or, if unrated, determined by PIMCO to be of comparable quality.
In furtherance of the Fund's 65% policy, or with respect to the Fund's other investments, the Fund may invest in derivative instruments, subject to applicable law and any other restrictions described herein.
The Fund may invest up to 20% of its assets in mortgage-related and other asset-backed securities, although this 20% limitation does not apply to securities issued or guaranteed by Federal agencies and/or U.S. government sponsored instrumentalities.
According to the Registration Statement, the Fund may invest in securities and instruments that are economically tied to foreign (non-U.S.) countries.
The Fund may invest up to 10% of its total assets in securities denominated in foreign currencies, and may invest beyond this limit in U.S. dollar-denominated securities of foreign issuers.
The Fund may engage in foreign currency transactions on a spot (cash) basis and forward basis and invest in foreign currency futures and exchange-traded and OTC options contracts.
The Fund may, without limitation, seek to obtain market exposure to the securities in which it primarily invests by entering into a series of purchase and sale contracts or by using other investment techniques (such as buy backs or dollar rolls).
The Short-Term Fund may invest up to 10% of its total assets in preferred stock, convertible securities and other equity-related securities.
The Fund may invest in variable and floating rate securities that are not Fixed Income Instruments. The Fund may invest in floaters and inverse floaters that are not Fixed Income Instruments and may engage in credit spread trades.
As disclosed in the Registration Statement, the Fund may invest in trade
The Fund may enter into repurchase agreements on instruments other than Fixed Income Instruments, in addition to repurchase agreements on Fixed Income Instruments mentioned above, in which the Fund purchases a security from a bank or broker-dealer, which agrees to purchase the security at the Fund's cost plus interest within a specified time. Repurchase agreements maturing in more than seven days and which may not be terminated within seven days at approximately the amount at which the Fund has valued the agreements will be considered illiquid securities. The Fund may enter into reverse repurchase agreements on instruments other than Fixed Income Instruments, in addition to reverse repurchase agreements on Fixed Income Instruments mentioned above, subject to the Fund's limitations on borrowings.
According to the Registration Statement, the Municipal Bond Fund will seek high current income exempt from federal income tax, consistent with preservation of capital; capital appreciation is a secondary objective. The Fund will seek to achieve its investment objective by investing under normal circumstances at least 80% of its assets in debt securities whose interest is, in the opinion of bond counsel for the issuer at the time of the issuance, exempt from federal income tax (“Municipal Bonds”). Municipal Bonds are generally issued by or on behalf of states and local governments and their agencies, authorities and other instrumentalities. Municipal Bonds include municipal lease obligations, municipal general obligation bonds, municipal cash equivalents, and pre-refunded and escrowed to maturity bonds. The Fund may invest in industrial development bonds, which are Municipal Bonds issued by a government agency on behalf of a private sector company and, in most cases, are not backed by the credit of the issuing municipality. The Fund may also invest in securities issued by entities whose underlying assets are Municipal Bonds.
The Fund may invest more than 25% of its total assets in bonds of issuers in California and New York; may invest 25% of more of its total assets in Municipal Bonds that finance education, health care, housing, transportation, utilities and other similar projects; and may invest 25% or more of its total assets in industrial development bonds. The average portfolio duration of the Fund will normally vary from three to twelve years based on PIMCO's forecast for interest rates.
According to the Registration Statement, the Fund will invest primarily in investment grade debt securities, but may invest up to 10% of its total assets in Municipal Bonds or private activity bonds
The Fund may invest in residual interest bonds (“RIBs”), which brokers create by depositing a Municipal Bond in a trust. The trust in turn would issue a variable rate security and RIBs. The interest rate for the variable rate security will be determined by the remarketing broker-dealer, while the RIB holder will receive the balance of the income from the underlying municipal bond.
In furtherance of the Fund's 80% policy the Fund may invest in derivative instruments on Municipal Bonds, subject to applicable law and any other restrictions described herein.
The Fund may, without limitation, seek to obtain market exposure to the securities in which it primarily invests by entering into a series of purchase and sale contracts or by using other investment techniques (such as buy backs or dollar rolls). The Fund may purchase or sell securities on a when-issued, delayed delivery or forward commitment basis and may engage in short sales.
According to the Registration Statement, the Municipal Bond Fund may invest up to 20% of its net assets in U.S. government securities, money market instruments, “private activity” bonds and/or Fixed Income Instruments (other than Municipal Bonds), including derivative instruments related to such instruments, subject to applicable law and any other restrictions described herein.
The Fund may invest up to 10% of its total assets in preferred stock, convertible securities and other equity-related securities.
The Fund may invest in variable and floating rate securities. The Fund may invest in floaters and inverse floaters and may engage in credit spread trades.
Also, as disclosed in the Registration Statement, the Fund may invest in trade claims, privately placed and unregistered securities, and exchange-traded and OTC-traded structured products, including credit-linked securities, commodity-linked notes, and structured notes. The Fund may invest in Brady Bonds.
The Fund may enter into repurchase agreements on instruments other than Fixed Income Instruments, in addition to repurchase agreements on Fixed Income Instruments mentioned above, in which the Fund purchases a security from a bank or broker-dealer, which agrees to purchase the security at the Fund's cost plus interest within a specified time. Repurchase agreements maturing in more than seven days and which may not be terminated within seven days at approximately the amount at which the Fund has valued the agreements will be considered illiquid securities. The Fund may enter into reverse repurchase agreements on instruments other than Fixed Income Instruments, in addition to reverse repurchase agreements on Fixed Income Instruments mentioned above, subject to the Fund's limitations on borrowings.
The Funds may invest without limit, for temporary or defensive purposes, in U.S. debt securities, including taxable securities and short-term money market securities, if PIMCO deems it appropriate to do so. If PIMCO believes that economic or market conditions are unfavorable to investors, PIMCO may temporarily invest up to 100% of a
Each Fund's investments, including investments in derivative instruments, will be subject to all of the restrictions under the 1940 Act, including restrictions with respect to illiquid assets; that is, the limitation that a Fund may hold up to an aggregate amount of 15% of its net assets in illiquid assets (calculated at the time of investment), including Rule 144A securities deemed illiquid by the Adviser, consistent with Commission guidance.
Each Fund will be diversified within the meaning of the 1940 Act.
Each Fund intends to qualify annually and elect to be treated as a regulated investment company under Subchapter M of the Internal Revenue Code.
Each Fund's investments, including derivatives, will be consistent with that Fund's investment objective and each Fund's use of derivatives may be used to enhance leverage. However, each Fund's investments will not be used to seek performance that is the multiple or inverse multiple (
The net asset value (“NAV”) of each Fund's Shares will be determined by dividing the total value of a Fund's portfolio investments and other assets, less any liabilities, by the total number of Shares outstanding.
Each Fund's Shares will be valued as of the close of regular trading (normally 4:00 p.m. Eastern time (“E.T.”) (the “NYSE Close”)) on each day NYSE Arca is open (“Business Day”). Information that becomes known to each of the Funds or its agents after the NAV has been calculated on a particular day will not generally be used to retroactively adjust the price of a portfolio asset or the NAV determined earlier that day.
For purposes of calculating NAV, portfolio securities and other assets for which market quotes are readily available will be valued at market value. Market value will generally be determined on the basis of last reported sales prices, or if no sales are reported, based on quotes obtained from a quotation reporting system, established market makers, or pricing services.
Fixed Income Instruments, including those to be purchased under firm commitment agreements/delayed delivery basis, will generally be valued on the basis of quotes obtained from brokers and dealers or independent pricing services. Foreign fixed income securities will generally be valued on the basis of quotes obtained from brokers and dealers or pricing services using data reflecting the earlier closing of the principal markets for those assets. Short-term debt instruments having a remaining maturity of 60 days or less will generally be valued at amortized cost, which approximates market value.
As discussed in more detail below, derivatives will generally be valued on the basis of quotes obtained from brokers and dealers or pricing services using data reflecting the earlier closing of the principal markets for those assets. Local closing prices will be used for all instrument valuation purposes. Foreign currency-denominated derivatives will generally be valued as of the respective local region's market close.
With respect to specific derivatives:
• Currency spot and forward rates from major market data vendors
• Exchange traded futures will generally be valued at the settlement price of the relevant exchange.
• A total return swap on an index will be valued at the publicly available index price. The index price, in turn, is determined by the applicable index calculation agent, which generally values the securities underlying the index at the last reported sale price.
• Equity total return swaps will generally be valued using the actual underlying equity at local market closing, while bank loan total return swaps will generally be valued using the evaluated underlying bank loan price minus the strike price of the loan.
• Exchange traded non-equity options, (for example, options on bonds, Eurodollar options and U.S. Treasury options), index options, and options on futures will generally be valued at the official settlement price determined by the relevant exchange, if available.
• OTC and exchange traded equity options will generally be valued on a basis of quotes obtained from a quotation reporting system, established market makers, or pricing services or at the settlement price of the applicable exchange.
• OTC FX options will generally be valued by pricing vendors.
• All other swaps such as interest rate swaps, inflation swaps, swaptions, credit default swaps, and CDX/CDS will generally be valued by pricing services.
Exchange-traded equity securities will be valued at the official closing price or the last trading price on the exchange or market on which the security is primarily traded at the time of valuation. If no sales or closing prices are reported during the day, exchange-traded equity securities will generally be valued at the mean of the last available bid and ask quotation on the exchange or market on which the security is primarily traded, or using other market information obtained from quotation reporting systems, established market makers, or pricing services. Investment company securities that are not exchange-traded will be valued at NAV. Equity securities traded OTC will be valued based on price quotations obtained from a broker-dealer who makes markets in such securities or other equivalent indications of value provided by a third-party pricing service. Options on swaps will be valued at their most recent exchange closing price when available. If no such closing prices are reported, these contracts will be valued by a third party pricing service. RIBs, money market instruments, trade claims, privately placed and unregistered securities, structured products and other types of debt securities will generally be valued on the basis of independent pricing services or quotes obtained from brokers and dealers.
If a foreign security's value has materially changed after the close of the security's primary exchange or principal market but before the NYSE Close, the security will be valued at fair value based on procedures established and approved by the Board. Foreign securities that do not trade when the NYSE is open will also be valued at fair value.
Securities and other assets for which market quotes are not readily available will be valued at fair value as determined in good faith by the Board or persons acting at their direction. The Board has adopted methods for valuing securities and other assets in circumstances where market quotes are not readily available, and has delegated to PIMCO the responsibility for applying the valuation methods. In the event that market quotes are not readily available, and the security or asset cannot be valued pursuant to one of the valuation methods, the value of the security or asset will be determined in good faith by the Valuation Committee of the Board of Trustees, generally based upon recommendations provided by PIMCO.
Market quotes are considered not readily available in circumstances where there is an absence of current or reliable market-based data (
When a Fund uses fair value pricing to determine its NAV, securities will not be priced on the basis of quotes from the primary market in which they are traded, but rather may be priced by another method that the Board of Trustees or persons acting at their direction believe reflects fair value. Fair value pricing may require subjective determinations about the value of a security. While the Trust's policy is intended to result in a calculation of the Fund's NAV that fairly reflects security values as of the time of pricing, the Trust cannot ensure that fair values determined by the Board or persons acting at its direction would accurately reflect the price that a Fund could obtain for a security if it were to dispose of that security as of the time of pricing (for instance, in a forced or distressed sale). The prices used by a Fund may differ from the value that would be realized if the securities were sold.
For a Fund's 4:00 p.m. E.T. futures holdings, estimated prices from Reuters will be used if any cumulative futures margin impact is greater than $0.005 to the NAV due to futures movement after the fixed income futures market closes (3:00 p.m. E.T.) and up to the NYSE Close (generally 4:00 p.m. E.T.). Swaps traded on exchanges such as the Chicago Mercantile Exchange (“CME”) or the Intercontinental Exchange (“ICE-US”) will be priced using the applicable exchange closing price where available.
Investments initially valued in currencies other than the U.S. dollar will be converted to the U.S. dollar using exchange rates obtained from pricing services. As a result, the NAV of a Fund's Shares may be affected by changes in the value of currencies in relation to the U.S. dollar. The value of securities traded in markets outside the United States or denominated in currencies other than the U.S. dollar may be affected significantly on a day that the NYSE is closed. As a result, to the extent that a Fund holds foreign (non-U.S.) securities, the NAV of a Fund's Shares may change when an investor cannot purchase, redeem or exchange shares.
On each Business Day, before commencement of trading in Fund Shares on NYSE Arca, each Fund will disclose on its Web site the identities and quantities of the portfolio instruments and other assets held by a Fund that will form the basis for a Fund's calculation of NAV at the end of the Business Day.
In order to provide additional information regarding the intra-day value of Shares of a Fund, one or more major market data vendors will disseminate every 15 seconds through the facilities of the Consolidated Tape Association (“CTA”) or other widely disseminated means an updated Portfolio Indicative Value (“PIV”) for each Fund as calculated by an information provider or market data vendor.
A third party market data provider will calculate the PIV for each Fund. For the purposes of determining the PIV, the third party market data provider's valuation of derivatives is expected to be similar to its valuation of all securities. The third party market data provider may use market quotes if available or may fair value securities against proxies (such as swap or yield curves).
With respect to specific derivatives:
• Foreign currency derivatives may be valued intraday using market quotes, or another proxy as determined to be appropriate by the third party market data provider.
• Futures may be valued intraday using the relevant futures exchange data, or another proxy as determined to be appropriate by the third party market data provider.
• Interest rate swaps may be mapped to a swap curve and valued intraday
• CDX/CDS may be valued using intraday data from market vendors, or based on underlying asset price, or another proxy as determined to be appropriate by the third party market data provider.
• Total return swaps may be valued intraday using the underlying asset price, or another proxy as determined to be appropriate by the third party market data provider.
• Exchange listed options may be valued intraday using the relevant exchange data, or another proxy as determined to be appropriate by the third party market data provider.
• OTC options may be valued intraday through option valuation models (
• A third party market data provider's valuation of forwards will be similar to their valuation of the underlying securities, or another proxy as determined to be appropriate by the third party market data provider. The third party market data provider will generally use market quotes if available. Where market quotes are not available, they may fair value securities against proxies (such as swap or yield curves). Each Fund's disclosure of forward positions will include information that market participants can use to value these positions intraday.
Each Fund's disclosure of derivative positions in the applicable Disclosed Portfolio will include information that market participants can use to value these positions intraday. On a daily basis, the Funds will disclose on the Funds' Web site the following information regarding each portfolio holding, as applicable to the type of holding: ticker symbol, CUSIP number or other identifier, if any; a description of the holding (including the type of holding, such as the type of swap); the identity of the security, commodity, index or other asset or instrument underlying the holding, if any; for options, the option strike price; quantity held (as measured by, for example, par value, notional value or number of shares, contracts or units); maturity date, if any; coupon rate, if any; effective date, if any; market value of the holding; and the percentage weighting of the holding in a Fund's portfolio.
For each Fund, the Adviser believes there will be minimal, if any, impact to the arbitrage mechanism as a result of the use of derivatives. Market makers and participants should be able to value derivatives as long as the positions are disclosed with relevant information. The Adviser believes that the price at which Shares of a Fund trade will continue to be disciplined by arbitrage opportunities created by the ability to purchase or redeem creation Shares of a Fund at their NAV, which should ensure that Shares of a Fund will not trade at a material discount or premium in relation to its NAV.
The Adviser does not believe there will be any significant impacts to the settlement or operational aspects of a Fund's arbitrage mechanism due to the use of derivatives. Because derivatives generally are not eligible for in-kind transfer, they will be substituted with a “cash in lieu” amount (as described below) when each Fund processes purchases or redemptions of block-size “Creation Units” (as described below) in-kind.
According to the Registration Statement, Shares of each of the Funds that trade in the secondary market will be “created” at NAV by Authorized Participants only in block-size Creation Units of 50,000 Shares or multiples thereof.
The term “Authorized Participant” refers to a “Participating Party” (a broker-dealer or other participant in the clearing process through the Continuous Net Settlement System of the NSCC; or a Depository Trust Company (“DTC”) Participant who has executed a Participant Agreement (an agreement with the Distributor and Transfer Agent with respect to creations and redemptions of Creation Units).
On any given Business Day, purchases and redemptions of Creation Units will be made in whole or in part on a cash basis if an Authorized Participant deposits or receives (as applicable) cash in lieu of some or all of the Fund Deposit or Redemption Instruments, respectively, solely because such instruments are, in the case of the Fund Deposit, not available in sufficient quantity.
Except when aggregated in Creation Units, Shares will not be redeemable by the Funds. The prices at which creations and redemptions occur will be based on the next calculation of NAV after an order is received. Requirements as to the timing and form of orders will be described in the Authorized Participant agreement. PIMCO will make available on each Business Day via the National Securities Clearing Corporation (“NSCC”), prior to the opening of business (subject to amendments) on the Exchange (currently 9:30 a.m., E.T.), the identity and the required amount of each Deposit Security and the amount of the Cash Component (or Cash Deposit) to be included in the current “Fund Deposit”
Additional information regarding the Trust, the Funds and the Shares, including investment strategies, risks, creation and redemption procedures, fees, portfolio holdings, disclosure
The Trust's Web site (
Each Fund's disclosure of derivative positions in the applicable Disclosed Portfolio will include information that market participants can use to value these positions intraday. On a daily basis, the Funds will disclose on the Funds' Web site the following information regarding each portfolio holding, as applicable to the type of holding: ticker symbol, CUSIP number or other identifier, if any; a description of the holding (including the type of holding, such as the type of swap); the identity of the security, commodity, index or other asset or instrument underlying the holding, if any; for options, the option strike price; quantity held (as measured by, for example, par value, notional value or number of shares, contracts or units); maturity date, if any; coupon rate, if any; effective date, if any; market value of the holding; and the percentage weighting of the holding in a Fund's portfolio. The Web site information will be publicly available at no charge.
In addition, a basket composition file, which includes the security names and share quantities, if applicable, required to be delivered in exchange for each of the Funds' Shares, together with estimates and actual cash components, will be publicly disseminated daily prior to the opening of the Exchange via the NSCC. The basket represents one Creation Unit of each of the Funds. The NAV of each of the Funds will normally be determined as of the close of the regular trading session on the Exchange (ordinarily 4:00 p.m. E.T.) on each Business Day. Authorized Participants may refer to the basket composition file for information regarding Fixed Income Instruments, and any other instrument that may comprise a Fund's basket on a given day.
Investors can also obtain the Trust's SAI, the Funds' Shareholder Reports, and the Funds' Forms N-CSR and Forms N-SAR, filed twice a year. The Funds' SAI and Shareholder Reports will be available free upon request from the Trust, and those documents and the Form N-CSR, Form N-PX and Form N-SAR may be viewed on-screen or downloaded from the Commission's Web site at
With respect to trading halts, the Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in the Shares of a Fund.
The Exchange deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's
The Shares will conform to the initial and continued listing criteria under NYSE Arca Equities Rule 8.600. Consistent with NYSE Arca Equities Rule 8.600(d)(2)(B)(ii), the Funds' Reporting Authority will implement and maintain, or be subject to, procedures designed to prevent the use and dissemination of material non-public information regarding the actual components of each Fund's portfolio. The Exchange represents that, for initial and/or continued listing, each Fund will be in compliance with Rule 10A-3
The Exchange represents that trading in the Shares will be subject to the existing trading surveillances, administered by the Financial Industry Regulatory Authority (“FINRA”) on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws.
The surveillances referred to above generally focus on detecting securities trading outside their normal patterns, which could be indicative of manipulative or other violative activity. When such situations are detected, surveillance analysis follows and investigations are opened, where appropriate, to review the behavior of all relevant parties for all relevant trading violations.
FINRA, on behalf of the Exchange, will communicate as needed regarding trading in the Shares, exchange-traded options, exchange-traded equities, futures and options on futures with other markets or other entities that are members of the ISG, and FINRA may obtain trading information regarding trading in the Shares, exchange-traded options, exchange-traded equities, futures and options on futures from such markets or entities. In addition, the Exchange may obtain information regarding trading in the Shares, exchange-traded options, exchange-traded equities, futures and options on futures from markets or other entities that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement.
Not more than 10% of the net assets of a Fund in the aggregate invested in exchange-traded equity securities shall consist of equity securities, including stocks into which a convertible security is converted, whose principal market is not a member of the ISG or is a market with which the Exchange does not have a comprehensive surveillance sharing agreement. Furthermore, not more than 10% of the net assets of a Fund in the aggregate invested in futures contracts or exchange-traded options contracts shall consist of futures contracts or exchange-traded options contracts whose principal market is not a member of ISG or is a market with which the Exchange does not have a comprehensive surveillance sharing agreement.
In addition, the Exchange also has a general policy prohibiting the distribution of material, non-public information by its employees.
Prior to the commencement of trading, the Exchange will inform its Equity Trading Permit (“ETP”) Holders in an Information Bulletin (“Bulletin”) of the special characteristics and risks associated with trading the Shares. Specifically, the Bulletin will discuss the following: (1) The procedures for purchases and redemptions of Shares in Creation Unit aggregations (and that Shares are not individually redeemable); (2) 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; (3) the risks involved in trading the Shares during the Opening and Late Trading Sessions when an updated PIV will not be calculated or publicly disseminated; (4) how information regarding the PIV and the Disclosed Portfolio is disseminated; (5) 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 (6) trading information.
In addition, the Bulletin will reference that each of the Funds is subject to various fees and expenses described in the Registration Statement. The Bulletin will discuss any exemptive, no-action, and interpretive relief granted by the Commission from any rules under the Act. The Bulletin will also disclose that the NAV for the Shares will be calculated after 4:00 p.m. E.T. each trading day.
The basis under the Act for this proposed rule change is the requirement under Section 6(b)(5)
The Exchange believes that the proposed rule change is designed to prevent fraudulent and manipulative acts and practices in that the Shares will be listed and traded on the Exchange pursuant to the initial and continued listing criteria in NYSE Arca Equities Rule 8.600. The Exchange has in place surveillance procedures that are adequate to properly monitor trading in the Shares in all trading sessions and to
Each Fund's investments, including derivatives, will be consistent with that Fund's investment objective and each Fund's use of derivatives may be used to enhance leverage. However, each Fund's investments will not be used to seek performance that is the multiple or inverse multiple (
The proposed rule change is designed to promote just and equitable principles of trade and to protect investors and the public interest in that the Exchange will obtain a representation from the issuer of the Shares that the NAV per Share will be calculated daily and that the NAV and the Disclosed Portfolio will be made available to all market participants at the same time. In addition, a large amount of information is publicly available regarding each of the Funds and the Shares, thereby promoting market transparency. Moreover, the PIV will be widely disseminated by one or more major market data vendors at least every 15 seconds during the Exchange's Core Trading Session. On each Business Day, before commencement of trading in Shares in the Core Trading Session on the Exchange, each of the Funds will disclose on the Trust's Web site the Disclosed Portfolio that will form the basis for each Fund's calculation of NAV at the end of the Business Day. Information regarding market price and trading volume of the Shares will be continually available on a real-time basis throughout the day on brokers' computer screens and other electronic services, and quotation and last sale information will be available via the CTA high-speed line. Exchange-traded options quotation and last sale information is available via the Options Price Reporting Authority. Price information for the debt securities and other financial instruments held by each of the Funds, including the intra-day closing settlement price for the Fixed Income Instruments, including Municipal Bonds, and derivatives thereon, and other financial instruments held by each of the Funds, will be available through major market data vendors. Each Fund's investments, including derivatives, will be consistent with that Fund's investment objective. The Trust's Web site will include a form of the prospectus for each of the Funds and additional data relating to NAV and other applicable quantitative information. Moreover, 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. Trading in Shares of any of the Funds will be halted if the circuit breaker parameters in NYSE Arca Equities Rule 7.12 have been reached or because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable, and trading in the Shares will be subject to NYSE Arca Equities Rule 8.600(d)(2)(D), which sets forth circumstances under which Shares of any of the Funds may be halted. In addition, as noted above, investors will have ready access to information regarding each of the Funds' holdings, the PIV, the Disclosed Portfolio, and quotation and last sale information for the Shares.
The proposed rule change is designed to perfect the mechanism of a free and open market and, in general, to protect investors and the public interest in that it will facilitate the listing and trading of additional types of actively-managed exchange-traded products that will enhance competition among market participants, to the benefit of investors and the marketplace. As noted above, the Exchange has in place surveillance procedures relating to trading in the Shares and may obtain information via ISG from other exchanges that are members of ISG or with which the Exchange has entered into a comprehensive surveillance sharing agreement. The Adviser is not a broker-dealer but is affiliated with a broker-dealer and has implemented a “fire wall” with respect to such broker-dealer regarding access to information concerning the composition and/or changes to each Fund's portfolio. In addition, the Funds' Reporting Authority will implement and maintain, or be subject to, procedures designed to prevent the use and dissemination of material non-public information regarding the actual components of each Fund's portfolio.
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 purpose of the Act. The Exchange notes that the proposed rule change will facilitate the listing and trading of additional types of actively-managed
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
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 the Price List to add certain charges for hosting equipment to support Internet connections for member organizations operating on the Floor of the Exchange. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend the Price List to add certain charges for hosting equipment to support Internet connections for member organizations operating on the Floor of the Exchange.
Currently, a member organization that operates on the Floor must arrange for its own access to an Internet service provider (“ISP”). To provide the service, an ISP must place certain equipment on the Exchange's premises at 11 Wall Street. Currently there is no separate charge related to the Exchange's hosting of such equipment. The Exchange does charge fees for installing and removing data jacks and lines, and member organizations are responsible for paying the ISP's fees.
The Exchange believes that these hosting arrangements are not an efficient use of its space or an efficient or robust way to provide Internet service to member organizations operating on the Floor. As such, the Exchange proposes to provide member organizations operating on the Floor with connections to ISPs at no charge via the Exchange's Secure Financial Transaction Infrastructure (“SFTI”). For
The Exchange will make the connections to ISPs available via SFTI immediately and provide member organizations with a transition period until December 31, 2014 to have their ISP equipment located at 11 Wall Street removed. If a member organization has not done so by that time, then the Exchange will begin charging $1,000 per month per member organization per rack for continuing to host the member organization's ISP equipment at 11 Wall Street, or $600 per month for a half rack or $400 per month for a quarter rack.
The proposed change is not otherwise intended to address any other issues, and the Exchange is not aware of any problems member organizations would have in complying with the proposed change.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed rule change is reasonable because it will result in a more efficient use in the Exchange's premises and increase the redundancy and resilience in Internet service to member organizations operating on the Floor, thereby improving those member organizations' and the Exchange's disaster recovery capabilities. The proposed change is equitable and not unfairly discriminatory because there would continue to be an option, as there is today, for all member organizations operating on the Floor to obtain a free connection to an ISP. The proposed fees would only apply if, after the transition period, the member organization elected to have a separate ISP connection that would require separate equipment hosting on the Exchange's premises at 11 Wall Street.
Finally, the Exchange believes that it is subject to significant competitive forces, as described below in the Exchange's statement regarding the burden on competition.
For these reasons, the Exchange believes that the proposal is consistent with the Act.
In accordance with Section 6(b)(8) 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 such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-NYSEMKT-2014-53. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's
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 the Price List to add certain charges for hosting equipment to support Internet connections for member organizations operating on the Floor of the Exchange. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend the Price List to add certain charges for hosting equipment to support Internet connections for member organizations operating on the Floor of the Exchange.
Currently, a member organization that operates on the Floor must arrange for its own access to an Internet service provider (“ISP”). To provide the service, an ISP must place certain equipment on the Exchange's premises at 11 Wall Street. Currently there is no separate charge related to the Exchange's hosting of such equipment. The Exchange does charge fees for installing and removing data jacks and lines, and member organizations are responsible for paying the ISP's fees.
The Exchange believes that these hosting arrangements are not an efficient use of its space or an efficient or robust way to provide Internet service to member organizations operating on the Floor. As such, the Exchange proposes to provide member organizations operating on the Floor with connections to ISPs at no charge via the Exchange's Secure Financial Transaction Infrastructure (“SFTI”). For such member organizations that choose to use SFTI to connect to their ISP, it will no longer be necessary to host separate ISP equipment at 11 Wall Street and such equipment can be removed. Using SFTI to connect to ISPs also would help avoid the consequences of a service disruption at a single carrier or access point. For example, for a period beginning in October 2013, the Exchange had to temporarily suspend certain rules restricting the use of personal portable phone devices by Floor brokers on the Trading Floor because the third-party carrier that provided service for the Exchange-provided cell phones experienced an issue that caused a service outage.
The Exchange will make the connections to ISPs available via SFTI immediately and provide member organizations with a transition period until December 31, 2014 to have their ISP equipment located at 11 Wall Street removed. If a member organization has not done so by that time, then the Exchange will begin charging $1,000 per month per member organization per rack for continuing to host the member organization's ISP equipment at 11 Wall Street, or $600 per month for a half rack or $400 per month for a quarter rack.
The proposed change is not otherwise intended to address any other issues, and the Exchange is not aware of any problems member organizations would have in complying with the proposed change.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed rule change is reasonable because it will result in a more efficient use in the Exchange's premises and increase the redundancy and resilience in Internet service to member organizations operating on the Floor, thereby improving those member organizations' and the Exchange's disaster recovery capabilities. The proposed change is equitable and not unfairly discriminatory because there would continue to be an option, as there is today, for all member organizations operating on the Floor to obtain a free connection to an ISP. The proposed fees would only apply if, after the transition period, the member organization elected to have a separate ISP connection that would require separate equipment hosting on the Exchange's premises at 11 Wall Street.
Finally, the Exchange believes that it is subject to significant competitive forces, as described below in the Exchange's statement regarding the burden on competition.
For these reasons, the Exchange believes that the proposal is consistent with the Act.
In accordance with Section 6(b)(8) 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 such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street N.E., Washington, DC 20549-1090.
All submissions should refer to File Number SR-NYSE-2014-30. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On November 7, 2013, New York Stock Exchange LLC (“NYSE”) and NYSE MKT LLC (“NYSE MKT” and together with NYSE, the “Exchanges”) each filed with the Securities and Exchange Commission (“Commission”) pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
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: (1) Amend BX Market Maker quoting obligations; (2) adopt new BX Rules at Chapter VII, Section 13 and 14 to allow qualified Options Participants to act as a Lead Market Maker, or LMM, in one or more options classes; (3) revise priority rules to entitle LMMs participation entitlement; and (4) provide for a Public Customer priority overlay for the Price/Time Execution Algorithm.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to amend the current BX Market Maker quoting obligations and adopt rules to permit BX Market Makers to act as Lead Market Makers, or LMMs, in one or more options classes, provided the LMM meets certain obligations and quoting requirements as provided for in the new proposed Exchange Rules. The Exchange proposes to provide assigned LMMs with certain participation entitlements. Finally, the Exchange proposes to provide Public Customers with priority when the Price/Time execution algorithm is in effect. The Exchange believes that these amendments, which will be described below in greater detail, will enhance competition on the Exchange by rewarding LMMs who meet certain obligations on BX.
Currently, Chapter VII, Section 6(d) provides that on a daily basis, a Market Maker must during regular market hours make markets consistent with the applicable quoting requirements specified in these rules, on a continuous basis in at least sixty percent (60%) of the series in options in which the Market Maker is registered. It further provides that, to satisfy this requirement with respect to quoting a series, a Market Maker must quote such series 90% of the trading day (as a percentage of the total number of minutes in such trading day) or such higher percentage as BX may announce in advance. BX Regulation may consider exceptions to the requirement to quote 90% (or higher) of the trading day based on demonstrated legal or regulatory requirements or other mitigating circumstances.
BX proposes to better align its market maker quoting requirement with that of other exchanges, such as NYSE Arca, Inc. (“NYSE Arca”) and NYSE MKT LLC (“NYSE MKT”). Specifically, BX proposes to reduce the quoting requirement for BX Options Market Makers as follows: A Market Maker must quote such options 60% of the trading day (as a percentage of the total number of minutes in such trading day) or such higher percentage as BX may announce in advance. BX Regulation may consider exceptions to the requirement to quote 60% (or higher) of the trading day based on demonstrated legal or regulatory requirements or other mitigating circumstances. This quoting
BX believes that this is appropriate for two reasons. First, BX's current Market Maker quoting requirement is much more stringent than certain other exchanges. Quoting each series 90% of the trading day is much more stringent than looking at all options in which a Market Maker is registered, because it allows for some number of series not to be quoted at all, as long as the overall standard is met. This better accommodates the occasional issues that may arise in a particular series, whether technical or manual. The existing requirement may at times discourage liquidity in particular options series because a market maker is forced to focus on a momentary lapse rather than using the appropriate resources to focus on the options series that need and consume additional liquidity. BX believes that it can better attract Market Makers to the BX Options market and grow its market if its quoting obligation is more in line with that of other exchanges.
The Exchange believes that the amendments to Section 6(d)(i)(1) of Chapter VII, which would allow applying the quoting requirements for Market Makers collectively across all options classes, is a fair and more efficient way for the Exchange and market participants to evaluate compliance with the continuous quoting requirements. Applying the continuous quoting requirement collectively across all option classes rather than on an issue-by-issue basis is beneficial to Market Makers by providing some flexibility to choose which series in their appointed classes they will continuously quote—increasing the continuous quoting obligation in the series of one class to allow for a decrease in the continuous quoting obligation in the series of another class. This flexibility does not, however, diminish the Market Maker's obligation to continuously quote a significant part of the trading day in a significant percentage of series. Flexibility is important for classes that have relatively few series and may prevent the Market Maker, in particular, from breaching the continuous quoting requirement when failing to meet the specified quote amount during the trading day (as proposed) in more than one series in an appointed class. However, this flexibility does not act to relieve the Market Maker of his continuous quoting obligations and does not, for example, relieve the Market Maker from providing liquidity in classes experiencing heightened volatility. The Exchange provides in the proposed rule that determining compliance with the continuous quoting requirement on a monthly basis will not relieve a Market Maker of the obligation to provide continuous two-sided quotes on a daily basis, nor will it prohibit the Exchange from taking disciplinary action against a Market Maker for failing to meet the continuous quoting obligation each trading day. The Exchange believes that the balance between the benefits provided to Market Makers and the obligations imposed upon Market Makers by the proposed rule change is appropriate.
The Exchange believes that the proposal will not diminish, and in fact may increase, market making activity on the Exchange, by establishing quoting compliance standards that are reasonable and are already in place on other options exchanges. By amending Section 6 of Chapter VII to state that quoting obligations apply to a Market Maker's appointed issues collectively, this proposal is similar to that of other options markets and puts the Exchange on an equal competitive footing.
Today on BX there are two types of Options Participants, Options Order Entry Firms and Options Market Makers. Options Order Entry Firms, or OEFs, are Options Participants who represent customer orders as agent on BX Options and non-Market Maker Participants conducting proprietary trading as principal. Options Market Makers are Options Participants registered with the Exchange as Options Market Makers in one or more listed options on BX.
To become an Options Market Maker, an Options Participant is required to register by filing a written application. BX does not place any limit on the number of entities that may become Options Market Makers. BX Options Market Makers are required to electronically engage in a course of dealing to enhance liquidity available on BX and to assist in the maintenance of fair and orderly markets.
At this time, the Exchange is proposing a third type of Options Participant, an LMM. Approved BX Options Market Makers
When an options class is to be allocated or reallocated by the Exchange, the Exchange will solicit applications from all eligible LMMs. If the Exchange determines that special qualifications should be sought in the successful applicant, it shall indicate such desired qualifications in the notice.
Further, the Exchange proposes to require an allocation application to be submitted in writing to the Exchange's designated staff and shall include, at a minimum, the name and background of the LMM, the LMM's experience and capitalization demonstrating an ability to trade the particular options class sought, and any other reasons why the LMM believes it should be assigned or allocated the security. In addition, the Exchange may also require that the application include other information such as system acceptance/execution levels and guarantees. The Exchange may re-solicit applications for any reason, including if it determines that its initial solicitation resulted in an insufficient number of applicants.
Allocation decisions and automatic allocations shall be communicated in writing to Exchange members. Once the LMM is allocated an issue, such LMM shall immediately notify the Exchange in writing of any change to the respective system acceptance/execution levels or any other material change in the application for any assigned issue. If an LMM seeks to withdraw from allocation in a security, it should so notify the Exchange at least one business day prior to the desired effective date of such withdrawal.
Options on Related Securities shall be automatically allocated to the LMM that is already the LMM in Currently Allocated Securities (as defined hereafter). Only one LMM may be allocated to an options class. The Exchange is defining the term “Related Securities” for purpose of Chapter VII, Section 13 as follows: “Related Securities means, but is not limited to: Securities of a partially or wholly owned subsidiary; securities that are convertible into the securities of the issuer; warrants on securities of the issuer; securities issued in connection with a name change; securities issued in a reverse stock split; contingent value rights; “tracking” securities designed to track the performance of the underlying security or corporate affiliate thereof; securities created in connection with the merger or acquisition of one or more companies; securities created in connection with a “spin-off” transaction; convertible on non-convertible senior securities; and securities into which a listed security is convertible, where such Related Securities emanate from or are related to securities underlying options that are currently allocated to a LMM on the Exchange (“Currently Allocated Options”). The term Related Securities does not include Exchange Traded Funds.
The Exchange shall allocate new options classes, or reallocate existing options classes to applicants based on the results of such factors as the Exchange deems appropriate. Among the factors that the Exchange may consider in making such decisions are: The number and type of securities in which applicants are currently registered; the capital and other resources of the applicant; recent allocation decisions within the past eighteen months; the desirability of encouraging the entry of new LMMs into the Exchange's market; order flow commitments; any prior transfers of LMM privileges by the applicant and the reasons therefore and such policies as the Board instructs the Exchange to follow in allocating or reallocating securities. The Exchange may also consider: Quality of markets data; observance of ethical standards and administrative responsibilities. Solely with respect to options class allocations or reallocations, past or contemplated voluntary delisting of options by LMMs, done in the best interest of the Exchange, will not be viewed negatively by the Exchange in making allocation and reallocation decisions. The Exchange is empowered to allocate option classes for a limited period of time or subject to such other terms and conditions as it deems appropriate.
Requests to allocate or transfer allocation, or transfer of an options class request must be made in writing to the
The proposed rules relating to the appointment of LMMs and the allocation of option series are similar to rules currently in place on NASDAQ OMX PHLX LLC (“Phlx”) with respect to its appointment of specialists.
The Exchange also requires that LMM transactions should constitute a course of dealings reasonably calculated to contribute to the maintenance of a fair and orderly market, and no LMM should enter into transactions or make bids or offers that are inconsistent with such a course of dealings.
With respect to unusual conditions, if the interest of maintaining a fair and orderly market so requires, BX Regulation may declare that unusual market conditions exist in a particular issue and allow LMMs in that issue to make auction bids and offers with spread differentials of up to two times, or in exceptional circumstances, typically up to three times, the legal limits permitted under this Rule. In making such determinations to allow wider markets, BX Regulation should consider the following factors: (A) Whether there is pending news, a news announcement or other special events; (B) whether the underlying security is trading outside of the bid or offer in such security then being disseminated; (C) whether Options Participants receive no response to orders placed to buy or sell the underlying security; and (D) whether a vendor quote feed is clearly stale or unreliable.
In classes of options other than those to which the LMM is appointed, LMMs should not engage in transactions for an account in which they have an interest that are disproportionate in relation to, or in derogation of, the performance of their obligations as specified in this Rule with respect to the classes in their appointment. Furthermore, LMMs should not: (1) Individually or as a group, intentionally or unintentionally, dominate the market in option contracts of a particular class; and (2) effect purchases or sales on the Exchange except in a reasonable and orderly manner.
LMMs are prohibited from the following: (1) Any practice or procedure whereby LMMs trading any particular option issue determine by agreement the spreads or option prices at which they will trade that issue; and (2) any practice or procedure whereby LMMs trading any particular option issue determine by agreement the allocation of orders that may be executed in that issue.
An LMM may enter quotations only in the issues included in its appointment. An LMM must provide continuous two-sided quotations throughout the trading day in its appointed issues for 90% of the time the Exchange is open for trading in each issue. Such quotations must meet the legal quote width requirements herein. These obligations will apply to all of the LMMs appointed issues collectively, rather than on an option-by-option basis. Compliance with this obligation will be determined on a monthly basis.
If a technical failure or limitation of a system of the Exchange prevents an LMM from maintaining, or prevents a LMM from communicating to the Exchange, timely and accurate electronic quotes in an issue, the duration of such failure shall not be considered in determining whether the LMM has satisfied the 90% quoting standard with respect to that option issue. The Exchange may consider other exceptions to this continuous electronic quote obligation based on demonstrated
An LMM shall be compelled to buy/sell a specified quantity of option contracts at the disseminated bid/offer pursuant to his obligations with respect to firm quotes. All quotes and orders entered into the System by Options Participants are firm under this Rule and Rule 602 of Regulation NMS under the Exchange Act (“SEC Rule 602”) for the number of contracts specified and according to the size requirements set forth herein. Market Maker bids and offers are not firm under this Rule and SEC Rule 602: (1) For the period prior to the Opening Cross; or (2) if any of the circumstances provided in paragraph (b)(3) or (c)(4) of SEC Rule 602 exist.
These LMM obligations are based on rules of NYSE Arca.
The Exchange proposes to provide LMM participation entitlements in Chapter VI (Trading Systems) at Section 10, entitled “Book Processing.” Specifically, with respect to Size Pro-Rata executions, the Exchange would afford an LMM a participation entitlement if the LMM's bid/offer is at the Exchange's disseminated price and all Public Customer
Orders for 5 contracts or fewer shall be allocated to the LMM. The Exchange will review this provision quarterly and will maintain the small order size at a level that will not allow orders of 5 contracts or less executed by the LMM to account for more than 40% of the volume executed on the Exchange. After all Public Customer orders have been fully executed and LMM participation entitlements applied, if applicable, BX Options Market Makers shall have priority over all other Participant orders at the same price.
Several examples of the manner in which an LMM will be allocated pursuant to the Size Pro-Rata model follow below.
Allocated as follows:
Size Pro-Rata results in Customer A trading 5 contracts, Customer B trading 2 contracts, LMM trading 11 contracts (15/45*33 remaining), MM1 trading 14 contracts (20/45*33), MM2 trading 7 contracts (10/45*33), and then LMM based on time receiving an additional 1 lot.
LMM allocation would result in Customer A trading 5 contracts, Customer B trading 2 contracts, and LMM trading 40% of remaining 33 contracts= 13 (13.2 rounded down); then Size Pro-Rata for remaining with MM1 trading 13 contracts (20/30*20) and MM2 trading 6 contracts (10/30*20) and LMM trading an additional 1 lot based on time.
Pursuant to proposed Chapter VI, Section 10(1)(C)(2)(ii)(1), LMM allocation would prevail in this example because the LMM receives greater allocation.
Allocated as follows:
Size Pro-Rata results in Customer A trading 10 contracts, Customer B trading 10 contracts, LMM trading 6 contracts (10/30*20 remaining rounded down), MM1 trading 6 contracts (10/30*20), MM2 trading 6 contracts (10/30*20), and then MM1 and LMM based on time each receiving an additional 1 lot.
LMM allocation would result in Customer A trading 10 contracts, Customer B trading 10 contracts, and LMM trading 40% of remaining 20 contracts = 8; then normal pro rata resumes with MM1 and MM2 each being allocated 6 contracts.
Pursuant to proposed Chapter VI, Section 10(1)(C)(2)(ii)(1), LMM allocation would prevail in this example because the LMM receives greater allocation.
Allocated as follows:
Size Pro-Rata results in Customer B trading 2 contracts, MM1 trading 6 contracts (10/60*38), LMM trading 12 (20/60*38), MM2 trading 6 contracts (10/60*38), and MM3 trading 12 contracts (20/60*38) and then MM1 and LMM each trading an additional 1 contract based on time.
LMM allocation would result in Customer B trading 2 contracts and LMM trading 30% of remaining 38 contracts = 11 (11.4 rounded down); then normal pro rata resumes and MM1 trades 6 contracts (10/40*27), MM2 trades 6 (10/40*27), and MM3 trades 13 contracts (20/40*27) and MM1 and LMM each trade an additional 1 lot based on time.
Size Pro-Rata allocation would prevail because the LMM receives greater allocation that way pursuant to proposed Chapter VI, Section 10(1)(C)(2)(ii)(1).
With respect to Price/Time executions, the Exchange proposes to provide that the highest bid and lowest offer shall have priority except that Public Customer orders shall have priority over non-Public Customer orders at the same price. Today, Public Customer orders do not have priority over non-Public Customer orders at the same price. If there are two or more Public Customer orders for the same options series at the same price, priority shall be afforded to such Public Customer orders in the sequence in which they are received by the System. For purposes of this Rule, a Public Customer order does not include a Professional Order. Public Customer Priority is always in effect when Price/Time execution algorithm is in effect.
The Exchange proposes that LMM participant entitlements may be in effect when the Public Customer Priority Overlay is also in effect. After all Public Customer orders have been fully executed, upon receipt of an order, provided the LMM's bid/offer is at the Exchange's disseminated price, the LMM will be afforded a participation entitlement.
Orders for 5 contracts or fewer shall be allocated to the LMM. The Exchange will review this provision quarterly and will maintain the small order size at a level that will not allow orders of 5 contracts or less executed by the LMM to account for more than 40% of the volume executed on the Exchange.
Several examples of the manner in which an LMM will be allocated pursuant to the Price/Time model follow below.
Allocated as follows:
Price/Time with Customer priority results in Customer A trading 5 contracts, Customer B trading 2 contracts, Market Maker 1 trading 10 contracts, LMM trading 20 contracts, and Firm trading 3 contracts
LMM allocation would result in Customer A trading 5 contracts, Customer B trading 2 contracts, and LMM trading 40% of remaining 33 contracts = 13 (13.2 rounded down); then normal price time resumes and Market Maker1 trades 10 contracts, Firm trades 5 contracts, and LMM trades an additional 5 contracts
Price/Time with Customer priority would prevail because LMM allocation results in a greater allocation pursuant to proposed Chapter VI, Section 10(1)(a).
Allocated as follows:
Price/Time with Customer priority results in Customer A trading 10 contracts, Customer B trading 10 contracts, Market Maker 1 trading 10 contracts, Firm trading 10 contracts
LMM allocation would results in Customer A trading 10 contracts, Customer B trading 10 contracts, and LMM trading 40% of remaining 20 contracts = 8; then Price/Time resumes and Market Maker 1 trades 10 contracts and Firm trades 2 contracts
LMM allocation would prevail because the LMM receives a greater allocation with this calculation pursuant to proposed Chapter VI, Section 10(1)(C)(1)(b)(1).
Price/Time with Customer priority results in Customer B trading 2 contracts, Market Maker 1 trading 10 contracts, Firm trading 25 contracts, and LMM trading 3 contracts
LMM allocation would result in Customer B trading 2 contracts and LMM trading 50% of remaining 38 contracts = 19; then normal price time resumes and MM1 trades 10 contracts and Firm trades 9 contracts
LMM allocation would prevail because the LMM receives a greater allocation with this calculation pursuant to proposed Chapter VI, Section 10(1)(C)(1)(b)(1).
The Exchange desires to implement this rule change by rolling out the rule amendments on an option-by-option basis over a period of time. The Exchange would issue Options Trader Alerts in advance to inform market participants which symbols will be implemented on which dates.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The Exchange believes that requiring Market Makers to provide continuous two-sided quotations 60% of the trading day (as a percentage of the total number of minutes in such trading day) or such higher percentage as BX may announce in advance continues to promote just and equitable principles of trade, and to foster cooperation and coordination with persons engaged in facilitating transactions in securities. Further, the Exchange would apply the quoting requirement to all of a Market Maker's registered options collectively to all appointed issues, rather than on an option-by-option basis and compliance with this obligation will be determined on a monthly basis.
The proposal supports the quality of the Exchange's market by helping to ensure that Market Makers will continue to be obligated to quote in series when necessary. Ultimately, the benefit the proposed rule change confers upon Market Makers is offset by the continued responsibilities to provide significant liquidity to the market to the benefit of market participants. While under the proposal there are quoting requirements changes, the Exchange does not believe that these changes reduce the overall obligations applicable to Market Makers.
The proposed rule change also protects investors and the public interest by creating more uniformity and consistency among the Exchange's rules related to Market Maker quoting obligations. Providing Market Makers with flexibility by providing the continuous quoting obligation collectively across all option classes will not diminish the Market Makers' obligation to continuously quote a significant part of the trading day in a significant percentage of series. Additionally, with respect to compliance standards, the Exchange believes that adopting the proposed standards will enhance compliance efforts by Market Makers and the Exchange, and are consistent with requirements currently in place on other options exchanges (
The proposed rules relating to LMM allocations seek to establish and promote just and equitable principles of trade by requiring each market maker who desires to be an LMM to submit an application to the Exchange providing certain basic information and other information as necessary. The solicitation process is intended to provide all LMMs an opportunity to seek allocations by requiring allocation applications to be submitted in writing to the Exchange with certain information. The Exchange intends to foster cooperation and coordination with LMMs by requiring information concerning the LMM's experience and capitalization and other information to ensure that an LMM is qualified when allocated option series. LMMs would be required to update information accordingly once they are assigned in an option series.
Exchange staff seeks to allocate option series by considering a number of factors including but not limited to, the number and type of securities in which applicants are currently registered; the capital and other resources of the applicant; recent allocation decisions within the past eighteen months; the desirability of encouraging the entry of new LMMs into the Exchange's market; order flow commitments; any prior transfers of LMM privileges by the applicant and the reasons therefore; quality of markets data; and observance of ethical standards and administrative responsibilities and such policies as the Board instructs the Exchange to follow in allocating or reallocating securities. These factors are intended to assist the Exchange in determining which LMMs qualify for allocations and the LMM's ability to meet its obligations. The process of allocating securities
With respect to an LMM's obligations, the Exchange would require LMMs be subject to heightened standards as compared to other market makers. An LMM must provide continuous two-sided quotations throughout the trading day in its appointed issues for 90% of the time the Exchange is open for trading in each issue. Such quotations must meet the legal quote width requirements herein. These obligations will apply to all of the LMMs appointed issues collectively, rather than on an option-by-option basis. Compliance with this obligation will be determined on a monthly basis. BX Regulation may consider exceptions to the requirement to quote 90% (or higher) of the trading day based on demonstrated legal or regulatory requirements or other mitigating circumstances. However, determining compliance with the continuous quoting requirement on a monthly basis does not relieve an LMM of the obligation to provide continuous two-sided quotes on a daily basis, nor will it prohibit the Exchange from taking disciplinary action against an LMM for failing to meet the continuous quoting obligation each trading day.
LMM's transactions should constitute a course of dealings reasonably calculated to contribute to the maintenance of a fair and orderly market, and no LMM should enter into transactions or make bids or offers that are inconsistent with such a course of dealings. An LMM is expected to engage, to a reasonable degree under the existing circumstances, in dealings for his own account when there exists, or it is reasonably anticipated that there will exist, a lack of price continuity, a temporary disparity between the supply of and demand for a particular option contract, or a temporary distortion of the price relationships between option contracts of the same class. The Exchange will obligate an LMM to certain conduct including: (1) To compete with other LMMs to improve the market in all series of options classes to which the LMM is appointed; (2) to make markets that will be honored for the number of contracts entered into the Trading System in all series of options classes within the LMM's appointment; (3) to update market quotations in response to changed market conditions in all series of options classes within the LMM's appointment; (4) to quote with a difference not to exceed $5 between the bid and offer regardless of the price of the bid; (5) to establish quote width differences other than as provided in subparagraph (4) for one or more options series; and (6) certain permissible price differentials.
With respect to classes of option contracts outside of their appointment, LMMs will not be permitted to engage in transactions for an account in which they have an interest that are disproportionate in relation to, or in derogation of, the performance of their obligations as specified in this Rule with respect to the classes in their appointment. LMMs are also prohibited from entering into certain agreements that may undermine the LMMs obligations.
The Exchange believes that the obligations set forth for LMMs in its proposed rules will promote just and equitable principles of trade, foster cooperation and coordination with persons engaged in facilitating transactions in securities, and, in general, to protect investors and the public interest.
The Exchange believes that offering LMMs participation entitlements promotes just and equitable principles of trade because LMMs will be held to a higher standard as compared to other market participants including Market Makers. A Market Maker would be required, pursuant to this proposal, to quote 60% of the trading day. LMMs are being held to a higher obligation and therefore are being rewarded with participation entitlements. Similar to Market Makers, LMMs add value through continuous quoting
In addition, the LMM quoting requirements promote liquidity and continuity in the marketplace in requiring LMMs to be held to a higher standard of quoting. The Exchange also believes that the proposed rule change supports the quality of the Exchange's markets because it maintains the quoting obligations of Market Makers as LMMs at 90%. LMM transactions must constitute a course of dealings reasonably calculated to contribute to the maintenance of a fair and orderly market. Accordingly, the proposed rule change supports the quality of the Exchange's trading markets by helping to ensure that LMMs will be required to meet a higher quoting standard in order to reap the benefits of the participation entitlements. The Exchange believes this proposed change to offer participation entitlements to LMMs is offset by LMMs' continued responsibilities to provide significant liquidity to the market to the benefit of market participants.
The Exchange's proposal to add a sentence to the rule text at Chapter VI, Section 10(1)(C)(1)(a) to state that Public Customer Priority is always in effect when the Price/Time execution algorithm is in effect and also add language to Chapter VI, Section 10(1)(C)(2)(i) to conform the Size Pro-Rata language for clarity recognizes the unique status of customers in the marketplace and the role their orders play in price competition and adding depth to the marketplace. The Exchange believes that the Public Customer priority overlay is designed to promote just and equitable principles of trade and to protect investors and the public interest.
The proposed rule change also removes impediments to and allows for a free and open market, while protecting investors, by promoting transparency regarding LMMs' obligations and benefits in the Exchange Rules. In addition, the Exchange believes that the proposed rule change is designed to not permit unfair discrimination among LMMs.
The proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. Market Makers will be subject to quoting obligations which are similar to those at other options exchanges.
The Exchange does not believe the proposed rule change will cause any unnecessary burden on intra-market competition because it provides all market participants that qualify as LMMs and meet the required criteria and fulfill the required obligations the opportunity to benefit from participation entitlements. The Exchange believes that the proposed rule change will promote competition among LMMs who desire to be assigned in options series and in turn promote trading activity on the Exchange to the benefit of the Exchange, its Members, and market participants.
The Exchange does not believe the proposed change will cause any unnecessary burden on inter-market competition because any qualifying LMM will be entitled to receive participation entitlements on options series they are obligated to quote in under the Rules. In addition, the Exchange believes that the proposed rule change will in fact promote competition. The Exchange believes allowing LMMs to receive participation entitlements will promote trading activity on the Exchange because it will provide incentives to LMMs to quote in series which they are not obligated to do so, to the benefit of the Exchange, its Members, and market participants.
No written comments were either solicited or received.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove such proposed rule change; or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for Web site viewing and printing in the Commission's Public Reference Room, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly.
All submissions should refer to File Number
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 is filing with the Commission a proposal to amend Rule 1012 (Series of Options Open for Trading) and Rule 1101A (Terms of Option Contracts) regarding the Short Term Option (“STO”) Program (“STO Program” or “Program”) to introduce finer strike price intervals for standard expiration contracts in option classes that also have STOs
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this proposed rule change is to amend Rule 1012 and Rule 1101A regarding the STO Program to introduce finer strike price intervals for standard expiration contracts in option classes that also have related non-STOs listed on them. In particular, the Exchange proposes to amend its rules to permit the listing of related non-short term options during the month prior to expiration in the same strike price intervals as allowed for short term option series.
The STO Program, which was initiated in 2010,
The Exchange may also list standard expiration contracts, which are listed in accordance with the regular monthly expiration cycle. These standard expiration contracts must be listed in wider strike price intervals of $2.50, $5, or $10,
For example, assume ABC is trading at $56.54 and the monthly expiration contract is three weeks to expiration. Assume also that the Exchange has listed all available STO expirations and thus has STOs listed on ABC for weeks one, two, four, five, and six. Each of the five weekly ABC expiration dates can be listed with strike prices in $0.50 intervals, including, for example, the $56.50 at-the-money strike. Because the monthly expiration contract has three weeks to expiration, however, the near-the-money strikes must be listed in $5 intervals unless those options are eligible for one of the Exchange's other strike price programs. In this instance, that would mean that investors would be limited to choosing, for example, between the $55 and $60 strike prices instead of the $56.50 at-the-money strike available for STOs. This is the case even though contracts on the same option class that expire both several weeks before and several weeks after the monthly expiration are eligible for finer strike price intervals. Under the proposed rule change, the Exchange would be permitted to list the related non-short term option on ABC, which is less than a month to expiration, in the same strike price intervals as allowed for STOs. Thus, the Exchange would be able to list, and investors would be able to trade, all expirations described above with the same uniform $0.50 strike price interval.
As proposed, the Exchange would be permitted to begin listing the monthly expiration contract in these narrower intervals at any time during the month prior to expiration, which begins on the first trading day after the prior month's expiration date, subject to the provisions of Exchange rules. For example, since the April 2014 monthly option expired on Saturday, April 19, the proposed rule change would allow the Exchange to list the May 2014 monthly option in short term option intervals starting Monday, April 21.
The Exchange believes that introducing consistent strike price intervals for STOs and related non-STOs during the month prior to expiration will benefit investors by giving them more flexibility to closely tailor their investment decisions. The Exchange also believes that the proposed rule change will provide the investing public and other market participants with additional opportunities to hedge their investments, thus allowing these investors to better manage their risk exposure.
The Exchange believes that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder that are applicable to a national securities exchange, and, in particular, with the requirements of Section 6(b) of the Act.
As noted above, standard expiration options currently trade in wider intervals than their weekly counterparts, except during the week prior to expiration. This creates a situation where contracts on the same option class that expire both several weeks before and several weeks after the standard expiration are eligible to trade in strike price intervals that the standard expiration contract is not. When the Exchange originally filed to list related non-STOs in the same intervals as STOs in the same option class during the week prior to expiration,
The Exchange notes that, in addition to listing standard expiration contracts in STO intervals during the expiration week, it already operates several programs that allow for strike price intervals for standard expiration contracts that range from $0.50 to $2.50.
With regard to the impact of this proposal on system capacity, the Exchange has analyzed its capacity and represents that it and the Options Price Reporting Authority (“OPRA”) have the necessary systems capacity to handle any potential additional traffic associated with this proposed rule change. The Exchange believes that its members will not have a capacity issue as a result of this proposal. The Exchange also represents that it does not believe this expansion will cause fragmentation of liquidity.
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. To the contrary, the Exchange believes that the proposed rule change will result in additional investment options and opportunities to achieve the investment objectives of market participants seeking efficient trading and hedging vehicles, to the benefit of investors, market participants, and the marketplace in general. Specifically, the Exchange believes that investors will benefit from the availability of strike price intervals in standard expiration contracts that match the intervals currently permitted for STOs with a similar time to expiration.
No written comments were either solicited or received.
Because the proposed rule change does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
The Exchange has asked the Commission to waive the 30-day operative delay so that the proposal may become operative immediately upon filing. The Exchange stated that waiver of this requirement would allow STOs to be traded on the Exchange in a manner similar to other markets, in a competitive manner and without interruption. For this reason, the Commission believes that the proposed rule change presents no novel issues and that waiver of the 30-day operative delay is consistent with the protection of investors and the public interest; and will allow the Exchange to remain competitive with other exchanges. Therefore, the Commission designates the proposed rule change to be operative upon filing.
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
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-Phlx-2014-41. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On May 5, 2014, The NASDAQ Stock Market LLC (“Exchange” or “Nasdaq”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange has made the following representations and statements in describing the Fund and its investment strategies, including other portfolio holdings and investment restrictions.
The Fund will be an actively-managed exchange-traded fund (“ETF”). The Shares will be offered by the Trust, which was established as a Massachusetts business trust on September 15, 2010.
First Trust Advisors L.P. will be the investment adviser (“Adviser”) to the Fund. The following will serve as investment sub-advisers (each a “Sub-Adviser”) to the Fund: First Trust Global Portfolios Ltd (“First Trust Global”); Energy Income Partners, LLC (“EIP”); Stonebridge Advisors LLC (“Stonebridge”); and Richard Bernstein Advisors LLC (“RBA”).
The primary investment objective of the Fund will be to seek risk-adjusted
The Fund will be a multi-manager, multi-strategy actively-managed exchange-traded fund. The Adviser will determine the Fund's strategic allocation among various general investment categories and allocate the Fund's assets to portfolio management teams comprised of personnel of the Adviser and/or a Sub-Adviser (each a “Management Team”), which will employ their respective investment strategies. The Fund's investment categories, which are described in more detail below, will be: (i) High yield corporate bonds and first lien senior secured floating rate bank loans (referred to as “senior loans”); (ii) mortgage-related investments; (iii) preferred securities; (iv) international sovereign bonds; (v) equity securities of Energy Infrastructure Companies (as defined below); (vi) dividend paying domestic equity securities and Depositary Receipts (as defined below), together with a related option overlay strategy; and (vii) other derivative instruments.
The Fund may add or remove investment categories or Management Teams at the Adviser's discretion. The Fund will seek to provide income and total return by having each Management Team focus on those securities within its respective investment category. The Fund may invest in securities directly or, alternatively, may invest in other ETFs that generally provide exposure to the various investment categories.
To enhance expected return, the Adviser's investment committee will, on a generally periodic basis, tactically adjust investment category weights. Security selection will be performed for the Fund by the Adviser and/or a Sub-Adviser.
With respect to each investment category, the liquidity of a security will be a substantial factor in the Fund's security selection process. The Fund will not purchase any securities or other assets that, in the opinion of the applicable Management Team, are illiquid if, as a result, more than 15% of the value of the Fund's net assets will be invested in illiquid assets (“15% Limitation”).
Except as specifically provided herein, the fixed income and equity securities in which the Fund will invest may be issued by U.S. and non-U.S. issuers of all kinds and of any capitalization range and credit quality. The Fund represents that its portfolio will include a minimum of 13 non-affiliated issuers of fixed income securities. In addition, the fixed income securities in which the Fund will invest may have effective or final maturities of any length. At least 90% of the Fund's net assets that are invested in exchange-traded equity securities of both domestic and foreign issuers, exchange-traded products and exchange-traded derivatives (in the aggregate) will be invested in investments that trade in markets that are members of the Intermarket Surveillance Group (“ISG”), which includes all U.S. national securities exchanges and certain foreign exchanges, or are parties to a comprehensive surveillance sharing agreement with the Exchange.
The Fund may invest in the equity securities (including without limitation preferred securities) of foreign issuers, either directly or through investments that are in the form of American Depositary Receipts (“ADRs”) or Global Depositary Receipts (“GDRs” and, together with ADRs, “Depositary Receipts”).
The Fund's exposure to any single country (outside of the U.S.) will generally be limited to 20% of the Fund's net assets. The portion of the Fund's net assets that may be denominated in currencies other than the U.S. dollar is not expected to exceed 30%. To the extent the Fund invests in such assets, the value of the assets of the Fund as measured in U.S. dollars will be affected by changes in exchange rates.
The Fund may from time to time purchase securities on a “when-issued” or other delayed-delivery basis. To the extent required under applicable federal securities laws (including the 1940 Act), rules, and interpretations thereof, the Fund will “set aside” liquid assets or engage in other measures to “cover” open positions held in connection with the foregoing types of transactions.
The investment categories in which the Fund intends to invest and the investment strategies that the applicable Management Teams are expected to pursue are described below:
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The high yield corporate bonds in which the Fund will invest will be rated below investment grade
The senior loans in which the Fund will invest will represent amounts borrowed by companies or other entities from banks and other lenders. In many cases, senior loans are issued in connection with recapitalizations, acquisitions, leveraged buyouts, and refinancings. A significant portion of the senior loans in which the Fund will invest are expected to be rated below investment grade or unrated.
A senior loan is considered senior to all other unsecured claims against the borrower, and senior to or
Senior loans have interest rates that reset periodically. The interest rates on senior loans are generally based on a percentage above the London Interbank Offered Rate (LIBOR), a U.S bank's prime or base rate, the overnight federal funds rate, or another rate. Senior loans may be structured and administered by a financial institution that acts as the agent of the lenders participating in the senior loan. The Fund may acquire senior loans directly from a lender or through the agent, as an assignment from another lender who holds a senior loan, or as a participation interest in another lender's senior loan or portion thereof.
The Fund will generally invest in senior loans that the Adviser and/or the applicable Management Team deems to be liquid with readily available prices.
The Management Team does not intend to purchase senior loans that are in default; however, the Fund may hold a senior loan that has defaulted subsequent to the purchase by the Fund.
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The Mortgage-Related Investments in which the Fund invests will primarily consist of investment grade securities (
The types of Mortgage-Related Investments in which the Fund will invest are described in the following three paragraphs:
The Fund will invest in mortgage-backed securities, such as residential mortgage-backed securities (“RMBS”) and commercial mortgage-backed securities (“CMBS”). Mortgage-backed securities represent an interest in a pool of mortgage loans made by banks and other financial institutions to finance purchases of homes, commercial buildings and other real estate. The individual mortgage loans are packaged or “pooled” together for sale to investors. As the underlying mortgage loans are paid off, investors receive principal and interest payments.
The mortgage-backed securities in which the Fund will invest may be, but are not required to be, issued or guaranteed by the U.S. government, its agencies or instrumentalities, such as Ginnie Mae and U.S. government-sponsored entities, such as Fannie Mae and Freddie Mac (the U.S. government, its agencies and instrumentalities, and U.S. government-sponsored entities are referred to collectively as “Government Entities”).
Additionally, the Fund may invest in mortgage dollar rolls.
•
•
The Fund intends to invest in Sovereign Debt of issuers in both developed and emerging markets.
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As indicated above, the Fund may invest in the equity securities of MLPs. MLPs are limited partnerships whose shares (or units) are listed and traded on a U.S. securities exchange. MLP units may be common or subordinated.
•
•
As described below, the Fund may invest in derivative instruments.
Primarily in connection with its investments in Sovereign Debt (but, to the extent applicable, in connection with other investments), the Fund may actively manage its foreign currency exposures, including through the use of forward currency contracts, non-deliverable forward currency contracts, exchange-listed currency futures and exchange-listed currency options; such derivatives use will be included for purposes of determining compliance with the 20% Limitation. The Fund may, for instance, enter into forward currency contracts in order to “lock in” the exchange rate between the currency it will deliver and the currency it will receive for the duration of the contract
The Fund will comply with the regulatory requirements of the Commission to maintain assets as “cover,” maintain segregated accounts, and/or make margin payments when it takes positions in derivative instruments involving obligations to third parties (
The Fund will only enter into transactions in derivative instruments with counterparties that the Adviser and/or the applicable Management Team reasonably believes are capable of performing under the applicable contract.
The Fund's investments in derivative instruments will be consistent with the Fund's investment objectives and the 1940 Act and will not be used to seek to achieve a multiple or inverse multiple of an index.
Under normal market conditions, the Fund will invest substantially all of its assets to meet its investment objectives and, as described above, the Fund may invest in derivative instruments. In addition, the Fund may invest its remaining assets in other securities and financial instruments, as generally described below.
The Fund may invest up to 20% of its net assets in short-term debt securities, money market funds and other cash equivalents, or it may hold cash. The percentage of the Fund invested in such holdings will vary and will depend on several factors, including market conditions. For temporary defensive purposes, during the initial invest-up period and during periods of high cash inflows or outflows, the Fund (as a whole or with respect to one or more investment categories) may depart from its principal investment strategies and invest part or all of its assets in these securities or it may hold cash. During such periods, the Fund may not be able to achieve its investment objectives. The Fund (as a whole or with respect to one or more investment categories) may adopt a defensive strategy when the Adviser and/or a Management Team believe securities in which the Fund normally invests have elevated risks due to political or economic factors and in other extraordinary circumstances.
Short-term debt securities are securities from issuers having a long-term debt rating of at least A by S&P Ratings, Moody's or Fitch and having a maturity of one year or less. The use of temporary investments will not be a part of a principal investment strategy of the Fund.
Short-term debt securities are the following: (1) Fixed rate and floating rate U.S. government securities, including bills, notes and bonds differing as to maturity and rates of interest, which are either issued or guaranteed by the U.S. Treasury or by U.S. government agencies or instrumentalities; (2) short-term securities issued or guaranteed by non-U.S. governments or by their agencies or instrumentalities;
In addition, to manage foreign currency exposures, the Fund may invest directly in foreign currencies, including without limitation in the form of bank and financial institution deposits, certificates of deposit, and bankers' acceptances denominated in a specified non-U.S. currency.
The Fund may invest in the securities of money market funds. The Fund may also invest in the securities of other ETFs that invest primarily in short-term debt securities, in addition to any investments in other ETFs described above.
The Fund may invest up to 15% of its net assets in secured loans that are not first lien loans or loans that are unsecured (collectively referred to as “junior loans”). Junior loans have the same characteristics as senior loans except that junior loans are not first in priority of repayment and/or may not be secured by collateral. Accordingly, the risks associated with junior loans are higher than the risks for loans with first priority over the collateral. Because junior loans are lower in priority and/or unsecured, they are subject to the additional risk that the cash flow of the borrower may be insufficient to meet scheduled payments after giving effect to the secured obligations of the borrower or in the case of a default, recoveries may be lower for unsecured loans than for secured loans.
In accordance with the 15% Limitation described above, the Fund may hold up to an aggregate amount of 15% of its net assets in illiquid assets (calculated at the time of investment), including Rule 144A securities deemed illiquid by the Adviser and/or the applicable Management Team.
The Fund will not concentrate in any one industry. For the avoidance of any doubt, however, this will not limit the Fund's investments in (a) obligations issued or guaranteed by the U.S. government, its agencies or instrumentalities or (b) securities of other investment companies.
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of Section 6 of the Act
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. The Exchange will obtain a representation from the issuer of the Shares that the NAV per Share will be calculated daily and that the NAV and the Disclosed Portfolio will be made available to all market participants at the same time. Nasdaq will halt trading in the Shares under the conditions specified in Nasdaq Rules 4120 and 4121, including the trading pauses under Nasdaq Rules 4120(a)(11) and (12). Trading in the Shares may be halted because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable,
The Exchange represents 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 the following:
(1) The Shares will be subject to Nasdaq Rule 5735, which sets forth the initial and continued listing criteria applicable to Managed Fund Shares.
(2) The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions.
(3) FINRA, on behalf of the Exchange, will communicate as needed regarding trading in the Shares and the exchange-traded securities and instruments held by the Fund with other markets and other entities that are members of ISG, and FINRA may obtain trading information regarding trading in the Shares and the exchange-traded securities and instruments held by the Fund from such markets and other entities. In addition, the Exchange may obtain information regarding trading in the Shares and the exchange-traded securities and instruments held by the Fund from markets and other entities that are members of ISG, which includes securities and futures exchanges, or with which the Exchange has in place a comprehensive surveillance sharing agreement. Moreover, FINRA, on behalf of the Exchange, will be able to access, as needed, trade information for certain fixed income securities held by the Fund reported to FINRA's TRACE.
(4) Prior to the commencement of trading, the Exchange will inform its members in an Information Circular of the special characteristics and risks associated with trading the Shares. Specifically, the Information Circular will discuss the following: (a) The procedures for purchases and redemptions of Shares in creation units (and that Shares are not individually redeemable); (b) Nasdaq Rule 2111A, which imposes suitability obligations on Nasdaq members with respect to recommending transactions in the Shares to customers; (c) how information regarding the Intraday Indicative Value is disseminated; (d) the risks involved in trading the Shares during the Pre-Market and Post-Market Sessions when an updated Intraday Indicative Value will not be calculated or publicly disseminated; (e) the requirement that members deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; and (f) trading information.
(5) For initial and continued listing, the Fund must be in compliance with Rule 10A-3 under the Act.
(6) The Fund may hold up to an aggregate amount of 15% of its net assets in illiquid assets (calculated at the time of investment), including Rule 144A securities deemed illiquid by the Adviser and/or the applicable Management Team. The Fund will not purchase any securities or other assets that, in the opinion of the applicable Management Team, are illiquid if, as a result, more than 15% of the value of the Fund's net assets will be invested in illiquid assets.
(7) At least 90% of the Fund's net assets that are invested in exchange-traded equity securities of both domestic and foreign issuers, exchange-traded products and exchange-traded derivatives (in the aggregate) will be invested in investments that trade in markets that are members of ISG or are parties to a comprehensive surveillance sharing agreement with the Exchange. The Depositary Receipts in which the Fund invests will be exchange-traded and will not include unsponsored Depositary Receipts. Any exchange-traded derivatives in which the Fund invests will trade in markets that are members of ISG or are parties to a comprehensive surveillance sharing agreement with the Exchange.
(8) The Fund represents that its portfolio will include a minimum of 13 non-affiliated issuers of fixed income securities.
(9) The Fund's exposure to any single country (outside of the U.S.) will generally be limited to 20% of the Fund's net assets. The portion of the Fund's net assets that may be denominated in currencies other than the U.S. dollar is not expected to exceed 30%.
(10) In connection with its investments in high yield corporate bonds and senior loans, under normal market conditions, the Fund will seek to invest at least 75% of its net assets that are invested in such bonds and loans (in the aggregate) in bonds and loans that, at the time of original issuance, have at least $100 million par amount outstanding.
(11) The Fund may invest up to 15% of its net assets in junior loans.
(12) The Fund will limit its investments in mortgage-backed
(13) Under normal market conditions, the Fund will seek to invest at least 75% of its net assets that are invested in preferred securities in preferred securities that have a minimum initial issuance amount of at least $100 million. Initially, at least 50% of the Fund's net assets that are invested in preferred securities will be invested in exchange-listed preferred securities, although this percentage may decrease in the future.
(14) Under normal market conditions, at least 80% of the Sovereign Debt in which the Fund invests will be issued by issuers with outstanding debt of at least $200 million (or the foreign currency equivalent thereof).
(15) Not including the Option Overlay Strategy, no more than 20% of the value of the Fund's net assets will be invested in derivative instruments. The Fund will only enter into transactions in derivative instruments with counterparties that the Adviser and/or the applicable Management Team reasonably believes are capable of performing under the applicable contract. The Fund's investments in derivative instruments will be consistent with the Fund's investment objectives and the 1940 Act and will not be used to seek to achieve a multiple or inverse multiple of an index.
(16) A minimum of 100,000 Shares will be outstanding at the commencement of trading on the Exchange.
This approval order is based on all of the Exchange's representations, including those set forth above and in the Notice, and the Exchange's description of the Fund.
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)
The Exchange proposes to amend Rule 86 to extend the hours for the Core Bond Trading Session for NYSE Bonds
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 Rule 86 to extend the hours for the Core Bond Trading Session for NYSE Bonds and to amend Rule 88 to make corresponding changes related to BLPs.
NYSE Bonds is the Exchange's electronic system for receiving, processing, executing, and reporting bids, offers, and executions in bonds. Rule 86 prescribes how bonds are traded through the NYSE Bonds trading platform, including the receipt, execution, and reporting of bond transactions. Rule 88 provides for BLPs, which are member organizations that electronically enter orders from off the Floor of the Exchange into NYSE Bonds.
NYSE Bonds has three Bond Trading Sessions: (1) the Opening Bond Trading Session, (2) the Core Bond Trading Session, and (3) the Late Bond Trading Session. The Opening Bond Trading Session currently commences at 4:00 a.m. Eastern Time (“ET”) and concludes at 9:30 a.m. ET. The Core Bond Trading Session currently commences at 9:30 a.m. ET and concludes at 4:00 p.m. ET. The Late Bond Trading Session currently commences at 4:00 p.m. ET and concludes at 8:00 p.m. ET.
The Exchange proposes to extend the hours of the Core Bond Trading Session so that it would commence at 8:00 a.m. ET and end at 5:00 p.m. ET, adding a total of 2.5 hours to the Core Bond Trading Session and better aligning its hours with those of other bond trading venues. The Exchange proposes to amend the references to the various time periods throughout Rule 86 to effect this change, including, for example, that the Core Bond Auction would commence at 8:00 a.m. ET instead of the current 9:30 a.m. ET. The Exchange would announce the date on which the expanded Core Bond Trading Session hours would take effect via Trader Update. The Exchange notes, for example, that the proposed extended Core Bond Trading Session would also result in the ability for an “NYSE Bonds Good `Til Cancelled
Rule 88(a) and (f) specify BLP bid and offer requirements to qualify for a financial incentive for transactions on NYSE Bonds, as set forth in Rule 88(b) and in the Exchange's Price List. The requirements currently refer to “trading day” or “normal trading day” when describing the time period during which they apply and are calculated, which, in practice, refers to the Core Bond Trading Session. The Exchange proposes to replace these references to “trading day” and “normal trading day” with “Core Bond Trading Session.” The Exchange believes that this proposed change would encourage BLPs to be active for greater periods of time each day, which would lead to increased liquidity throughout the day and contribute to the quality of NYSE Bonds for all Users. The Exchange notes that BLPs may already be active in bonds on other marketplaces on which they trade during the extended period of time and because BLPs are also currently active after the Core Bond Trading Session at levels that would contribute to satisfying the applicable requirements, BLPs would not have any problems in complying with the proposed change. Moreover, while the time period during with the requirements would apply would increase, so would the ability for BLPs to earn financial incentives for transactions on NYSE Bonds, as set forth in Rule 88(b) and in the Exchange's Price List, which are only available during the Core Bond Trading Session.
The proposed change is not otherwise intended to address any other issues, and the Exchange is not aware of any problems Users, including BLPs, would have in complying with the proposed change.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed change would foster cooperation and coordination with persons engaged in bond transactions by more closely aligning the hours of the Core Bond Trading Session with the hours of other marketplaces on which bonds trade (e.g., various alternative trading systems). The proposed change would also remove impediments to, and perfect the mechanisms of, a free and open market and a national market system by permitting Users to be active in the Core Bond Trading Session for 2.5 additional hours each day. Expanding the time period during which the Core Bond Trading Session is active would also increase the time period during which BLP requirements would apply, which may also increase the amount of liquidity on NYSE Bonds, thereby contributing to protecting investors and the public interest. The Exchange further believes that expanding the time period during which BLP requirements would apply would remove impediments to and perfect the mechanism of a free and open market and national market system because it would encourage BLPs to be active for greater periods of time each day, which would lead to increased liquidity throughout the day and contribute to the quality of NYSE Bonds for all Users. The Exchange notes that because BLPs may already be active in bonds on other marketplaces on which they trade during the extended period of time and because BLPs are also currently active after the Core Bond Trading Session at levels that would contribute to satisfying the applicable requirements, BLPs would not have any problems in complying with the proposed change. Moreover, while the time period during with the requirements would apply would increase, so would the ability for BLPs to earn financial incentives for transactions on NYSE Bonds, as set forth in Rule 88(b) and in the Exchange's Price List, which are only available during the Core Bond Trading Session. Likewise, replacing references within Rule 88(a) and (f) to “trading day” and “normal trading day” with “Core Bond Trading Session” would foster cooperation and coordination with persons engaged in bond transactions by more precisely specifying the period during which BLP requirements would apply and be calculated.
Finally, the Exchange believes that it is subject to significant competitive forces, as described below in the Exchange's statement regarding the burden on competition.
For these reasons, the Exchange believes that the proposal is consistent with the Act.
In accordance with Section 6(b)(8) of the Act,
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-NYSE-2014-31. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
U.S. Small Business Administration.
Amendment 3.
This is an amendment of the Presidential declaration of a major disaster for the State of Alabama (FEMA-4176-DR), dated 05/02/2014.
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 the State of Alabama, dated 05/02/2014 is hereby amended to extend the deadline for filing applications for physical damages as a result of this disaster to 07/15/2014.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 1.
This is an amendment of the Administrative disaster declaration for the State of TEXAS dated 05/20/2014.
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 Administrative disaster declaration for the State of Texas, dated 05/20/2014 is hereby amended to establish the incident period for this disaster as beginning 05/11/2014 and continuing through 05/14/2014.
All other information in the original declaration remains unchanged.
The Small Business Administration publishes an interest rate called the optional “peg” rate (13 CFR 120.214) on a quarterly basis. This rate is a weighted average cost of money to the government for maturities similar to the average SBA direct loan. This rate may
Pursuant to 13 CFR 120.921(b), the maximum legal interest rate for any third party lender's commercial loan which funds any portion of the cost of a 504 project (see 13 CFR 120.801) shall be 6% over the New York Prime rate or, if that exceeds the maximum interest rate permitted by the constitution or laws of a given State, the maximum interest rate will be the rate permitted by the constitution or laws of the given State.
The Office of the Assistant Legal Adviser for Private International Law, Department of State, gives notice of a public meeting to discuss possible work related to international commercial conciliation in the United Nations Commission on International Trade Law (UNCITRAL). The public meeting will take place on Thursday, July 31, 2014 from 9:00 a.m. until 12 p.m. EDT. This is not a meeting of the full Advisory Committee.
At its July 2014 session, UNCITRAL will be deciding what projects, if any, its Working Group II (Arbitration and Conciliation) should begin at its fall 2014 meeting. The United States has proposed that the Working Group develop a convention on the enforcement of conciliated settlement agreements that resolve international commercial disputes.
The purpose of the public meeting is to obtain the views of concerned stakeholders on what any such convention should provide and how the various issues identified in the proposal should be addressed. Those who cannot attend but wish to comment are welcome to do so by email to Tim Schnabel at
If UNCITRAL does not decide to commence work on this project, this public meeting will not be held; those who have communicated their intent to attend will be notified if the meeting is cancelled.
Data from the public is requested pursuant to Public Law 99-399 (Omnibus Diplomatic Security and Antiterrorism Act of 1986), as amended; Public Law 107-56 (USA PATRIOT Act); and Executive Order 13356. The purpose of the collection is to validate the identity of individuals who enter Department facilities. The data will be entered into the Visitor Access Control System (VACS-D) database. Please see the Security Records System of Records Notice (State-36) at
ITS Joint Program Office, Office of the Assistant Secretary for Research and Technology, U.S. Department of Transportation.
Notice.
The Intelligent Transportation Systems (ITS) Program Advisory Committee (ITSPAC) will hold a meeting by Web conference on July 23, 2014, from 2:00 p.m. to 3:00 p.m. (EDT).
The ITSPAC, established under Section 5305 of Public Law 109-59, Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users, August 10, 2005, and re-established under Section 53003 of Public Law 112-141, Moving Ahead for Progress in the 21st Century, July 6, 2012, was created to advise the Secretary of Transportation on all matters relating to the study, development, and implementation of intelligent transportation systems. Through its sponsor, the ITS Joint Program Office (JPO), the ITSPAC makes recommendations to the Secretary regarding ITS Program needs, objectives, plans, approaches, content, and progress.
The following is a summary of the meeting tentative agenda: (1) Call to Order and Roll Call, (2) Welcome Remarks, (3) Ethics Review, (4) Overview of Advisory Committee, (5) Overview of ITS Joint Program Office, and (6) Summary and Next Steps.
The Web conference will be open to the public, but limited conference lines will be available on a first-come, first-served basis. Members of the public who wish to participate in the Web conference must request approval from Mr. Stephen Glasscock, the Committee Designated Federal Official, at (202) 366-9126, not later than July 16, 2014. You must also request Mr. Glasscock's approval to present oral statements during the Web conference.
Questions about the agenda or written comments may be submitted by U.S. Mail to: U.S. Department of Transportation, Office of the Assistant Secretary for Research and Technology, ITS Joint Program Office, Attention: Stephen Glasscock, 1200 New Jersey Avenue SE., HOIT, Washington, DC 20590 or faxed to (202) 493-2027. The ITS JPO requests that written comments be submitted not later than July 16, 2014.
Notice of this meeting is provided in accordance with the Federal Advisory Committee Act and the General Services Administration regulations (41 CFR Part 102-3) covering management of Federal advisory committees.
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. The
Written comments should be submitted by August 7, 2014.
Kathy DePaepe at (405) 954-9362, or by email at:
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the attention of the Desk Officer, Department of Transportation/FAA, and sent via electronic mail to
Federal Aviation Administration (FAA), DOT.
Monthly Notice of PFC Approvals and Disapprovals. In June 2014, there were two applications approved. This notice also includes information on one application, approved in October 2013, inadvertently left off the October 2013 notice. Additionally, three approved amendments to previously approved applications are listed.
The FAA publishes a monthly notice, as appropriate, of PFC approvals and disapprovals under the provisions of the Aviation Safety and Capacity Expansion Act of 1990 (Title IX of the Omnibus Budget Reconciliation Act of 1990) (Pub. L. 101-508) and Part 158 of the Federal Aviation Regulations (14 CFR part 158). This notice is published pursuant to paragraph d of § 158.29.
PUBLIC AGENCY: County of Monroe, Rochester, New York.
APPLICATION NUMBER: 13-05-C-00-ROC.
APPLICATION TYPE: Impose and use a PFC.
PFC LEVEL: $4.50.
TOTAL PFC REVENUE APPROVED IN THIS DECISION: $30,580,000.
EARLIEST CHARGE EFFECTIVE DATE: August 1, 2021.
ESTIMATED CHARGE EXPIRATION DATE: September 1, 2027.
CLASS OF AIR CARRIERS NOT REQUIRED TO COLLECT PFC'S: None.
BRIEF DESCRIPTION OF PROJECTS APPROVED FOR COLLECTION AND USE:
Rehabilitate terminal apron.
Acquire snow removal equipment.
Acquire glycol recovery vehicle.
Improve terminal building—heating, ventilation, and air conditioning system upgrade.
Improve terminal building—passenger security exit lane renovation.
Improve terminal building—restroom renovations.
Improve terminal building—flight information display/paging system.
Acquire security equipment.
Passenger loading bridges.
DECISION DATE: October 3, 2013.
Jeffrey Breeden, New York Airports District Office, (703) 661-1363.
PUBLIC AGENCY: City of St. George, Utah.
APPLICATION NUMBER: 14-05-C-00-SGU.
APPLICATION TYPE: Impose and use a PFC.
PFC LEVEL: $4.50.
TOTAL PFC REVENUE APPROVED IN THIS DECISION: $250,000.
EARLIEST CHARGE EFFECTIVE DATE: January 1, 2016.
ESTIMATED CHARGE EXPIRATION DATE: June 1, 2017.
CLASS OF AIR CARRIERS NOT REQUIRED TO COLLECT PFC'S:
None.
BRIEF DESCRIPTION OF PROJECT APPROVED FOR COLLECTION AND USE: Airport movement area pavement preservation.
DECISION DATE: June 11, 2014.
Jesse Lyman, Denver Airports District Office, (303) 342-1262.
PUBLIC AGENCY: Rhode Island Airport Corporation, Warwick, Rhode Island.
APPLICATION NUMBER: 14-07-C-00-PVD.
APPLICATION TYPE: Impose and use a PFC.
PFC LEVEL: $4.50.
TOTAL PFC REVENUE APPROVED IN THIS DECISION: $78,377,045.
CHARGE EFFECTIVE DATE: August 1, 2018.
CHARGE EXPIRATION DATE: July 1, 2028.
CLASS OF AIR CARRIERS NOT REQUIRED TO COLLECT PFC'S: Air taxi/commercial operators.
DETERMINATION: Approved. Based on information submitted in the public agency's application, the FAA has determined that the proposed class accounts for less than 1 percent of the total annual enplanements at T. F. Green Airport.
BRIEF DESCRIPTION OF PROJECTS APPROVED FOR COLLECTION AND USE:
Extend runway 5/23.
Noise mitigation program.
Runway 16/34 safety area.
Hangar 1 demolition.
PFC consulting fees.
DECISION DATE: June 19, 2014.
Priscilla Scott, New England Region Airports Division, (781) 238-7614.
Federal Aviation Administration (FAA), DOT.
Notice of intent of waiver with respect to land; Cleveland Hopkins International, Cleveland, Ohio.
The FAA is considering a proposal to change approximately 0.29 acres of airport land from aeronautical use to non-aeronautical use and to authorize the sale of airport property located at Cleveland Hopkins International, Cleveland, Ohio. The aforementioned land is not needed for aeronautical use.
The property is located at the Cleveland Business Park (Phase-11) near the intersections of Cleveland Business Park Drive West, Springdale Avenue, and West 192th Street. Property is located northeast of the airport and outside the airport fence line. The 3 parcels totaling 0.29 acres were not included in a previous land release of approximately 48.38 acres, which was formalized in 2000 because they were not owned by the City of Cleveland. Subsequently the City of Cleveland acquired the 3 parcels. The parcels are not being used by the airport. The property will be sold for the development of the Cleveland Business Park.
Comments must be received on or before August 7, 2014.
Documents are available for review by appointment at the FAA Airports District Office, Marlon Peña, Program Manager, Detroit Airport District Office, 11677 South Wayne Road, Suite 107, Romulus, Michigan 48174, Telephone: (734) 229-2909/Fax: (734) 229-2950 and Cleveland Hopkins International Airport, 5300 Riverside Drive, Cleveland, Ohio 44181, Telephone: (216) 265-6793.
Written comments on the Sponsor's request must be delivered or mailed to: Marlon Peña, Program Manager, Federal Aviation Administration, Airports District Office, Detroit Airport District Office, 11677 South Wayne Road, Suite 107, Romulus, Michigan 48174, Telephone Number: (734) 229-2909/FAX Number: (734) 229-2950.
Marlon Peña, Program Manager, Federal Aviation Administration, Airports District Office, Detroit Airport District Office, 11677 South Wayne Road, Suite 107, Romulus, Michigan 48174. Telephone Number: (734) 229-2909/FAX Number: (734) 229-2950.
In accordance with section 47107(h) of Title 49, United States Code, this notice is required to be published in the
The property was originally acquired by the City of Cleveland for potential airport development. The Federal Aviation Administration participated in the acquisition of this property under FAA project Numbers AIP 3-39-0023-29 and AIP 3-39-0023-31. The U.S. Government did not convey the property or transfer under surplus property. The sponsor is now proposing to sell this property for Fair Market Value and utilize the proceeds to help improve the existing airport infrastructure and bring it up to FAA standards.
The disposition of proceeds from the sale of the airport property will be in accordance with FAA's Policy and Procedures Concerning the Use of Airport Revenue, published in the
This notice announces that the FAA is considering the release of the subject
Following is a legal description of the property is located in the City of Cleveland, County of Cuyahoga, State of Ohio, and known as being part of Cleveland Business Park development and described as follows:
Situated in the City of Cleveland, County of Cuyahoga and the State of Ohio and known as being Sublot No. 94 in the Conger-Helper Realty Company's Home Gardens Allotment No. 2 of part of Original Rockport Sections Nos. 3 and 4, as shown by the recorded plat in Volume 67 of maps, page 35 of Cuyahoga County Records, and that portion of Springdale Ave. SW., 50 feet wide, Vacated by Ordinance No. 521-200, and together forming a parcel and being 40 feet front on the Centerline of said Vacated Springdale Avenue SW., and extending back between parallel lines of equal width, 170 feet, be the same more or less, but subject to all legal highways. Excepting there from, that dedicated portion of Cleveland Parkway SW., as shown in the Dedication Plat recorded in Volume 339, Page 42 of Cuyahoga County Records.
PROPERTY ADDRESS: 19033 SPRINGDALE AVENUE, CLEVELAND, OHIO 44135 Situated in the City of Cleveland, County of Cuyahoga and State of Ohio and known as being Sublot No. 112 in the Conger-Helper Realty Company's Home Gardens Allotment No, 2 of part of original Rockport Township Section Nos. 3 and 4, as shown by the recorded plat in Volume 67 of Maps, Page 35 of Cuyahoga County Records, and that portion of Springdale Ave. SW., 50 feet wide, Vacated by Ordinance No. 521-200 and together forming a parcel land being 40 feet front on the centerline of said Vacated Springdale Ave. SW. and extending back between parallel lines of equal width, 182.70 feet, be the same more or less, but subject to all legal highways.
Situated in the City of Cleveland, the County of Cuyahoga and the State of Ohio and known as being part of Sublot No. 58 in the Conger-Helper Realty Company's Home Garden Allotment No. 2 of part of Original Rockport Township Section Nos. 3 and further bounded and described as Follows; Beginning at an iron pin in a monument box at the intersection of the centerline of Rocky River Drive (width varies', and the centerline of Cleveland Parkway SW. (width varies) as shown on the Dedication Plat recorded in Volume 339, Page 42 of Cuyahoga County Map Records; Thence North 89°14′41″ West along the centerline of Cleveland Parkway SM., 282.17 feet to a point; 'Thence South 01°46′09″ West, 42.01 feet to the southerly right of way of Cleveland Parkway SW., and being the Principal Place of Beginning of the premises herein described; Thence South 01°46′09″ West, 97.77 feet to a point on the centerline of Springdale Avenue, as vacated by Ordinance No. 2.0521-2000; Thence North 89°12′38″ West along the centerline of vacated Springdale Avenue, 10.00 feet; Thence North 01°46′09″ East, 97.77 feet to the southerly right of way of Cleveland Parkway SW.: Thence South 89°14′41″ East along the southerly line of Cleveland Parkway SW., 10,00 feet to the Principal Place of Beginning and containing 0.0224 acres of land.
This property contains approximately 0.29 acres.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition; grant of application for exemption.
FMCSA announces its decision to grant the Commonwealth of Virginia Department of Motor Vehicles (Virginia DMV) and all other State Driver Licensing Agencies (SDLAs) a limited exemption from the commercial driver's license (CDL) regulation. The exemption will allow SDLAs to extend to one year the 90-day timeline specified in 49 CFR 383.77(b)(1), thus enabling them to waive the CDL skills test described in 49 CFR 383.113 for up to a year after separation from military service for veterans regularly or previously employed in a military position requiring operation of a commercial motor vehicle (CMV).
This exemption is effective from July 8, 2014 to July 8, 2016.
Ms. Pearlie Robinson, FMCSA Driver and Carrier Operations Division; Office of Carrier, Driver and Vehicle Safety Standards; Telephone: 202-366-4325. Email:
FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant exemptions from certain parts of the Federal Motor Carrier Safety Regulations. FMCSA must publish a notice of each exemption request in the
The Agency reviews safety analyses and public comments submitted, and determines whether granting the exemption would likely achieve a level of safety equivalent to, or greater than, the level that would be achieved by the current regulation (49 CFR 381.305). The decision of the Agency must be published in the
Virginia DMV requested an exemption from 49 CFR 383.77(b)(1), which allows States to waive the skills test described in section 383.113 for applicants regularly employed or previously
Virginia DMV has a comprehensive Troops-to-Trucks' program that assists service members in obtaining a Virginia CDL and civilian employment in the motor carrier industry. Feedback from the Troops-to-Trucks' military partners has identified the 90-day limit as an obstacle to service members transitioning to civilian life.
Virginia DMV contends that the 90-day timeframe is too short for many of the qualified veterans to utilize while reentering civilian life.
According to Virginia DMV, since July 2012, 183 service members have utilized the 90-day waiver through the Virginia Troops-to-Trucks' program. It anticipates that an exemption would allow an additional 60 to 100 recent veterans to participate in the program per year. The one-year timeframe is consistent with FMCSA's November 2013 Report to Congress regarding a program to assist veterans to acquire CDLs. The American Trucking Associations has estimated that the motor carrier industry needs about 96,000 new drivers every year. Providing additional flexibility in section 383.77(b)(1) will help to expedite the transition of fully trained military truck drivers to civilian employment.
Virginia DMV believes this goal is in the Nation's best interest. A more accessible waiver period would greatly benefit returning veterans. This is consistent with FMCSA's belief that the skills test waiver serves an important function for military personnel returning to the civilian workforce, as stated in the May 9, 2011,
In addition, because the issues concerning the Virginia DMV request could be applicable in each of the States, FMCSA requested public comment on whether the exemption, if granted, should cover all State Driver's Licensing Agencies (SDLAs).
Five comments on the application were received. All supported the application. Mr. Patrick Crandall commented, “Our brave veterans deserve all of the support that our community can provide. Extending the 90-day waiver to qualified veterans is the right call.” The Auto Haulers Association of America said, “The proposal by the Commonwealth of Virginia would not adversely affect the safe operation of commercial motor vehicles on the nation's roadways because applicants with a military CDL have been trained and certified to levels of competency which match those required of new applicants.” Additionally, the American Association of Motor Vehicle Administrators, American Trucking Associations and New York State DMV all supported Virginia DMV's application for the exemption and extending the exemption to all SDLAs. All comments are available for review in the docket for this notice.
The FMCSA has evaluated Virginia DMV's application on its merits following full consideration of the comments submitted to the docket, and has decided to grant the exemption from 49 CFR 383.77(b)(1) for a period of 2 years. The exemption covers all SDLAs. FMCSA does not believe that the veterans' driving skills would decrease during the additional 9 months in which this exemption allows them to apply for a waiver of the CDL skills test. This exemption only extends the period during which application for the skills test waiver may be made, and does not revise any other provisions of the regulations. FMCSA determined that the exemption would maintain a level of safety equivalent to, or greater than, the level achieved without the exemption (49 CFR 381.305(a)).
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of subcommittee.
FMCSA announces that the Motor Carrier Safety Advisory Committee's subcommittee on the U.S.-Mexico Cross Border Long Haul Trucking Pilot Program will meet on Monday, July 28, 2014. The meeting is open to the public and there will be a 15-minute public comment period at the end of the day.
The meeting will be held on Monday, July 28, 2014, from 9 a.m. to 4:30 p.m., Eastern Daylight Time (E.D.T.). The meeting will be held at FMCSA's National Training Center (NTC), 1310 North Courthouse Road, Suite 600, Arlington, VA 22201. The NTC is located near the Courthouse Metro station.
Copies of MCSAC Task Statement 11-3 and an agenda for the meeting will be made available in advance of the meeting at
Ms. Shannon L. Watson, Senior Advisor to the Associate Administrator for Policy, Federal Motor Carrier Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590, (202) 385-2395,
For information on facilities or services for individuals with disabilities or to request special assistance at the meeting, contact Eran Segev at (617) 494-3174,
Section 4144 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU, Pub. L. 109-59, 119 Stat. 1144, August 10, 2005) required the Secretary of Transportation to establish the MCSAC. The MCSAC provides advice and recommendations to the FMCSA Administrator on motor carrier safety programs and regulations, and operates in accordance with the Federal Advisory Committee Act (5 U.S.C. App 2).
In 2011, FMCSA directed the MCSAC to form a subcommittee consider Task 11-03, regarding Oversight of the Long-Haul Cross Border Trucking Pilot Program. Known as the Cross Border Subcommittee, FMCSA requested that the MCSAC serve as the monitoring Federal advisory committee for the Pilot Program. Specifically, FMCSA requested that MCSAC:
• Assess the safety record of participating Mexico-domiciled motor carriers;
• Continue to advise FMCSA concerning designated tasks related to the pilot program; and
• Issue a final report addressing whether FMCSA conducted the Pilot Program in a manner consistent with the objectives outlined in its
Procedurally, the subcommittee would present its recommendations to the full MCSAC for review and discussion with the final report submitted to the Agency. The subcommittee held its first meeting on March 31, 2011, and has held subsequent meetings since that time.
Oral comments from the public will be heard during the last fifteen minutes of the meeting. Should all public comments be exhausted prior to the end of the specified period, the comment period will close. Members of the public may submit written comments by Monday, July 21, 2014, to Federal Docket Management System (FDMC) Docket Number FMCSA-2006-26367 using any of the following methods:
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Federal Motor Carrier Safety Administration (FMCSA).
Notice.
FMCSA announces information concerning the Pre-Authorization Safety Audit (PASA) for Trans-Mex Inc., SA de CV (USDOT# 710381) which applied to participate in the Agency's long-haul pilot program to test and demonstrate the ability of Mexico-domiciled motor carriers to operate safely in the United States beyond the municipalities along the United States-Mexico international border or the commercial zones of such municipalities. This motor carrier did not successfully complete the PASA.
Marcelo Perez, FMCSA, North American Borders Division, 1200 New Jersey Avenue SE., Washington, DC 20590-0001. Telephone (512) 916-5440 Ext. 228; email
On May 25, 2007, the President signed into law the U.S. Troop Readiness, Veterans' Care, Katrina Recovery, and Iraq Accountability Appropriations Act, 2007 (the Act), (Pub. L. 110-28, 121 Stat. 112, 183, May 25, 2007). Section 6901 of the Act requires that certain actions be taken by the Department of Transportation (the Department) as a condition of obligating or expending appropriated funds to grant authority to Mexico-domiciled motor carriers to operate beyond the municipalities in the United States on the United States-Mexico international border or the commercial zones of such municipalities (border commercial zones).
On July 8, 2011, FMCSA announced in the
In accordance with section 6901(b)(2)(B)(i) of the U.S. Troop Readiness, Veterans' Care, Katrina Recovery, and Iraq Accountability Appropriations Act, 2007 (the Act), FMCSA is required to publish comprehensive data and information on the PASAs conducted of motor carriers domiciled in Mexico that are granted authority to operate beyond the border commercial zones in the
The Mexico-domiciled motor carrier in Table 1 did not successfully complete the PASA.
Tables 2, 3 and 4 all titled (“Failed Pre-Authorization Safety Audit (PASA) Information”) set out additional information on the carrier noted in Table 1. A narrative description of each column in the tables is provided as follows:
A.
B.
C.
D.
E.
F.
G.
H.
a. Current registration number (e.g., MX-123456);
b. Date the notice was published in the FMCSA Register;
c. The applicant's name and address; and
d. Representative or contact information for the applicant.
The FMCSA Register may be accessed through FMCSA's Licensing and Insurance public Web site at
I.
J.
K.
a. Verify a controlled substances and alcohol testing program consistent with 49 CFR part 40.
b. Verify a system of compliance with hours-of-service rules of 49 CFR part 395, including recordkeeping and retention;
c. Verify the ability to obtain financial responsibility as required by 49 CFR 387, including the ability to obtain insurance in the United States;
d. Verify records of periodic vehicle inspections; and
e. Verify the qualifications of each driver the carrier intends to use under such authority, as required by 49 CFR parts 383 and 391, including confirming the validity of each driver's Licencia Federal de Conductor and English language proficiency.
L.
Please note that for items L through P below, during the PASA, after verifying the five mandatory elements discussed in item K above, FMCSA will gather information by reviewing a motor carrier's compliance with “acute and critical” regulations of the Federal Motor Carrier Safety Regulations (FMCSRs) and Hazardous Materials Regulations (HMRs). Acute regulations are those where noncompliance is so severe as to require immediate corrective actions by a motor carrier regardless of the overall basic safety management controls of the motor carrier. Critical regulations are those where noncompliance relates to management and/or operational controls. These regulations are indicative of breakdowns in a carrier's management controls. A list of acute and critical regulations is included in 49 CFR Part 385, Appendix B, Section VII.
Parts of the FMCSRs and HMRs having similar characteristics are combined together into six regulatory areas called “factors.” The regulatory factors are intended to evaluate the adequacy of a carrier's management controls.
M.
N.
O.
P.
Q.
R.
S.
T.
U.
a. “U.S.” means the controlled substance and alcohol collection facility is based in the United States.
b. “MX” means the controlled substance and alcohol collection facility is based in Mexico.
c. “Non-CDL” means that during the PASA, FMCSA verified that the motor carrier is not utilizing commercial motor vehicles subject to the commercial driver's license requirements as defined in 49 CFR 383.5 (Definition of Commercial Motor Vehicle). Any motor carrier that does not operate commercial motor vehicles as defined in § 383.5 is not subject to DOT controlled substance and alcohol testing requirements.
V.
At the point that the Auditor determined that the applicant failed Phase 1, the PASA was discontinued. As a result, other factors were not assessed and are marked “Not Completed.”
To date, this is the third carrier that has failed the PASA. The Act only requires publication of data for carriers receiving operating authority, as failure to successfully complete the PASA prevents the carrier from being granted authority to participate in the long-haul pilot program. FMCSA agreed to publish this information to show motor carriers that failed to meet U.S. safety standards.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
FMCSA announces its decision to exempt 26 individuals from the vision requirement in the Federal Motor Carrier Safety Regulations (FMCSRs). They are unable to meet the vision requirement in one eye for various reasons. The exemptions will enable these individuals to operate commercial motor vehicles (CMVs) in interstate commerce without meeting the prescribed vision requirement in one eye. The Agency has concluded that granting these exemptions will provide a level of safety that is equivalent to or greater than the level of safety maintained without the exemptions for these CMV drivers.
The exemptions are effective July 8, 2014. The exemptions expire on July 8, 2016.
Elaine M. Papp, Chief, Medical Programs Division, (202)-366-4001,
You may see all the comments online through the Federal Document Management System (FDMS) at
On May 14, 2014, FMCSA published a notice of receipt of exemption applications from certain individuals, and requested comments from the public (79 FR 27681). That notice listed 26 applicants' case histories. The 26 individuals applied for exemptions from the vision requirement in 49 CFR 391.41(b)(10), for drivers who operate CMVs in interstate commerce.
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption for a 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The statute also allows the Agency to renew exemptions at the end of the 2-year period. Accordingly, FMCSA has evaluated the 26 applications on their merits and made a determination to grant exemptions to each of them.
The vision requirement in the FMCSRs provides:
A person is physically qualified to drive a commercial motor vehicle if that person has distant visual acuity of at least 20/40 (Snellen) in each eye without corrective lenses or visual acuity separately corrected to 20/40 (Snellen) or better with corrective lenses, distant binocular acuity of a least 20/40 (Snellen) in both eyes with or without corrective lenses, field of vision of at least 70° in the horizontal meridian in each eye, and the ability to recognize the colors of traffic signals and devices showing red, green, and amber (49 CFR 391.41(b)(10)).
FMCSA recognizes that some drivers do not meet the vision requirement but have adapted their driving to accommodate their vision limitation and demonstrated their ability to drive safely. The 26 exemption applicants listed in this notice are in this category. They are unable to meet the vision requirement in one eye for various reasons, including prosthetic eye, retinal detachment, amblyopia, acute zonal occult outer retinopathy with central scotoma, corneal transplant, retina damage, corneal scar, exotropia, strabismus, cataracts, optic nerve disorder, macular degeneration, retinal scarring, macular scar, hereditary macular dystrophy, complete loss of vision, degenerative myopia, and central vein occlusion. In most cases, their eye conditions were not recently developed. Ten of the applicants were either born with their vision impairments or have had them since childhood.
The sixteen individuals that sustained their vision conditions as adults have had it for a period of 4 to 35 years.
Although each applicant has one eye which does not meet the vision requirement in 49 CFR 391.41(b)(10), each has at least 20/40 corrected vision in the other eye, and in a doctor's opinion, has sufficient vision to perform all the tasks necessary to operate a CMV. Doctors' opinions are supported by the applicants' possession of valid commercial driver's licenses (CDLs) or non-CDLs to operate CMVs. Before issuing CDLs, States subject drivers to knowledge and skills tests designed to evaluate their qualifications to operate a CMV.
All of these applicants satisfied the testing requirements for their State of residence. By meeting State licensing requirements, the applicants demonstrated their ability to operate a CMV, with their limited vision, to the satisfaction of the State.
While possessing a valid CDL or non-CDL, these 26 drivers have been authorized to drive a CMV in intrastate commerce, even though their vision disqualified them from driving in interstate commerce. They have driven CMVs with their limited vision in careers ranging from 2 to 52 years. In the past 3 years, one of the drivers was involved in a crash and two were convicted for moving violations in a CMV.
The qualifications, experience, and medical condition of each applicant were stated and discussed in detail in the May 14, 2014 notice (79 FR 27681).
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the vision requirement in 49 CFR 391.41(b)(10) if the exemption is likely to achieve an equivalent or greater level of safety than would be achieved without the exemption. Without the exemption, applicants will continue to be restricted to intrastate driving. With the exemption, applicants can drive in interstate commerce. Thus, our analysis focuses on whether an equal or greater level of safety is likely to be achieved by permitting each of these drivers to drive in interstate commerce as opposed to restricting him or her to driving in intrastate commerce.
To evaluate the effect of these exemptions on safety, FMCSA considered the medical reports about the applicants' vision as well as their driving records and experience with the vision deficiency.
To qualify for an exemption from the vision requirement, FMCSA requires a person to present verifiable evidence
FMCSA believes it can properly apply the principle to monocular drivers, because data from the Federal Highway Administration's (FHWA) former waiver study program clearly demonstrate the driving performance of experienced monocular drivers in the program is better than that of all CMV drivers collectively (See 61 FR 13338, 13345, March 26, 1996). The fact that experienced monocular drivers demonstrated safe driving records in the waiver program supports a conclusion that other monocular drivers, meeting the same qualifying conditions as those required by the waiver program, are also likely to have adapted to their vision deficiency and will continue to operate safely.
The first major research correlating past and future performance was done in England by Greenwood and Yule in 1920. Subsequent studies, building on that model, concluded that crash rates for the same individual exposed to certain risks for two different time periods vary only slightly (See Bates and Neyman, University of California Publications in Statistics, April 1952). Other studies demonstrated theories of predicting crash proneness from crash history coupled with other factors. These factors—such as age, sex, geographic location, mileage driven and conviction history—are used every day by insurance companies and motor vehicle bureaus to predict the probability of an individual experiencing future crashes (See Weber, Donald C., “Accident Rate Potential: An Application of Multiple Regression Analysis of a Poisson Process,” Journal of American Statistical Association, June 1971). A 1964 California Driver Record Study prepared by the California Department of Motor Vehicles concluded that the best overall crash predictor for both concurrent and nonconcurrent events is the number of single convictions. This study used 3 consecutive years of data, comparing the experiences of drivers in the first 2 years with their experiences in the final year.
Applying principles from these studies to the past 3-year record of the 26 applicants, one of the drivers was involved in a crash and two were convicted of moving violations in a CMV. All the applicants achieved a record of safety while driving with their vision impairment, demonstrating the likelihood that they have adapted their driving skills to accommodate their condition. As the applicants' ample driving histories with their vision deficiencies are good predictors of future performance, FMCSA concludes their ability to drive safely can be projected into the future.
We believe that the applicants' intrastate driving experience and history provide an adequate basis for predicting their ability to drive safely in interstate commerce. Intrastate driving, like interstate operations, involves substantial driving on highways on the interstate system and on other roads built to interstate standards. Moreover, driving in congested urban areas exposes the driver to more pedestrian and vehicular traffic than exists on interstate highways. Faster reaction to traffic and traffic signals is generally required because distances between them are more compact. These conditions tax visual capacity and driver response just as intensely as interstate driving conditions. The veteran drivers in this proceeding have operated CMVs safely under those conditions for at least 3 years, most for much longer. Their experience and driving records lead us to believe that each applicant is capable of operating in interstate commerce as safely as he/she has been performing in intrastate commerce. Consequently, FMCSA finds that exempting these applicants from the vision requirement in 49 CFR 391.41(b)(10) is likely to achieve a level of safety equal to that existing without the exemption. For this reason, the Agency is granting the exemptions for the 2-year period allowed by 49 U.S.C. 31136(e) and 31315 to the 26 applicants listed in the notice of May 14, 2014 (79 FR 27681).
We recognize that the vision of an applicant may change and affect his/her ability to operate a CMV as safely as in the past. As a condition of the exemption, therefore, FMCSA will impose requirements on the 26 individuals consistent with the grandfathering provisions applied to drivers who participated in the Agency's vision waiver program.
Those requirements are found at 49 CFR 391.64(b) and include the following: (1) that each individual be physically examined every year (a) by an ophthalmologist or optometrist who attests that the vision in the better eye continues to meet the requirement in 49 CFR 391.41(b)(10) and (b) by a medical examiner who attests that the individual is otherwise physically qualified under 49 CFR 391.41; (2) that each individual provide a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and (3) that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file, or keep a copy in his/her driver's qualification file if he/she is self-employed. The driver must have a copy of the certification when driving, for presentation to a duly authorized Federal, State, or local enforcement official.
FMCSA received eight comments in this proceeding. The comments are discussed below.
Karen Whitmer, Theo Rumble, Alyce Johnson, Steven Levine, Larry D. Piner, Christopher L. Webb, Joel G. Arnette, Jr., and Rebecca McPhail are all in favor of granting Glenn K. Johnson, Jr. an exemption from the vision standard.
Based upon its evaluation of the 26 exemption applications, FMCSA exempts Lyle R. Bell (NE), Tracy L. Bowers (IA), Bradley E. Buzzell (NH), William C. Christy (FL), Gerard J. Cormier (MA), Joe T. Gage (AR), Hector A. Hernandez (MD), Rex G. Holladay (AR), Chestor E. Jaycox (NY), Danny J. Johnson (MN), Glenn K. Johnson, Jr. (NC), Terry A. Legates (OK), Charles E. Meis (TX), Ronald B. Mohr (IA), Hassan Ourahou (KY), Jesus Penuelas (AZ), Enoc Ramos III (TX), James T. Rohr (MN), DelRay V. Ryckman (SD), Joe Sanchez (TX), James S. Seeno (NV), George W. Thomas (SC), Thomas L. Tveit (SD), Bart M. Valiante (CT), James W. Van Ryswyk (IA), and Drake M. Vendsel (ND) from the vision requirement in 49 CFR 391.41(b)(10), subject to the requirements cited above (49 CFR 391.64(b)).
In accordance with 49 U.S.C. 31136(e) and 31315, each exemption will be valid for 2 years unless revoked earlier by FMCSA. The exemption will be revoked if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136 and 31315.
If the exemption is still effective at the end of the 2-year period, the person may apply to FMCSA for a renewal under procedures in effect at that time.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of applications for exemptions, request for comments.
FMCSA announces receipt of applications from 52 individuals for exemption from the vision requirement for operating a commercial motor vehicle (CMV) in the Federal Motor Carrier Safety Regulations. The applicants are unable to meet the vision requirement in one eye for various reasons. The exemptions will allow these individuals to operate CMVs in interstate commerce without meeting the prescribed vision requirement in one eye. At the end of the comment period, the Agency will grant exemptions to the applicants listed herein if there are no adverse comments that indicate the driver's ability will not achieve a level of safety equivalent to or greater than the level of safety that would be obtained by complying with the regulations. All comments will be reviewed and evaluated by FMCSA. Some individuals appearing in this notice may not receive exemptions based on comments received during the comment period. Individuals not granted an exemption may either be published at a future date based on further evaluation or may not be deemed to meet the aforementioned level of safety if granted an exemption. These individuals will be published in a quarterly notice of exemption denials. As always, any adverse comments received after the exemption is granted will be evaluated, and if they indicate that the driver is not achieving a level of safety equivalent to or greater than the level of safety that would be obtained by complying with the regulation, the exemption will be revoked. When granted, the exemptions will allow these individuals with vision deficiencies in one eye to operate in interstate commerce.
Comments must be received on or before August 7, 2014. All comments will be investigated by FMCSA. The exemptions will be issued the day after the comment period closes.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket No. FMCSA-2014-0007 using any of the following methods:
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Elaine M. Papp, Chief, Medical Programs Division, (202) 366-4001,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the Federal Motor Carrier Safety Regulations for a 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The statute also allows the Agency to renew exemptions at the end of the 2-year period. The 52 individuals listed in this notice have recently requested such an exemption from the vision requirement in 49 CFR 391.41(b)(10), which applies to drivers of CMVs in interstate commerce. Accordingly, the Agency has evaluated the qualifications of each applicant to determine whether granting an exemption will achieve the required level of safety mandated by statute.
Mr. Alexander, 59, has had a central retinal vein occlusion in his left eye since 2007. The visual acuity in his right eye is 20/20, and in his left eye, 20/200. Following an examination in 2014, his ophthalmologist stated, “He has a central retinal vein occlusion in his LEFT EYE which dates back to 2007. In my medical opinion, given his history of exemption in the past and the lack of progression in his disease, he can perform the driving tasks required to operate a commercial vehicle.” Mr. Alexander reported that he has driven tractor-trailer combinations for 40 years, accumulating 2.17 million miles. He holds a Class A CDL from Oregon. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Baker, 50, has had amblyopia in his left eye since childhood. The visual acuity in his right eye is 20/20, and in his left eye, 20/150. Following an examination in 2014, his optometrist stated, “In my opinion, Mr. Baker has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Baker reported that he has driven tractor-trailer combinations for 19 years, accumulating 1.52 million miles. He holds a Class A CDL from Texas. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Bebout, 53, has had amblyopia in his right eye since childhood. The visual acuity in his right eye is 20/400, and in his left eye, 20/20. Following an examination in 2014, his ophthalmologist stated, “In my opinion/[
Mr. Belenchia, 55, has had histoplasmosis in his right eye since 2010. The visual acuity in his right eye is 20/200, and in his left eye, 20/20. Following an examination in 2014, his ophthalmologist stated, “Finally, in my opinion, I do feel that this gentleman would have sufficient vision to perform a safe driving test to operate a commercial vehicle with his glasses with both eyes [
Mr. Bettes, 54, has a permanent misshapen pupil in his right eye due to a traumatic incident in 1990. The visual acuity in his right eye is 20/70, and in his left eye, 20/20. Following an examination in 2014, his optometrist stated, “I certify in my medical opinion that Mr. Ricky Bettes has sufficient vision to performing the driving tasks required to operate a commercial vehicle.” Mr. Bettes reported that he has driven straight trucks for 26 years, accumulating 580,320 miles. He holds an operator's license from Texas. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Bommer, 38, has had a detached retina in his left eye since 2010. The visual acuity in his right eye is 20/20, and in his left eye, 20/150. Following an examination in 2013, his optometrist stated, “My medical opinion of Mr. Bommer's visual field certifies that his defect in left gaze of his left eye is overlapped by his right eye ability, effectively making his horizontal binocular visual field at least 150 degrees. I would contest this is certainly sufficient to operate a commercial vehicle.” Mr. Bommer reported that he has driven straight trucks for 7 years, accumulating 175,000 miles. He holds a Class B CDL from North Dakota. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Calixto, 42, has a prosthetic right eye due to a traumatic incident during childhood. The visual acuity in his right eye is no light perception, and in his left eye, 20/20. Following an examination in 2014, his optometrist stated, “I [
Mr. Carter, 44, has amblyopia secondary to strabismus in his left eye since childhood. The visual acuity in his right eye is 20/20, and in his left eye, 20/100. Following an examination in 2014, his optometrist stated, “As Mr. Carter's visual status appears to be stable, I would suspect his vision would be adequate to operate a commercial vehicle.” Mr. Carter reported that he has driven straight trucks for 5 years, accumulating 2,500 miles, and tractor-trailer combinations for 15 years, accumulating 75,000 miles. He holds a Class A CDL from Kansas. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Daniels, 32, has had amblyopia in his right eye since birth. The visual acuity in his right eye is light perception, and in his left eye, 20/20. Following an examination in 2014, his optometrist stated that, in his medical opinion, Mr. Daniels does have the sufficient vision to operate a commercial motor vehicle. Mr. Daniels reported that he has driven straight trucks for 12 years, accumulating 1.2 million miles. He holds an operator's license from Missouri. His driving record for the last 3 years shows no crashes and 2 convictions for moving violations in a CMV; in one instance he exceeded the speed limit by 14 mph; in another instance he failed to obey a traffic signal.
Mr. Davis, 57, has had high myopia in his right eye since birth. The visual acuity in his right eye is 20/400, and in his left eye, 20/25. Following an examination in 2014, his optometrist stated, “I have no knowledge of the specific tasks required to operate a commercial vehicle, but I can state that Mr. Davis' vision is stable and that he has been operating such vehicles successfully for many years, so I can see no reason, based on our examination, why he could not continue to do so.” Mr. Davis reported that he has driven straight trucks for 32 years, accumulating 416,000 miles. He holds a Class A CDL from Tennessee. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Doheny, 48, has vision loss in his left eye due to a traumatic incident in 1991. The visual acuity in his right eye is 20/20, and in his left eye, 20/200. Following an examination in 2014, his optometrist stated, “Mr. Doheny has more than sufficient vision to perform the driving tasks required to operate a commercial vehicle locally and across state lines.” Mr. Doheny reported that he has driven straight trucks for 3 years, accumulating 3,000 miles, and tractor-trailer combinations for less than 1 year, accumulating 100 miles. He holds a Class A CDL from Connecticut. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Evridge, 49, has optic nerve atrophy in his left eye due to a traumatic incident during childhood. The visual acuity in his right eye is 20/20, and in his left eye, counting fingers. Following an examination in 2014, his optometrist stated, “I certify that he has adequate peripheral vision to perform driving tasks necessary to drive a commercial vehicle.” Mr. Evridge reported that he has driven tractor-trailer combinations for 32 years, accumulating 432,000 miles. He holds a Class DA CDL from Kentucky. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Ford, 66, has had a central scar in his left eye since 1975. The visual acuity in his right eye is 20/20, and in his left eye, 20/400. Following an examination in 2014, his ophthalmologist stated, “I feel that Mr. Ford has sufficient vision to perform the driving tasks required to
Mr. Fox, 59, has had a corneal scar in his left eye since childhood. The visual acuity in his right eye is 20/15, and in his left eye, hand motion. Following an examination in 2014, his ophthalmologist stated, “Mr. Fox's visual deficiency is stable and in my medical opinion [he] has sufficient vision to perform . . . the driving tasks required to operate a commercial vehicle.” Mr. Fox reported that he has driven straight trucks for 37 years, accumulating 37,000 miles, and tractor-trailer combinations for 37 years, accumulating 740,000 miles. He holds a Class ABCDM CDL from Wisconsin. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Fuller, 75, has had amblyopia in his right eye since childhood. The visual acuity in his right eye is 20/400, and in his left eye, 20/30. Following an examination in 2014, his ophthalmologist stated, “Poor central vision OD and this has been stable since young childhood and I see no acute deterioration in his vision . . . This letter/note supports Mr [
Mr. Goluda, 22, has had refractive amblyopia secondary to injury in his right eye since childhood. The visual acuity in his right eye is 20/80, and in his left eye, 20/20. Following an examination in 2014, his optometrist stated, “It is my professional opinion that Viktor Goluda has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Goluda reported that he has driven straight trucks for 4 years, accumulating 120,000 miles. He holds an operator's license from South Carolina. His driving record for the last 3 years shows no crashes and 1 conviction for a moving violation in a CMV; he exceeded that speed limit by 20 mph.
Mr. Harguth, 55, has had a central retinal vein occlusion in his left eye since 2006. The visual acuity in his right eye is 20/20, and in his left eye, 20/400. Following an examination in 2014, his optometrist stated, “Todd has sufficient vision to perform the driving tasks required to operate a commercial vehicle, in my opinion.” Mr. Harguth reported that he has driven straight trucks for 40 years, accumulating 200,000 miles, and tractor-trailer combinations for 25 years, accumulating 780,000 miles. He holds a Class A CDL from Minnesota. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Helgeson, 59, has vision loss in his left eye due to a traumatic incident during childhood. The visual acuity in his right eye is 20/20, and in his left eye, 20/400. Following an examination in 2014, his optometrist stated, “He has sufficient vision to operate a commercial vehicle.” Mr. Helgeson reported that he has driven straight trucks for 2 years, accumulating 11,000 miles. He holds a Class B CDL from Minnesota. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Henry, 53, has complete loss of vision in his left eye due to a traumatic incident in 1997. The visual acuity in his right eye is 20/20, and in his left eye, no light perception. Following an examination in 2014, his optometrist stated, “I certify that, in my medical opinion, this patient has sufficient vision to operate a commercial motor vehicle.” Mr. Henry reported that he has driven tractor-trailer combinations for 27 years, accumulating 810,000 miles. He holds a Class A CDL from Kansas. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Hill, 42, has a macular scar with a macular hole in his left eye due to a traumatic incident in 1989. The visual acuity in his right eye is 20/20, and in his left eye, 20/200. Following an examination in 2014, his optometrist stated, “I feel that Mr. Hill has sufficient vision at this time to perform the driving tasks to operate a commercial vehicle.” Mr. Hill reported that he has driven tractor-trailer combinations for 3 years, accumulating 180,546 miles. He holds a Class A CDL from North Carolina. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Holmes, 46, has had amblyopia in his left eye since childhood. The visual acuity in his right eye is 20/20, and in his left eye, 20/400. Following an examination in 2013, his optometrist stated, “Regarding his eyes and vision, according to my medial [
Mr. Irving, 64, has had a macular hole and glaucoma in his right eye since 2007. The visual acuity in his right eye is 20/160, and in his left eye, 20/20. Following an examination in 2014, his ophthalmologist stated that, in his medical opinion, Mr. Irving does have sufficient vision to operate a commercial motor vehicle. Mr. Irving reported that he has driven tractor-trailer combinations for 13 years, accumulating 1.63 million miles. He holds a Class A CDL from Mississippi. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Johnson, 64, has glaucoma in his right eye due to a traumatic incident in 1998. The visual acuity in his right eye is counting fingers, and in his left eye, 20/20. Following an examination in 2013, his ophthalmologist stated, “Mr. Johnson has maintained a commercial license since 1966 per history of patient with good driving record and thus has demonstrated that he has sufficient vision to perform the driving tasks required to operate a commercial vehicle and should qualify for exemption based upon his longstanding good driving history of commercial vehicles per patient with the present visual deficiency in right eye.” Mr. Johnson reported that he has driven straight trucks for 47 years,
Mr. Jones, 41, has a prosthetic left eye due to a traumatic incident during childhood. The visual acuity in his right eye is 20/15, and in his left eye, no light perception. Following an examination in 2014, his ophthalmologist stated that, in his opinion, Mr. Jones does have sufficient vision to operate a commercial motor vehicle safely. Mr. Jones reported that he has driven straight trucks for 14 years, accumulating 210,000 miles. He holds an operator's license from Georgia. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Kautz, 51, has had a central vein occlusion in his right eye since 2002. The visual acuity in his right eye is 20/150, and in his left eye, 20/20. Following an examination in 2014, his optometrist stated, “Based on Mr. Keutz's [
Mr. Kelley, 56, has had chronic centreal serous chorioretinopathy with early polypoidal choroidal vasculopathy in his left eye since 2005. The visual acuity in his right eye is 20/15, and in his left eye, 20/70. Following an examination in 2014, his ophthalmologist stated, “In my opinion, he will have no problem performing driving tests or operating a commercial vehicle and has done so without problem for many years with his current minor visual deficit in one eye.” Mr. Kelley reported that he has driven tractor-trailer combinations for 25 years, accumulating 2.22 million miles. He holds a Class A CDL from Maine. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. King, 56, has had amblyopia in his right eye since childhood. The visual acuity in his right eye is 20/70, and in his left eye, 20/25. Following an examination in 2014, his optometrist stated, “I certify that Mr. Steven [
Mr. Loggins, 34, has a macular scar in his left eye due to a traumatic incident during childhood. The visual acuity in his right eye is 20/20, and in his left eye, 20/350. Following an examination in 2014, his optometrist stated, “In my medical opinion, he has sufficient vision to perform driving tasks required to operate a commercial vehicle.” Mr. Loggins reported that he has driven straight trucks for 8 years, accumulating 8,000 miles, and tractor-trailer combinations for 8 years, accumulating 640,000 miles. He holds a Class A CDL from Alabama. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Mason, 66, has complete loss of vision in his left eye due to a traumatic incident in 1989. The visual acuity in his right eye is 20/20, and in his left eye, no light perception. Following an examination in 2014, his ophthalmologist stated, “I believe that he has sufficient vision to perform the driving task required to operate a commercial vehicle.” Mr. Mason reported that he has driven straight trucks for 9 years, accumulating 1,800 miles, and tractor-trailer combinations for 20 years, accumulating 40,000 miles. He holds a Class A CDL from Arkansas. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Miller, 60, has had a subforeal choroidal neovascular membrane in his right eye since 2004. The visual acuity in his right eye is 20/400, and in his left eye, 20/20. Following an examination in 2014, his optometrist stated, “David Miller has been under my care since 3/02/1999 and has sufficient vision to perform the driving tasks required to operate a commercial vehicle and obtain a CDL license.” Mr. Miller reported that he has driven buses for 12 years, accumulating 72,000 miles. He holds a Class C CDL from Ohio. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Mokma, 67, has had amblyopia in his left eye since childhood. The visual acuity in his right eye is 20/20, and in his left eye, counting fingers. Following an examination in 2014, his optometrist stated, “In my opinion Earl has sufficient vision to drive a commercial vehicle.” Mr. Mokma reported that he has driven straight trucks for 43 years, accumulating 860,000 miles, and tractor-trailer combinations for 5 years, accumulating 100,000 miles. He holds a Class CA CDL from Michigan. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Nappier, 50, has had a retinal detachment and bilateral intermediate uveitis in his left eye since 2011. The visual acuity in his right eye is 20/20, and in his left eye, 20/100. Following an examination in 2014, his optometrist stated that, in his medical opinion, Mr. Nappier does have the sufficient vision to operate a commercial motor vehicle. Mr. Nappier reported that he has driven tractor-trailer combinations for 24 years, accumulating 60,000 miles. He holds a Class CA CDL from Michigan. His driving record for the last 3 years shows no crashes and one conviction for a moving violation in a CMV; he exceeded the speed limit by 5 mph.
Mr. Nisbet, 51, has had amblyopia in his left eye since childhood. The visual acuity in his right eye is 20/20, and in his left eye, 20/200. Following an examination in 2014, his ophthalmologist stated, “In my opinion, he has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Nisbet reported that he has driven straight trucks for 35 years, accumulating 875,000 miles, and buses for 2 years, accumulating 2,000 miles. He holds a Class B CDL from Washington. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Nixon, 49, has had amblyopia in his right eye since childhood. The visual acuity in his right eye is 20/50, and in his left eye, 20/20. Following an examination in 2014, his optometrist
Mr. Padley, 70, has complete loss of vision in his left eye due to a traumatic incident in 1972. The visual acuity in his right eye is 20/40, and in his left eye, no light perception. Following an examination in 2014, his optometrist stated, “In my opinion, Mr. Padley has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Padley reported that he has driven tractor-trailer combinations for 48 years, accumulating 4.8 million miles. He holds a Class A CDL from Missouri. His driving record for the last 3 years shows no crashes and 1 conviction for a moving violation in a CMV; he exceeded the speed limit by 10 mph.
Mr. Perkins, 43, has had optic nerve hypoplasia in his right eye since birth. The visual acuity in his right eye is no light perception, and in his left eye, 20/15. Following an examination in 2014, his ophthalmologist stated, “I do not believe his visual disability in the right eye significantly impairs his ability to drive a commercial vehicle with reasonable safety.” Mr. Perkins reported that he has driven straight trucks for 25 years, accumulating 212,500 miles. He holds a Class B CDL from New York. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Rich, 80, has had aphakia and an optic nerve pallor in his left eye since 1964. The visual acuity in his right eye is 20/25, and in his left eye, no light perception. Following an examination in 2014, his ophthalmologist stated that he certifies that, in his medical opinion, Mr. Rich has sufficient vision to perform the driving tasks required to operate a commercial vehicle. Mr. Rich reported that he has driven straight trucks for 42 years, accumulating 504,000 miles, and tractor-trailer combinations for 10 years, accumulating 120,000 miles. He holds a Class A CDL from Illinois. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Rodriguez, 46, has had cellophane retinopathy in his right eye since 2008. The visual acuity in his right eye is 20/200, and in his left eye, 20/20. Following an examination in 2014, his optometrist stated, “Joaquin sees well enough to perform the driving tasks required to operate a commercial vehicle.” Mr. Rodriguez reported that he has driven straight trucks for 30 years, accumulating 720,000 miles. He holds an operator's license from New Mexico. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Root, 54, has optic nerve atrophy in his right eye due to a traumatic incident during childhood. The visual acuity in his right eye is 20/2000, and in his left eye, 20/20. Following an examination in 2014, his optometrist stated, “His vision is adequate to operate a commercial vehicle in my opinion.” Mr. Root reported that he has driven tractor-trailer combinations for 4 years, accumulating 60,000 miles. He holds a Class A CDL from Minnesota. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Shaw, 53, has aphakia with a corneal scar and iris rupture in his right eye due to a traumatic incident during childhood. The visual acuity in his right eye is counting fingers, and in his left eye, 20/15. Following an examination in 2014, his optometrist stated, “It is my medical opinion that David has the necessary vision required to operate a commercial vehicle.” Mr. Shaw reported that he has driven tractor-trailer combinations for 20 years, accumulating 2.16 million miles. He holds a Class A CDL from California. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Smith, 54, has had glaucoma and macular degeneration in his left eye since 2010. The visual acuity in his right eye is 20/20, and in his left eye, 20/50. Following an examination in 2014, his ophthalmologist stated, “It is my opinion that Mr. Smith has sufficient vision to operate a commercial vehicle.” Mr. Smith reported that he has driven tractor-trailer combinations for 13 years, accumulating 1.01 million miles. He holds a Class A CDL from Mississippi. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Sorenson, 58, has had retinal detachment in his right eye since 2012. The visual acuity in his right eye is 20/50, and in his left eye, 20/25. Following an examination in 2014, his optometrist stated, “In my opinion, he has sufficient and adequate vision needed to operate a commercial vehicle.” Mr. Sorenson reported that he has driven tractor-trailer combinations for 36 years, accumulating 5.62 million miles. He holds a Class A CDL from Utah. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Tempel, 61, has a retinal detachment and cataract in his right eye due to a traumatic incident in 1998. The visual acuity in his right eye is counting fingers, and in his left eye, 20/20. Following an examination in 2014, his optometrist stated, “In my opinion he has sufficient vision to perform the driving tasks required to operative [
Mr. Thornby, 50, has a prosthetic right eye due to a traumatic incident during childhood. The visual acuity in his right eye is no light perception, and in his left eye, 20/20. Following an examination in 2014, his optometrist stated, “I had the pleasure of seeing Chris Thornby in my office on Monday, April 7, 2014 for a comprehensive eye examination for his interstate commercial DOT license . . . In my professional opinion, Mr. Thornby can safely perform the driving tasks required to operate a motor vehicle with or without a corrective lens for his remaining eye (left). His prosthetic right eye, other than limited depth perception, does not limit this ability.” Mr. Thornby reported that he has driven straight trucks for 5 years, accumulating 115,000 miles, and buses for 1 year, accumulating 20,000 miles. He holds a Class A CDL from Minnesota. His driving record for the last 3 years shows
Mr. Tivnan, 37, has had amblyopia in his left eye since childhood. The visual acuity in his right eye is 20/20, and in his left eye, 20/60. Following an examination in 2014, his optometrist stated, “In my opinion, this man has sufficient vision to perform the driving tasks required to operate a Commercial Motor Vehicle [
Mr. VanMeter, 55, has had longstanding optic nerve atrophy in his left eye since childhood. The visual acuity in his right eye is 20/25, and in his left eye, counting fingers. Following an examination in 2014, his ophthalmologist stated, “I certify, that in my professional opinion, Mr. Van Meter's [
Mr. VanRoekel, 52, has had complete loss of vision in his right eye since birth. The visual acuity in his right eye is no light perception, and in his left eye, 20/20. Following an examination in 2013, his optometrist stated, “I certify in my medical opinion that Kent VanRoekel has sufficient stable vision to perform the driving tasks required to operate a commercial vehicle.” Mr. VanRoekel reported that he has driven straight trucks for 5 years, accumulating 125,000 miles, and buses for 5 months, accumulating 20,000 miles. He holds a Class C CDL from Minnesota. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Walden, 51, has had optic atrophy in his right eye since childhood. The visual acuity in his right eye is hand motion, and in his left eye, 20/20. Following an examination in 2014, his optometrist stated, “Hand motion vision in right eye. Right eye vision reduction since he was 4 years old. Fine to operate a commercial motor vehicle.” Mr. Walden reported that he has driven straight trucks for 5 years, accumulating 150,000 miles, and tractor-trailer combinations for 6 years, accumulating 240,000 miles. He holds a Class A CDL from North Carolina. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Ward, 64, has had strabismic amblyopia in his right eye since childhood. The visual acuity in his right eye is 20/400, and in his left eye, 20/20. Following an examination in 2014, his ophthalmologist stated, “Mr [
Mr. Witt, 60, has a prosthetic left eye due to a traumatic incident during childhood. The visual acuity in his right eye is 20/20, and in his left eye, no light perception. Following an examination in 2014, his optometrist stated, “I feel that Mr. Witt has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Witt reported that he has driven tractor-trailer combinations for 40 years, accumulating 1.56 million miles. He holds a Class A CDL from Iowa. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Woods, 47, has had a retinal detachment his right eye since 1987. The visual acuity in his right eye is 20/50, and in his left eye, 20/20. Following an examination in 2014, his optometrist stated, “His vision is stable and with his left eye unaffected, Mr. Woods is very capable of operating a commercial motorized vehicle while wearing his prescription glasses.” Mr. Woods reported that he has driven straight trucks for 2 years, accumulating 110,000 miles, and tractor-trailer combinations for 24 years, accumulating 1.44 million miles. He holds a Class CA CDL from Michigan. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Workman, 27, has had amblyopia in his right eye since childhood. The visual acuity in his right eye is 20/50, and in his left eye, 20/20. Following an examination in 2014, his optometrist stated, “In my medical opinion Mr [
FMCSA has evaluated the eligibility of the 52 applicants and determined that granting the exemptions to these individuals would achieve a level of safety equivalent to or greater than the level that would be achieved by complying with the current regulation 49 CFR 391.41(b)(10). Absent the receipt of comments indicating that a driver's ability would not achieve the aforementioned level of safety, the Agency will grant the drivers an exemption the day after the comment period closes.
The vision requirement in the FMCSRs provides:
A person is physically qualified to drive a commercial motor vehicle if that person has distant visual acuity of at least 20/40 (Snellen) in each eye without corrective lenses or visual acuity separately corrected to 20/40 (Snellen) or better with corrective lenses, distant binocular acuity of at least 20/40 (Snellen) in both eyes with or without corrective lenses, field of vision of at least 70° in the horizontal meridian in each eye, and the ability to recognize the colors of traffic signals and devices showing red, green, and amber (49 CFR 391.41(b)(10)).
FMCSA recognizes that some drivers do not meet the vision requirement but have adapted their driving to accommodate their vision limitation and demonstrated their ability to drive safely. The 52 exemption applicants listed in this notice are in this category.
Although each applicant has one eye which does not meet the vision requirement in 49 CFR 391.41(b)(10), each has at least 20/40 corrected vision in the other eye, and in a doctor's opinion, has sufficient vision to perform all the tasks necessary to operate a CMV. Doctors' opinions are supported by the applicants' possession of valid commercial driver's licenses (CDLs) or non-CDLs to operate CMVs. Before issuing CDLs, States subject drivers to knowledge and skills tests designed to evaluate their qualifications to operate a CMV.
All of these applicants satisfied the testing requirements for their State of residence. By meeting State licensing requirements, the applicants demonstrated their ability to operate a CMV, with their limited vision, to the satisfaction of the State.
While possessing a valid CDL or non-CDL, these 52 drivers have been authorized to drive a CMV in intrastate commerce, even though their vision disqualified them from driving in interstate commerce. The qualifications, experience, and medical condition of each applicant is stated and discussed in detail above.
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the vision requirement in 49 CFR 391.41(b)(10) if the exemption is likely to achieve an equivalent or greater level of safety than would be achieved without the exemption. Without the exemption, applicants will continue to be restricted to intrastate driving. With the exemption, applicants can drive in interstate commerce. Thus, our analysis focuses on whether an equal or greater level of safety is likely to be achieved by permitting each of these drivers to drive in interstate commerce as opposed to restricting him or her to driving in intrastate commerce.
To evaluate the effect of these exemptions on safety, FMCSA considered the medical reports about the applicants' vision as well as their driving records and experience with the vision deficiency.
To qualify for an exemption from the vision requirement, FMCSA requires a person to present verifiable evidence that he/she has driven a commercial vehicle safely with the vision deficiency for the past 3 years. Recent driving performance is especially important in evaluating future safety, according to several research studies designed to correlate past and future driving performance. Results of these studies support the principle that the best predictor of future performance by a driver is his/her past record of crashes and traffic violations. Copies of the studies may be found at Docket Number FMCSA-1998-3637.
FMCSA believes it can properly apply the principle to monocular drivers, because data from the Federal Highway Administration's (FHWA) former waiver study program clearly demonstrate the driving performance of experienced monocular drivers in the program is better than that of all CMV drivers collectively (See 61 FR 13338, 13345, March 26, 1996). The fact that experienced monocular drivers demonstrated safe driving records in the waiver program supports a conclusion that other monocular drivers, meeting the same qualifying conditions as those required by the waiver program, are also likely to have adapted to their vision deficiency and will continue to operate safely.
The first major research correlating past and future performance was done in England by Greenwood and Yule in 1920. Subsequent studies, building on that model, concluded that crash rates for the same individual exposed to certain risks for two different time periods vary only slightly (See Bates and Neyman, University of California Publications in Statistics, April 1952). Other studies demonstrated theories of predicting crash proneness from crash history coupled with other factors. These factors—such as age, sex, geographic location, mileage driven and conviction history—are used every day by insurance companies and motor vehicle bureaus to predict the probability of an individual experiencing future crashes (See Weber, Donald C., “Accident Rate Potential: An Application of Multiple Regression Analysis of a Poisson Process,” Journal of American Statistical Association, June 1971). A 1964 California Driver Record Study prepared by the California Department of Motor Vehicles concluded that the best overall crash predictor for both concurrent and non-concurrent events is the number of single convictions. This study used 3 consecutive years of data, comparing the experiences of drivers in the first 2 years with their experiences in the final year.
Applying principles from these studies to the past 3-year record of the 52 applicants, none of the drivers were involved in crashes and four were convicted of moving violations in a CMV. All the applicants achieved a record of safety while driving with their vision impairment, demonstrating the likelihood that they have adapted their driving skills to accommodate their condition. As the applicants' ample driving histories with their vision deficiencies are good predictors of future performance, FMCSA concludes their ability to drive safely can be projected into the future.
FMCSA believes that the applicants' intrastate driving experience and history provide an adequate basis for predicting their ability to drive safely in interstate commerce. Intrastate driving, like interstate operations, involves substantial driving on highways on the interstate system and on other roads built to interstate standards. Moreover, driving in congested urban areas exposes the driver to more pedestrian and vehicular traffic than exists on interstate highways. Faster reaction to traffic and traffic signals is generally required because distances between them are more compact. These conditions tax visual capacity and driver response just as intensely as interstate driving conditions. The veteran drivers in this proceeding have operated CMVs safely under those conditions for at least 3 years, most for much longer. Their experience and driving records lead us to believe that each applicant is capable of operating in interstate commerce as safely as he/she has been performing in intrastate commerce. Consequently, FMCSA finds that exempting these applicants from the vision requirement in 49 CFR 391.41(b)(10) is likely to achieve a level of safety equal to that existing without the exemption. For this reason, the Agency is granting the exemptions for the 2-year period allowed by 49 U.S.C. 31136(e) and 31315 to the 52 applicants listed in this notice.
We recognize that the vision of an applicant may change and affect his/her ability to operate a CMV as safely as in the past. As a condition of the exemption, therefore, FMCSA will impose requirements on the 52 individuals consistent with the Grandfathering provisions applied to drivers who participated in the Agency's vision waiver program.
Those requirements are found at 49 CFR 391.64(b) and include the following: (1) That each individual be physically examined every year (a) by an ophthalmologist or optometrist who attests that the vision in the better eye
In accordance with 49 U.S.C. 31136(e) and 31315, each exemption will be valid for 2 years unless revoked earlier by FMCSA. The exemption will be revoked if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136 and 31315.
In accordance with 49 U.S.C. 31136(e) and 31315, FMCSA requests public comment from all interested persons on the exemption petitions described in this notice. The Agency will consider all comments received before the close of business August 7, 2014. Comments will be available for examination in the docket at the location listed under the
In addition to late comments, FMCSA will also continue to file, in the public docket, relevant information that becomes available after the comment closing date. Interested persons should monitor the public docket for new material.
You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission.
To submit your comment online, go to
We will consider all comments and material received during the comment period and may change this proposed rule based on your comments. FMCSA may issue a final rule at any time after the close of the comment period.
To view comments, as well as any documents mentioned in this preamble, To submit your comment online, go to
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
FMCSA announces its decision to grant an exemption to the Virginia Department of Motor Vehicles (Virginia), on behalf of truck and bus drivers who are licensed in the Commonwealth of Virginia and need a Skill Performance Evaluation (SPE) certificate from FMCSA to operate commercial motor vehicles (CMVs) in interstate commerce. The exemption will enable Virginia-licensed drivers subject to the Federal SPE requirements under 49 CFR 391.49, to fulfill the Federal requirements with a State-issued SPE. The State-issued SPE will be based on standards, processes and procedures comparable to those used by FMCSA, and the State will maintain copies of all evaluation forms and certificates issued to enable FMCSA to conduct periodic reviews of the State's program. Virginia licensed drivers who receive the State-issued SPE are allowed to operate CMVs in interstate commerce, anywhere in the United States.
The exemption is effective July 8, 2014. The exemption will expire on July 8, 2016 but may be renewed.
Ms. Eileen Nolan, Office of Carrier, Driver and Vehicle Safety, Medical Programs Division, (202) 366-4001, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590-0001.
The FMCSA received 2 comments in response to the July 9, 2013 (78 FR 41187), notice requesting public comment on Virginia's application for an exemption. A copy of Virginia's application is in the docket referenced at the beginning of this notice and any comments or additional information submitted to the Agency following publication of this notice may be accessed online through
FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant exemptions from certain parts of the Federal Motor
The Agency reviews safety analyses and public comments submitted and determines whether granting the exemption would likely achieve a level of safety equivalent to, or greater than, the level that would be achieved by the current regulation (49 CFR 381.305). The decision of the Agency must be published in the
The Virginia DMV requested an exemption from 49 CFR 391.49 concerning FMCSA's SPE process for drivers who have experienced an impairment or loss of a limb, on behalf of CMV drivers licensed in the Commonwealth of Virginia. Instead of requiring such drivers to apply to FMCSA for an SPE, Virginia would establish its own SPE program essentially identical to the current FMCSA program. Virginia would establish an application process modeled on the FMCSA process and State personnel who have completed SPE training identical to that of FMCSA personnel currently administering the Federal SPE program would conduct the skill evaluation following the same procedures and testing criteria used by FMCSA. If the driver passed the skill evaluation, the State would issue the SPE certificate. Virginia would maintain records of applications, testing, and certificates issued for periodic review by FMCSA.
On July 9, 2013, FMCSA published a notice in the
The Advocates expressed opposition to the exemption, stating:
The ATA supports the concept of the exemption but expressed concerns regarding the precedent the exemption might set for other States that are not prepared to handle the SPE process. The ATA believes FMCSA needs to ensure any subsequent State authorities that may be granted a similar exemption adhere to strict standards for program design and implementation. The ATA asked whether drivers in an authorized State would be required to apply in that State or would the Federal SPE process still be available? The ATA also asked whether a driver who fails the SPE test in an authorized State could reapply to FMCSA?
The FMCSA acknowledges Advocates' concerns, but disagrees with its conclusions. The Virginia DMV is seeking an exemption on behalf of a class of drivers, and the proposed exemption would not involve the delegation of Federal authority to Virginia.
Currently, 49 CFR 391.49 prescribes alternative physical qualification standards for drivers with a loss or impairment of a limb(s). A person who is not physically qualified to drive under 49 CFR 391.41(b)(1) or (b)(2) concerning loss of limbs or impairment of limbs, respectively, may apply for an SPE from the FMCSA Division Administrator in the State in which the driver is licensed. The current regulations does not provide an alternative to an FMCSA-issued SPE certificate for drivers who have experienced the loss or impairment of a limb(s). In the absence of an FMCSA-issued SPE certificate, such drivers are prohibited from operating CMVs in interstate commerce.
The FMCSA continues to view Virginia's request as an appropriate application for an exemption on behalf of Virginia-licensed drivers who have experienced the loss or impairment of a limb, and wish to operate CMVs in interstate commerce. Through the exemption process, FMCSA would accept a State-issued SPE certificate in lieu of requiring these drivers to obtain an FMCSA-issued SPE certificate, as specified in the current regulations. Therefore, the exemption would provide an alternative to the current regulations for the class of drivers described by Virginia's application. As such, Virginia's request is no different from other applications submitted by entities on behalf of a class of persons or class of carriers. Under this scenario, the State is not seeking relief from any rules applicable to the State, rather it is seeking relief on behalf of the class of drivers who would otherwise have to seek individual exemptions to obtain a variance from the Federal SPE requirement.
FMCSA acknowledges that the same terms and conditions of the exemption that ensure it would likely achieve a level of safety equivalent to, or greater than, the level that would be achieved by the current regulations, may have led Advocates to conclude the exemption represents a transfer of authority from FMCSA to the State. However, no such transfer of authority would take place through the exemption. Each driver who has experienced a loss or impairment of a limb(s) remains subject to 49 CFR 391.49 and only the subset of such drivers who are licensed in Virginia may seek a State-issued SPE in lieu of the FMCSA-issued SPE certificate. The fact that the State would adhere to the same strict standards for the personnel administering the test and the same performance-based testing standards for each SPE applicant does not mean there is a transfer of authority. What the exemption provides is a streamlined alternative through which this limited class of drivers may pursue a State-issued SPE from the same entity that issued their driver's license rather than having to undertake a two-step process where the license is issued by the State and the SPE is issued by FMCSA.
The exemption is analogous to long-standing regulations governing the roles of (1) medical examiners who qualify drivers (49 CFR part 391, subpart E), and (2) State officials who can trigger FMCSA's emergency exemptions (49 CFR 390.23).
The Federal Motor Carrier Safety Regulations (FMCSRs) have long entrusted private medical personnel with the task of applying the Agency's medical standards to determine whether drivers are physically qualified to operate commercial motor vehicles (CMVs). No one contends that this amounts to a delegation of Federal authority to private individuals. Agency rules simply specify the types of medical professional who may be “medical examiners” (as defined in 49 CFR 390.5) and accept (or ratify) their judgment as to whether a driver meets the physical qualification standards in
Similarly, while the relief from regulations provided by 49 CFR 390.23 is often triggered by the declaration of an emergency by a State official, FMCSA has not thereby delegated its exemption authority to the State. On the contrary, § 390.23 represents an FMCSA decision, made in advance of any particular incident, that events serious enough to qualify as an “emergency” justify regulatory exemptions for motor carriers and drivers providing “direct assistance” to supplement the “emergency relief” efforts of State and local governments, as those terms are defined in § 390.5. FMCSA has not delegated its authority to the States; it accepts (with rare exceptions) the factual conclusion of State officials that a given event qualifies as an “emergency” under Federal rules.
The exemption granted the Virginia DMV is of the same type. Because of Virginia's well-documented training of its personnel to apply FMCSA's SPE standards and its commitment to maintaining compliance with those standards, the Agency is simply accepting (and ratifying) the State's conclusions about the applicant's qualifications in the same way that it accepts the conclusions of medical examiners. But FMCSA retains and will exercise the authority to review Virginia's adherence to the Federal SPE standards, just as it has undertaken to review the adherence of medical examiners to Federal qualification standards.
With regard to the ATA's comments, FMCSA believes its oversight of the exemption process would ensure adherence to the terms and conditions of the exemption, and provide for an effective FMCSA-Virginia partnership in streamlining the SPE process for Virginia-licensed drivers. If, for whatever reason, a Virginia-licensed driver would prefer not to opt for the streamlined SPE process, he or she may still apply for an FMCSA-issued SPE. However, FMCSA may still exercise its discretion and call upon the State licensing agency to provide assistance in conducting the road test needed to complete an SPE application, depending on the volume of applications.
In response to the ATA's question about drivers who fail the SPE certification process, the current regulations do not prohibit drivers from reapplying for SPE certification. In this case, FMCSA would work with the State to reevaluate a driver who fails to obtain a State-issued SPE. FMCSA would consult with the State for any SPE application from a Virginia-domiciled driver to determine whether the driver had previously applied for an SPE from the State and request the results of that application before making any decision in the matter.
Finally, FMCSA emphasizes that the Agency does not intend its decision to serve as pressure upon other States to take action to implement State-run SPE programs. Virginia is the first State to submit an application on behalf of its drivers to provide an alternative to the Federal SPE process. Other States are welcome to take similar actions if they believe it is appropriate to do so and they have the resources to meet terms and conditions comparable to those provided in this exemption.
Based upon its analysis of the application, FMCSA has determined that there are no safety vulnerabilities associated with Virginia's request and that the exemption should be granted. The Agency has determined that the exemption will achieve a level of safety equivalent to, or greater than, the level achieved by the current SPE requirements.
As indicated above, Virginia will establish its own SPE program essentially identical to the current FMCSA program. Virginia will establish an application process modeled on the FMCSA process. State personnel who conduct the skill evaluation will complete the same training as FMCSA personnel conducting the test and will follow the same procedures and testing criteria used by FMCSA. And Virginia will maintain records of applications, testing, and certificates issued for periodic review by FMCSA.
Because Virginia's program will be essentially identical to the current FMCSA program, FMCSA has concluded that the program will achieve the level of safety required by 49 U.S.C. § 31315.
The FMCSA grants an exemption to the Virginia DMV on behalf of drivers who have experienced an impairment or loss of a limb, and are licensed in the Commonwealth of Virginia. The following terms and conditions apply to the State and any drivers who receive a State-issued SPE certificate.
• Virginia must establish and maintain its own SPE program essentially identical to the current FMCSA program.
• The State must establish an application process modeled on the FMCSA process and must submit information concerning the application process to FMCSA's Medical Programs Division for review.
• State personnel who conduct the skill test must complete SPE training identical to that of FMCSA personnel currently administering the Federal SPE program.
• The skill evaluation and scoring for the SPE must be done using the same procedures and testing criteria used by FMCSA.
• Virginia must maintain records of applications, testing, and certificates issued for periodic review by FMCSA.
• Virginia must submit a monthly report to FMCSA listing the names and license number of each driver tested by the State and the result of the test (pass or fail).
• Each driver who receives a State-issued SPE must keep a copy of the certificate when driving, for presentation to authorized Federal, State, or local law enforcement officials.
An exemption granted under the authority of 49 U.S.C. 31315(b) preempts State laws and regulations that conflict with or are inconsistent with the exemption. The decision to grant Virginia's request amounts to automatic Federal ratification of the State issued SPE certificate and therefore prohibits other jurisdictions from requiring a separate FMCSA-issued SPE. The State-issued certificate must be treated as if it had been issued by FMCSA. Virginia-licensed drivers who receive the State-issued SPE are allowed to operate CMVs in interstate commerce, anywhere in the United States.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of renewal of exemptions; request for comments.
FMCSA announces its decision to renew the exemptions from the vision requirement in the Federal Motor Carrier Safety Regulations for 12 individuals. FMCSA has statutory authority to exempt individuals from the vision requirement if the exemptions granted will not compromise safety. The Agency has concluded that granting these exemption renewals will provide a level of safety that is equivalent to or greater than the level of safety maintained without the exemptions for these commercial motor vehicle (CMV) drivers.
This decision is effective August 6, 2014. Comments must be received on or before August 7, 2014.
You may submit comments bearing the Federal Docket Management System (FDMS) numbers: Docket No. [Docket No. FMCSA-1999-5578; FMCSA-2004-17195; FMCSA-2005-21254; FMCSA-2006-24015; FMCSA-2010-0082; FMCSA-2011-0379; FMCSA-2012-0106; FMCSA-2012-0159], using any of the following methods:
• Federal eRulemaking Portal: Go to
• Mail: Docket Management Facility; U.S. Department of Transportation, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001.
• Hand Delivery or Courier: West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays.
• Fax: 1-202-493-2251.
Elaine M. Papp, Chief, Medical Programs Division, 202-366-4001,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may renew an exemption from the vision requirements in 49 CFR 391.41(b)(10), which applies to drivers of CMVs in interstate commerce, for a two-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The procedures for requesting an exemption (including renewals) are set out in 49 CFR part 381.
This notice addresses 12 individuals who have requested renewal of their exemptions in accordance with FMCSA procedures. FMCSA has evaluated these 12 applications for renewal on their merits and decided to extend each exemption for a renewable two-year period. They are:
The exemptions are extended subject to the following conditions: (1) That each individual has a physical examination every year (a) by an ophthalmologist or optometrist who attests that the vision in the better eye continues to meet the requirements in 49 CFR 391.41(b)(10), and (b) by a medical examiner who attests that the individual is otherwise physically qualified under 49 CFR 391.41; (2) that each individual provides a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and (3) that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file and retains a copy of the certification on his/her person while driving for presentation to a duly authorized Federal, State, or local enforcement official. Each exemption will be valid for two years unless rescinded earlier by FMCSA. The exemption will be rescinded if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315.
Under 49 U.S.C. 31315(b)(1), an exemption may be granted for no longer than two years from its approval date and may be renewed upon application for additional two year periods. In accordance with 49 U.S.C. 31136(e) and 31315, each of the 12 applicants has satisfied the entry conditions for obtaining an exemption from the vision requirements (64 FR 27027; 64 FR 51568; 69 FR 17263; 69 FR 31447; 70 FR 30999; 70 FR 46567; 71 FR 14566; 71 FR 27033; 71 FR 30227; 72 FR 40359; 73 FR 27014; 73 FR 36955; 75 FR 19674; 75 FR 25918; 75 FR 36779; 75 FR 38602; 75 FR 39729; 77 FR 15184; 77 FR 27850; 77 FR 29447; 77 FR 33017; 77 FR 36336; 77 FR 36338; 77 FR 38384; 77 FR 40946; 77 FR 44708; 77 FR 46795). Each of these 12 applicants has requested renewal of the exemption and has submitted evidence showing that the vision in the better eye continues to meet the requirement specified at 49 CFR 391.41(b)(10) and that the vision impairment is stable. In addition, a review of each record of safety while driving with the respective vision deficiencies over the past two years indicates each applicant continues to meet the vision exemption requirements.
These factors provide an adequate basis for predicting each driver's ability to continue to drive safely in interstate commerce. Therefore, FMCSA concludes that extending the exemption for each renewal applicant for a period of two years is likely to achieve a level of safety equal to that existing without the exemption.
FMCSA will review comments received at any time concerning a particular driver's safety record and determine if the continuation of the exemption is consistent with the requirements at 49 U.S.C. 31136(e) and 31315. However, FMCSA requests that interested parties with specific data concerning the safety records of these drivers submit comments by August 7, 2014.
FMCSA believes that the requirements for a renewal of an exemption under 49 U.S.C. 31136(e) and 31315 can be satisfied by initially granting the renewal and then requesting and evaluating, if needed, subsequent comments submitted by interested parties. As indicated above, the Agency previously published notices of final disposition announcing its decision to exempt these 12 individuals from the vision requirement in 49 CFR 391.41(b)(10). The final decision to grant an exemption to each of these individuals was made on the merits of each case and made only after careful consideration of the comments received to its notices of applications. The notices of applications stated in detail the qualifications, experience, and medical condition of each applicant for an exemption from the vision requirements. That information is available by consulting the above cited
Interested parties or organizations possessing information that would otherwise show that any, or all, of these drivers are not currently achieving the statutory level of safety should immediately notify FMCSA. The Agency will evaluate any adverse evidence submitted and, if safety is being compromised or if continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315, FMCSA will take immediate steps to revoke the exemption of a driver.
You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission.
To submit your comment online, go to
We will consider all comments and material received during the comment period and may change this proposed rule based on your comments. FMCSA may issue a final rule at any time after the close of the comment period.
To view comments, as well as any documents mentioned in this preamble, to submit your comment online, go to
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of applications for exemption, request for comments.
FMCSA announces receipt of applications from 8 individuals for an exemption from the prohibition against persons with a clinical diagnosis of epilepsy or any other condition which is likely to cause a loss of consciousness or any loss of ability to operate a commercial motor vehicle (CMV) from operating CMVs in interstate commerce. The regulation and the associated advisory criteria published in the Code of Federal Regulations as the “Instructions for Performing and Recording Physical Examinations” have resulted in numerous drivers being prohibited from operating CMVs in interstate commerce based on the fact that they have had one or more seizures and are taking anti-seizure medication, rather than an individual analysis of their circumstances by a qualified medical examiner. If granted, the exemptions would enable these individuals who have had one or more seizures and are taking anti-seizure medication to operate CMVs for 2 years in interstate commerce.
Comments must be received on or before August 7, 2014.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket ID FMCSA-2014-0212 using any of the following methods:
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Each submission must include the Agency name and the docket ID for this Notice. Note that DOT posts all comments received without change to
Elaine Papp, Chief, Medical Programs Division, (202) 366-4001, or via email at
Under 49 U.S.C. 31315 and 31136(e), FMCSA may grant an exemption for a 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The statutes also allow the Agency to renew exemptions at the end of the 2-year period. The 8 individuals listed in this notice have recently requested an exemption from the epilepsy prohibition in 49 CFR 391.41(b)(8), which applies to drivers who operate CMVs as defined in 49 CFR 390.5, in interstate commerce. Section 391.41(b)(8) states that a person is physically qualified to drive a commercial motor vehicle if that person has no established medical history or clinical diagnosis of epilepsy or any other condition which is likely to cause the loss of consciousness or any loss of ability to control a CMV.
FMCSA provides medical advisory criteria for use by medical examiners in determining whether drivers with certain medical conditions should be certified to operate CMVs in intrastate commerce. The advisory criteria indicate that if an individual has had a sudden episode of a non-epileptic seizure or loss of consciousness of unknown cause which did not require anti-seizure medication, the decision whether that person's condition is likely to cause the loss of consciousness or loss of ability to control a CMV should be made on an individual basis by the medical examiner in consultation with the treating physician. Before certification is considered, it is suggested that a 6-month waiting period elapse from the time of the episode. Following the waiting period, it is suggested that the individual have a complete neurological examination. If the results of the examination are negative and anti-seizure medication is not required, then the driver may be qualified.
In those individual cases where a driver had a seizure or an episode of loss of consciousness that resulted from a known medical condition (e.g., drug reaction, high temperature, acute infectious disease, dehydration, or acute metabolic disturbance), certification should be deferred until the driver has fully recovered from that condition, has no existing residual complications, and is not taking anti-seizure medication. Drivers who have a history of epilepsy/seizures, off anti-seizure medication and seizure-free for 10 years, may be qualified to operate a CMV in interstate commerce. Interstate drivers with a history of a single unprovoked seizure may be qualified to drive a CMV in interstate commerce if seizure-free and off anti-seizure medication for a 5-year period or more.
You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission. To submit your comment online, go to
We will consider all comments and material received during the comment period and may change this proposed rule based on your comments. FMCSA may issue a final rule at any time after the close of the comment period.
To view comments, as well as any documents mentioned in this preamble, or to submit your comment online, go to
Mr. Alcantar is a 39-year-old driver in Oregon. He has a history of a single seizure in 1992 and has remained seizure free since that time. He takes anti-seizure medication with the dosage and frequency remaining the same since 1992. If granted the exemption, he would like to drive a CMV. His physician states that he is supportive of Mr. Alcantar receiving an exemption.
Mr. Barnett is a 67-year-old driver in Virginia. He has a history of seizures and has remained seizure free since 2011. He takes anti-seizure medication with the dosage and frequency remaining the same since that time. If granted an exemption, he would like to drive a CMV. His physician states he is supportive of Mr. Barnett receiving an exemption.
Mr. Bender is a 58-year-old class A CDL holder in Minnesota. He has a history of seizures and has remained seizure free since 1996. He takes anti-seizure medication with the dosage and frequency remaining the same since that time. If granted an exemption, he would like to drive a CMV. His physician states he is supportive of Mr. Bender receiving an exemption.
Mr. Boyd is a 56-year-old driver in Kansas. He has a history of a single seizure in 2011 following surgery of a traumatic brain injury and has remained seizure free since that time. He takes anti-seizure medication with the dosage and frequency remaining the same since for 2 years. If granted the exemption, he would like to drive a CMV. His physician states that he is supportive of Mr. Boyd receiving an exemption.
Mr. Hamby is a 44-year-old class A CDL holder in North Carolina. He has a history of seizures and has remained seizure free since 1981. He takes anti-seizure medication with the dosage and
Mr. Lerch is a 62-year-old class A CDL holder in Iowa. He has a history of seizures and has remained seizure free since 1978. He takes anti-seizure medication with the dosage and frequency remaining the same since 2007. If granted the exemption, he would like to drive a CMV. His physician states that he is supportive of Mr. Lerch receiving an exemption.
Mr. Polin is a 47-year-old driver in New York. He has a history of epilepsy and has remained seizure free since 2010. He takes anti-seizure medication with the dosage and frequency remaining the same since that time. If granted the exemption, he would like to drive a CMV. His physician states that he is supportive of Mr. Polin receiving an exemption.
Mr. Velez-Cruz is a 30-year-old class B CDL holder in New Jersey. He has a history of seizures and has remained seizure free since 2004. He takes anti-seizure medication with the dosage and frequency remaining the same since 2009. If granted the exemption, he would like to drive a CMV. His physician states that he is supportive of Mr. Velez-Cruz receiving an exemption.
In accordance with 49 U.S.C. 31315 and 31136(e), FMCSA requests public comment from all interested persons on the exemption applications described in this notice. We will consider all comments received before the close of business on the closing date indicated earlier in the notice.
Federal Transit Administration, DOT.
Notice of proposed Buy America waiver and request for comment.
The Federal Transit Administration (FTA) received a request for a waiver to permit the purchase of new waterjets that are non-compliant with Buy America requirements using FTA funding. The request is from the Golden Gate Bridge Highway & Transportation District (Golden Gate Bridge) for its M.V. Mendocini ferry vessel. In accordance with 49 U.S.C. 5323(j)(3)(A), FTA is providing notice of the waiver request and seeks public comment before deciding whether to grant the request. If granted, the waiver only would apply to a one-time FTA-funded procurement by Golden Gate Bridge.
Comments must be received by July 15, 2014. Late-filed comments will be considered to the extent practicable.
Please submit your comments by one of the following means, identifying your submissions by docket number FTA-2014-0016:
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Mary J. Lee, FTA Attorney-Advisor, at (202) 366-0985 or
The purpose of this notice is to provide notice and seek comment on whether the FTA should a grant non-availability waiver for Golden Gate Bridge's procurement of replacement waterjets for its M.V. Mendocini ferry vessel.
With certain exceptions, FTA's Buy America requirements prevent FTA from obligating an amount that may be appropriated to carry out its program for a project unless “the steel, iron, and manufactured goods used in the project are produced in the United States.” 49 U.S.C. 5323(j)(1). A manufactured product is considered produced in the United States if: (1) all of the manufacturing processes for the product take place in the United States; and (2) all of the components of the product are of U.S. origin. A component is considered of U.S. origin if it is manufactured in the United States, regardless of the origin of its subcomponents. 49 CFR 661.5(d). If, however, FTA determines that “the steel, iron, and goods produced in the United States are not produced in a sufficient and reasonably available amount or are not of a satisfactory quality,” then FTA may issue a waiver (non-availability waiver). 49 U.S.C. 5323(j)(2)(B); 49 CFR 661.7(c).
Golden Gate Bridge provides ferry service to an average of 7,000 passengers per day. According to Golden Gate Bridge, ridership continues to increase and continued maintenance of its fleet of ferry vessels, such as the M.V. Mendocini, is necessary to provide reliable service. At this time, Golden Gate Bridge needs to replace the waterjets in the M.V. Mendocini. Golden Gate Bridge asserts that there is only one manufacturer of commercial waterjets in the United States, NAMjet of Arkansas, but this manufacturer only provides waterjets for smaller ferry vessels that have no more than 800 brake horsepower (bhp), which is less than half the amount of bhp needed for Golden Gate Bridge's M.V. Mendocini ferry vessel. In addition, the M.V. Mendocini ferry vessel's design and control system configuration only permits a waterjet such as the one HamiltonJet of New Zealand manufactures, which is not Buy America compliant.
The purpose of this notice is to publish Golden Gate Bridge's request and seek public comment from all interested parties in accordance with 49 U.S.C. 5323(j)(3)(A). Comments will help FTA understand completely the
Federal Transit Administration (FTA), DOT.
Notice.
This notice announces final environmental actions taken by the Federal Transit Administration (FTA) for projects in Chicago, IL. The purpose of this notice is to announce publicly the environmental decisions by FTA on the subject projects and to activate the limitation on any claims that may challenge these final environmental actions.
By this notice, FTA is advising the public of final agency actions subject to Section 139(l) of Title 23, United States Code (U.S.C.). A claim seeking judicial review of FTA actions announced herein for the listed public transportation projects will be barred unless the claim is filed on or before December 5, 2014.
Nancy-Ellen Zusman, Assistant Chief Counsel, Office of Chief Counsel, (312) 353-2577 or Terence Plaskon, Environmental Protection Specialist, Office of Human and Natural Environment, (202) 366-0442. FTA is located at 1200 New Jersey Avenue SE., Washington, DC 20590. Office hours are from 9:00 a.m. to 5:30 p.m., Monday through Friday, except Federal holidays.
Notice is hereby given that FTA has taken final agency actions by issuing certain approvals for the public transportation projects listed below. The actions on the projects, as well as the laws under which such actions were taken, are described in the documentation issued in connection with the project to comply with the National Environmental Policy Act (NEPA) and in other documents in the FTA administrative record for the projects. Interested parties may contact either the project sponsor or the relevant FTA Regional Office for more information on the project. Contact information for FTA's Regional Offices may be found at
This notice applies to all FTA decisions on the listed projects as of the issuance date of this notice and all laws under which such actions were taken, including, but not limited to, NEPA [42 U.S.C. 4321-4375], Section 4(f) of the Department of Transportation Act of 1966 [49 U.S.C. 303], Section 106 of the National Historic Preservation Act [16 U.S.C. 470f], and the Clean Air Act [42 U.S.C. 7401-7671q]. This notice does not, however, alter or extend the limitation period for challenges of project decisions subject to previous notices published in the
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National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Request for comments on technical report.
This notice announces NHTSA's publication of a technical report evaluating the upgraded FMVSS No. 301. The report's title is:
Comments must be received no later than November 5, 2014.
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Jia-Ern Pai, Mathematical Statistician, Evaluation Division, NVS-431, National Center for Statistics and Analysis, National Highway Traffic Safety Administration, Room W53-440, 1200 New Jersey Avenue SE., Washington, DC 20590. Telephone: 202-366-2570. Email:
NHTSA issued a final rule to upgrade FMVSS No. 301, Fuel System Integrity, on December 1, 2003, to amend the prior standards in rear and side impacts. By increasing the impact speeds and using a moving deformable barrier, the amended test conditions are more comparable with real-world crashes than the prior standards. The rear impact upgrade phased in during model years 2007 to 2009, whereas the new side impact test went into effect in model year 2005.
The analysis of the rear impact upgrade shows a statistically significant reduction in post-crash fires ranging from 50 to 60 percent. In addition, the rear impact upgrade would reduce 35 percent of the fatalities caused by rear impact fires. NHTSA believes that the rear impact upgrade will save an estimated 23 lives per year, if all vehicles meet the rear impact upgrade. However, the data do not currently show that the side impact upgrade resulted in a statistically significant reduction in side impact fires.
The statistical analysis does not show any significant affiliated effect of the rear impact upgrade on frontal impact fires and first-event-rollover fires. The statistical inference of the rear impact upgrade should not apply to other crash modes.
NHTSA welcomes public review of the technical report. NHTSA will submit to the Docket a response to the comments and, if appropriate, will supplement or revise the report.
Your comments must be written and in English. To ensure that your comments are correctly filed in the Docket, please include the Docket number of this document (NHTSA-2014-0079) in your comments.
Your primary comments must not be more than 15 pages long (49 CFR 553.21). However, you may attach additional documents to your primary comments. There is no limit on the length of the attachments.
Please submit one copy of your comments, including the attachments, to Docket Management at the address given above under
Please note that pursuant to the Data Quality Act, in order for substantive data to be relied upon and used by the agency, it must meet the information quality standards set forth in the OMB and DOT Data Quality Act guidelines. Accordingly, we encourage you to consult the guidelines in preparing your comments. OMB's guidelines may be accessed at
If you wish Docket Management to notify you upon its receipt of your comments, enclose a self-addressed, stamped postcard in the envelope containing your comments. Upon receiving your comments, Docket Management will return the postcard by mail. You may also periodically access
If you wish to submit any information under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Chief Counsel, NHTSA, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590. In addition, you should submit a copy, from which you have deleted the claimed confidential business information, to Docket Management at the address given above under
In our response, we will consider all comments that Docket Management receives before the close of business on the comment closing date indicated above under
You may read the comments received by Docket Management at the address given above under
You may also see the comments on the Internet. To read the comments on the Internet, take the following steps:
(1) Go to the Federal Docket Management System (FDMS) at
(2) FDMS provides two basic methods of searching to retrieve dockets and docket materials that are available in the system: (a) “Quick Search” to search using a full-text search engine, or (b) “Advanced Search,” which displays various indexed fields such as the docket name, docket identification number, phase of the action, initiating office, date of issuance, document title, document identification number, type of document,
(3) You may download the comments. However, since the comments are imaged documents, instead of word processing documents, the “pdf”
Please note that even after the comment closing date, we will continue to file relevant information in the Docket as it becomes available. Further, some people may submit late comments. Accordingly, we recommend that you periodically check the Docket for new material.
49 U.S.C. 30111, 30181-83 delegation of authority at 49 CFR 1.95 and 501.8.
Yadkin Railroad Company (YRC)
YRC has certified that: (1) No local traffic has moved over the Line for at least two years; (2) no overhead traffic has moved over the Line for at least two years, and if there were any, it could be rerouted over other lines; (3) no formal complaint has been filed by a user of rail service on the Line (or by a state or local government entity acting on behalf of such user) regarding cessation of service over the Line and no such complaint is either pending with the Surface Transportation Board (Board) or with any U.S. District Court or has been decided in favor of complainant within the two-year period; and (4) the requirements at 49 CFR 1105.7(c) (environmental report), 49 CFR 1105.11 (transmittal letter), 49 CFR 1105.12 (newspaper publication), and 49 CFR 1152.50(d)(1) (notice to governmental agencies) have been met.
As a condition to this exemption, any employee adversely affected by the abandonment shall be protected under
Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received, this exemption will be effective on August 7, 2014, unless stayed pending reconsideration. Petitions to stay that do not involve environmental issues,
A copy of any petition filed with the Board should be sent to YRC's representative: William A. Mullins, Baker & Miller PLLC, 2401 Pennsylvania Ave. NW., Suite 300, Washington, DC 20037.
If the verified notice contains false or misleading information, the exemption is void
YRC has filed a combined environmental and historic report that addresses the effects, if any, of the abandonment on the environment and historic resources. OEA will issue an environmental assessment (EA) by July 11, 2014. Interested persons may obtain a copy of the EA by writing to OEA (Room 1100, Surface Transportation Board, Washington, DC 20423-0001) or by calling OEA at (202) 245-0305. Assistance for the hearing impaired is available through the Federal Information Relay Service at 1-800-877-8339. Comments on environmental and historic preservation matters must be filed within 15 days after the EA becomes available to the public.
Environmental, historic preservation, public use, or trail use/rail banking conditions will be imposed, where appropriate, in a subsequent decision.
Pursuant to the provisions of 49 CFR 1152.29(e)(2), YRC shall file a notice of consummation with the Board to signify that it has exercised the authority granted and fully abandoned the Line. If consummation has not been effected by YRC's filing of a notice of consummation by July 8, 2015, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire.
Board decisions and notices are available on our Web site at “
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
Office of Financial Research, Department of the Treasury.
Notice of Open Meeting.
The Financial Research Advisory Committee for the Treasury's Office of Financial Research (OFR) is convening for its fourth meeting on Thursday, July 24, 2014 in the Benjamin Strong Room, Federal Reserve Bank of New York, 33 Liberty Street, New York, NY 10045, beginning at 9:45 a.m. Eastern Time. The meeting will be open to the public via live webcast at
The meeting will be held on Thursday, July 24, 2014, beginning at 9:45 a.m. Eastern Time.
The meeting will be held in the Benjamin Strong Room, Federal
Andrea Ianniello, Designated Federal Officer, Office of Financial Research, Department of the Treasury, 1500 Pennsylvania Avenue NW., Washington, DC 20220, (202) 622-3002 (this is not a toll-free number),
Notice of this meeting is provided in accordance with the Federal Advisory Committee Act, 5 U.S.C. App. 2, 10(a)(2), through implementing regulations at 41 CFR 102-3.150,
•
•
The OFR will post statements on the Committee's Web site,
This is the fourth meeting of the Financial Research Advisory Committee. At this meeting, new Committee members will be introduced and briefed on the Committee operations. Topics to be discussed among all members will include OFR progress on prior Committee recommendations, current activities of the OFR, Subcommittee reports to the Committee, and Committee recommendations. For more information on the OFR and the Committee, please visit the OFR Web site at
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13(44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning cancellation of debt.
Written comments should be received on or before September 8, 2014 to be assured of consideration.
Direct all written comments to R. Joseph Durbala, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Gerald J. Shields, LL.M. at Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224 or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 8453-F, U.S. Estate of Trust Income Tax Declaration and Signature for Electronic and Magnetic Made Filing; Form 8453-FE, U.S. Estate or Trust Declaration and Signature for an IRS e-file Return; Form 8453-EMP, Employment Tax Declaration for an IRS e-file Return; Form 8879-EMP, IRS e-file Signature Authorization for Forms 940, 941, 941-PR, 941-SS, 943, 943-PR, 944, and 945; and Form 8879-F, IRS e-file Signature Authorization for Form 1041.
Written comments should be received on or before September 8, 2014 to be assured of consideration.
Direct all written comments to R. Joseph Durbala, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Gerald J. Shields, LL.M., Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224 or through the internet at
Abstract: This process would allow CI, Exam, Audit, and other IRS employees' immediate access to the signature document (tax return), instead of submitting a manual request for the document and waiting for someone to manually search, find, and copy/fax/mail the document to them. Data will be used to verify and affirm the 94X series of forms (excluding the amended series of returns) taxpayer's signature. The expected respondents will be taxpayers, who file a 94X series of form.
Abstract: This form is used to secure taxpayer signatures and declarations in conjunction with electronic or magnetic media filing of trust and fiduciary income tax returns, Form 8453-F, together with the electronic or magnetic media transmission, will comprise the taxpayer's income tax return (Form 1041).
This new form was requested by the Mod-E file division of the IRS, and approved by the SB/SE. It is used as an electronic signature letter for Form 1041, whenever Form 1041 is filed electronically. Form 8453-FE is associated with E-file, while Form 8453-F is associated with Legacy. For 2013, both forms will be used. However, in the future, Form 8453-F will be retired when Legacy is no longer used by the IRS. The authorizing statute is 26 USC Section 7502, Electronic Filing.
The following paragraph applies to all of the collections of information covered by this notice: An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning exercise of an incentive stock option under Section 422(b), information reporting requirements under Internal Revenue Service Code section. 6039, and transfer of stock acquired through an employee stock purchase plan under Section 423(c).
Written comments should be received on or before September 8, 2014 to be assured of consideration.
Direct all written comments to R. Joseph Durbala, Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Gerald J. Shields, LL.M. at Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number.
Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13(44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning U.S. information return-trust accumulation of charitable amounts.
Written comments should be received on or before September 8, 2014 to be assured of consideration.
Direct all written comments to R. Joseph Durbala, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Gerald J. Shields, LL.M. at Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. Currently, the IRS is soliciting comments concerning a notice regarding repayment of a buyout prior to re-employment with the Federal Government.
Written comments should be received on or before September 8, 2014 to be assured of consideration.
Direct all written comments to, R. Joseph Durbala, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form(s) and instructions should be directed to Gerald J. Shields, LL.M., Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
United States Mint, Department of the Treasury.
Notice and comment.
The United States Mint, a bureau of the Department of the Treasury, is announcing an opportunity for public comment on the proposed collection of certain information regarding the public's use of U.S. coins with special emphasis on low denomination coins. Under the Paperwork Reduction Act of 1995 (PRA), agencies are required to publish notice in the
Submit either electronic or written comments on the collection of information by 30 days after the notice is published.
Send comments regarding the burden estimate, or any other aspect of the information collection, including suggestion for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Yvonne Pollard; Compliance Branch; United States Mint; 801 9th Street NW., 6th Floor; Washington, DC 20220; 202-354-8400 (this is not a toll-free number);
Under the PRA (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2) (A)) requires Federal agencies to provide a 60-day notice of the proposed collection of information before submitting the proposed collection of information to OMB for approval. To comply with this requirement, we are publishing notice of the proposed collection of information described in this document.
With respect to the following collection of information, the United States Mint invites comments on—(1) whether the proposed collection of information is necessary for the proper performance of the United States Mint's functions, including whether the information will have practical utility; (2) the accuracy of the United States Mint's estimate of the burden of the proposed collection, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
The Coin Modernization, Oversight, and Continuity Act of 2010, Public Law 111-302, section 2(b)(3), authorizes the Secretary of the Treasury to consider such factors he deems appropriate and in the public interest when preparing a report and recommendations to Congress with respect to the nation's circulating coins.
Understanding the public's use and perception of United States circulating coins and coin usage is necessary for the United States Mint to carry out its mission to mint and issue circulating coins in amounts that the Secretary of the Treasury determines are necessary to meet the needs of the United States and to prepare recommendations to Congress as authorized by Public Law 111-302. The information collected will cover the following topics, with special emphasis on low denomination coins:
1. Use of coins as payment,
2. general payment preferences,
3. general awareness concerning low denomination coins,
4. attitudes regarding potential changes in coinage,
4. the use of rounding retail transactions, and
6. demographic characteristics.
The data will be used to understand the public's use and perception of specific U.S. circulating coinage for the purpose of analyzing options and proposing recommendations for possible changes to the nation's circulating coins.
To obtain this information, the United States Mint will conduct a nationally representative random-digit-dial (RDD) survey of 1,000 U.S. adults. The proposed survey will include both landline (700 interviews) and cellular (300 interviews) telephones. Interviewing will be conducted in both English and Spanish. The questionnaire should take 12 minutes to complete, including two minutes to screen for eligible participants (adults in the cellular telephone sample, the adult with the most recent birthday in the household in the landline telephone survey). The United States Mint estimates the burden of this collection of information will be as described in the table below.
31 U.S.C. 5112(p)(3)(A); Public Law 111-302, section 2(b)(3).
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3521), this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before August 7, 2014.
Submit written comments on the collection of information through
Crystal Rennie, Enterprise Records Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 632-7492 or email
a. Arteries and Veins Conditions (Vascular Diseases including Varicose Veins) Disability Benefits Questionnaire, VA Form 21-0960A-2.
b. Hypertension Disability Benefits Questionnaire, VA Form 21-0960A-3.
c. Non-Ischemic Heart Disease (including Arrhythmias and Surgery, Disability Benefits Questionnaire, VA Form 21-0960A-4.
d. Diabetic Peripheral Neuropathy (Diabetic Sensory-Motor Peripheral Neuropathy), Disability Benefits Questionnaire, VA Form 21-0960C-4.
e. Diabetes Mellitus Disability Benefits Questionnaire, VA Form 21-0960E-1.
f. Scar/Disfigurement Disability Benefits Questionnaire, VA Form 21-0960F-1.
g. Skin Diseases Disability Benefits Questionnaire, VA Form 21-0960F-2.
h. Amputations Disability Benefits Questionnaire, VA Form 21-0960M-1.
i. Muscle Injuries Disability Benefits Questionnaire, VA Form 21-0960M-10.
j. Temporomandibular Joint (TMJ) Conditions Disability Benefits Questionnaire, VA Form 21-0960M-15.
k. Eye Conditions Disability Benefits Questionnaire, VA Form 21-0960N-2.
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
a. VA Form 21-0960A-2—10,000.
b. VA Form 21-0960A-3—12,500.
c. VA Form 21-0960A-4—10,000.
d. VA Form 21-0960C-4—37,500.
e. VA Form 21-0960E-1—18,750.
f. VA Form 21-0960F-1- 6,250.
g. VA Form 21-0960F-2—6,250.
h. VA Form 21-0960M-1—12,500.
i. VA Form 21-0960M-10—15,000.
j. VA Form 21-0960M-15—3,750.
k. VA Form 21-0960N-2—30,000.
a. VA Form 21-0960A-2—30 minutes.
b. VA Form 21-0960A-3—15 minutes.
c. VA Form 21-0960A-4—30 minutes.
d. VA Form 21-0960C-4—30 minutes.
e. VA Form 21-0960E-1—15 minutes.
f. VA Form 21-0960F-1—15 minutes.
g. VA Form 21-0960F-2—15 minutes.
h. VA Form 21-0960M-1—30 minutes.
i. VA Form 21-0960M-10—30 minutes.
j. VA Form 21-0960M-15—15 minutes.
k. VA Form 21-0960N-2—45 minutes.
a. VA Form 21-0960A-2—20,000.
b. VA Form 21-0960A-3—50,000.
c. VA Form 21-0960A-4—20,000.
d. VA Form 21-0960C-4—75,000.
e. VA Form 21-0960E-1—75,000.
f. VA Form 21-0960F-1—25,000.
g. VA Form 21-0960F-2—25,000.
h. VA Form 21-0960M-1—25,000.
i. VA Form 21-0960M-10—30,000.
j. VA Form 21-0960M-15—15,000.
k. VA Form 21-0960N-2—40,000.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3521), this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before August 7, 2014.
Submit written comments on the collection of information through www.Regulations.gov, or to Office of Information and Regulatory Affairs, Office of Management and Budget, Attn: VA Desk Officer; 725 17th St. NW., Washington, DC 20503 or sent through electronic mail to
Crystal Rennie, Enterprise Records Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 632-7492 or email
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
By direction of the Secretary.
Fish and Wildlife Service, Interior.
Final rule.
We, the U.S. Fish and Wildlife Service (Service), determine threatened species status under the Endangered Species Act of 1973 (Act), as amended, for the northern Mexican gartersnake (
This rule becomes effective August 7, 2014.
This final rule is available 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; telephone: 602-242-0210; 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.
Please refer to the proposed listing rule for the northern Mexican gartersnake and narrow-headed gartersnake (78 FR 41500; July 10, 2013) for a detailed description of previous Federal actions concerning this species.
We will also be finalizing the designation of critical habitat for the northern Mexican gartersnake and narrow-headed gartersnake in a separate rule in the future. Information regarding designation of critical habitat for these species is available at
The northern Mexican gartersnake ranges in color from olive to olive-brown or olive-gray with three lighter-colored stripes that run the length of the body, the middle of which darkens toward the tail. This species may inhabit the same area as other native gartersnake species and can be difficult for people without specific expertise to identify. The snake may reach a maximum known length of 44 inches (in) (112 centimeters (cm)). The pale yellow to light-tan lateral (side of body) stripes distinguish the northern Mexican gartersnake from other sympatric (co-occurring) gartersnake species because a portion of the lateral stripe is found on the fourth scale row, while it is confined to lower scale rows for other species. Paired black spots extend along the olive dorsolateral fields (region adjacent to the top of the
The northern Mexican gartersnake (
Prior to 2003,
Throughout its rangewide distribution, the northern Mexican gartersnake occurs at elevations from 130 to 8,497 feet (ft) (40 to 2,590 meters (m)) (Rossman
The northern Mexican gartersnake is surface active at ambient (air) temperatures ranging from 71 degrees Fahrenheit (°F) to 91 °F (22 degrees Celsius (°C) to 33 °C) and forages along the banks of waterbodies (Rosen 1991, p. 305, Table 2). While conducting visual surveys, Rosen (1991, pp. 308-309) found that northern Mexican gartersnakes spent up to 60 percent of their time moving, 13 percent of their time basking on vegetation, 18 percent of their time basking on the ground, and 9 percent of their time under surface cover. However, preliminary telemetry data from a population of northern Mexican gartersnakes at the Bubbling Ponds State Fish Hatchery show individuals were surface active during 16 percent of telemetry observations, not surface active during 64 percent of telemetry observations, and surface activity was undetermined for 20 percent of the telemetry observations (Boyarsky 2013, pers. comm.); at Tavasci Marsh along the upper Verde River, they were inactive 60 percent of the time (Emmons 2013b, pers. comm.). In the northern-most part of its range, the northern Mexican gartersnake appears to be most active during July and August, followed by June and September (Emmons and Nowak 2013, p. 14). Northern Mexican gartersnakes may use different sites as hibernacula during a single cold-season and will bask occasionally (Emmons 2014, pers. comm.).
Although considered a highly aquatic species, the northern Mexican gartersnake uses terrestrial habitat for hibernation (Young and Boyarski 2012b, pp. 25-28), gestation, seeking mates, and dispersal. Along the middle Verde River preliminary telemetry data for the northern Mexican gartersnake found that the species may travel at least 528 feet (161 m) from the nearest water and as much as 0.4 mi (0.6 km) in a single day (total distance traveled) (Emmons 2014, pers. comm.). Terrestrial habitat use in open, grassland-dominated landscapes with scattered livestock tanks, such as in southern Arizona, may reflect that greater distances are traveled as suggested by the observation of a large female northern Mexican gartersnake observed in O'Donnell Canyon, which was far from source populations and may have been dispersing overland (Rosen and Schwalbe 1988, p. 14). Preliminary data from the population at Bubbling Ponds State Fish Hatchery show that home ranges vary from 1.7 acres (0.7 ha) to 10.4 acres (4.2 ha), with a mean home range size of 6.2 acres (2.51 ha) (Young and Boyarski 2012b, p. 23).
The northern Mexican gartersnake is an active predator and depends on smaller animals for its prey base (Rosen and Schwalbe 1988, pp. 18, 20). Northern Mexican gartersnakes forage along vegetated banklines, searching for prey in water and on land, using different strategies (Alfaro 2002, p. 209), or may forage along the edges of open water and thick stands of vegetation such as cattails. Generally, its diet consists of native amphibians and fishes, such as adult and larval (tadpoles) native leopard frogs (e.g., lowland leopard frog (
In situations where native prey species are rare or absent, this snake's diet may be almost completely comprised of nonnative species, including larval and juvenile bullfrogs (
Chinese mystery snails (
Marcías-García and Drummond (1988, pp. 129-134) sampled the stomach contents of Mexican gartersnakes and the prey populations at (ephemeral) Lake Tecocomulco, Hidalgo, Mexico. Field observations indicated, with high statistical significance, that larger Mexican gartersnakes fed primarily upon aquatic vertebrates (fishes, frogs, and larval salamanders) and leeches, whereas smaller Mexican gartersnakes fed primarily upon earthworms and leeches (Marcías-García and Drummond 1988, p. 131). Marcías-García and Drummond (1988, p. 130) also found that the birth of newborn
Native predators of the northern Mexican gartersnake include birds of prey, other snakes (kingsnakes (
Sexual maturity in northern Mexican gartersnakes occurs at 2 years of age in males and at 2 to 3 years of age in females (Rosen and Schwalbe 1988, pp. 16-17). Northern Mexican gartersnakes are viviparous (bringing forth living young rather than eggs). Mating has been documented in April and May followed by the live birth of between 7 and 38 newborns (average is 13.6) in June, July, and August (Rosen and Schwalbe 1988, p. 16; Nowak and Boyarski 2012, pp. 351-352; Boyarski 2013, pers. comm.). However, field observations in Arizona provide preliminary evidence that mating may also occur during the fall, but further research is required to confirm this hypothesis (Boyarski 2012, pers. comm.). Unlike other gartersnake species, which typically breed annually, one study suggests that only half of the sexually mature females within a population of northern Mexican gartersnake might reproduce in any one season (Rosen and Schwalbe 1988, p. 17). We found no information on the longevity of northern Mexican gartersnakes but presume they may live as long as 10 years in the wild.
Within the United States, the northern Mexican gartersnake historically occurred predominantly in Arizona at elevations ranging from 130 to 6,150 ft (40 to 1,875 m). It was generally found where water was relatively permanent and supported suitable habitat. The northern Mexican gartersnake has been documented historically in every county and nearly every subbasin within Arizona, but its historical distribution was essentially the southern two-thirds of Arizona. It was known from several perennial or intermittent creeks, streams, and rivers as well as lentic (still, non-flowing water) wetlands such as cienegas, ponds, or stock tanks. Records documenting northern Mexican
Historically, the northern Mexican gartersnake had a limited distribution in New Mexico that consisted of scattered locations throughout the Upper Gila River watershed in Grant and western Hidalgo Counties, including the Upper Gila River, Mule Creek in the San Francisco River subbasin, and the Mimbres River (Price 1980, p. 39; Fitzgerald 1986, Table 2; Degenhardt
One record for the northern Mexican gartersnake exists for the State of Nevada, opposite Fort Mohave, in Clark County along the shore of the Colorado River that was dated 1911 (De Queiroz and Smith 1996, p. 155). The subspecies may have occurred historically in the lower Colorado River region of California, although we were unable to verify any museum records for California. Any populations of northern Mexican gartersnakes that may have historically occurred in either Nevada or California were likely associated directly with the Colorado River, and we believe the northern Mexican gartersnake to be currently extirpated in Nevada and California.
Within Mexico, northern Mexican gartersnakes historically occurred within the Sierra Madre Occidental and the Mexican Plateau in the Mexican states of Sonora, Chihuahua, Durango, Coahuila, Zacatecas, Guanajuato, Nayarit, Hidalgo, Jalisco, San Luis Potosí, Aguascalientes, Tlaxacala, Puebla, México, Veracruz, and Querétaro, comprising approximately 85 percent of the total rangewide distribution of the subspecies (Conant 1963, p. 473; 1974, pp. 469-470; Van Devender and Lowe 1977, p. 47; McCranie and Wilson 1987, p. 15; Rossman
Data on population status of northern Mexican gartersnakes in the United States are largely summarized in unpublished agency reports. In our literature review we found that reductions in range and population densities have affected the status of the northern Mexican gartersnake significantly in the last 30 years. We found that, in as much as 90 percent of the northern Mexican gartersnakes' historical distribution in the United States, the subspecies occurs at low to very low population densities or may even be extirpated. For example, Holycross
Where northern Mexican gartersnakes are locally abundant, they are usually reliably detected with significantly less effort than populations characterized as having low densities. Northern Mexican gartersnakes are well-camouflaged, secretive, and can be very difficult to detect in structurally complex, dense habitat (Emmons and Nowak 2013, p. 13) or where they occur at very low population densities, which characterizes most occupied sites in lotic habitat. We considered factors such as the date of the last known records for northern Mexican gartersnakes in an area, as well as records of one or more native prey species in making a conclusion on occupancy of the subspecies. We used the year 1980 to qualify occupancy because the 1980s marked the first systematic survey efforts for northern Mexican gartersnakes across their range in the United States (see Rosen and Schwalbe (1988, entire) and Fitzgerald (1986, entire)) and the last, previous records were often dated several decades prior and may not accurately represent the likelihood for current occupation. Several areas where northern Mexican gartersnakes were known to occur have received no, or very little, survey effort in the past several decades. Variability in survey design and effort makes it difficult to compare population sizes or trends among sites and between sampling periods. For each of the sites discussed in Appendix A (available at
Currently, there are only five northern Mexican gartersnake populations in the United States, where the subspecies remains reliably detected and is considered viable, and all are located in Arizona. The five known populations are: (1) The Page Springs and Bubbling Ponds State Fish Hatcheries along Oak Creek, (2) lower Tonto Creek, (3) the upper Santa Cruz River in the San Rafael Valley, (4) the Bill Williams River, and (5) the upper and middle Verde River. In New Mexico, the northern Mexican gartersnake was last documented in 2013 along the Gila River in the vicinity of the Highway 180 crossing (Hotle 2013, entire) and is considered to occur in extremely low population densities within its historical distribution along the Gila River and Mule Creek. While
In Table 1 below, we summarize the population status of northern Mexican gartersnakes at all known 29 historical localities throughout their United States distribution, as supported by museum records or reliable observations. We categorized each population as either likely viable, likely not viable, or likely extirpated based on the historical survey records, suitable habitat, presence of native prey species, and the presence of harmful nonnative species. For a detailed discussion that explains the rationale for site-by-site conclusions on occupancy, please see Appendix A (available at
We conclude that as many as 24 of 29 known northern Mexican gartersnake localities in the United States (83 percent) are likely not viable and may exist at low population densities that could be threatened with extirpation or may already be extirpated. In most localities where the species may occur at low population densities, existing survey data are insufficient to support a conclusion of extirpation. Only five populations of northern Mexican gartersnakes in the United States are considered likely viable where the species remains reliably detected. In our November 25, 2008, 12-month finding, we evaluated the total number of stream miles in the United States that historically supported the northern Mexican gartersnake that are now permanently dewatered (except in the case of temporary flows in response to heavy precipitation), and we concluded that the subspecies has been extirpated from or occurs at low densities in as much as 90 percent of its historical range in the United States (73 FR 71788, pp. 71792-71793). As shown in Table 1, harmful nonnative species are present in all but one northern Mexican gartersnake locality in the United States.
The northern Mexican gartersnake is listed as threatened throughout its range in Mexico by the Mexican Government. However, our understanding of the northern Mexican gartersnake's specific population status throughout its range in Mexico is less precise than that known for its United States distribution because survey efforts are less and available records do not exist or are difficult to obtain for many regions. Some specific geographic distribution records for the Mexican states of Sonora, Chihuahua, and San Luis Potosí were presented in Lemos-Espinal (2013, pers. comm.). Lemos-Espinal (2013 pers. comm), a Mexican herpetologist whose work is focused on the states of Sonora, Chihuahua, and Coahuila, commented that the number and magnitude of threats are not equal across the subspecies' range in Mexico. Habitat alteration or removal, as a circumstance of human population growth in Mexico, is reported as a primary concern for populations that occur in the Sierra Madre Occidental (Lemos-Espinal 2013, pers. comm.). In other regions of Mexico, such as the states of Sonora and Chihuahua, Lemos-Espinal (2013, pers. comm.) observed the northern Mexican gartersnake to be quite common. Another gartersnake researcher from Mexico has observed the decline or disappearance of some populations in central Mexico (Manjerrez 2008).
The narrow-headed gartersnake is a small to medium-sized gartersnake with a maximum total length of 44 in (112 cm) (Painter and Hibbitts 1996, p. 147). Its eyes are set high on its unusually elongated head, which narrows to the snout, and it lacks striping on the dorsum (top) and sides, which distinguishes its appearance from other gartersnake species with which it could co-occur (Rosen and Schwalbe 1988, p. 7). The base color is usually tan or grey-brown (but may darken) with conspicuous brown, black, or reddish spots that become indistinct towards the tail (Rosen and Schwalbe 1988, p. 7; Boundy 1994, p. 126). The scales are keeled. Degenhardt
We recognize the narrow-headed gartersnake,
Due to the narrow-headed gartersnake's morphology and feeding habits, there has been considerable deliberation among taxonomists about the correct association of this species within seven various genera over time (Rosen and Schwalbe 1988, pp. 5-6); chiefly, between the genera
The narrow-headed gartersnake was first described as
Several common names have been used for this species including the red-spotted gartersnake, the brown-spotted gartersnake, and the currently used, narrow-headed gartersnake (Rosen and Schwalbe 1988, p. 5). Further discussion of the taxonomic history of the narrow-headed gartersnake is available in Crother (2012, p. 71), Degenhardt
The narrow-headed gartersnake, distributed across the Mogollon Rim of Arizona and New Mexico, is widely considered to be one of the most aquatic of the gartersnakes (Drummond and Marcias Garcia 1983, pp. 24, 27; Rossman
An extensive evaluation of habitat use of narrow-headed gartersnakes along Oak Creek in Arizona is provided in Nowak and Santana-Bendix (2002, pp. 26-37). In the upper reaches of Oak Creek, occupied habitat is found in a steep-walled, confined canyon with shallow, braided stream segments, minimal silt, and good canopy coverage, vegetated islands and significant amounts of aquatic vegetation (Nowak and Santana-Bendix 2002, pp. 29-30). In the middle reaches of Oak Creek, occupied habitat is found in a wider canyon with less stream braiding, deeper pools, more silt, and high canopy coverage and stream-side vegetation, but less aquatic vegetation (Nowak and Santana-Bendix 2002, pp. 30-31). In the lower reaches of Oak Creek, historically occupied habitat occurred outside of the canyon proper, with predominant pool-run sequences, rare channel braiding, much silt, significantly less canopy coverage or streamside vegetation and few areas with aquatic vegetation (Nowak and Santana-Bendix 2002, p. 31).
Nowak and Santana-Bendix (2002, pp. 29-31) found the most narrow-headed gartersnakes in the upper reaches of Oak Creek, followed by the middle reaches; no narrow-headed gartersnakes were found in the lower reaches. Nowak and Santana-Bendix (2002, p. 33) found that, in general, narrow-headed gartersnakes in Oak Creek were more likely to be found within reaches without crayfish and without silt. Population densities of warm-water predatory fish increase on a gradient from the upper to the lower reaches of Oak Creek, while the inverse is true for native fish populations, and their presence confounds the analysis of physical habitat preference of narrow-headed gartersnakes. Rosen and Schwalbe (1988, p. 35) found that the relative abundance of narrow-headed gartersnakes may be highest at the conjunction of cascading riffles with pools, where waters were deeper than 20 in (0.5 m) in the riffle and deeper than 40 in (1 m) in the immediately adjoining area of the pool. However, more than twice the number of snakes was found in pools rather than riffles, but this observation may not translate for smaller streams. Despite their highly aquatic behavior, narrow-headed gartersnakes in Oak Creek have been shown to use upland habitat within 328 feet (100 m) during early fall and spring months, strongly associate with boulders in the floodplain during summer months, and use upland habitat up to 656 feet (200 m) out of the floodplain as hibernation sites (Nowak 2006, pp. 20, 26).
Bank-line vegetation is an important component to suitable habitat for this species (Nowak and Santana-Bendix 2002, pp. 26-37). Narrow-headed gartersnakes will usually bask in situations where a quick escape can be made, whether that is into the water or under substrate such as rocks (Fleharty 1967, p. 16). Common plant species associations include Arizona alder (
Narrow-headed gartersnakes may opportunistically forage within dammed reservoirs formed by streams that are occupied habitat, such as at Wall Lake, New Mexico, (located at the confluence of Taylor Creek, Hoyt Creek, and the East Fork Gila River) (Fleharty 1967, p. 207) and most recently at Snow Lake in 2012 (located near the confluence of Snow Creek and the Middle Fork Gila River) (Hellekson 2012b, pers. comm.) in New Mexico, but records from impoundments are rare. The species evolved in the absence of such habitat, and impoundments are generally managed as sport fisheries (Wall Lake and Snow Lake are) and often maintain populations of harmful nonnative species that are incompatible with narrow-headed gartersnakes.
The narrow-headed gartersnake is surface-active generally between March and November (Nowak 2006, p. 16). Little information on suitable temperatures for surface activity of the narrow-headed gartersnake exists;
Narrow-headed gartersnakes specialize on fish as their primary prey item (Rosen and Schwalbe 1988, p. 38; Degenhardt
Native fish species most often associated as prey items for the narrow-headed gartersnake include Sonora sucker (
Although the narrow-headed gartersnake has been reported to also prey upon amphibians such as frogs, tadpoles, and salamanders (Stebbins 1985, p. 199; Deganhardt
Native predators of the narrow-headed gartersnake include birds of prey, such as black-hawks (Etzel
Sexual maturity in narrow-headed gartersnakes occurs at 2.5 years of age in males and at 2 years of age in females (Deganhardt
The historical distribution of the narrow-headed gartersnake ranged across the Mogollon Rim and along associated perennial stream drainages from central and eastern Arizona, southeast to southwestern New Mexico at elevations ranging from 2,300 to 8,000 ft (700 to 2,430 m) (Rosen and Schwalbe 1988, p. 34; Rossman
Population status information suggests that the narrow-headed gartersnake has experienced significant declines in population density and distribution along streams and rivers where it was formerly well-documented and reliably detected. Many areas where the species may occur likely rely on emigration of individuals from occupied habitat into those areas to maintain the species, provided there are no potential
Where narrow-headed gartersnakes are locally abundant, they can usually be detected reliably and with significantly less effort than populations characterized as having low densities. Narrow-headed gartersnakes are well-camouflaged, secretive, and very difficult to detect in structurally complex, dense habitat where they could occur at very low population densities, which characterizes most occupied sites. We considered factors such as the date of the last known records for narrow-headed gartersnakes in an area, as well as records of one or more native prey species, in making a conclusion on species occupancy. We used all records that were dated 1980 or later because the 1980s marked the first systematic survey efforts for narrow-headed gartersnake species across their range (see Rosen and Schwalbe (1988, entire) and Fitzgerald (1986, entire)), and the last, previous records were often dated several decades prior and may not accurately represent the likelihood for current occupation. Several areas where narrow-headed gartersnakes were known to occur have received no, or very little, survey effort in the past several decades. Variability in survey design and effort makes it difficult to compare population sizes or trends among sites and between sampling periods. Thus, for each of the sites discussed in Appendix A (available at
As of 2011, the only remaining narrow-headed gartersnake populations where the species could reliably be found were located at: (1) Whitewater Creek (NM), (2) Tularosa River (NM), (3) Diamond Creek (NM), (4) Middle Fork Gila River (NM), and (5) Oak Creek Canyon (AZ). However, populations found in Whitewater Creek and the Middle Fork Gila River were likely significantly affected by the large Whitewater-Baldy Complex Fire, which occurred in June 2012. In addition, salvage efforts were initiated for these two populations, which included the removal of 25 individuals from Whitewater Creek and 14 individuals from the Middle Fork Gila River before the onset of summer rains in 2012. These 39 individuals were transported to the Albuquerque BioPark where 22 remain in captivity. The other 17 of the salvaged individuals were translocated to Saliz Creek, where the resident native prey base appears adequate, and beyond the effects from the Whitewater-Baldy Complex Fire. The status of those populations in Whitewater Creek and the Middle Fork Gila River has likely deteriorated as a result of subsequent declines in resident fish communities due to heavy ash and sediment flows, resulting fish kills, and the removal of snakes, but subsequent survey data have not been collected. If the Whitewater Creek and Middle Fork Gila River populations did decline as a result of these factors, only three remaining populations of this species remain viable today across their entire distribution. While historical records confirm the narrow-headed gartersnake was found on tribal lands, its current status on tribal land is poorly known due to limited survey access.
In Table 2 below, we summarize the population status of the narrow-headed gartersnake at all known localities throughout its distribution, as supported by museum records or reliable observations. For a detailed discussion that explains the rationale for site-by-site conclusions on occupancy and status, please see Appendix A (available at
Table 2 lists the 41 known localities for narrow-headed gartersnakes throughout their range. We have concluded that, in as many as 31 of 41 known localities (76 percent), the narrow-headed gartersnake population is likely not currently viable and may exist at low population densities that could be threatened with extirpation or may already be extirpated, but survey data are lacking in areas where access is restricted. In most localities where the species may occur at low population densities, existing survey data are insufficient to conclude extirpation. As of 2014, narrow-headed gartersnake populations are considered currently likely viable in five localities (12 percent). The remaining five populations (12 percent) are considered currently likely extirpated. As displayed in Table 2, harmful nonnative species are a concern for all but four narrow-headed gartersnake populations. The status of these populations is expected to continue to decline.
Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations at 50 CFR part 424, set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of the Act, we may list a species 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; and (E) other natural or manmade factors affecting its continued existence. Listing actions may be warranted based on any of the above threat factors, singly or in combination.
In the following threats analysis, we treat both gartersnake species in a combined discussion because of partially overlapping ranges, similar natural histories, similar responses to threats, and the fact that many threats are shared in common throughout their ranges.
The presence of harmful nonnative species constitutes the most significant threat to the two gartersnake species. Harmful nonnative species directly prey upon both species of gartersnake and compete with them for prey. Harmful nonnative species also compete with gartersnake prey species as well as modify habitat for both the gartersnakes and their prey, to the detriment of both gartersnakes. Landscape-level effects from the continued expansion of harmful nonnative species have changed the spatial orientation of these gartersnakes' distributions, creating greater isolation between populations. We expect the viability of extant gartersnake populations to continue to degrade into the foreseeable future as a result of ecological interactions with harmful nonnative species. Riparian and aquatic communities in both the southwestern United States and Mexico have been significantly impacted by a shift in species' composition, from one of primarily native fauna, to one dominated by an expanding assemblage of harmful nonnative animal species. Harmful nonnative species have been introduced or have spread into new areas through a variety of mechanisms, including intentional and accidental releases, sport stocking, aquaculture, aquarium releases, bait-bucket releases, or natural dispersal (Welcomme 1984, entire). The ecological ramifications of
The prey base of these gartersnakes includes native amphibians and fish populations. Declines in their prey base have led to subsequent declines in the distribution and density of gartersnake populations. In most areas across their ranges, prey base declines are largely attributed to the introduction and expansion of harmful nonnative species.
Northern Mexican and narrow-headed gartersnakes may be particularly vulnerable to the loss of native prey species (Rosen and Schwalbe 1988, pp. 20, 44-45). Rosen
With respect to narrow-headed gartersnakes, the relationship between harmful nonnative species, a declining prey base, and gartersnake populations is clearly depicted in one population along Oak Creek. Nowak and Santana-Bendix (2002, Table 3) found a strong correlation in the distribution of fish communities and narrow-headed gartersnake communities in the vicinity of Midgely Bridge. Downstream of that point, nonnative, predatory fish species increase in abundance, and narrow-headed gartersnakes notably decrease in abundance. Upstream of that point, native fish and nonnative, soft-rayed fish species increase in abundance as do narrow-headed gartersnakes (Nowak and Santana-Bendix 2002, p. 23).
Brown trout are highly predatory in all size classes in a wide range of water temperatures, and they adversely affect native fish communities wherever they are introduced (Taylor
Harmful nonnative species invasions can indirectly affect the health, maintenance, and reproduction of northern Mexican and narrow-headed gartersnakes by altering their foraging strategy and compromising foraging success. Rosen
Northern Mexican gartersnakes have a more varied diet than narrow-headed gartersnakes. We are not aware of any studies that have addressed the direct relationship between prey base diversity and northern Mexican gartersnake recruitment and survivorship. However, Krause and Burghardt (2001, pp. 100-123) discuss the benefits and costs that may be associated with diet variability in the common gartersnake (
A wide variety of native fish species (many of which are now listed as endangered, threatened, or candidates for listing under the Act) were historically primary prey species for northern Mexican and narrow-headed gartersnakes (Rosen and Schwalbe 1988, pp. 18, 39). Marsh and Pacey (2005, p. 60) predict that, despite the significant physical alteration of aquatic habitat in the southwestern United States, native fish species could flourish in these altered environments but for the presence of harmful nonnative fish species. Northern Mexican and, in particular, narrow-headed gartersnakes depend largely on native fish as a principal part of their prey base, although nonnative, soft-rayed predatory fish have also been documented as prey where they overlap in distribution with these gartersnakes (Nowak and Santana-Bendix 2002, pp. 24-25; Holycross
Collier
Harmful nonnative fish species tend to be nest-builders and actively guard their young, which may provide them another ecological advantage over native species that are broadcast spawners and provide no parental care to their offspring (Marsh and Pacey 2005, p. 60). In fact, nesting smallmouth bass will attack gartersnakes (Winemiller and Taylor 1982, p. 270). It is, therefore, likely that recruitment and survivorship is greater in nonnative species than native species where they overlap, providing nonnative species with an ecological advantage. Table 2-1 in Kolar
The widespread decline of native fish species from the arid southwestern United States and Mexico has resulted largely from interactions with nonnative species and has been noted in the listing rules of 11 fishes under the Act, and their historical ranges overlap with the historical distribution of northern Mexican and narrow-headed gartersnakes. Native fish species that were likely prey species for these gartersnakes and are now listed under the Act, include the bonytail chub (
The fastest expanding nonnative species are red shiner (
Rosen
Several authors have identified both the presence of nonnative fish as well as their deleterious effects on native species within Arizona. Many areas have seen a shift from a predominance of native fishes to a predominance of nonnative fishes. On the upper Verde River, native species dominated the total fish community at greater than 80 percent from 1994 to 1996, before dropping to approximately 20 percent in 1997 and 19 percent in 2001. At the same time, three nonnative species increased in abundance between 1994 and 2000 (Rinne
Beginning in 2014, the AGFD plans to stock 4.6 million Florida-strain largemouth bass, 3.3 million bluegill, and 4.5 million black crappie annually into Roosevelt Lake in order to control the gizzard shad (
In New Mexico, nonnative fish have been identified as the main cause for declines observed in native fish populations (Voeltz 2002, p. 40; Propst
In addition to harmful nonnative species, various parasites may affect native fish species that are prey for northern Mexican and narrow-headed gartersnakes. Parasites affecting various species of native fishes within the range of these gartersnakes include Asian tapeworm (U.S. Fish and Wildlife Service (USFWS) National Wild Fish Health Survey 2010),
Industrial, municipal, and agricultural water pollution, dewatering of aquatic habitat, and the proliferation of nonnative species are widely considered to be the greatest threats to freshwater ecosystems in Mexico (Branson
These threats have been documented throughout the distribution of the northern Mexican gartersnake in Mexico and are best represented in the scientific literature in the context of fisheries studies. Contreras-Balderas
Based on the data presented in Sugunan (1997, Table 8.5), a total of 422 dammed reservoirs are located within the 16 Mexican states where the northern Mexican gartersnake is thought to occur. Mercado-Silva
Mexico depends in large part on freshwater commercial fisheries as a source of protein for both urbanized and rural human populated areas. Commercial and subsistence fisheries rely heavily on introduced, nonnative species in the largest freshwater lakes (Soto-Galera
The Secretariat for Environment, Natural Resources and Fisheries (SEMARNAP), formed in 1995, is the Mexican federal agency responsible for management of the country's environment and natural resources. SEMARNAP dictates the stocking rates of nonnative species into the country's lakes and reservoirs. For example, the permitted stocking rate for largemouth bass in Mexico is one fish per square meter in large reservoirs (Sugunan 1997, Table 8.8); therefore, a 247-acre (100-ha) reservoir could be stocked with 1,000,000 largemouth bass. The common carp, the subject of significant aquaculture investment since the 1960s in Mexico, is known for altering aquatic habitat and consuming the eggs and fry of native fish species, and is now
Basins in northern Mexico, such as the Rio Yaqui, have been found to be significantly compromised by harmful nonnative fish species. Unmack and Fagan (2004, p. 233) compared historical museum collections of nonnative fish species from the Gila River basin in Arizona and the Yaqui River basin in Sonora, Mexico, to gain insight into the trends in distribution, diversity, and abundance of nonnative fishes in each basin over time. They found that nonnative species are slowly, but steadily, increasing in all three parameters in the Yaqui Basin (Unmack and Fagan 2004, p. 233). Unmack and Fagan (2004, p. 233) predicted that, in the absence of aggressive management intervention, significant extirpations or range reductions of native fish species are expected to occur in the Yaqui Basin of Sonora, Mexico, which may have extant populations of the northern Mexican gartersnake, as did much of the Gila Basin before the introduction of nonnative species. Loss of native fishes impacts prey availability for the northern Mexican gartersnake and threatens its persistence in these areas. Black bullheads (
Documented problems with aquatic habitats in Mexico include water pollution, harmful nonnative species, and physical habitat alteration. All of these factors lead to declines in native fish abundance and, therefore, a decline in the food source for the northern Mexican gartersnake. Domínguez-Domínguez
Several examples of significant aquatic habitat degradation or destruction were also observed by Domínguez-Domínguez
Harmful nonnative fish species in Mexico (Contraras and Escalante 1984, pp. 102-125) may be posing a significant threat to the native fish prey base of northern Mexican gartersnakes and to the gartersnakes themselves. The ecological risk of nonnative, freshwater fishes is only expected to increase with increases in aquaculture production, most notably in the country's rural, poorest regions (Tapia and Zambrano 2003, p. 252). Amendments to Mexico's existing fishing regulations imposed by other government regulations have been relaxed, and investment in commercial fishing has expanded to promote growth in Mexico's aquaculture sector (Sugunan 1997, Section 8.7.1). Several areas within the range of the northern Mexican gartersnake in Mexico have experienced adverse effects associated with nonnative species.
Declines in the native leopard frog populations in Arizona have likely been a significant, contributing factor to declines in many northern Mexican gartersnake populations. Native ranid (of the family Ranidae) frog species, such as lowland leopard frogs, northern leopard frogs, and federally threatened Chiricahua leopard frogs, have experienced declines in various degrees throughout their distribution in the Southwest, largely due to predation and competition with nonnative species (Clarkson and Rorabaugh 1989, pp. 531, 535; Hayes and Jennings 1986, p. 490). Rosen
Scotia Canyon, in the Huachuca Mountains of southeastern Arizona, is a location where corresponding declines of leopard frog and northern Mexican
A former large, local population of northern Mexican gartersnakes at the San Bernardino National Wildlife Refuge (SBNWR) in southeastern Arizona has also experienced a correlative decline of leopard frogs, and northern Mexican gartersnakes are now thought to occur at very low population densities or may be extirpated there (Rosen and Schwalbe 1988, p. 28; 1995, p. 452; 1996, pp. 1-3; 1997, p. 1; 2002b, pp. 223-227; 2002c, pp. 31, 70; Rosen
Survey data indicate that declines of leopard frog populations, often correlated with nonnative species introductions, the spread of a chytrid fungus (
A primary factor in the decline of native amphibians as a food source for northern Mexican gartersnakes in southern Arizona is likely the result of impacts from nonnative species, mainly bullfrogs. Rosen
In addition to harmful nonnative species, disease and nonnative parasites have been implicated in the decline of the prey base of the northern Mexican gartersnake. In particular, the outbreak of chytridiomycosis or “Bd,” a skin fungus, has been identified as a chief causative agent in the significant declines of many of the native ranid frogs and other amphibian species. As indicated, Bd has been implicated in both large-scale declines and local extirpations of many amphibians, chiefly anuran species, around the world (Johnson 2006, p. 3011). Lips
Evidence of Bd-related amphibian declines has been confirmed in portions of southern Mexico (just outside the range of northern Mexican gartersnakes), and data suggest declines are more prevalent at higher elevations where northern Mexican gartersnakes can occur (Lips
Direct predation by, and competition with, bullfrogs is a serious threat to northern Mexican gartersnakes throughout their range (Conant 1974, pp. 471, 487-489; Rosen and Schwalbe 1988, pp. 28-30; Rosen
Bullfrogs are not native to the southwestern United States or Mexico, and they first appeared in Arizona in 1926 as a result of a systematic introduction effort by the State Game Department (now, the AGFD) for the purposes of sport hunting and as a food source (Tellman 2002, p. 43). The first bullfrog record from New Mexico is dated 1885 (Degenhardt
Bullfrogs are large-bodied, voracious, opportunistic, even cannibalistic predators that readily attempt to consume any living thing smaller than them. Bullfrogs have a highly varied diet, which has been documented to include vegetation, invertebrates, fish, birds, mammals, amphibians, and reptiles, including numerous species of snakes (eight genera, including six different species of gartersnakes, two species of rattlesnakes, and Sonoran gophersnakes (
Different age classes of bullfrogs can affect native ranid populations via different mechanisms. Juvenile bullfrogs affect native ranids through competition; male bullfrogs affect native ranids through predation; and female bullfrogs affect native ranids through both mechanisms depending on body size and microhabitat (Wu
Bullfrogs have been documented to occur throughout Arizona. Holycross
Once established, bullfrogs are persistent in an area and very difficult to eradicate. Rosen and Schwalbe (1995, p. 452) experimented with bullfrog removal at various sites on the SBNWR, in addition to a control site with no bullfrog removal in similar habitat on the Buenos Aires National Wildlife Refuge (BANWR). Removal of adult bullfrogs, without removal of eggs and tadpoles, resulted in a substantial increase in younger age-class bullfrogs where removal efforts were the most intensive (Rosen and Schwalbe 1997, p. 6). Contradictory to the goals of bullfrog eradication, evidence from dissection samples from young adult and subadult bullfrogs indicated these age-classes readily prey upon juvenile bullfrogs (up to the average adult leopard frog size) as well as juvenile gartersnakes, which suggests that the selective removal of only the large adult bullfrogs (presumed to be the most dangerous size class to leopard frogs and gartersnakes), favoring the young adult and sub-adult age classes, could indirectly lead to increased predation of leopard frogs and juvenile gartersnakes (Rosen and Schwalbe 1997, p. 6). These findings illustrate that, in addition to large adults, sub-adult bullfrogs also negatively impact northern Mexican gartersnakes and their prey species. The findings also indicate the importance of including egg mass and tadpole removal during efforts to control bullfrogs and timing removal projects to ensure reproductive bullfrogs are removed prior to breeding. Recent success in regional bullfrog eradication has been found in a few cases described below in the section entitled “
Bullfrogs not only compete with the northern Mexican gartersnake for prey items but directly prey upon juvenile and, occasionally, sub-adult northern Mexican and narrow-headed gartersnakes (Rosen and Schwalbe 1988, pp. 28-31; 1995, p. 452; 2002b, pp. 223-227; Holm and Lowe 1995, pp. 29-29; Rossman
A common observation in northern Mexican gartersnake populations that co-occur with bullfrogs is a preponderance of large, mature adult snakes with conspicuously low numbers of individuals in the newborn and juvenile age size classes. This occurs due to bullfrogs preying on young small snakes more effectively, which leads to reduced survival of young and depressed recruitment within populations (Rosen and Schwalbe 1988, p. 18; Holm and Lowe 1995, p. 34). In lotic (flowing water) systems, bullfrogs prefer sites with low or limited flow, such as backwaters, side channels, and pool habitat. These areas are also used frequently by northern Mexican and narrow-headed gartersnakes, which likely results in increased predation rates and likely depressed recruitment of gartersnakes. Potential recruitment problems for northern Mexican gartersnakes due to effects from nonnative species are suspected at Tonto Creek (Wallace
Crayfish are another nonnative species in Arizona and New Mexico that threaten northern Mexican and narrow-headed gartersnakes through competition by consuming prey species of the gartersnakes and through direct predation on juvenile gartersnakes themselves (Fernandez and Rosen 1996, p. 25; Voeltz 2002, pp. 87-88; USFWS 2007a, p. 22). Rogowski
Crayfish alter the abundance and structure of aquatic vegetation by grazing on aquatic and semiaquatic vegetation, which reduces the cover needed by frogs and gartersnakes, as well as the food supply for prey species such as tadpoles (Fernandez and Rosen 1996, pp. 10-12). Fernandez and Rosen (1996, pp. 10-12) found that crayfish frequently burrow into stream banks, leading to increased bank erosion, stream turbidity, and siltation of stream bottoms. Creed (1994, p. 2098) found that filamentous alga (
Crayfish have recently been found to also act as a host for the amphibian disease-causing fungus, Bd (McMahon
Inman
A number of authors have documented the presence of crayfish through their survey efforts throughout Arizona and New Mexico in specific regional areas, drainages, and lentic wetlands within or adjacent to the historical distribution of the northern Mexican or narrow-headed gartersnake, including northern Arizona (Sredl
It is likely that crayfish populations, where they overlap with northern Mexican or narrow-headed gartersnakes, could have a varied influence on gartersnake populations. The size of crayfish can influence their predatory influence on gartersnakes or their prey species; small crayfish are unlikely to pose a significant threat to gartersnakes themselves but may still consume fish eggs or fry, whereas larger crayfish can prey on neonatal gartersnakes directly. The presence of adequate numbers of favorable fish prey for narrow-headed gartersnakes may counter the effects of resident crayfish to some degree. Crayfish densities may also be affected by periodic flooding, which is thought to reduce crayfish population densities temporarily until recolonization occurs from the dispersal of individuals from downstream populations. More field research is needed to fully understand the ecological relationship between crayfish and these gartersnakes, at least at any particular site. However, the best available scientific and commercial information strongly suggests that crayfish in larger size classes or in high densities are a cause for concern for gartersnakes and their prey species, especially with other threats simultaneously affecting gartersnake populations.
The tails of gartersnakes are often broken off during predation attempts by bullfrogs, crayfish, or other predators, and do not regenerate. The incidence of tail breaks in gartersnakes can often be used to assess predation pressure within gartersnake populations. Attempted predation occurs on both sexes and all ages of gartersnakes within a population, although some general trends have been detected. For example, female gartersnakes may be more susceptible to predation as evidenced by the incidence of tail damage (Willis
Tail injuries can have negative effects on the health, longevity, and overall success of individual gartersnakes from infection, slower swimming and crawling speeds, or impeding reproduction. Mushinsky and Miller (1993, pp. 662-664) commented that, while tail breakage in gartersnakes can save the life of an individual snake, it also leads to permanent handicapping of the snake, resulting in slower swimming and crawling speeds, which could leave the snake more vulnerable to predation or affect its foraging ability. Willis
The frequency of tail injuries can be quite high in a given gartersnake population; for example at the SBNWR (Rosen and Schwalbe 1988, pp. 28-31), 78 percent of northern Mexican gartersnakes had broken tails with a “soft and club-like” terminus, which suggests repeated injury from multiple predation attempts by bullfrogs. While medically examining pregnant female northern Mexican gartersnakes, Rosen and Schwalbe (1988, p. 28) noted bleeding from the posterior region, which suggested to the investigators the snakes suffered from “squeeze-type” injuries inflicted by adult bullfrogs. In another example, Holm and Lowe (1995, pp. 33-34) observed tail injuries in 89 percent of northern Mexican gartersnakes during the early 1990s in Scotia Canyon in the Huachuca Mountains, as well as a skewed age class ratio that favored adults over sub-adults, which is consistent with data collected by Willis
Vegetation or other forms of protective cover may be particularly important for gartersnakes to reduce the effects of harmful nonnative species on populations. For example, the population of northern Mexican gartersnakes at the Page Springs and Bubbling Ponds State Fish Hatcheries occurs with harmful nonnative species (Boyarski 2008b, pp. 3-4, 8). Yet, only 11 percent of northern Mexican gartersnakes captured in 2007 were observed as having some level of tail damage (Boyarski 2008b, pp. 5, 8). The relatively low occurrence of tail damage, as compared to 78 percent of snakes with tail damage found by Rosen and Schwalbe (1988, pp. 28-31), may indicate: (1) Adequate vegetation density was used by gartersnakes to avoid harmful nonnative species predation attempts; (2) a relatively small population of harmful nonnative species may be at a comparatively lower density than sites sampled by previous studies
Bullfrogs are a significant threat to native aquatic and riparian species throughout Mexico. Luja and Rodríguez-Estrella (2008, pp. 17-22) examined the invasion of the bullfrog in Mexico. The earliest records of bullfrogs in Mexico were Nuevo Leon (1853), Tamaulipas (1898), Morelos (1968), and Sinaloa (1969) (Luja and Rodríguez-Estrella 2008, p 20). By 1976, the bullfrog was documented in seven more states: Aguacalientes, Baja California Sur, Chihuahua, Distrito Federal, Puebla, San Luis Potosi, and Sonora (Luja and Rodríguez-Estrella 2008, p. 20). The bullfrog was recently verified from the state of Hidalgo, Mexico, at an elevation of 8,970 feet (2,734 m), which indicates the species continues to spread in that country and can exist even at the uppermost elevations inhabited by northern Mexican gartersnakes (Duifhuis Rivera
Bullfrogs have been commercially produced for food in Mexico in Yucatan, Nayarit, Morelos, Estado de Mexico, Michoacán, Guadalajara, San Luis Potosi, Tamaulipas, and Sonora, and their use for food was endorsed by the Mexican Secretary of Aquaculture Support (Luja and Rodríguez-Estrella 2008, p. 20). However, frog legs ultimately never gained popularity in Mexican culinary culture (Conant 1974, pp. 487-489), and Luja and Rodríguez-Estrella (2008, p. 22) point out that only 10 percent of these farms remain in production. Luja and Rodríguez-Estrella (2008, pp. 20, 22) document instances where bullfrogs have escaped production farms and suspect the majority of the frogs that were produced commercially in farms that have since ceased operation have assimilated into surrounding habitat.
Luja and Rodríguez-Estrella (2008, p. 20) also state that Mexican people deliberately introduce bullfrogs for ornamental purposes, or “for the simple pleasure of having them in ponds.” The act of deliberately releasing bullfrogs into the wild in Mexico was cited by Luja and Rodríguez-Estrella (2008, p. 21) as being “more common than we can imagine.” Bullfrogs are available for purchase at some Mexican pet stores (Luja and Rodríguez-Estrella 2008, p. 22). Luja and Rodríguez-Estrella (2008, p. 21) state that bullfrog eradication efforts in Mexico are often thwarted by their popularity in rural communities (presumably as a food source). Currently, no regulation exists in Mexico to address the threat of bullfrog invasions or prevent their release into the wild (Luja and Rodríguez-Estrella 2008, p. 22). As a result, the bullfrogs' distribution continues to increase in Mexico, beyond what it would through natural dispersal mechanisms.
Rosen and Melendez (2006, p. 54) report bullfrog invasions to be prevalent in northwestern Chihuahua and northwestern Sonora, where the northern Mexican gartersnake is thought to occur. In many areas, native leopard frogs were completely displaced where bullfrogs were observed. Rosen and Melendez (2006, p. 54) also demonstrated the relationship between fish and amphibian communities in Sonora and western Chihuahua. Native leopard frogs, a primary prey item for the northern Mexican gartersnake, only occurred in the absence of nonnative fish, and were absent from waters containing nonnative species, which included several major waters. In Sonora, Rorabaugh (2008a, p. 25) also considers the bullfrog to be a significant threat to the northern Mexican gartersnake and its prey base, substantiated by field observations made during surveys conducted in Chihuahua and Sonora in 2006 (Rorabaugh 2008b, p. 1).
Few data were found on the presence or distribution of nonnative crayfish species in Mexico. However, in a 2-week gartersnake survey effort in 2006 in northern Mexico, crayfish were observed as “widely distributed” in the valleys of western Chihuahua (Rorabaugh 2008b, p. 1). Based on the invasive nature of crayfish ecology and their distribution in the United States along the Border region, it is reasonable to assume that, at a minimum, crayfish are likely distributed along the entire Border region of northern Mexico, adjacent to where they occur in the United States, and act in a similar fashion on affected northern Mexican gartersnake populations.
The decline in native fish communities from the effects of harmful nonnative fish species has spurred resource managers to take action to help recover native fish species. While we fully support activities designed to help recover native fish, recovery actions for native fish, in the absence of thorough planning, can have negative effects on resident gartersnake populations.
Speculation of the potential role of rotenone in Parkinson's disease was fueled by Tanner
The use of piscicides is a vital and scientifically sound tool, the only tool, in most circumstances, for reestablishing native fish communities and removing threats related to nonnative aquatic species in occupied northern Mexican and narrow-headed gartersnake habitat. By extension, the use of piscicides is also invaluable in the recovery and conservation of northern Mexican and narrow-headed gartersnakes. However, without proper planning the amount of time a treated water body remains fishless post-treatment can affect gartersnakes by removing fish, their primary food source. The time period between rotenone applications and the subsequent restocking of native fish is contingent on two basic variables, the time it takes for piscicide levels to reach nontoxic levels and the level of certainty required to ensure that renovation goals and objectives have been met prior to restocking. Implementation of the latter consideration may vary from to a year or longer, depending on the level of certainty required by project proponents. Carpenter and Terrell (2005, p. 14) reported that standard protocols used by the AGFD for Apache trout renovations at that time required two applications of piscicide before repatriating native fish to a stream, waiting a season to see if the renovation was successful, and then continuing to renovate if necessary. Past protocols have included goals for the renovated water body to remain fishless for extended periods, sometimes up to an entire year before restocking (Carpenter and Terrell 2005, p. 14). At a minimum and according to our files, reaches of Big Bonito Creek, the West Fork Black River, West Fork Gila River, Little Creek, and O'Donnell Creek have all been subject to fish renovations using these or similarly accepted protocols (Carpenter and Terrell 2005; Table 6; Paroz and Propst 2009, p. 4; Hellekson 2012a, pers. comm.). Therefore, northern Mexican or narrow-headed gartersnake populations in these streams have likely been negatively affected, due to the eradication of a portion of, or their entire, prey base in these systems for varying periods of time. Big Bonito Creek was restocked with salvaged native fish shortly after renovation occurred. However, we are uncertain how long other stream reaches remained fishless post-treatment, but it was likely to be a minimum of weeks in each instance, and possibly a year or longer in some instances.
Although significant efforts are generally made to salvage as many native fish as possible prior to treatment, logistics of holding fish for several weeks prior to restocking limit the number of individuals that can be held safely. Therefore, not every individual fish is salvaged, and native fish remaining in the stream are subsequently lost during the treatment. The number of fish subsequently restocked is, therefore, smaller than the number of fish that were present prior to the treatment. The full restoration of native fish populations to pre-treatment levels may take several years, depending on the size of the treated area and the size and maturity of the founding populations. Restocking salvaged fish in the fall may allow natural spawning and recruitment to begin in the spring, which would provide a more immediate benefit to resident gartersnake populations.
Several streams within the distribution of narrow-headed gartersnakes in New Mexico have been identified for potential future fish barrier construction, for which piscicide applications are likely necessary. These streams include Little Creek, West Fork Gila River, Middle Fork Gila River, Turkey Creek, Saliz Creek, Dry Blue Creek, Iron Creek, and the San Francisco River (Riley and Clarkson 2005, pp. 4-5, 7, 9, 12; Clarkson and Marsh 2012, p. 8; 2013, pp. 1, 4, 6; Hellekson 2013, pers. comm.). Of these, the Middle Fork Gila River and Turkey Creek appear to the most likely chosen for renovation (Clarkson and Marsh 2013, p. 8). Mule Creek and Cienega Creek, both occupied by northern Mexican gartersnakes, as well as Whitewater Creek (occupied by narrow-headed gartersnakes), are under consideration but ultimately may not be chosen (Clarkson and Marsh 2013, pp. 8-9). Haigler Creek (occupied by narrow-headed gartersnakes) is planned for renovation in 2015 (Burger and Jeager 2013, p. 2) and barrier development.
The current standard operating procedures for piscicide application, as adopted nationally and provided in Finlayson
As of 2012, a new policy was finalized by the AGFD that includes an early and widespread public notification and planning process that involves the approval of several decision-makers within four major stages: (1) Piscicide project internal review and approval; (2) preliminary planning and public involvement; (3) intermediate planning and public involvement; and (4) project implementation and evaluation (AGFD 2012a, p. 3). Within the Internal Review and Approval stage of the process, sensitive, endemic, and listed species potentially impacted by the project must be identified (AGFD 2012a, p. 13), such as northern Mexican or narrow-headed gartersnakes. This change ensures that an analysis of potential effects to nontarget wildlife by fisheries management activities occurs within the same planning document, versus a separate process. In addition, the AGFD's Conservation and Mitigation Program has specifically committed to quickly restocking renovated streams that are occupied by either northern Mexican or narrow-headed gartersnakes (USFWS 2011, Appendix C).
Piscicide application protocols used by the New Mexico Department of Game and Fish are provided in Pierce (2014,
Trapping methods are also used in fisheries surveys, for other applications in aquatic species management, and for the collection of live baitfish in recreational fishing. One such common method to study aquatic or semi-aquatic wildlife (including populations of aquatic snakes such as gartersnakes) is through the use of wire minnow traps. When used to monitor gartersnake populations, wire minnow traps are anchored to vegetation, logs, etc., along the shoreline (in most applications) and positioned so that half to one-third of the trap, along its lateral line, is above the water surface to allow snakes to surface for air. These traps often attract prey species, such as small fishes and amphibian larvae (when present), and, therefore, become self-baiting. They are then checked according to a predetermined schedule. Because the wire, twine, etc., used to anchor these traps is fixed in length, these traps may become fully submerged if there is a sudden, unanticipated rise in water levels (e.g., storm event). During the monsoon in Arizona and New Mexico, these types of storm events are common, and river hydrographs respond accordingly with rapid and dynamic increases in flow.
We are aware of examples where northern Mexican gartersnakes, intentionally captured in minnow traps, have drowned as a direct result of a rapid, unexpected rise in water levels. Some examples include an adult female northern Mexican gartersnake along lower Tonto Creek in 2004, an adult and two neonates at the Bubbling Ponds State Fish Hatchery in 2009 and 2010, respectively, and an individual of undisclosed age in the upper Santa Cruz River (Holycross
Minnow traps are often deployed for monitoring fully aquatic species, such as fish, and are, therefore, intentionally positioned in the water column where they are fully under water. Traps used for this purpose may be checked less frequently, because risks to gill-breathing aquatic species are less if held in the trap for longer periods of time. As fish collectively become trapped, the trap becomes incidentally self-baited for gartersnakes and, if deployed in habitat occupied by either northern Mexican or narrow-headed gartersnakes, these traps may accidentally attract, capture, and drown gartersnakes that are actively foraging under water and are lured to the traps because of captured prey species. Neonatal northern Mexican and narrow-headed gartersnakes can also wriggle through the mesh of some wire minnow traps and become lodged halfway through, depending on the pore size of the wire mesh (Jaeger 2012, pers. comm.). If not found in time, this situation would likely result in their death from drowning, predation, or exposure.
The use of minnow traps is also allowed in recreational fishing in Arizona and New Mexico (AGFD 2013a, p. 57; New Mexico Department of Game and Fish (NMDGF) 2013, p. 17). In Arizona and New Mexico, it is lawful to set minnow traps for the collection of live baitfish (AGFD 2013a, pp. 56-57; NMDGF 2013, p. 17). In Arizona, minnow traps used for collecting live baitfish must be checked once daily and the trapping activity must occur where captured bait will be used (AGFD 2013a, pp. 56-57); in New Mexico, there is no stipulation on time intervals in the regulations to check minnow traps (NMDGF 2013, p. 17). In either scenario in either state, these minnow traps are likely to be fully submerged when in use and pose a drowning hazard to resident gartersnakes while foraging underwater, as they can be lured into the traps by fish already caught.
We do not have adequate information to assess the frequency and geographical extent to which accidental drownings of gartersnakes in minnow traps may be occurring. This is mainly because it happens incidentally as a result of trapping efforts for other species, and so it historically did not get reported by researchers. Without additional information, we cannot conclude at this time that deaths from accidental minnow trapping are likely having population-level effects on either gartersnake. However, if even a few adult females are lost from populations that already have low densities and low rates of recruitment, these losses would contribute to population extirpations and the continued decline in the status of the gartersnakes. Working with researchers in the future to minimize the chances of snake drownings and to report any incidental collections of gartersnakes will be important for future conservation of both species.
In our review of the scientific and commercial literature, we have found that over time, native aquatic communities, specifically the native prey bases for northern Mexican and narrow-headed gartersnakes, have been substantially weakened as a result of the cumulative effects of disease and harmful nonnative species. Harmful nonnative species have been intentionally introduced or have naturally dispersed into virtually every subbasin throughout the distribution of northern Mexican and narrow-headed gartersnakes in the United States and Mexico. According to Geographic Information System (GIS) analyses, nonnative, predatory fish are known to occur in 90 percent of the historical distribution of the northern Mexican gartersnake and 85 percent of the historical distribution of the narrow-headed gartersnake in the United States. Bullfrogs are known to occur in 85 percent of the historical distribution of the northern Mexican gartersnake and 53 percent of the historical distribution of the narrow-headed gartersnake in the United States. Crayfish are known to occur in 77 percent of the historical distribution of the northern Mexican gartersnake and 75 percent of the historical distribution of the narrow-headed gartersnake in the United States. Nonnative, predatory fish, bullfrogs, and crayfish are known to occur simultaneously in 65 percent of the historical distribution of the northern Mexican gartersnake and 44 percent of the historical distribution of the narrow-headed gartersnake in the United States.
Native fish are important prey for northern Mexican gartersnakes but much more so for narrow-headed gartersnakes. Predation by and competition with primarily nonnative, predatory fish species, and secondarily with brown trout and crayfish, are widely considered to be the primary reason for major declines in native fish communities throughout the range of both gartersnakes. In Arizona, 19 of 31 (61 percent) of all native fish species are listed under the Act. Consequently, Arizona ranks the highest of all 50 States in the percentage of native fish species with declining trends (85.7 percent). Similar trends in the loss of native fish biodiversity have been described in New Mexico and Mexico. Native amphibians such as the Chiricahua leopard frog, an important component of the northern Mexican gartersnake prey base, have declined significantly and may face future declines as a result of Bd and harmful nonnative species. Historical native frog populations have been wholly replaced by harmful nonnative species, both on local and regional scales. These declines have directly contributed to subsequent northern Mexican gartersnake population declines or extirpations in these areas. An adequate native prey base is essential to the conservation and recovery of northern Mexican gartersnakes, and this native ranid frog prey base faces an uncertain future if harmful nonnative species continue to persist and expand their distributions in occupied habitat.
The best available commercial and scientific information confirms that harmful nonnative species are the most important threat to northern Mexican and narrow-headed gartersnakes and their prey bases, and they have had a profound role in their decline. A large body of literature documents that northern Mexican and narrow-headed gartersnakes are uniquely susceptible to the influence of harmful nonnative species in their biotic communities. This sensitivity is largely the result of complex ecological interactions that result in direct predation on gartersnakes; shifts in biotic community structure from largely native to largely nonnative; and competition for a diminished prey base that can ultimately result in the injury, starvation, or death of northern Mexican or narrow-headed gartersnakes followed by reduced recruitment, population declines, and extirpations.
Lastly, fisheries management activities can have negative effects on gartersnake populations when gartersnakes are not considered in project planning and implementation. The use of rotenone and other fisheries management techniques are important in the conservation and recovery of native fish. However, significant threats can occur if streams are left without an intact fish community for extended periods of time. New policies and mitigation measures have been developed in Arizona that will reduce the likelihood of these activities having negative effects on either northern Mexican or narrow-headed gartersnake populations in the future. However, some level of effect is still expected based on logistical complications and complexities of restoring fish populations to pre-treatment levels. We expect to coordinate with resource managers in New Mexico as we do in Arizona, to ensure gartersnake populations are not significantly affected by these activities. However, if proper protocols are not incorporated into future fish restoration projects, these activities will continue to threaten local gartersnake populations. Other mechanisms or activities used in fisheries management, such as electroshocking, trapping, or dewatering, can result in the injury or death of northern Mexican or narrow-headed gartersnakes, where these activities coincide with extant populations, and if they have not been considered in the planning or implementation processes. The significance of these losses depends on the status of the gartersnake population affected and whether or not either gartersnake, as appropriate, was considered in project planning. If similar fisheries management techniques are used in Mexico, we conclude that the northern Mexican gartersnake populations in Mexico are threatened by the same mechanisms described above.
The presence of harmful nonnative species ultimately affects where northern Mexican and narrow-headed gartersnakes can live as viable populations. Collectively, the ubiquitous presence of harmful nonnative species across the landscape has appreciably reduced the quantity of suitable gartersnake habitat and changed its spatial orientation on the landscape. Most northern Mexican and narrow-headed gartersnake populations, even some considered viable today, live in the presence of harmful nonnative species. While they continue to persist, they do so under constant threat from unnatural levels of predation and competition associated with harmful nonnative species. This weakens their resistance to other threats, including those that affect the physical suitability of their habitat (discussed below). This ultimately renders populations much less resilient to stochastic, natural, or anthropogenic stressors that could otherwise be withstood. Over time and space, subsequent population declines have threatened the genetic representation of each species because many populations have become disconnected and isolated from neighboring populations. Expanding distances between extant populations coupled with increasing populations of
Therefore, based on the best available scientific and commercial information, we conclude that harmful nonnative species are the most significant threat to both the northern Mexican and narrow-headed gartersnake, rangewide. We expect the impacts from harmful nonnative species to only increase in the foreseeable future. The effects of these threats on both gartersnakes have resulted in the extirpation of a few populations already and the decline in abundance in the vast majority of populations, so we expect the results of continuing decline of the gartersnakes, in terms of additional population losses and increased risk of extinction in the foreseeable future, which we consider as the next several decades.
The presence or absence of harmful nonnative species in occupied gartersnake habitat affects the tolerance, or sensitivity, of gartersnake populations to factors or activities that threaten to modify or destroy components of their physical habitat. When we use the term “physical habitat,” we refer to the structural integrity of aquatic and terrestrial components to habitat, such as plant species richness and density, available water, stream banks and substrates, and any habitat feature that does not pertain to the animal community, which we also define as a habitat component. The animal community (the prey and predator species that co-occur within habitat) is not considered in our usage of “physical habitat,” for reasons described immediately below. In the presence of harmful nonnative species, gartersnake populations are more sensitive to alterations in their physical habitat. In the absence of harmful nonnative species, gartersnake populations have shown resiliency, or tolerance, to changes in their physical habitat.
As discussed above, we found harmful nonnative species to be a significant and widespread factor that continues to drive further declines in and extirpations of gartersnake populations. Furthermore, we found various activities have affected, and continue to affect, primary components of the physical habitat required by northern Mexican and narrow-headed gartersnakes, even when the potential impact of harmful nonnatives is absent. These activities, such as dams, water diversions, groundwater pumping, and residential and commercial development, result in the loss of stream flow. The period from 1850 to 1940 marked the greatest loss and degradation of riparian and aquatic communities in Arizona, many of which were caused by anthropogenic (human-caused) land uses (Stromberg
Our treatment of how the loss or modification of physical habitat may affect the northern Mexican or narrow-headed gartersnake is based, in part, on recent observations made in Mexico that illustrate the relationship of gartersnakes' physical habitat suitability to the presence of native prey species and the lack of harmful nonnative species, and the presence, or lack thereof, of attributes associated with these gartersnakes' physical habitat. In 2007, two groups consisting of agency biologists (including U.S. Fish and Wildlife Service staff), species experts, and field technicians conducted numerous gartersnake surveys in Durango and Chihuahua, Mexico (Burger 2007, p. 1; Burger
While considerable gartersnake habitat in Mexico is affected by the presence of harmful nonnative species (Conant 1974, pp. 471, 487-489; Contreras Balderas and Lozano 1994, pp. 383-384; Unmack and Fagan 2004, p. 233; Miller
Our observations of gartersnake populations in Mexico provide evidence for the relative importance of native prey species and the lack of nonnative species in comparison to the physical attributes of gartersnake habitat. For example, Burger (2007, pp. 6, 12, 36, 41, 58, 63) detected moderate to high densities of gartersnakes at six sites where their physical habitat was moderately to highly impacted by land uses but were largely free of nonnatives. Burger (2007, pp. 18, 26, 32, 61, 64, 66, 67, 69, 72) also detected either low densities or no gartersnakes at nine sites where the physical habitat was in moderate to good condition but where nonnative species were detected. Eight streams surveyed by Burger (2007, pp. 15, 22, 46, 49, 51-52, 54, 62) had little to no surface flow, were without fish detections and had few to no gartersnake observations. As a result, we have formulated three general hypotheses: (1) Northern Mexican and narrow-headed gartersnakes may be
Based on field data collected by Burger (2007, entire), Burger
Flow regimes within stream systems are a primary factor that shape fish community assemblages. The timing, duration, intensity, and frequency of flood events has been altered to varying degrees by the presence of dams, which has an effect on fish communities (Rinne
Other streams that are not dammed in the same watershed still reflect a largely native fish community due to the presence of a natural flow regime (Pool and Olden 2014
Effects from flood control projects threaten riparian and aquatic habitat, as well as threaten the northern Mexican gartersnake directly in lower Tonto Creek. Kimmell (2008, pers. comm.), Gila County Board of Supervisors (2008, pers. comm.), Trammell (2008, pers. comm.), and Sanchez (2008, pers. comm.) all discuss a growing concern of residents that live within or adjacent to the floodplain of Tonto Creek in Gila County, Arizona, both upstream and downstream of the town of Gisela, Arizona. Specifically, there is growing concern to address threats to private property and associated infrastructure posed by flooding of Tonto Creek (Sanchez 2008, pers. comm.). An important remaining population of northern Mexican gartersnakes within the Salt River subbasin occurs on Tonto Creek. In Resolution No. 08-06-02, the Gila County Board of Supervisors proactively declared a state of emergency within Gila County as a result of the expectation for heavy rain and snowfall causing repetitive flooding conditions (Gila County Board of Supervisors 2008, pers. comm.). In response, the Arizona Division of Emergency Management called meetings and initiated discussions among stakeholders in an attempt to mitigate these flooding concerns (Kimmell 2008, pers. comm., Trammell 2008, pers. comm.).
Mitigation measures that have been discussed include removal of riparian vegetation, removal of debris piles, potential channelization of Tonto Creek, improvements to existing flood control structures or addition of new structures, and the construction of new bridges. Adverse effects from these types of activities to aquatic and riparian habitat, and to the northern Mexican gartersnake or its prey species, will result from the physical alteration or destruction of habitat, significant increases to flow velocity, and removal of key foraging habitat and areas to hibernate, such as debris jams. Specifically, flood control projects permanently alter stream flow characteristics and have the potential to make the stream unsuitable as habitat for the northern Mexican gartersnake by reducing or eliminating stream sinuosity
Many streams in New Mexico, currently or formerly occupied by northern Mexican or narrow-headed gartersnakes, have been or could be affected by water withdrawals. Approximately 9.5 river mi (15.3 km) of the Gila River mainstem in New Mexico, from Little Creek to the Gila Bird Area, are in private ownership and have been channelized, and the water is largely used for agricultural purposes (Hellekson 2012a, pers. comm.). Below the Highway 180 crossing of the mainstem Gila River, several water diversions have reduced stream flow (Hellekson 2012a, pers. comm.). Channelization has also affected a privately owned reach of Whitewater Creek from the Catwalk downstream to Glenwood, New Mexico (Hellekson 2012a, pers. comm.). The Gila River downstream of the town of Cliff, New Mexico, flows through a broad valley where irrigated agriculture and livestock grazing are the predominant uses. Human settlement has increased since 1988 (Propst
The San Francisco River in New Mexico has undergone sedimentation, riparian habitat degradation, and extensive water diversion, and at present has an undependable water supply throughout portions of its length (Hellekson 2012a, pers. comm.; 2013, pers. comm.). The San Francisco River is seasonally dry in the Alma Valley, and two diversion structures fragment habitat in the upper Alma Valley and at Pleasanton (NMDGF 2006, p. 302). An approximate 2-stream-mi (3.2-km) reach of the lower San Francisco River between the Glenwood Diversion and Alma Bridge, which would otherwise be good narrow-headed gartersnake habitat, has been completely dewatered by upstream diversions (Hellekson 2012a, pers. comm.).
Additional withdrawals of water from the Gila and San Francisco Rivers may occur in the next several decades as the effects of drought and human population levels increase. Implementation of Title II of the Arizona Water Settlements Act (AWSA) (Public Law 108-451) would facilitate the exchange of Central Arizona Project water within and between southwestern river basins in Arizona and New Mexico, and may result in the construction of new water development projects. Section 212 of the AWSA pertains to the New Mexico Unit of the Central Arizona Project. The AWSA provides for New Mexico water users to deplete 14,000 acre-feet of additional water from the Gila Basin in any 10-year period. The settlement also provides the ability to divert that water without complaint from downstream pre-1968 water rights in Arizona. New Mexico will receive $66 million to $128 million in non-reimbursable Federal funding. The Interstate Stream Commission (ISC) funds may be used to cover costs of an actual water supply project, planning, environmental mitigation, or restoration activities associated with or necessary for the project, and may be used on one or more of 15 alternative projects ranging from Gila National Forest San Francisco River Diversion/Ditch improvements to a regional water supply project (the Deming Diversion Project). Currently, 3 of the 15 projects under consideration include elements of diversion or storage. At this time, it is not known how the funds will be spent or which potential alternatives may be chosen. While multiple potential project proposals have been accepted by the New Mexico Office of the State Engineer (NMOSE) (NMOSE 2011a, p. 1), implementation of the AWSA is still in the planning stages on these streams, and final notice is expected by the end of 2014. Should water be diverted from the Gila or San Francisco Rivers, flows would be diminished and direct and indirect losses and degradation of habitat for the narrow-headed gartersnake and its prey species would result.
In addition to affecting the natural behavior of streams and rivers through changes in timing, intensity, and duration of flood events, dams create reservoirs that alter resident fish communities (Paradzick
The cross-sectional profile of any given reservoir also contributes to its benefit for harmful nonnative fish species (Paradzick
The effect of the increased water withdrawals may be exacerbated by the current, long-term drought facing the arid southwestern United States, which is predicted to continue. The effect of long-term drought has already been observed in the Southwest. Philips and Thomas (2005, pp. 1-4) provided stream flow records that indicate that the drought Arizona experienced between 1999 and 2004 was the worst drought since the early 1940s and possibly earlier. The Arizona Drought Preparedness Plan Monitoring Technical Committee (ADPPMTC) (2012) determined the drought status within the Arizona distributions of northern Mexican and narrow-headed gartersnakes, through June 2012, to be in “severe drought.” Ongoing drought conditions have depleted recharge of aquifers and decreased base flows in the region. While drought periods have been relatively numerous in the arid Southwest from the mid-1800s to the present, the effects of human-caused impacts on riparian and aquatic communities have compromised the ability of these communities to function under the additional stress of prolonged drought conditions. Below we further discuss the effect of climate change-induced drought in the future.
The Arizona Department of Water Resources (ADWR) manages water supplies in Arizona and has established five Active Management Areas (AMAs) across the State (ADWR 2006, entire). An AMA is established by ADWR when an area's water demand has exceeded the groundwater supply and an overdraft has occurred. In these areas, groundwater use has exceeded the rate where precipitation can recharge the aquifer, and these areas are subject to regulation pursuant to Arizona's Groundwater Code with a goal of balancing groundwater use with recharge (reaching safe yield) by the year 2025. Geographically, these five AMAs overlap the historical distribution of the northern Mexican or narrow-headed gartersnake, or both, in Arizona. The establishment of these AMAs further illustrates the condition of limited water availability for riparian habitat in these areas both currently and into the future, and they indicate a cause of concern for the long-term maintenance of northern Mexican and narrow-headed gartersnake habitat. These areas are already vulnerable to declines in surface and groundwater availability, and surface water may not be sustainable to support the gartersnakes' prey base. An overdraft of groundwater withdrawal creates what is referred to as a cone of depression within the groundwater. Reduced or eliminated surface flow can result in areas where these cones of depression intersect with stream alluvium (deposits in a valley a stream flows through).
The presence of surface water is a primary habitat component for northern Mexican and narrow-headed gartersnakes. Existing water laws in Arizona and New Mexico may not be fully adequate to protect gartersnake habitat from the dewatering effects of groundwater withdrawals. New Mexico water law now includes provisions for instream water rights to protect fish and wildlife and their habitats. Arizona water law also recognizes such provisions; however, because this change is relatively recent, instream water rights have low priority, and are often never fulfilled because more senior diversion rights have priority. Existing water laws are considered outdated and reflect a legislative interpretation of water resources that is not consistent with current scientific understanding of the hydrologic connection between groundwater and surface water (Gelt 2008, pp. 1-12).
Water for development and urbanization is often supplied by groundwater pumping and surface water diversions from sources that include reservoirs and Central Arizona Project's allocations from the Colorado River. As stated previously, groundwater pumping creates a cone of depression within the affected aquifer that slowly radiates outward from the well site. When the cone of depression intersects the hyporheic zone of a stream (the active transition zone between two adjacent ecological communities under or beside a stream channel or floodplain between the surface water and groundwater that contributes water to the stream itself), the surface water flow may decrease, and the subsequent drying of riparian and wetland vegetative communities can follow. Continued groundwater pumping at such levels draws down the aquifer sufficiently to create a water-level gradient away from the stream and floodplain (Webb and Leake 2005, p. 309). Complete disconnection of the aquifer and the stream results in strong negative effects to riparian vegetation (Webb and Leake 2005, p. 309) that result in a reduction or loss in surface water and riparian vegetation that can reduce or eliminate the local prey base that gartersnakes depend on for survival.
The arid southwestern United States is characterized by limited annual precipitation, which means limited annual recharge of groundwater aquifers; even modest changes in groundwater levels from groundwater pumping can affect above-ground stream flow as evidenced by depleted flows in the Santa Cruz, Verde, San Pedro, Blue, and lower Gila rivers as a result of regional groundwater demands (Stromberg
Water depletion is a concern for the Verde River (Garner
Garner
Scientific studies have shown a link between the Big Chino aquifer and spring flows that form the headwaters of the Verde River. It is estimated that 80 to 86 percent of baseflow in the upper Verde River comes from the Big Chino aquifer (Wirt 2005, p. G8). An in-depth discussion of the potential effects to the Verde River from pumping of the Big Chino Aquifer is available in Marder (2009, pp. 183-189). However, while these withdrawals could potentially dewater the upper 26 mi (42 km) of the Verde River (Wirt and Hjalmarson 2000, p. 4; Marder 2009, pp. 188-189), it is uncertain that this project will occur given the cost and administrative challenges it faces. An agreement in principle was signed among the Salt River Project, the City of Prescott, and Town of Prescott Valley to work toward resolution of water rights in the Verde watershed, and, in 2012, Comprehensive Agreement No. 1, which established monitoring and modeling plans, was entered into. Within the Verde River subbasin, and particularly within the Verde Valley, where the northern Mexican and narrow-headed gartersnakes could occur, several other activities continue to threaten surface flows (Rinne
Portions of the Verde River or its tributaries are permanently or seasonally dewatered by water diversions for agriculture (Paradzick
Further south in Arizona, portions of the once-perennial San Pedro River are now ephemeral, and water withdrawals are a concern for the San Pedro River (USGS 2013, p. 3). The Cananea Mine in Sonora, Mexico, owns the land surrounding the headwaters of the San Pedro. There is disagreement on the exact amount of water withdrawn by the mine, Mexicana de Cananea, which is one of the largest open-pit copper mines in the world. However, there is agreement that it is the largest water user in the basin (Harris
Another primary groundwater user in the San Pedro subbasin is Fort Huachuca. Fort Huachuca is a U.S. Army installation located near Sierra Vista, Arizona. Initially established in 1877 as a camp for the military, the Fort has some of the earliest priority dates for water rights in the state (Varady
Groundwater withdrawal in Eagle Creek, primarily for water supplying the large open-pit copper mine at Morenci, Arizona, dries portions of the stream (Sublette
The Rosemont Copper Mine proposed to be constructed in the northeastern area of the Santa Rita Mountains in Santa Cruz County, Arizona, will include a mine pit that will be excavated to a depth greater than that of the regional aquifer. Water will thus drain from storage in the aquifer into the pit. The need to dewater the pit during mining operations will thus result in ongoing removal of aquifer water storage. Upon cessation of mining, a pit lake will form, and evaporation from this water body will continue to remove water from storage in the regional aquifer. This aquifer also supplies baseflow to Cienega Creek, immediately east of the proposed project site. Several groundwater models have been developed to analyze potential effects of expected groundwater withdrawals. The latest independent models indicate that a potentially significant reduction to baseflows in Cienega Creek and Emprire Gulch are expected within 50 years post-closure of the Rosemont Copper Mine, should it be permitted for development (see
The best available scientific and commercial information indicates that any reduction in the presence or availability of water is a significant threat to northern Mexican and narrow-headed gartersnakes, their prey base, and their habitat. This is because water is a fundamental need that supports the necessary aquatic and riparian habitats and prey species needed by both species of gartersnake. Through GIS analyses, we found that approximately 32 percent of formerly perennial streams have been dewatered within the historical distribution of the northern Mexican gartersnake. Within the historical distribution of the narrow-headed gartersnake, approximately 13 percent of formerly perennial streams have been dewatered. With continued human population growth and corresponding water use throughout the range of both gartersnakes, we expect the loss of habitat due to reduction in stream flows to increase in the foreseeable future and result in additional declines and extirpations of gartersnake populations.
The ecology and natural histories of northern Mexican and narrow-headed gartersnakes are strongly linked to water. As discussed above, the northern Mexican gartersnake is a highly aquatic species and relies largely upon other aquatic species, such as ranid frogs and native and nonnative, soft-rayed fish as prey. The narrow-headed gartersnake is the most aquatic of the southwestern gartersnakes and is a specialized predator on native and nonnative, soft-rayed fish found primarily in clear, rocky, higher elevation streams. Because of their aquatic nature, they may be uniquely susceptible to environmental change, especially factors associated with climate change (Wood
Several climate-related trends have been detected since the 1970s in the southwestern United States, including increases in surface temperatures, rainfall intensity, drought, heat waves, extreme high temperatures, and average low temperatures (Overpeck 2008, entire). Annual precipitation amounts in the southwestern United States may decrease by 10 percent by the year 2100 (Overpeck 2008, entire). Seager
In assessing potential effects of predicted climate change to river systems in New Mexico, Molles (2007,
Cavazos and Arriaga (2010, entire) found that average temperatures along the Mexican Plateau in Mexico could rise in the range of 1.8 °F (1 °C) to 9 °F (5 °C) in the next 20 years, according to their models. Cavazos and Arriaga (2010, entire) also found that precipitation may decrease up to 12 percent over the next 20 years in the same region, with pronounced decreases in winter and spring precipitation.
Potential drought associated with changing climatic patterns may adversely affect the amphibian prey base for the northern Mexican gartersnake. Amphibians may be among the first vertebrates to exhibit broad-scale changes in response to changes in global climatic patterns due to their sensitivity to changes in moisture and temperature (Reaser and Blaustein 2005, p. 61). Changes in temperature and moisture, combined with the ongoing threat to amphibians from the persistence of disease-causing bacteria such as
The bullfrog, also assessed by Coe
Rahel and Olden (2008, p. 526) expect that increases in water temperatures in drier climates such as the southwestern United States will result in periods of prolonged low flows and stream drying. These effects from changing climatic conditions may have profound effects on the amount, permanency, and quality of habitat for northern Mexican and narrow-headed gartersnakes as well as their prey base. Changes in amount or type of winter precipitation may affect snowpack levels as well as the timing of their discharge into high-elevation streams. Low or no snowpack levels would jeopardize the amount and reliability of stream flow during the arid spring and early summer months, which would increase water temperatures to unsuitable levels or eliminate flow altogether. Harmful nonnative species such as largemouth bass are expected to benefit from prolonged periods of low flow (Rahel and Olden 2008, p. 527). These nonnative predatory species evolved in river systems with hydrographs that were largely stable, not punctuated by flood pulses in which native species evolved and benefit from. Propst
Changes to climatic patterns may warm water temperatures, alter stream flow events, and increase demand for water storage and conveyance systems (Rahel and Olden 2008, pp. 521-522). Warmer water temperatures across temperate regions are predicted to expand the distribution of existing harmful nonnative species, which evolved in warmer water temperatures, by providing 31 percent more suitable habitat. This conclusion is based upon studies that compared the thermal tolerances of 57 fish species with predictions made from climate change temperature models (Mohseni
Obvious examples of the influence of urbanization and development can be observed within the areas of greater Tucson and Phoenix, Arizona, where impacts have modified riparian vegetation, structurally altered stream channels, facilitated nonnative species introductions, and dewatered large reaches of formerly perennial rivers where the northern Mexican gartersnake historically occurred (Santa Cruz, lower Gila, and lower Salt Rivers, respectively). Urbanization and development of these areas, along with the introduction of nonnative species, are largely responsible for the likely extirpation of the northern Mexican gartersnake from these regions.
Development near riparian areas usually leads to increased recreation. Riparian areas located near urban areas are vulnerable to the effects of increased recreation. An example of such an area within the existing distribution of both the northern Mexican and narrow-headed gartersnake is the Verde Valley. The reach of the Verde River that winds through the Verde Valley receives a high amount of recreational use from people living in central Arizona (Paradzick
Oak Creek Canyon, which represents an important source population for narrow-headed gartersnakes, is also a well-known example of an area with very high recreation levels (Nowak and Santana-Bendix 2002, p. 37). In 1995, 1.3 million people visited the Red Rock Ranger District, which includes Oak Creek Canyon and the Sedona, Arizona area; that figure climbed to six million visitors by 1999 (Nowak and Santana-Bendix 2002, p. 37). Recreational activities in the Southwest are often heavily tied to water bodies and riparian areas, due to the general lack of surface water on the landscape. Increased recreational impacts on the quantity and quality of water, as well as the adjacent vegetation, negatively affect northern Mexican and narrow-headed gartersnakes. The impacts to riparian habitat from recreation can include movement of people or livestock, such as horses or mules, along stream banks, trampling, loss of vegetation, and increased danger of fire starts (Northern Arizona University 2005, p. 136; Monz
High stream-side recreation levels can result in increased siltation of streams, which can result in lower recruitment rates of native fish and, therefore, negatively affect the prey base for narrow-headed gartersnakes (Nowak and Santana-Bendix 2002, pp. 37-38). In the arid Gila River Basin, recreational impacts are disproportionately distributed along streams as a primary focus for recreation (Briggs 1996, p. 36). Within the range of the northern Mexican and narrow-headed gartersnakes in the United States, the majority of the occupied areas occur on Federal lands, which are managed for recreation and other purposes. On the Gila National Forest, and associated private, state, or non-Forest Service inholdings in the area, heavy recreation use can affect gartersnakes within occupied narrow-headed gartersnake habitat along the Middle Fork Gila River, the West Fork Gila River between Cliff Dwellings and Little Creek, and Whitewater Creek from the Catwalk to Glenwood (Hellekson 2012a, pers. comm.). Much of the recreation use in these areas is related to hiking and backpacking, which are not a threat to gartersnakes except when increased human visitation leads to more gartersnake encounters and potentially more killing of gartersnakes where the foot trail is near the canyon bottom (see “Adverse Human Interactions with Gartersnakes” below).
Urbanization on smaller scales can also impact habitat suitability and the prey base for the northern Mexican or narrow-headed gartersnakes, such as along Tonto Creek, within the Verde Valley, and the vicinity of Rock Springs along the Agua Fria River (Girmendonk and Young 1997, pp. 45-52; Voeltz 2002, pp. 58-59, 69-71; Holycross
Illegal or under-regulated logging in the Sierra Madre of Mexico, and particularly within Chihuahua (Sierra Tarahumara), has been identified as a significant environmental concern (Gingrich 1993, entire). Gingrich (1993, p. 6) described the risk to streams from excessive logging in the Sierra Madre as including increased flooding, increased sedimentation, and lower baseflows. In an attempt to reverse disturbing trends in logging practices, the World Wildlife Fund-Mexico (2004, entire) has begun implementing a conservation plan for the Sierra Tarahumara region. Ramirez Bautista and Arizmendi (2004, p. 3) stated that the principal threats to northern Mexican gartersnake habitat in Mexico include the drying of temporary ponds, livestock grazing, deforestation, wildfires, and human settlements. In addition, nonnative species, such as bullfrogs and nonnative, predatory fish, have been introduced throughout Mexico and continue to disperse naturally, broadening their distributions (Conant 1974, pp. 487-489; Miller
Mexico's water needs for urban and agricultural development, as well as impacts to aquatic habitat from these uses, are linked to significant human population growth over the past century in Mexico. Mexico's human population grew 700 percent from 1910 to 2000 (Miller
Much knowledge of the status of aquatic ecosystems in Mexico has come from fisheries research, which is particularly applicable to assessing the status of northern Mexican gartersnakes because of the gartersnakes' ecology and relationship to other aquatic and riparian vertebrates. Fisheries research is particularly applicable because of the role fishes serve as indicators of the status of the aquatic community as a whole. Miller
Excessive sedimentation also appears to be a significant problem for aquatic habitat in Mexico. Recent estimates indicate that 80 percent of Mexico is affected by soil erosion caused by vegetation removal related to grazing, fires, agriculture, deforestation, etc. The most serious erosion is occurring in the states of Guanajuato (43 percent of the state's land area), Jalisco (25 percent of the state's land area), and México (25 percent of the state's land area) (Landa
In northern Mexico, effects of development, which is expected to continue at similar rates, if not increase, over the next several decades, such as agriculture and irrigation practices on streams and rivers in Sonora have been documented at least as far back as the 1960s. Branson
Minckley
In the central portions of the northern Mexican gartersnakes' range in Mexico, such as in Durango, Mexico, population growth since the 1960s has led to regional effects such as reduced stream flow, increased water pollution, and largemouth bass introductions, which “have seriously affected native biota” (Miller
In the southern portion of the northern Mexican gartersnake's range in Mexico, growth and development around Mexico City resulted in agricultural practices and groundwater demands that dewatered aquatic habitat and led to declines, and in some cases, extinctions of local native fish species (Miller
These shifts in fish community composition, population density, and shrinking distributions have adversely affected the northern Mexican gartersnake prey base in the southern portion of its range in Mexico. The Lerma River basin is the largest in west-central Mexico and is within the distribution of the northern Mexican gartersnake in the states of Jalisco, Guanajuato, and Querétaro in the southern portion of its range. Lyons
Native fish communities of west-central Mexico have been found to be in serious decline as a result of habitat degradation at an “unprecedented” rate due to water withdrawals (diversions for irrigation), as well as untreated municipal, industrial, and agricultural discharges (Lyons
Soto-Galera
Mercado-Silva
Near Torreón, Coahuila, where the northern Mexican gartersnake occurs, groundwater pumping has resulted in flow reversal, which has dried up many local springs, drawn arsenic-laden water to the surface, and resulted in adverse human health effects in that area (Miller
In the Transvolcanic Belt Region of the states of Jalisco, Mexico, and Veracruz in southern Mexico, Conant (2003, p. 4) noted that water diversions, pollution (e.g., discharge of raw sewage), sedimentation of aquatic habitats, and increased dissolved nutrients were resulting in decreased dissolved oxygen in suitable northern Mexican gartersnake habitat. Conant (2003, p. 4) stated that many of these threats were evident during his field work in the 1960s, and that they are “continuing with increased velocity.”
High-intensity wildfires lead to excessive sedimentation and ash flows in streams, which can, in turn, result in sharp declines, and even complete elimination, in fish communities downstream. According to the Apache-Sitgreaves National Forest forested vegetation types, historic fire-return intervals varied from frequent, low-intensity surface fires in ponderosa pine types (every 2-17 years), to mixed-severity fires in wet mixed-conifer forests (every 35-50 years), to high-severity, stand-replacement fires of the spruce-fir ecosystems (every 150-400 years) (U.S. Forest Service (USFS) 2013). Low-intensity fire has been a common, natural disturbance factor in forested landscapes for centuries prior to European settlement (Rinne and Neary 1996, pp. 135-136). Rinne and Neary (1996, p. 143) concluded that existing wildfire suppression policies intended to protect the expanding number of human structures on forested public lands have altered the fuel loads in these ecosystems and increased the probability of high-intensity wildfires.
Climate change-driven drought cycles are also likely contributing to a changing fire regime in the west (Westerling
The nature and occurrence of wildfires in the Southwest is expected to also be affected by climate change and ongoing and predicted future drought. Current predictions of drought and/or higher winter low temperatures may stress ponderosa pine forests in which the narrow-headed gartersnake principally occurs, and may increase the frequency and magnitude of wildfire. Ganey and Vojta (2010, entire) studied tree mortality in mixed-conifer and ponderosa pine forests in Arizona from 1997-2007, a period of extreme drought. They found the mortality of trees to be severe; the number of trees dying over a 5‐year period increased by more than 200 percent in mixed‐conifer forest and by 74 percent in ponderosa pine forest during this timeframe. Ganey and Vojta (2010) attributed drought and subsequent insect (bark beetle) infestation to the die-offs in trees. Drought stress and a subsequent high degree of tree mortality from bark beetles make high-elevation forests more susceptible to high-intensity wildfires.
Climate is a top-down factor that synchronizes with fuel loads, a bottom-up factor. Combined with a predicted reduction in snowpack and an earlier snowmelt, these factors suggest wildfires will be larger, more frequent, and more severe in the southwestern United States (Fulé 2010, entire). Wildfires are expected to reduce vegetative cover and result in greater soil erosion, subsequently resulting in increased sediment flows in streams (Fulé 2010, entire). Increased sedimentation in streams reduces the visibility of gartersnakes in the water column, hampering their hunting ability as well as resulting in fish kills (which is also caused by the disruption in the nitrogen cycle post-wildfire), which reduce the amount of prey available to gartersnake populations. Additionally, unnaturally high amounts of sediment fill in pools in intermittent streams,
In 2011 and 2012, both Arizona (2011 Wallow Fire) and New Mexico (2012 Whitewater-Baldy Complex Fire) experienced the largest wildfires in their respective State histories; indicative of the last decade that has been punctuated by wildfires of massive proportion. The 2011 Wallow Fire affected (to various degrees) approximately 540,000 acres (218,530 ha) of Apache-Sitgreaves National Forest, White Mountain Apache Indian Tribe, and San Carlos Apache Indian Reservation lands in Apache, Navajo, Graham, and Greenlee counties in Arizona as well as Catron County, New Mexico (InciWeb 2011). The 2011 Wallow Fire impacted 97 percent of perennial streams in the Black River subbasin, 70 percent of perennial streams in the Gila River subbasin, and 78 percent of the San Francisco River subbasin and resulted in confirmed fish kills in each subbasin (Meyer 2011, p. 3, Table 1); each of these streams is known to support populations of either northern Mexican or narrow-headed gartersnakes.
Although the Black River drainage received no moderate or high-severity burns as a result of the 2011 Wallow Fire, the Fish and Snake Creek subbasins (tributaries to the Black River) were severely burned (Coleman 2011, p. 2). Post-fire fisheries surveys above Wildcat Point in the Black River found no fish in a reach extending up to the confluence with the West Fork of the Black River. This was likely due to subsequent ash and sediment flows that had occurred there (Coleman 2011, p. 2). Fisheries surveys of the Black River in 2012 also reflected a largely absent prey base for narrow-headed gartersnakes (narrow-headed gartersnakes observed appeared to be in starving condition), but young-of-the-year native fish were detected, which may signal the beginning of fish recruitment (Lopez
Several large wildfires have occurred historically on the Gila National Forest. These fires have resulted in excessive sedimentation of streams and affected resident fish populations that serve as prey for narrow-headed gartersnakes. From 1989-2004, numerous wildfires cumulatively burned much of the uplands within the Gila National Forest, which resulted in most perennial streams in the area experiencing ash flows and elevated sedimentation (Paroz
Since 2000, several wildfires have affected occupied narrow-headed gartersnake habitat on the Gila National Forest. The West Fork Gila subbasin was affected by the 2002 Cub Fire, the 2003 Dry Lakes Fire, and the 2011 Miller Fire; each resulted in post-fire ash and sediment flows, which adversely affected fish populations used by narrow-headed gartersnakes (Hellekson 2012a, pers. comm.). In 2011, the Miller Fire significantly affected the Little Creek subbasin and has resulted in substantive declines in abundance of the fish community (Hellekson 2012a, pers. comm.). Dry Blue and Campbell Blue creeks were affected by the 2011 Wallow Fire (Hellekson 2012a, pers. comm.). Saliz Creek was highly affected by the 2006 Martinez Fire (Hellekson 2012a, pers. comm.). Turkey Creek was heavily impacted by the Dry Lakes Fire in 2003, which resulted in an extensive fish kill, but the fish community has since rebounded (Hellekson 2012a, pers. comm.). It is not certain how long the fish community was depleted or absent from Turkey Creek, but it is suspected that the narrow-headed gartersnake population there may have suffered declines from the loss of their prey base, as evidenced by the current low population numbers. Black Canyon was affected by large ash and debris flows from the 2013 Silver Fire (USFS 2013, entire). Prior to the 2002 Dry Lakes Fire, Turkey Creek was largely populated by nonnative, predatory fish species, in its lower reaches. Upper reaches were largely dominated by native fish species, which have since rebounded in numbers (Hellekson 2012a, pers. comm.), and may provide high-quality habitat for narrow-headed gartersnakes, once the subbasin has adequately stabilized.
Effects to northern Mexican and narrow-headed gartersnake habitat from wildfire should be considered in light of effects to the structural habitat and effects to the prey base. Post-fire effects vary with burn severity, percent of area burned within each severity category, and the intensity and duration of precipitation events that follow (Coleman 2011, p. 4). Low-severity burns within riparian habitat can actually have a rejuvenating effect by removing decadent ground cover and providing nutrients to remaining vegetation. As a result, riparian vegetative communities may be more resilient to wildfire, given that water is present (Coleman 2011, p. 4). Willows, an important component to narrow-headed gartersnake habitat, can be
Post-fire flooding with significant ash and sediment loads can result in significant declines, or even the collapse, of resident fish communities, which poses significant concern for the persistence of resident gartersnake populations in affected areas. Sedimentation can adversely affect fish populations used as prey by northern Mexican or narrow-headed gartersnakes by: (1) Interfering with respiration; (2) reducing the effectiveness of fish's visually based hunting behaviors; and (3) filling in interstitial spaces (spaces between cobbles, etc., on the stream floor) of the substrate, which reduces reproduction and foraging success of fish (Wheeler
The presence of adequate interstitial spaces along stream floors may be particularly important for narrow-headed gartersnakes. Hibbitts
Potential mechanisms exist that can ameliorate the effects of wildfires, such as prescribed fire, use of wildland fire, fuels management, and timber harvest, and can sustain desired conditions for fire-adapted ecosystems and provide habitat for threatened and endangered species, but will only be effective at a landscape scale. The Guidance for Implementation of Federal Wildland Fire Management Policy is the Department of Agriculture's single cohesive Federal fire policy, and it was updated in February 2009. The intent of this policy is to solidify that the full range of strategic and tactical options are available and considered in the response to every wildland fire (USFS 2013, entire). Benefits are considered to include the movement of vegetation toward desired conditions, a greater contribution to landscape restoration, control of invasive species, a reduction in uncharacteristic wildfire across the broader landscape, and the resiliency of potential natural vegetation types to adapt to climate change (USFS 2013, entire). We are uncertain whether such projects can be completed with the scope and urgency required to reverse the current trend of massive, high-intensity wildfires in the southwest but intend to facilitate their implementation as project cooperators. We conclude that effects of high-intensity wildfires are threatening narrow-headed gartersnakes with increasing likelihood of future impacts as a result of climate change.
The presence of water is critical to both northern Mexican and narrow-headed gartersnakes and their primary prey species because their ecology and natural histories are strongly linked to water. Several factors, both natural and manmade, contribute to the continued degradation and dewatering of aquatic habitat throughout the range of northern Mexican and narrow-headed gartersnakes. Increasing human population growth is driving higher and higher demands for water in both the United States and Mexico. Water is subsequently secured through dams, diversions, flood-control projects, and groundwater pumping, which affects gartersnake habitat through reductions in flow and complete dewatering of stream reaches. Entire reaches of the Gila, Salt, Santa Cruz, and San Francisco Rivers, as well as numerous other rivers throughout the Mexican Plateau in Mexico that were historically occupied by either or both northern Mexican or narrow-headed gartersnakes, are now completely dry due to diversions, dams, and groundwater pumping. Several groundwater basins within the range of northern Mexican and narrow-headed gartersnakes in the United States are considered active management areas where pumping exceeds recharge, which is a constant threat to surface flow in streams and rivers connected to these aquifers. Reduced flows concentrate northern Mexican and narrow-headed gartersnakes and their prey with harmful nonnative species, which accelerate and amplify adverse effects of native-nonnative community interactions. Where surface water persists, increasing land development and recreation use adjacent to and within riparian habitat has led to further reductions in stream flow, removal or alteration of vegetation, and increased frequency of adverse human interactions with gartersnakes.
Exacerbating the effects of increasing human populations and higher water demands, climate change predictions
Cienegas, a unique and important habitat for northern Mexican gartersnakes, have been adversely affected or eliminated by a variety of historical and current land uses in the United States and Mexico, including streambed modification, intensive livestock grazing, woodcutting, artificial drainage structures, stream flow stabilization by upstream dams, channelization, and stream flow reduction from groundwater pumping and water diversions. The historical loss of the cienega habitat of the northern Mexican gartersnake has resulted in local population declines or extirpations, negatively affecting its status and contributing to its decline rangewide.
Wildfire has historically been a natural and important disturbance factor within the range of northern Mexican and narrow-headed gartersnakes. However, in recent decades, forest management policies in the United States have favored fire suppression, the result of which has led to wildfires of unusual proportions, particularly along the Mogollon Rim of Arizona and New Mexico. These policies are generally not in place in Mexico, and consequently, wildfire is not viewed as a significant threat to the northern Mexican gartersnake in Mexico. However, in the last 2 years, both Arizona (2011 Wallow Fire) and New Mexico (2012 Whitewater-Baldy Complex Fire) have experienced the largest wildfires in their respective State histories, which is indicative of the last decade having been punctuated by wildfires of significant magnitude. High-intensity wildfire has been shown to result in significant ash and sediment flows into habitat occupied by northern Mexican or narrow-headed gartersnakes, resulting in significant reductions of their fish prey base and, in some instances, total fish kills. The interstitial spaces between rocks located along the stream floor are important habitat for the narrow-headed gartersnake because of its specialized foraging strategy and specialized diet. These spaces are also important spawning and egg deposition habitat for native fish species used as prey by narrow-headed gartersnakes. When these spaces fill in with sediment, the narrow-headed gartersnake may be unable to forage successfully and may succumb to stress created by a depressed prey base.
A significant reduction or absence of a prey base results in stress of resident gartersnake populations and can result in local population extirpations. Also, narrow-headed gartersnakes are believed to rely heavily on visual cues while foraging underwater; increased turbidity from suspended fine sediment in the water column is likely to impede their ability to use visual cues at some level. Factors that result in depressed foraging ability from excessive sedimentation are likely to be enhanced when effects from harmful nonnative species are also acting on resident northern Mexican and narrow-headed gartersnake populations. We consider the narrow-headed gartersnake to be particularly threatened by the effects of wildfires as described because they occur throughout its range, the species is a fish-eating specialist that is unusually vulnerable to localized fish kills, and wildfire has already significantly affected two of the last remaining five populations that were formerly considered viable, pre-fire. We have demonstrated that high-intensity wildfires have the potential to eliminate gartersnake populations through a reduction or loss of their prey base. Since 1970, wildfires have adversely impacted the native fish prey base in 6 percent of the historical distribution of northern Mexican gartersnakes in the United States and 21 percent of that for narrow-headed gartersnakes rangewide, according to GIS analysis. These percentages represent only stream miles within fire perimeters, not downstream effects of ash flows within drainages, which would undoubtedly increase the percentage of habitat impacted, at least for narrow-headed gartersnakes, whose distribution overlaps more concisely with more and larger wildfires over recent decades.
All of these conditions affect the primary drivers of gartersnake habitat suitability (the presence of water and prey) and exist in various degrees throughout the range of both gartersnake species. Collectively, they reduce the amount and arrangement of physically suitable habitat for northern Mexican and narrow-headed gartersnakes over their regional landscapes. The genetic representation of each species is threatened when populations become disconnected and isolated from neighboring populations because the length or area of dewatered zones is too great for dispersing individuals to overcome. Therefore, normal colonizing mechanisms that would otherwise reestablish populations where they have become extirpated are no longer viable. This subsequently leads to a reduction in species redundancy when isolated, small populations are at increased vulnerability to the effects of stochastic events, without a means for natural recolonization. Ultimately, the effects of scattered, small, and disjunct populations, without the means to naturally recolonize, is weakened species resiliency as a whole, which ultimately enhances the risk of either or both species becoming endangered or going extinct. Therefore, based on the best available scientific and commercial information, we conclude that land uses or conditions described above that alter or dewater northern Mexican and narrow-headed gartersnake habitat are threats rangewide, now and in the foreseeable future.
In most locations where northern Mexican or narrow-headed gartersnakes historically occurred or still occur currently, two or more threats are likely acting in combination with regard to their influence on the suitability of those habitats or on the species themselves. Many threats could be considered minor in isolation, but when they affect gartersnake populations in combination with other threats, become more serious. We have concluded that in as many as 24 of 29 known localities in the United States (83 percent), the northern Mexican gartersnake population is likely not viable and may exist at low population densities that could be threatened with extirpation or may already be extirpated. We also determined that in as many as 29 of 38 known localities (76 percent), the narrow-headed gartersnake population is likely not viable and may exist at low population densities that could be threatened with extirpation or may already be extirpated, but survey data are lacking in areas where access is restricted. We have also discussed how harmful nonnative species have affected recruitment of gartersnakes across their range. In viable populations, gartersnakes are resilient to the loss of individuals through ongoing recruitment into the reproductive age class. However, when northern Mexican or narrow-headed gartersnakes occur at low population densities in the absence
Currently in the United States, livestock grazing is a largely managed activity, but in Mexico, livestock grazing is much less managed or unmanaged altogether. Several examples of extant gartersnake populations (in some cases, apparently robust populations) in Mexico were found in habitat that was heavily grazed with no riparian vegetation development; these sites were coincidently free or largely free of harmful nonnative species (Burger 2007, entire). Historical livestock grazing has damaged approximately 80 percent of stream, cienega, and riparian ecosystems in the western United States (Kauffman and Krueger 1984, pp. 433-435; Weltz and Wood 1986, pp. 367-368; Cheney
Szaro
Subbasins where historical grazing has been documented as a suspected contributing factor for either northern Mexican or narrow-headed gartersnake declines include the Verde, Salt, Agua Fria, San Pedro, Gila, and Santa Cruz (Hendrickson and Minckley 1984, pp. 140, 152, 160-162; Rosen and Schwalbe 1988, pp. 32-33; Girmendonk and Young 1997, p. 47; Hale 2001, pp. 32-34, 50, 56; Voeltz 2002, pp. 45-81; Krueper
The creation and maintenance of stock tanks is an important component to livestock grazing in the southwestern United States. Stock tanks associated with livestock grazing may facilitate the spread of harmful nonnative species when they are intentionally or unintentionally stocked by anglers and private landowners (Rosen
Roads can pose unique threats to herpetofauna, and specifically to species like the northern Mexican gartersnake, its prey base, and the habitat where it occurs. The narrow-headed gartersnake, alternatively, is probably less affected by roads due to its more aquatic nature. Roads fragment occupied habitat and can result in diminished genetic variability in populations from increased fatality from vehicle strikes and adverse human encounters as supported by current research on eastern indigo snakes (Breininger
Perhaps the most common factor in road fatality of snakes is the propensity for drivers to unintentionally and intentionally run them over, both because people often dislike snakes (Rosen and Schwalbe 1988, p. 43; Ernst and Zug 1996, p. 75; Green 1997, pp. 285-286; Nowak and Santana-Bendix 2002, p. 39) and because they can be difficult to avoid when crossing roads at perpendicular angles (Klauber 1956, p. 1026; Langley
A fear of snakes is generally and universally embedded in modern culture and is prevalent in the United States (Rosen and Schwalbe 1988, p. 43; Ernst and Zug 1996, p. 75; Green 1997, pp. 285-286; Nowak and Santana-Bendix 2002, p. 39). We use the phrase “adverse human interaction” to refer to the act of humans directly injuring or killing snakes out of a sense of fear or anxiety (ophidiophobia), or for no apparent purpose. One reason the narrow-headed gartersnake is vulnerable to adverse human interactions is because of its appearance. The narrow-headed gartersnake is often confused for a venomous water moccasin (cottonmouth,
Adverse human interaction may be largely responsible for highly localized extirpations in narrow-headed gartersnakes based on the collection history of the species at Slide Rock State Park along Oak Creek, where high recreation use is strongly suspected to result in direct fatality of snakes by humans (Nowak and Santana-Bendix 2002, pp. 21, 38). Declines in narrow-headed gartersnake populations in the North and East Forks of the White River have also been attributed to humans killing snakes (Rosen and Schwalbe 1988, pp. 43-44). Locations in New Mexico where this unnatural form of fatality has been observed include Wall Lake (Fleharty 1967, p. 219) and Whitewater Creek (Hellekson 2012a, pers. comm.). Areas with high visitation and recreation levels, where this type of fatality is most likely to be more common, include the Middle Fork and mainstem of the Gila River within 1 mile of Cliff Dwellings to Little Creek, from the confluence with the East Fork to Little Creek and the reach from Turkey Creek to the Gila Bird Area south of Highway 180 (Hellekson 2013, pers. comm.), in Whitewater Creek from the Catwalk to Glenwood (Hellekson 2012a, pers. comm.), near San Francisco Hot Springs along the San Francisco River (Hibbitts and Fitzgerald 2009, p. 466), the San Francisco River “Box”, Black Canyon near the FR150 crossing, and the south Fork Negrito Creek (Hellekson 2013, pers. comm.).
Environmental contaminants, such as heavy metals, may be common at low background levels in soils and, as a result, concentrations are known to bioaccumulate in food chains. A bioaccumulative substance increases in concentration in an organism or in the food chain over time. A mid- to higher-order predator, such as a gartersnake, may, therefore, accumulate these types of contaminants over time in their fatty tissues, which may lead to adverse health effects (Wylie
Based on data collected in 2002-2010, mercury appears to be bioaccumulating in fish found in the lower reaches of Tonto Creek, where northern Mexican gartersnakes also occur (Rector 2010, pers. comm.; Arizona Department of Environmental Quality (ADEQ) 2011, Table 1). In fact, the State record for the highest mercury concentrations in fish tissue was reported in Tonto Creek from this investigation by Rector (2010, pers. comm.). Mean mercury levels in fish were found to range from 0.2-1.5 mg/kg. The mean mercury concentration for all fish was 1.1 mg/kg (ADEQ 2011, p. 3). Due to the risks of adverse human health effects, ADEQ (2011, p. 8) recommends that smallmouth bass, green sunfish, and black bullheads caught from Tonto Creek not be consumed, and common carp be consumed sparingly. Because gartersnakes eat fish, mercury may be bioaccumulating in resident populations, although no testing of gartersnakes has occurred.
Specific land uses such as mining and smelting, as well as road construction and use, can be significant sources of contaminants in air, water, or soil through point-source and non-point source mechanisms. Copper mining has occurred in Arizona and adjacent Mexico for centuries, and many of these sites have smelters (now decommissioned), which are former sources of airborne contaminants. Industrial mine sites occur in several counties in Arizona (Greenlee, Pima, Pinal, Yavapai, and Gila), as well as in Grant County, New Mexico. The current price of copper is high and is expected to continue to increase into the next several decades, fueled by international development and economic growth. Overall, 18 mines are either in production or in the pre-production phases of development in Arizona and New Mexico. The mining industry in Mexico is largely concentrated in the northern tier of that country, with the State of Sonora being the leading producer of copper, gold, graphite, molybdenum, and wollastonite, as well as the leader among Mexican States with regard to the amount of surface area dedicated to mining (Stoleson
The sizes of mines in Sonora vary considerably, as do the known environmental effects from mining-related activities (from exploration to long after closure), which include contamination and drawdown of groundwater aquifers, erosion, acid mine drainage, fugitive dust, pollution from smelter emissions, and landscape clearing (Stoleson
Preliminary research suggests that Marcy's checkered gartersnake (
In addressing the effects of soil erosion associated with road construction projects or post-fire remedial subbasin management, erosion control materials placed on the ground surface are often used. Examples of products used in erosion or sediment control include mulch control netting, erosion control blankets, fiber rolls (wattles), and reinforced silt fences (California Coastal Commission 2012, p. 1). Erosion control is considered a best management practice for most soil-disturbing activities, and is broadly required as mitigation across the United States, in particular to avoid excess sedimentation of streams and rivers. Rolled erosion control products, such as temporary erosion control blankets and permanent turf reinforcement mats, are two methods commonly used for these purposes (Barton and Kinkead 2005, p. 34). These products use stitching or net-like mesh products to hold absorbent media together. At a restoration site in South Carolina, 19 snakes (15 dead) representing 5 different species were found entangled in the netting and had received severe lacerations in the process of attempting to escape their entanglement (Barton and Kinkead 2005, p. 34). Stuart
Similar snake fatalities have not been documented in Arizona or New Mexico, according to our files. However, given the broad usage of these materials across the distribution of the northern Mexican and narrow-headed gartersnakes, it is not unlikely that fatalities occur, but go unreported. The likelihood of either gartersnake species becoming entangled depends on the distance these erosion control materials are used from water in occupied habitat and the density of potentially affected populations. Because erosion control products are
Discarded fishing nets have also been documented as a source of fatalities for northern Mexican gartersnakes in the area of Lake Chapala, Jalisco, Mexico (Barragán-Ramírez and Ascencio-Arrayga 2013, p. 159). Netting or seining is not an authorized form of recreational fishing for sport fish in Arizona or New Mexico, but the practice is allowed in either state for the collection of live baitfish (AGFD 2013a, p. 57; NMDGF 2013, p. 17). Arizona fishing regulations authorize seining for baitfish only where the baitfish will be used and specify that seining is not allowed in Coconino, Apache, Pima, and Cochise Counties. In other areas, it is suspected that most seinng activity occurs at sites dominated by warmwater sportfish, where these gartersnakes are less likely to occur. We are not certain of the frequency at which these techniques are used for such purposes in either state, but we do not suspect that discarded nets or seines are commonly left on-site where they could ensnarl resident gartersnakes. However, this practice is used in Mexico as a primary means of obtaining freshwater fish as a food source and may be more of a threat to local northern Mexican gartersnake populations where this practice occurs.
Our review of the scientific literature did not find evidence that disease is a current factor contributing to the decline in northern Mexican or narrow-headed gartersnakes. However, a recent wildlife health bulletin announced the emergence of snake fungal disease (SFD) within the eastern and midwestern portions of the United States (Sleemen 2013, p. 1). SFD has now been diagnosed in several terrestrial and aquatic snake genera including
Parasites, such as the common plerocercoid larvae of a pseudophyllidean tapeworm (possibly
We found numerous effects of livestock grazing that have resulted in the historical degradation of riparian and aquatic communities that have likely affected northern Mexican and narrow-headed gartersnakes. Mismanaged or unmanaged grazing can have disproportionate effects to riparian communities in arid ecosystems due to the attraction of livestock to water, forage, and shade. We found current livestock grazing activities to be more of a concern in Mexico, at least when it occurs in areas that also support harmful nonnative species. The most profound impacts from livestock grazing in the southwestern United States occurred nearly 100 years ago, were significant, and may still be affecting some areas that have yet to fully recover. Unmanaged or poorly managed livestock operations likely have more pronounced effects in areas impacted by harmful nonnative species through a reduction in cover. However, land managers in Arizona and New Mexico currently emphasize the protection of riparian and aquatic habitat in allotment management planning, usually through fencing, rotation, monitoring, and range improvements such as developing remote water sources. Collectively, these measures have reduced the likelihood of significant adverse impacts on northern Mexican or narrow-headed gartersnakes, their habitat, and their prey base. We also recognize that, while the presence of stock tanks on the landscape can benefit nonnative species, well-managed stock tanks are currently an invaluable tool in the conservation and recovery of northern Mexican gartersnakes and their prey.
Other activities, factors, or conditions that act in combination, such as road construction, use, and management, adverse human interactions, environmental contaminants, entanglement hazards, and competitive pressures from sympatric species, occur within the distribution of these gartersnakes and have the propensity to contribute to further population declines or extirpations where gartersnakes occur at low population densities. An emerging skin disease, SFD, has not yet been documented in gartersnakes but has affected snakes of many genera within the United States, including ecologically similar species, and may pose a future threat to northern Mexican and narrow-headed gartersnakes. Where low-density populations are affected by these types of threats described above, even the loss of a few reproductive adults, especially females, from a population can have significant population-level effects, most notably in the presence of harmful nonnative species. Continued population declines and extirpations threaten the genetic representation of each species because many populations have become disconnected and isolated from neighboring populations. This subsequently leads to a reduction in species redundancy and resiliency when isolated, small populations are at increased vulnerability to the effects of stochastic events, without a means for natural recolonization. Based on the best available scientific and commercial information, we conclude that these threats have the tendency to act synergistically and disproportionately on low-density gartersnake populations rangewide, now and in the foreseeable future.
Below, we examine whether existing regulatory mechanisms are adequate to address the threats to the northern Mexican and narrow-headed gartersnakes discussed under other factors and whether these regulations are acting to alleviate the threats identified to the species. Section 4(b)(1)(A) of the Endangered Species Act requires the Service to take into account “those efforts, if any, being
A number of Federal statutes potentially afford protection to northern Mexican and narrow-headed gartersnakes or their prey species. These include section 404 of the Clean Water Act (33 U.S.C. 1251
Section 404 of the Clean Water Act regulates placement of fill into waters of the United States, including the majority of northern Mexican and narrow-headed gartersnake habitat. However, many actions with the potential to be highly detrimental to both species, their prey base, and their habitat, such as gravel mining and irrigation diversion structure construction and maintenance, may be exempted from the Clean Water Act. Other detrimental actions, such as bank stabilization and road crossings, are covered under nationwide permits that receive limited environmental review. A lack of thorough, site-specific analyses for projects can allow substantial adverse effects to northern Mexican or narrow-headed gartersnakes, their prey base, or their habitat.
The majority of the extant populations of northern Mexican and narrow-headed gartersnakes in the United States occur on lands managed by the U.S. Bureau of Land Management (BLM) and U.S. Forest Service. Both agencies have riparian protection goals that may provide habitat benefits to both species; however, neither agency has specific management plans for northern Mexican or narrow-headed gartersnakes. As a result, some of the significant threats to these gartersnakes, for example, those related to nonnative species, are not necessarily addressed on these lands. The BLM considers the northern Mexican gartersnake as a “Sensitive Species” by default, due to its status under the Act (U.S. Bureau of Land Management (USBLM) 2010), and agency biologists actively attempt to identify gartersnakes for their records for snakes observed incidentally during fieldwork (Young 2005). BLM policy (BLM Manual Section 6840) requires consideration of sensitive species during planning of activities and projects and mitigation of specific threats. The BLM's Resource Management Plans include objectives and management actions to benefit riparian habitat and native fish; with some addressing “invasive wildlife species” (USBLM 2013, p. 2). When the Agua Fria National Monument was created in January 2000, lowland leopard frogs, native fish, northern Mexican gartersnakes, and riparian habitat were designated as “monument objects” under protection by the National Monument (USBLM 2013, p. 3). Similar conservation provisions are in place on the BLM's National Conservation Areas (NCAs), such as the Las Cienegas NCA, San Pedro River NCA, and the Gila Box Riparian NCA. While these measures likely minimize the effect of otherwise adverse regional land use activities on the aquatic community, gartersnake populations in these areas remain in a precarious status.
The U.S. Forest Service does not include northern Mexican or narrow-headed gartersnakes on their Management Indicator Species List, but both species are included on the Regional Forester's Sensitive Species List (USFS 2007, pp. 38-39). This means they are considered in land management decisions, and protective measures can be implemented to minimize adverse effects of otherwise lawful activities. However we found no examples of specific protective measures that have been implemented for these species. Individual U.S. Forest Service biologists who work within the range of either northern Mexican or narrow-headed gartersnakes may opportunistically gather data for their records on gartersnakes observed incidentally in the field or coordinate with other collaborators on surveys, although it is not required. The Gila National Forest mentions the narrow-headed gartersnake in their land and resource management plan, which includes standards relating to forest management for the benefit of endangered and threatened species as identified through approved management and recovery plans (Center for Biological Diversity (CBD)
The New Mexico Department of Game and Fish lists the northern Mexican gartersnake as State-endangered and the narrow-headed gartersnake as State-threatened (NMDGF 2006, Appendix H). A species is State-endangered if it is in jeopardy of extinction or extirpation within the State; a species is State-threatened if it is likely to become endangered within the foreseeable future throughout all or a significant portion of its range in New Mexico (NMDGF 2006, p. 52). “Take,” defined as “to harass, hunt, capture or kill any wildlife or attempt to do so” by New Mexico Statutes Annotated (NMSA) 17-2-38.L., is prohibited without a scientific collecting permit issued by the New Mexico Department of Game and Fish as per NMSA 17-2-41.C and New Mexico Administrative Code (NMAC) 19.33.6. However, while the New Mexico Department of Game and Fish can issue monetary penalties for illegal take of either northern Mexican gartersnakes or narrow-headed gartersnakes, the same provisions are not in place for actions that result in loss or modification of their habitats (NMSA 17-2-41.C and NMAC 19.33.6) (Painter 2005).
Prior to 2005, the AGFD allowed for take of up to four northern Mexican or narrow-headed gartersnakes per person per year as specified in Commission Order 43. The AGFD defines “take” as “pursuing, shooting, hunting, fishing, trapping, killing, capturing, snaring, or netting wildlife or the placing or using any net or other device or trap in a manner that may result in the capturing or killing of wildlife.” The AGFD subsequently amended Commission Order 43, effective January 2005. Take of northern Mexican and narrow-headed gartersnakes is no longer permitted in Arizona without issuance of a scientific
Throughout Mexico, the Mexican gartersnake is listed at the species level of its taxonomy as “Amenazadas,” or Threatened, by the Secretaria de Medio Ambiente y Recursos Naturales (SEMARNAT) (SEDESOL 2010, p. 71). Threatened species are “those species, or populations of the same, likely to be in danger of disappearing in a short or medium timeframe, if the factors that negatively impact their viability, cause the deterioration or modification of their habitat or directly diminish the size of their populations continue to operate” (Secretaría de Desarrollo Social (SEDESOL) 2010, p. 5). This designation prohibits taking of the species, unless specifically permitted, as well as prohibits any activity that intentionally destroys or adversely modifies its habitat. Additionally, in 1988, the Mexican Government passed a regulation that is similar to the National Environmental Policy Act of the United States. This Mexican regulation requires an environmental assessment of private or government actions that may affect wildlife or their habitat (SEDESOL 1988 Ley General del Equilibrio Ecológico y la Protección al Ambiente (LGEEPA)).
The Mexican Federal agency known as the Instituto Nacional de Ecología (INE) is responsible for the analysis of the status and threats that pertain to species that are proposed for listing in the Norma Oficial Mexicana NOM-059 (the Mexican equivalent to an endangered and threatened species list), and, if appropriate, the nomination of species to the list. INE is generally considered the Mexican counterpart to the United States' Fish and Wildlife Service. INE developed the Method of Evaluation of the Risk of Extinction of the Wild Species in Mexico (MER), which unifies the criteria of decisions on the categories of risk and permits the use of specific information fundamental to listing decisions. The MER is based on four independent, quantitative criteria: (1) Size of the distribution of the taxon in Mexico; (2) state (quality) of the habitat with respect to natural development of the taxon; (3) intrinsic biological vulnerability of the taxon; and (4) impacts of human activity on the taxon. INE began to use the MER in 2006; therefore, all species previously listed in the NOM-059 were based solely on expert review and opinion in many cases. Specifically, until 2006, the listing process under INE consisted of a panel of scientific experts who convened as necessary for the purpose of defining and assessing the status and threats that affect Mexico's native species that are considered to be at risk, and applying those factors to the definitions of the various listing categories. In 1994, when the Mexican gartersnake was placed on the NOM-059 (SEDESOL 1994 (NOM-059-ECOL-1994), p. 46) as a threatened species, the decision was made by a panel of scientific experts.
Although the Mexican gartersnake is listed as a threatened species in Mexico and based on our experience collaborating with Mexico on trans-border conservation efforts, no recovery plan or other conservation planning occurs because of this status, and enforcement of the regulation protecting the gartersnake is sporadic, depending on available resources and location. Based upon the best available scientific and commercial information on the status of the species, and the historic and continuing threats to its habitat in Mexico, our analysis concludes that regulatory mechanisms enacted by the Mexican Government to conserve the northern Mexican gartersnake are not adequate to address threats to the species or its habitat.
In summary, we reviewed a number of existing regulations that potentially address issues affecting the northern Mexican and narrow-headed gartersnakes and their habitats. Mexican law prohibits take of the northern Mexican gartersnake and the intentional destruction or modification of northern Mexican gartersnake habitat. However that law has not led to a reduction in threats such that they no longer meet the definition of endangered or threatened under the Act. Furthermore, most existing regulations in the United States within the range of northern Mexican and narrow-headed gartersnakes were not specifically designed to protect the gartersnakes or their habitats, which is the overarching threat to the species. For example, Arizona and New Mexico both have statutes designed for protection of state-listed species that prohibit the direct collection of individuals. However neither state law is designed to provide protection of habitat and ecosystems. Therefore, these laws are not reducing threats to the species such that they no longer meet the definition of endangered or threatened under the Act.
Several conservation measures implemented by land and resource managers, private land owners, and other stakeholders can directly or indirectly benefit populations of northern Mexican and narrow-headed gartersnakes. For example, the AGFD's conservation and mitigation program (CAMP; implemented under an existing section 7 incidental take permit) has committed to either stocking (with captive-bred stock) or securing two populations each of northern Mexican and narrow-headed gartersnakes to help minimize adverse effects to these species from their sport fish stocking program through 2021 (USFWS 2011, Appendix C). Other CAMP commitments include: (1) Developing a gartersnake monitoring, research, and restocking plan to guide CAMP activities to establish or secure populations; (2) developing outreach material to reduce the deliberate killing or injuring of gartersnakes (placed in high angler access areas); (3) ensuring that chemically renovated streams are quickly restocked with native fish as gartersnake prey; (4) conducting a live bait assessment team to develop recommendations to amend live bait management; (5) reviewing and updating outreach programs on the risks to native aquatic species from the transport of nonnative aquatic species; (6) developing and implementing a public education program on gartersnakes; and (7) working with the New Mexico Department of Game and Fish to examine the roll of escaped rainbow trout from Luna Lake into tributaries to the San Francisco River in supporting narrow-headed gartersnakes. The programs' management strategy is encapsulated in AGFD (2014a, entire) and progress on activities through June 2013 is reported in AGFD (2012c, pp. 26-30; 2013b, pp. 37-44).
Significant challenges will have to be met for creating or securing two populations each of northern Mexican or narrow-headed gartersnakes. Captive propagation, if used to create stock for reintroductions, has only been possible for northern Mexican gartersnakes. Specifically, after approximately 6 years of experimentation with captive propagation at five institutions, using two colonies of northern Mexican
To protect habitat for candidate, threatened, and endangered species, including northern Mexican gartersnakes in the Agua Fria subbasin, the AGFD purchased the approximate 200-acre (81-ha) Horseshoe Ranch along the Agua Fria River located near the Bloody Basin Road crossing, east of Interstate 17 and southeast of Cordes Junction, Arizona. The AGFD plans (presumably in the next 5-10 years) to introduce northern Mexican gartersnakes, as well as lowland leopard frogs and native fish species, into a large pond, protected by bullfrog exclusion fencing, located adjacent to the Agua Fria River. The bullfrog exclusion fencing around the pond will permit the dispersal of northern Mexican gartersnakes and lowland leopard frogs from the pond, allowing the pond to act as a source population to the Agua Fria River. The AGFD's short- to mid-term conservation planning for Horseshoe Ranch will help ensure the northern Mexican gartersnake persists in this historical locality.
In 2007, the New Mexico Department of Game and Fish completed a recovery plan for narrow-headed gartersnakes in New Mexico (Pierce 2007, pp. 13-15) that included the following management objectives: (1) Researching the effect of known threats to, and natural history of, the species; (2) acquiring funding sources for research, monitoring, and management; (3) enhancing education and outreach; and (4) managing against known threats to the species. Implementation of the recovery plan was to occur between the second half of 2007 through 2011, and was divided into three main categories: (1) Improve and maintain knowledge of potential threats to the narrow-headed gartersnake; (2) improve and maintain knowledge of the biology of the narrow-headed gartersnake; and (3) develop and maintain high levels of cooperation and coordination between stakeholders and interested parties (Pierce 2007, pp. 16-17). Our review of the plan found that it lacked specific threat-mitigation commitments on the landscape, as well as stakeholder accountability for implementing activities prescribed in the plan. We also found that actions calling for targeted nonnative species removal or management were absent in the implementation schedule provided in Pierce (2007, p. 17). As we have discussed at length, harmful nonnative species are the primary driver of continued declines in both gartersnake species. No recovery plan, conservation plan, or conservation agreement currently exists in New Mexico with regard to the northern Mexican gartersnake (NMDGF 2006, Table 6-3).
In Arizona's State Wildlife Action Plan 2012-2022 (SWAP) (AGFD 2012b, Appendix E), both the northern Mexican and narrow-headed gartersnake are Tier 1A Species of Greatest Conservation Need (SGCN). SGCN include those “species that each State identified as most in need of conservation actions” and Tier 1A species include “those species for which the Department has entered into an agreement or has legal or other contractual obligations, or warrants the protection of a closed season” (AGFD 2012b, p. 16). The SWAP is not a regulatory document, and does not provide any specific protections for either the gartersnakes themselves, or their habitats. The AGFD does not have specified or mandated recovery goals for either the northern Mexican or narrow-headed gartersnake, nor has a conservation agreement or recovery plan been developed for either species.
Indirect benefits for both gartersnake species occur through recovery actions designed for their prey species. Since the Chiricahua leopard frog was listed as threatened under the Act, significant strides have been made in its recovery, and the mitigation of its known threats. The northern Mexican gartersnake, in particular, has likely benefitted from these actions, at least in some areas, such as at the Las Cienegas Natural Conservation Area and in Scotia Canyon of the Huachuca Mountains. However, much of the recovery of the Chiricahua leopard frog has occurred in areas that have not directly benefitted the northern Mexican gartersnake, either because these activities have occurred outside the known distribution of the northern Mexican gartersnake or because they have occurred in isolated lentic systems that are far removed from large perennial streams that typically provide source populations of northern Mexican gartersnakes. In recent years, significant strides have been made in controlling bullfrogs on local landscape levels in Arizona, such as in the Scotia Canyon area, in the Las Cienegas National Conservation Area, on the BANWR, and in the vicinity of Pena Blanca Lake in the Pajarito Mountains. Recent efforts to return the Las Cienegas National Conservation Area to a wholly native biological community have involved bullfrog eradication efforts, as well as efforts to recover the Chiricahua leopard frog and native fish species. These actions should assist in conserving the northern Mexican gartersnake population in this area. Bullfrog control has been shown to be most effective in simple, lentic systems such as stock tanks. Therefore, we encourage livestock managers to work with resource managers in the systematic eradication of bullfrogs from stock tanks where they occur, or at a minimum, ensure they are never introduced.
An emphasis on native fish recovery in fisheries management and enhanced harmful nonnative species control to favor native communities may be the single most efficient and effective manner to recover these gartersnakes, in addition to appropriate management for all listed or sensitive native fish and amphibian species upon which they prey. Alternatively, resource management policies that are intended to directly benefit or maintain harmful nonnative communities, and which will likely exclude native species, will significantly reduce the potential for the conservation and recovery of northern Mexican and narrow-headed gartersnakes, in those areas where they overlap with habitat occupied by either gartersnake.
Fisheries managers strive to balance the needs of the recreational angling community against those required by native aquatic communities. Fisheries management has direct implications for the conservation and recovery of northern Mexican and narrow-headed gartersnakes in the United States. Clarkson
To help resolve the fundamental conflict of management between native fish and recreational sport fisheries, Clarkson
Due to the relative scarcity of perennial streams in arid regions such as Arizona, several of Arizona's large perennial rivers present an array of existing sport fishing opportunities and angler access points, and already contain harmful nonnative fish species that are considered sport fish. We anticipate that these rivers may be preferred as nonnative fisheries under the watershed designation process. Another significant and confounding factor is the AGFD's “no net loss” policy that addresses sport fishery resources statewide. There is no official written AGFD Commission guidance on “no net loss” according to AGFD (2009, Appendix D), but “Commission policy DOM [Arizona Game Fish Department Operating Manual] A2.24, Wildlife Management Program Goal and Objective #6 states, ‘provide and promote fishing opportunities to sustain a minimum of 8,000,000 AUD per year by June 30, 1997.’ Although this policy has yet to be revised by the Commission, based on current data, we remain below 8,000,000 AUD's statewide (AGFD 2009, Appendix D). As such, it was determined the Department's goal to manage for no net loss is consistent with current Commission policy (A2.24). The “no net loss” policy is a guiding tenet, and its implementation is directed as follows (AGFD 2009, Appendix D):
“When a sport fishery is valued less than a native aquatic conservation value within a management unit, the loss of sport fishing opportunity will be compensated for by gain of an equal number of AUDs in another area or management unit. This opportunity will be created within the same watershed when possible. For this purpose, a watershed is defined as a six-digit-numbered area referenced on the USGS's Hydrological Unit Map. If this is not possible, the opportunity will be created within the same Department regional boundaries. Again, if this is not possible, the opportunity will be created somewhere within the State with extensive coordination between regional staff. If a net loss cannot be avoided, the Director will evaluate if the loss is acceptable by gauging the input from the public process leading to the recommendation and may take the information to the Commission at his discretion. The replacement opportunity will be initiated no more than two years following the loss to anglers.”
Extensive coordination between AGFD and the Service will be required under the no net loss policy with regard to gartersnake conservation and recovery because the amount of suitable riparian and aquatic habitat is finite, yet, somehow, the existing opportunity for AUD must be maintained. This increases the uncertainty for the persistence of existing gartersnake populations in Arizona.
Large perennial rivers that serve as sport fisheries also currently serve as important habitat for northern Mexican or narrow-headed gartersnake. If designated for sportfishing, fisheries management of these rivers would likely include the maintenance of predatory sport fish species, which would likely diminish the recovery potential for gartersnakes in these areas, and, perhaps, even result in the local extirpations of populations of northern Mexican and narrow-headed gartersnakes. Alternatively, subbasins that are targeted for wholly native species assemblages would likely secure the persistence of northern Mexican and narrow-headed gartersnakes that occur there, if not result in their complete recovery in these areas. Specific subbasins where targeted fisheries management is to occur were not provided in AGFD (2012b), but depending on which areas are chosen for each management emphasis, the potential for future conservation and recovery of northern Mexican and narrow-headed gartersnakes could either be significantly bolstered, or significantly hampered. Close coordination with the AGFD on the delineation of fisheries management priorities in Arizona's subbasins will be instrumental to ensuring that conservation and recovery of northern Mexican and narrow-headed gartersnakes can occur.
Conservation of these gartersnakes has been implemented in the scientific and management communities as well. The AGFD recently produced identification cards for distribution that provide information to assist field professionals with the identification of each of Arizona's five native gartersnake species, as well as guidance on submitting photographic vouchers for university museum collections. Arizona State University and the University of Arizona now accept photographic vouchers in lieu of physical specimens, in their respective museum collections. These measures appreciably reduce the necessity for physical specimens (unless discovered postmortem) for locality voucher purposes and, therefore, further reduce impacts to vulnerable populations of northern Mexican or narrow-headed gartersnakes.
Despite these collective conservation efforts we have described above, northern Mexican and narrow-headed gartersnakes have continued to decline throughout their ranges due to past, current, and future threats that have not been addressed through conservation efforts.
Based on information provided during the comment period by the general public, tribes, states, and peer reviewers, we updated the information contained in the proposed rule for incorporation into this final rule. In addition, new references were obtained,
In the proposed rule published on July 10, 2013 (78 FR 41500), we requested that all interested parties submit written comments on the proposal by September 9, 2013. We also contacted appropriate Federal, State, and Tribal agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. Newspaper notices inviting general public comment were published in the Verde Valley Independent, Camp Verde Bugle, Arizona Daily Star, and the Silver City Sun News. We received a request for a public hearing from the Hereford Natural Resource Conservation District who later withdrew their request.
Our summary responses to the substantive comments we received on the proposed listing rules and proposed 4(d) rule are provided below. Comments simply providing support for or opposition to the proposed rule, without any supporting information, were not considered to be substantive and we do not provide a response.
In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinion from eight knowledgeable individuals with scientific expertise that included familiarity with northern Mexican and narrow-headed gartersnakes and their habitat, biological needs, and threats. We received responses from five of the peer reviewers.
We reviewed all comments received from the peer reviewers for substantive issues and new information regarding the listing of northern Mexican and narrow-headed gartersnakes. All peer reviewers shared the opinion that a thorough examination of all available information was conducted in support of listing these gartersnakes. Peer reviewers also commented that the quality of the information presented in the proposed rule was very high and the analyses were thorough. There were concerns expressed regarding whether listing these gartersnakes as threatened would interfere with ongoing recovery actions for listed fish species where they co-occur. Another concern was based on how threats affecting these gartersnakes were prioritized in their scope and magnitude in the proposed rule. In general, peer reviewers generally concurred with our methods and conclusions and provided additional information, clarifications, and suggestions to improve the final rule. Peer reviewer comments are addressed in the following summary and incorporated into the final rule as appropriate.
There are significant challenges with salvaging gartersnakes for long-term captivity. First, facilities with the space, equipment, and knowledge to care for larger numbers of gartersnakes for long periods of time are very few, and currently those that are capable, are nearly at full capacity because of their involvement with captive breeding efforts. Second, narrow-headed gartersnakes have proven to be difficult to maintain in captivity due to their unique physiological and prey requirements. Lastly, it may prove difficult if not impossible to salvage gartersnakes from low-density populations within complex habitat and therefore the risk of their complete extirpation from a renovation activity is elevated. In the event an isolated population is extirpated, the risk of forever losing their unique genetic lineage is also elevated and unacceptable.
We are confident that the discussion in the proposed and final rules attributed to the potential threats to these gartersnakes from the implementation of fishery management activities is objective, thoroughly referenced, and balanced. We agree that other human-caused threats can pose comparably greater risks to gartersnakes. But, we disagree with the notion that incidental fatality from herpetological surveys are potentially more significant than activities that eliminate an entire suite of prey species from habitat occupied by gartersnakes. We also stress that listing these two gartersnakes should not be construed as an obstacle to native fish recovery under any circumstances. Rather, the recovery of these gartersnakes is inextricably and ecologically linked to native fish recovery.
I would like to see a more robust consideration, including citations beyond March and Pacey (2005), of the importance of the loss of habitat in native fish declines relative to harmful nonnative species. It is my understanding that many species of native fish rely on seasonal flooding to induce spawning.
Additionally, the process of designating critical habitat requires us to create a rule set for determining whether the species is present or not in each historic locality, therefore, a category called “Unknown” is not appropriate. Appendix A provides background information that contributed to our site-by-site determinations of population status.
Regarding whether the northern Mexican gartersnake ever existed in the Río Colorado in Sonora, there are two verified records from the Colorado River at Yuma from 1889 and 1890. We assume the species also occurred downstream into Mexico where suitable
A number of existing regulations potentially address issues affecting the northern Mexican and narrow-headed gartersnakes and their habitats. However, existing regulations within the range of northern Mexican and narrow-headed gartersnakes typically address only the direct take of individuals without a permit and provide little, if any, protection of gartersnake habitat. Arizona and New Mexico statutes do not provide protection of habitat and ecosystems. Legislation in Mexico prohibits intentional destruction or modification of northern Mexican gartersnake habitat, but neither that, nor prohibitions of take, appear to be adequate to address ongoing threats. See “The Inadequacy of Existing Regulatory Mechanisms” in the proposed rule for further information.
In recent years, there has been a concerted management effort on the BANWR to recover the Chiricahua leopard frog in an array of tanks and their associated drainages, all of which have been designated as critical habitat for the Chiricahua leopard frog. As a result, it is likely that any northern Mexican gartersnakes that successfully immigrate into the central tanks area of the BANWR have an increased chance of persistence because of improved available habitat and a stable prey base in an area that is likely free of nonnative predators. We also expect that dispersing Chiricahua leopard frogs might help sustain a low-density population of northern Mexican gartersnakes on the refuge. We consider the northern Mexican gartersnake to be extant as a low-density population on the BANWR based on historical and recent records and the abundance of available, suitable habitat and prey populations in the vicinity of the most recent record. Appendix A contains additional details on the status of the northern Mexican gartersnake at this and other refuges.
Northern Mexican gartersnakes have never been documented in Whitewater
Statements regarding the effect of Roosevelt Lake on gartersnake populations in Tonto Creek and the upper Salt River lack any scientific or technical basis and should be removed from the final rule. Other than referencing a biological opinion (USFWS 2008, pp. 112-131), the proposed rule provides no basis for the assertion that harmful nonnative fish are moving upstream out of Roosevelt Lake into Tonto Creek or the Salt River. Since the biological opinion in 2008, monitoring conducted under the Horseshoe-Bartlett Habitat Conservation Plan has been implemented to document the movement of nonnative fish upstream of the Horseshoe Reservoir into the Verde River, and reaches of the Verde River have been sampled, and to date no evidence of fish movement has been detected.
We are not aware of any analysis afforded specifically to the potential benefits of Roosevelt Dam operations to the sustainment or production of harmful nonnative fish populations in Roosevelt Lake, Tonto Creek, or the Salt River, upstream of Roosevelt Dam. The exhaustive analysis of these effects as they are attributed to similarly sized dams and reservoirs on the Verde River system referenced immediately above represent the most applicable, current, and robust analyses to date. We do note that Roosevelt Lake does not fluctuate as much as does Horseshoe Reservoir on the Verde River and, therefore, most likely provides greater benefits to the resident harmful nonnative fish community. With respect to fish sampling data from the implementation of the Horseshoe and Bartlett HCP, sampling events do not occur during the most appropriate time to capture movement of fish out of the reservoir (during periods of rapid drawdown or during drawdown after periods of prolonged storage) and thus may not adequately capture these relationships. Additionally, more fish have to be marked in the reservoir to create better opportunities for their discovery elsewhere in the watershed. Lastly, recent northern Mexican gartersnake records have been reported immediately upstream, if not adjacent to, Roosevelt Lake, which affirms that adverse effects from harmful nonnative species that occur in Roosevelt Lake present a demonstrable threat to that population of northern Mexican gartersnakes.
Section 7(a)(1) of the Act requires that all Federal agencies shall utilize their authorities in furtherance of the purposes of the Act by carrying out programs for the conservation of endangered and threatened species. Section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into formal consultation with us. Lastly, while we acknowledge in the proposed and final rules that large wildfires can have significant adverse effects on gartersnake populations and their prey base (in particular for narrow-headed gartersnakes), the literature is clear that harmful nonnative species pose the most significant threat to both species, rangewide, through a variety of ecological mechanisms.
We may issue permits to carry out otherwise prohibited activities involving endangered and threatened wildlife species under certain
It is our policy, as published in the
Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations at 50 CFR part 424, set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of the Act, we may list a species based on (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) Overutilization for commercial, recreational, scientific, or educational purposes; (C) Disease or predation; (D) The inadequacy of existing regulatory mechanisms; or (E) Other natural or manmade factors affecting its continued existence. Listing actions may be warranted based on any of the above threat factors, singly or in combination.
Until recently the Service has presented its evaluation of information under the five listing factors in an outline format, discussing all of the information relevant to any given factor and providing a factor-specific conclusion before moving to the next factor. However, the Act does not require findings under each of the factors, only an overall determination as to the species' status (for example, threatened, endangered, or not warranted). Ongoing efforts to improve the efficiency and efficacy of the Service's implementation of the Act have led us to present this information in a different format that we believe leads to greater clarity in our understanding of the science, its uncertainties, and our application of our statutory framework to that science. Therefore, while the presentation of information in this rule differs from past practice, it differs in format only. We have evaluated the same body of information we would have evaluated under the five listing factors outline format in the past, we are applying the same information standard, and we are applying the same statutory framework in reaching our conclusions.
The Act defines an endangered species as any species (or subspecies) that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species as any species “that is likely to become endangered throughout all or a significant portion of its range within the foreseeable future.” We have carefully assessed the best scientific and commercial information available regarding the status of the northern Mexican gartersnake and have determined that this subspecies meets the definition of a threatened subspecies under the Act based on its current status and the future threats to the subspecies.
We find that the northern Mexican gartersnake is not currently in danger of extinction because it remains extant in most of the subbasins where it historically occurred, and its known threats have not yet resulted in substantial range reduction or a substantial number of population extirpations to put the subspecies on the brink of extinction. Currently, only 6 former United States populations were found to be likely extirpated, and 29 populations are believed to remain extant. Therefore, we determined that the present risk of extinction is not
However, the northern Mexican gartersnake has undergone declines in its abundance, and we found only 5 of 29 current populations in the United States are likely viable into the foreseeable future, or what we consider to be the next several decades. While we are not able to quantify the status of all populations in Mexico, based on the threats and the declining status of aquatic communities there, we assume a similar status in the Mexican portion of its range. We expect the status of the subspecies will decline in the next several decades mainly as a result of the continuing and expanding impacts of harmful nonnative species and the increasing nature of threats associated with human population growth and climate change. As the effects of these threats escalate on the landscape (as summarized below), we expect that additional populations will be extirpated, and that the northern Mexican gartersnake will be in danger of extinction in the foreseeable future.
In our review of the best available scientific and commercial information, we found that aquatic ecosystems upon which the northern Mexican gartersnake relies have been significantly degraded by the introduction and proliferation of harmful nonnative species (Factors C and E). Harmful nonnative species (mainly predatory fishes, bullfrogs, and crayfish) have been intentionally released or have naturally moved into nearly every subbasin throughout the range of the northern Mexican gartersnake. This has resulted in widespread declines in native fish and amphibian communities, which are integral to the continued survival of the northern Mexican gartersnake because they serve as their primary food source. Harmful nonnative species have indirectly impacted northern Mexican gartersnakes by predation on their prey base (native fish and amphibians) and have directly impacted them through preying on young gartersnakes (Factor B), which impacts gartersnake populations through declines in the recruitment of young snakes into the reproductive age class. In combination, these factors have resulted in population declines, range restrictions within subbasins, and some population extirpations. We found the threat related to harmful nonnative species to be the most significant and pervasive of all threats affecting the subspecies.
Additional threats to the habitat of northern Mexican gartersnakes include water use activities, climate change, and drought (Factor A). Dams, water diversions, flood-control projects, and groundwater pumping have dewatered entire reaches of historically occupied habitat in some areas. The rapidly growing human population in the arid southwestern United States, combined with a drought-limited supply of surface water, will further increase future needs for water supplies and associated infrastructure (dams, diversions, and groundwater pumping) that will also contribute to habitat losses in the next several decades. Losses of aquatic habitats are also expected due to the impacts of climate change, which includes increased aridity, lower annual precipitation totals, lower snow pack levels, higher variability in flows (lower low-flows and higher high-flows) in the southwestern United States and northern Mexico. The population-level effect of factors that modify or destroy the physical attributes of gartersnake habitat is amplified when they act in the presence of harmful nonnative species.
Other factors act in combination to negatively affect the northern Mexican gartersnake, including mismanaged or unmanaged livestock grazing (Mexico; Factor A); road construction, use, and maintenance (Factor A); adverse human interactions (Factor E); environmental contaminants (Factor A); erosion control techniques (Factor A); and possible competitive pressures from sympatric species (Factor E). These threats occur within the distribution of this gartersnake and contribute to further population declines or extirpations where gartersnakes already occur at low population densities due to the impacts of harmful nonnative species. The existing regulatory mechanisms currently in place (Factor D) do not target the conservation of this subspecies or its habitat in the United States or Mexico.
Therefore, on the basis of the best available scientific and commercial information, we find the northern Mexican gartersnake is likely to become in danger of extinction throughout all of its range within the foreseeable future, and we are listing the northern Mexican gartersnake as a threatened subspecies in accordance with sections 3(20) and 4(a)(1) of the Act.
The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species as any species “that is likely to become endangered throughout all or a significant portion of its range within the foreseeable future.” We have carefully assessed the best scientific and commercial information available regarding the status of the narrow-headed gartersnake and have determined that this species meets the definition of a threatened subspecies under the Act based on its current status and the future threats to the species.
We find that the narrow-headed gartersnake is not currently in danger of extinction because it remains extant in most of the subbasins where it historically occurred, and its known threats have not yet resulted in substantial range reduction or a substantial number of population extirpations to put the species on the brink of extinction. Currently, only 5 former populations were found to be likely extirpated, and 36 populations are believed to remain extant. Therefore, we determined that the present risk of extinction is not sufficient to warrant a finding of endangered under the Act.
However, the narrow-headed gartersnake has undergone declines in its abundance, and we found only 5 of 36 current populations are likely viable into the foreseeable future, or what we consider to be the next several decades. We expect the status of the species will decline in the next several decades mainly as a result of the continuing and expanding impacts of harmful nonnative species and the increasing nature of threats associated with human population growth and climate change. As the effects of these threats escalate on the landscape (as summarized below), we expect that additional populations will be extirpated, and that the narrow-headed gartersnake will be in danger of extinction in the foreseeable future.
In our review of the best available scientific and commercial information, we found that native fish communities, upon which the narrow-headed gartersnake relies heavily, have been significantly degraded by the introduction and proliferation of harmful nonnative species (Factors C and E). Harmful nonnative species (mainly predatory fishes, bullfrogs, and crayfish) have been intentionally released or have naturally moved into nearly every subbasin throughout the range of the narrow-headed gartersnake. This has resulted in widespread declines in native fish communities, which are integral to the continued survival of the narrow-headed gartersnake because they serve as their primary food source. Harmful nonnative species have indirectly impacted narrow-headed gartersnakes by predation on their prey base (native fish) and have directly impacted them through preying on young gartersnakes (Factor B), which impacts gartersnake populations through the decline in
Additional threats to the habitat of narrow-headed gartersnakes include water use activities, climate change, and wildfires (Factor A). Dams, water diversions, flood-control projects, and groundwater pumping have dewatered entire reaches of historically occupied habitat in some areas. The rapidly growing human population in the arid southwestern United States, combined with a drought-limited supply of surface water, will further increase future needs for water supplies and associated infrastructure (dams, diversions, and groundwater pumping) that will also contribute to habitat losses in the next several decades. Losses of aquatic habitats are also expected due to the impacts of climate change, which includes increased aridity, lower annual precipitation totals, lower snow pack levels, higher variability in flows (lower low-flows and higher high-flows), and enhanced stress on ponderosa pine communities in the southwestern United States. Wildfires in the arid southwestern United States have grown more frequent and severe, due in part to the fire management policies of past decades. High-intensity wildfires that affect large areas contribute to significant flooding and sedimentation, resulting in fish kills and the filling-in of interstitial spaces in river cobble, which the species uses for hunting fish), as well as important pool habitat. These impacts negatively affect the fish and amphibian prey base for narrow-headed gartersnakes for extended periods of time. The frequency and intensity of large wildfires is likely to increase in the foreseeable future as an indirect effect of drier and hotter landscape conditions associated with climate change. The population-level effect of factors that modify or destroy the physical attributes of gartersnake habitat is amplified when they act in the presence of harmful nonnative species.
Other factors act in combination to negatively affect the narrow-headed gartersnake, including road construction, use, and maintenance (Factor A); adverse human interactions (Factor E); environmental contaminants (Factor A); and erosion control techniques (Factor A). These threats occur within the distribution of this gartersnake and contribute to further population declines or extirpations where gartersnakes already occur at low population densities due to the impacts of harmful nonnative species. The existing regulatory mechanisms currently in place (Factor D) do not target the conservation of this species or its habitat.
Therefore, on the basis of the best available scientific and commercial information, we find the narrow-headed gartersnake is likely to become in danger of extinction throughout all of its range within the foreseeable future, and we are listing the narrow-headed gartersnake as a threatened species in accordance with sections 3(20) and 4(a)(1) of the Act.
Conservation measures provided to species listed as endangered or threatened under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness and conservation by Federal, State, Tribal, and local agencies, private organizations, and individuals. The Act encourages cooperation with the States and requires that recovery actions be carried out for all listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Subsection 4(f) of the Act requires the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.
Recovery planning includes the development of a recovery outline shortly after a species is listed, preparation of a draft and final recovery plan, and revisions to the plan as significant new information becomes available. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. The recovery plan identifies site-specific management actions that will achieve recovery of the species, measurable criteria that determine when a species may be downlisted or delisted, and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (composed of species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) are often established to develop recovery plans. When completed, the recovery outline, draft recovery plan, and the final recovery plan will be available on our Web site (
Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribal, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration (e.g., restoration of native vegetation), research, captive propagation and reintroduction, and outreach and education. The recovery of many listed species cannot be accomplished solely on Federal lands because their range may occur primarily or solely on non-Federal lands. To achieve recovery of these species requires cooperative conservation efforts on private, State, and Tribal lands.
Following publication of this final listing rule, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost-share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, under section 6 of the Act, the States of Arizona and New Mexico would be eligible for Federal funds to implement management actions that promote the protection and recovery of the northern Mexican and narrow-headed gartersnakes. Information on our grant programs that are available to aid species recovery can be found at:
Please let us know if you are interested in participating in recovery efforts for these species. Additionally, we invite you to submit any new information on these species whenever it becomes available and any information you may have for recovery planning purposes (see
Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as endangered or
Federal agency actions within the species' habitats that may require conference or consultation or both as described in the preceding paragraph include management and any other landscape-altering activities on Federal lands administered by the Fish and Wildlife Service, U.S. Bureau of Reclamation, or U.S. Forest Service; issuance of section 404 Clean Water Act permits by the U.S. Army Corps of Engineers; construction and management of gas pipeline and power line rights-of-way by the Federal Energy Regulatory Commission; construction and maintenance of roads or highways by the Federal Highway Administration; and other discretionary actions that affect the species composition of biotic communities where these species or their habitats occur, such as funding or permitting programs that result in the continued stocking of nonnative, predatory fish.
The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to all endangered wildlife. The prohibitions of section 9(a)(2) of the Act, codified at 50 CFR 17.21 for endangered wildlife, in part, make it illegal for any person subject to the jurisdiction of the United States to take (includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these), import, export, ship in interstate commerce in the course of commercial activity, or sell or offer for sale in interstate or foreign commerce any listed species. Under the Lacey Act (18 U.S.C. 42-43; 16 U.S.C. 3371-3378), it is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to agents of the Service and State conservation agencies. The prohibitions of section 9(a)(2) of the Act, codified at 50 CFR 17.31 for threatened wildlife, make it such that all the provisions of 50 CFR 17.21 apply, except § 17.21(c)(5).
We may issue permits to carry out otherwise prohibited activities involving endangered and threatened wildlife species under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22 for endangered species, and at § 17.32 for threatened species. A permit must be issued for the following purposes: For scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities.
It is our policy, as published in the
(1) Unauthorized collecting, handling, possessing, selling, delivering, carrying, or transporting of the species, including import or export across State lines and international boundaries, except for properly documented antique specimens of these taxa at least 100 years old, as defined by section 10(h)(1) of the Act;
(2) The unauthorized introduction of harmful nonnative species that compete with or prey upon northern Mexican and narrow-headed gartersnakes or their prey species, such as the stocking of nonnative, predatory fish, or illegal transport, use, or release of bullfrogs or crayfish in the States of Arizona and New Mexico;
(3) The unauthorized release of biological control agents that attack any age class of northern Mexican and narrow-headed gartersnakes or any life stage of their prey species;
(4) Unauthorized modification of the channel, reduction or elimination of water flow of any stream or water body, or the complete removal or significant destruction of riparian vegetation associated with occupied northern Mexican or narrow-headed gartersnake habitat; and
(5) Unauthorized discharge of chemicals or fill material into any waters in which northern Mexican and narrow-headed gartersnakes are known to occur.
Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Arizona Ecological Services Field Office (see
The Act does not specify particular prohibitions, or exceptions to those prohibitions, for threatened species. Instead, under section 4(d) of the Act, the Secretary of the Interior has the discretion to issue such regulations as she deems necessary and advisable to provide for the conservation of such species. The Secretary also has the discretion to prohibit by regulation with respect to any threatened species, any act prohibited under section 9(a)(1) of the Act. Exercising this discretion, the Service developed general prohibitions (50 CFR 17.31) and exceptions to those prohibitions (50 CFR 17.32) under the Act that apply to most threatened species. Alternately, for other threatened species, the Service may develop specific prohibitions and exceptions that are tailored to the specific conservation needs of the species. In such cases, some of the prohibitions and authorizations under 50 CFR 17.31 and 17.32 may be appropriate for the species and incorporated into a rule under section 4(d) of the Act. However, these rules, known as 4(d) rules, will also include provisions that are tailored to the specific conservation needs of the threatened species and may be more or less restrictive than the general provisions at 50 CFR 17.31.
Under section 4(d) of the Act, the Secretary may promulgate a special rule that modifies the standard protections for threatened species with measures tailored to the conservation of the species that are determined to be necessary and advisable. Under this 4(d) rule, all of the prohibitions under 50 CFR 17.31 and 17.32 will apply to the northern Mexican gartersnake, except as discussed below. The 4(d) rule will not remove or alter in any way the consultation requirements under section 7 of the Act.
The creation, use, and maintenance of stock tanks are important components of livestock grazing in the southwestern United States. A stock tank (or livestock tank) is defined as an existing or future impoundment in an ephemeral drainage or upland site (as opposed to an active stream channel) constructed primarily as a watering site for livestock. Well-managed stock tanks can provide important habitats for northern Mexican gartersnakes and their prey base, especially when the tank: (1) Remains devoid of harmful nonnative species while supporting native prey species; (2) provides adequate vegetation cover for predator aversion and prey base support; and (3) provides reliable water sources in periods of prolonged drought. However, to create or maintain these physical attributes of well-managed tanks, management and maintenance can be necessary, which may have temporary negative effects to these habitat attributes, but also long-term beneficial effects to wildlife, including the northern Mexican gartersnake and its prey. Therefore, the management of stock tanks is an important consideration for northern Mexican gartersnakes.
The 4(d) rule allows for use of stock tanks by livestock and construction, continued use, and maintenance of those stock tanks. Stock tanks provide habitat for northern Mexican gartersnakes, and thus their presence within the gartersnake's range provides a conservation benefit to the species. This 4(d) rule allows landowners to construct new stock tanks and to continue to use and maintain those stock tanks on non-Federal lands without the need for Federal permitting or oversight regarding compliance with the Act.
This provision may result in some harm or disturbance of individual northern Mexican gartersnakes as a result of livestock or human activities at the stock tanks; however, the level of disturbance is expected to be minimal and outweighed by the benefit to the species from the presence of these habitats that are provided by stock tanks.
Given the benefits of well-managed stock tanks, the presence of well-managed stock tanks are an important component to northern Mexican gartersnake conservation and recovery. This stock tank provision in the 4(d) rule allows for construction, continued use, and maintenance of stock tanks on non-Federal lands, and, therefore, because of the benefits associated with the habitat provided by well-managed stock tanks, the 4(d) rule is necessary and advisable for the conservation of the northern Mexican gartersnake.
Nothing in this 4(d) rule changes in any way the recovery planning provisions of section 4(f) and consultation requirements under section 7 of the Act or the ability of the Service to enter into partnerships for the management and protection of the northern Mexican gartersnake. Livestock use and maintenance of stock tanks on Federal lands will be addressed through the section 7 consultation process; this 4(d) rule applies only to non-Federal lands.
Section 4(d) of the Act states that “the Secretary shall issue such regulations as she deems necessary and advisable to provide for the conservation” of species listed as a threatened species. Conservation is defined in the Act to mean “to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to (the Act) are no longer necessary.” Additionally, section 4(d) states that the Secretary “may by regulation prohibit with respect to any threatened species any act prohibited under section 9(a)(1).”
The courts have recognized the extent of the Secretary's discretion under this standard to develop rules that are appropriate for the conservation of a species. For example, the Secretary may find that it is necessary and advisable not to include a taking prohibition, or to include a limited taking prohibition. See
Section 9 prohibitions make it illegal for any person subject to the jurisdiction of the United States to take (including harass, harm, pursue, shoot, wound, kill, trap, capture, or collect; or attempt any of these), import or export, ship in interstate commerce in the course of commercial activity, or sell or offer for sale in interstate or foreign commerce any wildlife species listed as an endangered species, without written authorization. It also is illegal under section 9(a)(1) of the Act to possess, sell, deliver, carry, transport, or ship any such wildlife that is taken illegally. Prohibited actions consistent with section 9 of the Act are outlined for threatened species in 50 CFR 17.31(a) and (b). This 4(d) rule applies all of the prohibitions in 50 CFR 17.31(a) and (b) to the northern Mexican gartersnake, except activities on non-Federal lands that are incidental to construction, continued use, and maintenance of stock tanks. Based on the rationale explained above, the provisions included in this 4(d) rule are expected to contribute to the conservation of the northern Mexican gartersnake and are, therefore, necessary and advisable to provide for the conservation of the northern Mexican gartersnake.
We have determined that environmental assessments and environmental impact statements, as defined under the authority of NEPA, need not be prepared in connection with listing a species as an endangered or threatened species under the Act. We published a notice outlining our reasons for this determination in the
In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility
Native American tribes potentially affected by the listing of these two gartersnakes include the San Carlos Apache Tribe, White Mountain Apache Tribe, and Yavapai Apache Tribe. On March 12, 2013, we mailed correspondence to these three tribes to request to meet with each tribe to discuss our listing recommendations for the gartersnakes. We met with representatives of the San Carlos Apache Tribe on May 1, 2013, and no concerns regarding the proposed listings were noted. We held a government-to-government meeting with the White Mountain Apache Tribe on September 27, 2013, to discuss the gartersnake listing recommendations, and we agreed to review their Native Fish Management Plan for conservation benefit to proposed and listed aquatic vertebrate species that occur on their lands. We provided comments on that plan during a conference call discussion on December 16, 2013. The Yavapai Apache Tribe did not have any comments on the proposed gartersnake listings.
A complete list of references cited in this rulemaking is available on the Internet at
The primary authors of this final rule are the staff members of the Arizona Ecological Services Field Office.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as follows:
16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless otherwise noted.
(h) * * *
(g) Northern Mexican gartersnake
(2)